Antitrust and Trade Regulation Commons^™

Equitable Defenses In Patent Law, Christa J. Laser

Law Faculty Articles and Essays

In patent law, “unenforceability” can have immense consequences. At least five equitable doctrines make up the defense of “unenforceability” as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law.

Several interpretive …

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

All Bets Are Off: Preempting Major League Baseball’S Monopoly On Sports Betting Data, Beatrice Lucas

Washington Law Review

Major League Baseball is in the process of collectivizing data used in sports betting. This could be exempt from antitrust scrutiny if the conduct falls within the “business of baseball.” Such an exemption raises the question of whether collecting official league data is sufficiently attenuated from the “business of baseball” to be subject to antitrust law, and if so, whether MLB violates the Sherman Act by excluding competitors from the league data market. This Comment makes a two-fold argument. First, it argues that the “business of baseball” should be constrained to cover activities directly linked to putting on baseball games. …

Time For Change: How Google's Anticompetitive Conduct Reveals The Deficiencies Of Modern Antitrust Regulation, Benjamin Clay Hughes

Cardozo International & Comparative Law Review

The note examines the divergent approaches of U.S. and EU antitrust regulations in addressing anticompetitive conduct by tech giants, such as Microsoft and Google. It highlights how the EU has adopted a more aggressive and proactive stance in enforcing antitrust laws, whereas the U.S. has taken a more cautious approach. The analysis underscores the challenges of regulating digital platforms and the need for streamlined procedures to address anticompetitive practices effectively.

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …

On-Demand Drivers And The Right To Collective Bargaining: Why Seattle's Ordinance Does Not Violate Federal Antitrust Laws, Jacob Aleknavicius

Chicago-Kent Law Review

No abstract provided.

Profiling Based On Personal Data Of Consumers Processed By An Autonomous Vehicle, Anna Nowak, Magdalena Węgłowska, Miłosz Gapsa

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

Profiling is increasingly entering the lives of consumers, and in parallel with it, the phenomenon of collecting and using consumer data from various sources, including data processed by autonomous vehicles, is also progressing. This article aims to characterize the key risks for consumers that may result from the profiling process based on personal data obtained from autonomous vehicles, with particular emphasis on the practice of personalization. In this context, two legal acts will be discussed in more detail. First, the General Data Protection Regulation, on the basis of which the process of obtaining personal data from autonomous vehicles will be …

'Consumer’ Protection Of Certain Natural Persons Conducting A Business Activity – Selected Issues, Bartosz Wyżykowski

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

From 1 January 2021, the application of selected provisions in the field of consumer protection was extended to natural persons concluding a contract directly related to the conducted business activity, if it follows from the content of such contract that it is not of professional nature for such person, in particular taking into account the subject of the business activity, revealed on the basis of the provisions on the central registration and information of business. Subject of the new regulation are provisions regarding unfair contract terms, provisions on the warranty for defects that previously applied only to consumers, and, finally, …

New Consumer Agenda – Strengthening Consumer Resilience For Sustainable Recovery, Filip Wiaderek

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

The paper provides a shortcut of the ‘New Consumer Agenda – strengthening consumer resilience for sustainable recovery’ that is enshrined in the EC Communicate from 13 November 2020. The programme constitutes an outline of goals, which the European Commission plans to achieve between 2020 and 2025 that were divided into five priority areas: (1) the green transition; (2) the digital transformation; (3) redress and enforcement of consumer rights; (4) specific needs of certain consumer groups and, (5) international cooperation. The burden of proper implementation of the solutions outlined in the Agenda, especially with regard to green transition, is to a …

Report On The “Annual Conference On European Consumer Law 2020”, Era, Trier, 8–9 October 2020, Anna Urbanek

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

No abstract provided.

The Use Of Personalised Prices In The Light Of The Amendment To Directive 2011/83/Eu On Consumer Rights And Regulation 2016/679 (Gdpr), Iga Małobęcka-Szwast

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

With the increasing availability of consumer personal data, advanced pricing algorithms and the rise of e-commerce, the widespread use of personalised pricing by traders seems to be a matter of time. Directive 2019/2161, although allows the use of personalised prices, makes the legality of this practice conditional, in particular, on the fulfilment of new information obligations and compliance with the provisions of the GDPR, including the rights of data subjects contained therein. Both Directive 2019/2161 and the GDPR guarantee consumers a package of rights that are designed to counteract information asymmetry between the trader and the consumer, and enable the …

Remedies For Lack Of Conformity Of The Digital Content Or Digital Services With The Contract, Klaudia Koman

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

Directive 2019/770, adopted on 20 May 2019, focuses on the rights and obligations of parties contracting for the supply of digital content or digital services. Member States shall implement the EU act into their domestic legal systems by 01 July 2021. Until the publication of the proposal for the Directive, digital content and digital services were not extensively regulated in most Member States. Providing real consumer protection while buying digital content or digital services depends on the correct interpretation of the provisions of Directive 2019/770. Therefore, this article focuses on the analysis of the key issues of the Directive, namely …

Shaping And Controlling Of Consumer Credit Costs According To The Latest Judgments Of The Court Of Justice Of The European Union, Dominika Rogoń

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

In the study, the author discusses the conclusions of the judgments of the Court of Justice of the European Union in cases: C-621/17, C-779/18, C 224/19 and C-259/19, C-84/19 and C-222/19 and C-252/19 concerning the shaping and control of the cost of consumer credit.

Legal Aspects Of Consumer Protection And Responsibility For Damages In The Context Of Autonomous Cars, Lena Helińska, Bartosz Paczocha, Arkadiusz Piskorz

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

The popularization of autonomous cars will result in the emergence of hitherto unknown factual situations, in which the relationship between consumers and producers or sellers will play an important role. This article examines these relationships, with a particular emphasis on the responsibility of producers. Problems that could be linked to the fifth (highest) level of automation are analyzed in relation to the existing legal framework in terms of freedoms, information requirements, warranty for defects, tort liability and strict liability. The aim is to identify possible areas where the current regulations would be insufficient. The above-mentioned issues lead to the conclusion …

Obligation To Ex Officio Examine The Unfairness Of Terms And Conditions In The Event Of The Consumer’S Failure To Appear In Court In Cases Of Unfair Market Practices In The Financial Market. Commentary To The Judgment Of The Court Of Justice Of The European Union Of 4 June 2020 In Case C-495/19 Kancelaria Medius Sa V Rn, Małgorzata Sieradzka, Magdalena Zawisza

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

The aim of the article is to discuss and analyze the judgment of the Court of Justice of 4 June 2020 in case C-495/19 Kancelaria Medius SA vs. the Supervisory Board, from the point of view of its importance for the examination of cases related to unfair market practices on the financial market, where one of the parties is a consumer. On the basis of the judgment in question, the obligation to examine the unfairness of contract terms by the court will be presented in particular. The article covers the analysis and commentary of the decision made by the Polish …

The Economic Value Of Personal Data And Consumer (User) Protection On Online Platforms, Jan J. Zygmuntowski, Blanka Wawrzyniak

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

The subject of this commentary is an in-depth analysis of the ruling of the District Administrative Court issued in relation to the decision of the Italian antitrust authority (Autorità Garante della Concorrenza e del Mercato) imposing a fine of EUR 10 million on Facebook in relation to the entrepreneur’s violation of consumer law. The study focuses on the economic value of personal data, as well as on the ability of digital companies to commercialize and exploit the data. The Authors’ reflections are based on the analysis of EU and national regulations along with the latest legislative changes to the data-related …

Request To Cancel The Contract Pursuant To The Act On Counteracting Unfair Market Practices As A Form Of A Claim For The Restoration Of The Previous State. Commentary On The Judgment Of The Supreme Court Of September 11, 2020, Iii Czp 80/19, Bartosz Kotowicz, Małgorzata Sieradzka, Magdalena Zawisza

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

The purpose of the article is to discuss the Resolution of the Polish Supreme Court of 11 September 2020, III CZP 80/19, where the Supreme Court decided that the request to cancel a contract provided for in Art. 12 sec. 1 point 4 of the Act of 23 August 2007 on Counteracting Unfair Market Practices is a form of a claim for the restoration of the previous state, the effective investigation of which depends on the fulfilment of general conditions for liability for damages. The article includes an analysis of the positions presented so far in the doctrine and jurisprudence, …

Overview Of Decisions Of The President Of The Office Of Competition And Consumer Protection Concerning Infringements Of Collective Consumer Interests In 2019 And The First Half Of 2020, Anna Urbanek

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

This overview is a presentation and commentary on the decisions of the President of the Office of Competition and Consumer Protection concerning infringements of collective consumer interests issued in the period from January 2019 to June 2020. The analysis concerns cases of failure to comply with the provisions of selected legal acts regulating the provision of various types of services, and consumer rights in relations with entrepreneurs. The study presents the most common practices used by entrepreneurs, as well as those that are particularly interesting due to the amount of the fine imposed in the decision or the media coverage …

Non-Conforming Declarations Of Performance On Construction Products As A Misleading Practice Relating To Product Performance – Discussion Based On Polish Regulator’S Decision Of 4 October 2019 (Dozik-6/2019), Aleksandra Wędrychowska-Karpińska

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

The article discusses the decision of the Polish competition and consumer protection authority (Prezes UOKiK) of 4 October 2019 (DOZiK-6/2019) regarding the unfair commercial practice of marketing certain construction products (XPS foam boards) that do not have declared performance characteristics. The way the decision was argued shows when Prezes UOKiK, as the horizontal competition and consumer protection authority, intervenes in cases which are, or have been, dealt with in parallel by sectorial regulators (such as the building supervision inspectors, whether provincial or the Chief Building Supervision Inspector), using public documents collected by them. The article discusses how to construe the …