Antitrust and Trade Regulation Commons^™

Precedent-Based Antitrust Law, Anca Daniela Chirita

William & Mary Business Law Review

This contribution revisits the authentic origins of antitrust law and the U.K.’s legacy of EU precedent rulings, spanning an eclectic and holistic analysis of the wider contemporary objectives of antitrust law, the versatile doctrine of vertical restraints of trade applied in the context of the online resale price maintenance, and the abuse theory of monopoly power applied in the context of excessive pricing and, more recently, of data-driven digital market competition. This contribution offers an original legal interpretation of precedent-based antitrust law: First, sustaining as principal narrative streams of evolutionary development, the rise of authentic precedent, which has had a …

Playing The Hermès Game: Quota Bags, Antitrust Law, And The Limits Of Consumer Protection In Luxury Markets, Madeleine Chou

William & Mary Business Law Review

Luxury fashion retail has become a behemoth of an industry. Through acquisitions and strong brand recognition, some brands have developed significant market power in the luxury retail space. Chief among these brands is Hermès, a luxury leather retail boutique known for its highly sought after quota bags, like the Birkin and the Kelly. Quota bags are handbags that can generally only be bought by customers who have developed a substantial purchase history and relationship with the brand. Through this sales model, Hermès has created what plaintiffs have alleged to be an antitrust tying scheme, in which the purchase of one …

When Antitrust Meets Labour: Exemption And Enforcement Under Article 101 Tfeu, Giulia Mangiafico

Yearbook of Antitrust and Regulatory Studies

Labour rights protection has recently emerged as one of the key objectives of antitrust law, alongside sustainability and privacy. The application and enforcement of competition rules differ significantly between the workers’ and employers’ sides of the market, a distinction that is particularly visible in cases concerning remuneration. Wage-setting may fall within the scope of Article 101 TFEU where it results from coordination between undertakings; whether competition law applies therefore depends on how wages are fixed. While employer cartels that suppress pay are treated as restrictive agreements, collective bargaining arrangements are assessed under a markedly different analytical framework. This article examines …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Are Private Equity Funds Liable For Anticompetitive Acquisitions?, Aslihan Asil, Paulo Henrique Alcantara Ramos, Amanda Starc, Thomas Wollmann

Faculty Scholarship

Private equity acquisitions grew tenfold over the past two decades. Over the same period, their focus shifted from financial engineering to industry consolidation, raising antitrust concerns. Heightening these concerns, privately backed acquisitions of competitors historically escaped detection by federal antitrust authorities in their incipiency because they fell below the reporting thresholds of the Premerger Notification Program. However, academic studies and agency investigations are now unearthing these transactions. Most salient is a recent complaint filed by the Federal Trade Commission challenging a series of acquisitions stretching back ten years.

In the wave of litigation that is likely to follow this “groundbreaking” …

“Sport-Extortion:” Causes, Consequences, And Solutions, Jack Berger

Northwestern Journal of Law & Social Policy

The modern U.S. stadium-development model enables “sport-extortion,” a phenomenon in which franchise owners leverage artificial scarcity, antitrust carve-outs, and credible relocation threats to extract public subsidies that deliver negligible public benefits. Owners use the league’s monopoly power and superior negotiating leverage to pit cities against one another and extract public money for new stadiums or upgrades to their existing stadiums. The owners and community leaders who support using public money to finance these projects promise huge economic returns and development for their communities. However, a survey of the empirical literature and examination of recently approved stadium projects reveal that these …

The Road To Hell Is Paved With Good Intentions: Patents, Pharmaceuticals, And Price Gouging, Madelyn Bird

Northern Illinois Law Review Supplement

Pharmaceutical companies are subject to monopolies of their own making in the pharmaceutical market. Legislators have tried to limit these monopolies by passing legislation in the hopes that it will lower prices. Unfortunately, these attempts to lower the costs of prescriptions have caused more issues to arise over time. When employing complex aspects of intellectual property law, such as evergreening and product hopping, there is no control exerted over pharmaceutical companies.

These monopolies in pharmaceutical markets exist because by the time generic products can enter the market, they have already become outdated. When the generics become outdated, they lose their …

Antiracist Antitrust: Antitrust Enforcement As A Civil Right, Synda Mark

William & Mary Journal of Race, Gender, and Social Justice

“Tryna’ make a dollar out of fifteen cents” is more than a genius hip-hop lyric, it is also a metaphor for a real-life economic problem. It is extremely difficult for Black communities to build wealth in America. While many factors contribute to the lack of economic growth, one overlooked area is the ineffective enforcement of the antitrust laws. Even though race and antitrust law have a history that has intersected since the American Civil War, antitrust enforcement has never prioritized improving the welfare of Black communities or other marginalized groups. This must change!

Instead of focusing solely on regulating tech …

The Limits And Promise Of Global Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos

Faculty Scholarship

A large body of evidence suggests that open, competitive markets are a key driver of economic development. In recognition of this fact, many of the world’s leading economies not only adopted their own antitrust laws to promote competition, but they also urged developing countries around the world to do the same. This resulted in a remarkable proliferation of global antitrust law over the last several decades. Many studies have empirically examined the effect of this development, and, consistent with the hopes of policymakers, they have largely found that adopting antitrust laws produces positive economic outcomes.

In this Article, we reassess …

The Missing Caselaw Of Reverse-Payment Settlements, Michael A. Carrier, Edward Bank

St. John's Law Review

In 2013, the Supreme Court issued one of the most important antitrust rulings in the past generation. In FTC v. Actavis, the Court held that agreements by which brand drug firms pay generics to delay entering the market could violate antitrust law.

Some have criticized the Court for not providing sufficient guidance on the type of analysis courts should apply to settlements involving “reverse payments” (in which patentees pay infringers to delay entry in contrast to more typical agreements by which alleged infringers pay patentees to enter). For example, in his dissent in Actavis, Chief Justice Roberts wrote: …

Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher

Touro Law Review

Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

The Last Line Of A Weak Defense: The Waning Force Of The Ncaa's Procompetitive Defense Of Amateurism In § 1 Compensation Challenges, Morgan Small

American University Law Review

The Supreme Court in NCAA v. Alston determined that the NCAA’s education-related compensation restrictions violated § 1 of the Sherman Act. The Court, however, did not scrutinize the legality of the NCAA’s athletic-related compensation restrictions, begging the question: when will the Supreme Court, if ever, stop presuming the validity of the NCAA’s athletic-related compensation restrictions because they allegedly ensure that college athletics remain amateur?

This Comment examines this question in further detail by cataloging the Court’s antitrust jurisprudence involving § 1 compensation challenges and what this jurisprudence may spell for future litigation in a college athletics landscape increasingly defined by …

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …

Square Peg In A Round Hole? Sustainability As An Aim Of Antitrust Law, Michał Konrad Derdak

Yearbook of Antitrust and Regulatory Studies

The ongoing debate on sustainability in antitrust only briefly refers to the established legal methodologies of interpretation. In particular, there seems to be hardly any reflection on the teleological interpretation of competition law in the context of making sustainable development the aim thereof. This is problematic, because a methodologically sound construction of the aims of law is instrumental not only for the interpretation of its provisions, but also for ensuring the rule of law and safeguarding the rights of individuals. This article is an attempt to trigger a discussion in this area by analysing whether promoting sustainability is, or can …

Trustless Trust And Antitrust: A Synthesis, Matt Blaszczyk

Touro Law Review

Authors have written of antitrust law’s demise in the face of blockchain, which, seemingly, achieves the pro-competitive ends of the law through technology and private ordering. Permissionless blockchains in particular are said to offer a vision of radical disinter mediation and a break with the platform economy troubling the regulators today. At the same time, blockchain supposedly presents challenges to antitrust doctrine, from the most basic of concepts to the viability of enforcement and remedies. Finally, blockchain community governance is said to allow for private ordering of antitrust, i.e., enforcement of rules attempting to protect competition, which are at the …

Box Office Knockout: The Future Of Theaters In An Industry Racing To Outpace Them, Jakob Stokes

The Journal of Business, Entrepreneurship & the Law

This article examines the historical and contemporary impacts of antitrust measures in the film industry, focusing on the significant Paramount Decrees which initially aimed to dismantle the monopolistic practices of the "Big Five" and "Little Three" studios. It discusses the evolution of these decrees and their relevance in today's landscape dominated by a new set of major players. The article further explores the current debate surrounding the shortening of the cinematic window of exclusivity, delving into the implications of various premium video on demand services, such as Disney Premier Access, and the arguments both for and against shortened windows. It …

Brandeisian Banking, Kathryn Judge

Faculty Scholarship

Banking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the …

Researching Antitrust Law, Keith Lacy

Law Librarian Scholarship

Antitrust is a dynamic area of law subject to rapid change. It is highly sensitive to the attitudes of regulators and market conditions, always looking forward to how decisions made today will affect businesses and the lives of individual consumers. Current events — and passionate consumers, or fans — can incur “Swift” antitrust scrutiny, as Live Nation Entertainment discovered recently.

Yet it is inextricably linked to more abstract considerations. The term “antitrust” is itself archaic, reflecting animosity to a business practice innovated by Standard Oil in 1882. Understanding the history of antitrust actions often requires understanding something of history broadly …

A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun

Faculty Scholarship

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …

Reconstruction, And The Unfulfilled Promise Of Antitrust, Greg Day, Bennett Capers

Scholarly Works

Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using their monopoly power to protect dominant interests, from enacting Black Codes to shuttering Chinese laundries to barring women, immigrants, and minorities from certain professions. It is also that states continue to use their monopoly power in ways that entrench inequality, from zoning restrictions to eminent domain to regulations that, in effect, bar Black …

Irrelevant Markets, Jan Polański

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

There is a widespread view in Polish antitrust literature that it is necessary to define the relevant market in every antitrust case. The above is in contradiction with, for example, the approach adopted in EU law. However, it is pointed out that such an obligation results in Polish law, in particular, from the actual wording of the Act on Competition and Consumer Protection. This article aims to defend the opposite thesis: defining relevant markets is not always necessary, and emphasis on defi ning them every time is even harmful and leads to the defi nition of “irrelevant” markets.

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Impediments To Renewed And Reinvigorated Antitrust Enforcement, Edward D. Cavanagh

William & Mary Business Law Review

Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.

While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

Algorithmic Tacit Collusion, Maurice E. Stucke, Ariel Ezrachi

Book Chapters

No abstract provided.

Ncaa V. Alston (Case Notes), Carson Blakely

Tennessee Law Review

In August 2013, I was a thirteen-year-old immersed in the world of NCAA Football 14, a popular video game by Electronic Arts (EA). Through my digital replicas and the actual Tennessee Volunteer football players, my friends and I led the Vols to three consecutive BCS National Championships. My fictional character, a top running back, won three Heisman Trophies, which remains my greatest athletic accomplishment to date. Then, EA announced the discontinuation of the NCAA Football franchise, leaving millions of digital coaches, including myself, perplexed.1 Little did I know that the issue at hand was the complex legal realm of Name, …

Ncaa V. Alston, Emma S. Fowler

Tennessee Law Review

No abstract provided.

The Case For Green Product Fixing: Reconciling Antitrust Law With Self-Regulation To Combat Climate Change, Peter Brigham

Emory Law Journal

As corporations continue to prioritize environmental, social, and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular, cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own for fear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general.

This Comment uses the term …