Antitrust and Trade Regulation Commons^™

The End Of Antitrust History Revisited, Lina M. Khan

Faculty Scholarship

This Review engages Tim Wu’s book, The Curse of Bigness, to explain the significance of the current rupture in antitrust and to situate it within a broader intellectual trajectory. Debates over the foundational purpose of antitrust are not new, and examining how this latest clash fits alongside previous contestations is essential for understanding what has yielded the current contestability and assessing the competing visions.

Part I of this Review summarizes Wu’s chief contributions in his recent work, focusing on three tenets that form the basis of the book. Part II offers an analytic breakdown of the overhaul in antitrust …

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …

Mechanisms Of The Protection Of The Borrower (Consumer) In The Context Of Facilities Denominated And Indexed To A Foreign Currency In The Light Of The Polish Borrower Support Act (Ustawa O Wsparciu Kredytobiorców) – Selected Issues, Wanesa Choptiany

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

The article focuses on the analysis of the present regulatory amendments in the area of strengthening of the protection of borrowers (consumers), on the example of the facilities denominated/indexed to a foreign currency, with an emphasis on the recent amendment to the Polish Borrower Support Act. The purpose of the article is to analyse the legislation in terms of the effectiveness of the newest consumer protection mechanisms.

Reduction In The Total Cost Of Consumer Credit In Case Of Early Repayment In Light Of The Cjeu Ruling C-383/18, Agnieszka Wachnicka

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

The aim of the article is to examine the effects of the judgment of the Court of Justice of the European Union in case C-383/18 (Lexitor) on the functioning of the consumer credit market. The article does not constitute a comprehensive analysis of the discussed issue, but touches upon selected issues and interpretation doubts arising in connection with the above ruling in the context of the wording of the provisions of the Consumer Credit Act. The Court has interpreted the provisions of Directive 2008/48/EC with regard to the types of costs subject to reduction in the case of an early …

Liability For Unauthorized Payment Transactions In Light Of The Changes Resulting From Psd2, Bartosz Wyżykowski

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

The purpose of the article is to explain interpretation doubts related to changes introduced in the Polish Payment Services Act as a result of the implementation of the PSD2 in regard to the liability for unauthorized payment transactions. The article doses not provide a comprehensive analysis of the discussed topic, but considers selected problems arising in connection with the relatively short period of time since the new regulation entered into force. Particular emphasis was placed on analyzing the effects of not requiring or accepting strong customer authentication (SCA). Analyzed were also the provisions of the Polish Payment Services Act regulating …

Big Ink V. Bigger Tech, Ramsi Woodcock

Law Faculty Popular Media

When in 2011 Paul Krugman attacked the press for bending over backwards to give equal billing to conservative experts on social security, even though the conservatives were plainly wrong, I celebrated. Social security isn’t the biggest part of the government’s budget, and calls to privatize it in order to save the country from bankruptcy were blatant fear mongering. Why should the press report those calls with a neutrality that could mislead readers into thinking the position reasonable?

Journalists’ ethic of balanced reporting looked, at the time, like gross negligence at best, and deceit at worst. But lost in the pathos …

Mandatory Ex Officio Examination Of Abusive Contractual Clauses By National Courts And The Guarantee Of Effective Protection Of Consumers’ Interests, Beata Sieńko-Kowalska

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

In order to ensure an appropriate level of consumer protection envisaged by the EU legislator, a national court is obliged to restore real balance between the consumer and the professional entrepreneur in every case and regardless of national law. The guarantee of effective consumer protection implies examining whether a disputed contractual provision has been individually agreed to by the professional entrepreneur and the consumer, as well as using any possible means to review ex officio the unlawful nature of the relevant contractual provision, even if it is the opinion of the court that the consumer did not raise the given …

Misselling On The Non-Banking Consumer Credit Market In The Light Of Current Market Problems, Magdalena Paleczna

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

Loan institutions and the credit services they offer represent a growing percentage of the credit market in Poland. Observing this market, and the proceedings conducted by the President of the Office of Competition and Consumer Protection against loan institutions, confirms the existence of large-scale irregularities that directly affect consumers, essentially non-professional financial market participants. These irregularities include misselling, which is a practice infringing collective consumer interests and consisting of the offering of financial services (in the case of loan institutions – credit services) which do not correspond to the real needs of consumers or are offered in a manner inadequate …

Differences In The Assessment Of Consumer Creditworthiness Of Consumers In Eu Member States As An Obstacle For The Single Eu Credit Market – Analysis In The Context Of The Minimization Principle Of Art. 5 Gdpr, Piotr Gałązka

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

It is the basic principle that every financial institution granting a loan – including a bank – is obliged to assess the creditworthiness of the customer who applies for such a loan. The banking law doctrine recognizes that this obligation is a public duty for the bank and results from the nature of the bank as an institution of public trust, which assesses creditworthiness also in the interest of depositors whose funds have been entrusted to the bank. The subject of the paper will be to present the situation and legal status in several Member States of the European Union …

Conspiracy Allegations In The Stock Loan Market: Why Plaintiffs Should Be Seeking A Remedy In Congress And Not In Court, Danielle P. Katz

Et Cetera

This Article first provides a comprehensive analysis of conspiracy allegations in over-the-counter markets, focusing on the stock loan market as an exemplar.

Multiple conspiracy claims, implicating antitrust law, have been brought regarding over the counter markets since the financial crisis of 2008. The biggest banks in the country have been the center of novel complaints, new regulations, and innovative legislation in the recent years. But, despite regulation and legislation, Sherman Act litigation alleging conspiracy has endured as plaintiffs claim that big banks are conspiring to fix markets when, in fact, they are exercising economies of scale to provide unique, tailored …

Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo

Notre Dame Law Review

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry-barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. …

Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw

Fordham Law Review

The 2018 U.S. Supreme Court decision in Ohio v. American Express Co. was at odds with a trend among antitrust commentators and enforcement authorities away from dependence on formal market definition as part of plaintiffs’ burden of proof. Reliance on market definition as a dispositive issue has been ubiquitous in antitrust cases, but the costs from errors, inefficiency, and uncertainty inherent in that approach are glaring. The issue is ripe for clarification, and this Note suggests a new rule to that end. The proposed rule aims to delineate a set of cases in which formal market definition can confidently be …

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the most …

Consumer Protection In The Collaborative Economy In Eu Law – The Analysis Of Selected Problems, Anita Kucharska

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

The main subject of this article focuses on the position of consumers in the collaborative economy in EU law. The phenomenon of the collaborative economy is an emergent field which causes plenty of yet unresolved legal problems. Choosing a method of providing the best kind of protection to the recipients of the services is one of the fundamental issues that need to be immediately analyzed. Safety of the users of platforms should be ensured with consideration of consumer protection rules currently in force and the nature of the collaborative economy’s environment. The author formulates the thesis that it is necessary …

A New Model For The Protection Of Consumer Interests In The European Union And Its Possible Implementation Into Polish Law, Jagna Mucha

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

In the draft of a Directive on representative actions, the European Commission proposed an extension of the existing model of the protection of collective consumer interests by the inclusion, therein, of the possibility of compensatory redress. The current model, based on the provisions of Directive 2009/22/EC, does not contain the possibility of consumers to claim compensation, but it enables bringing an action for an injunction by qualified entities designated by the Member States. The above mentioned provision of Directive 2009/22/EC was implemented by the Polish legislator in the Act on Competition and Consumer Protection, which provides separate proceedings concerning practices …

Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.

The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and raising entry barriers. …

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …

The Moment Of Conclusion Of The Agreement For Administering Bond Collateral, Wojciech Chabasiewicz

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

The effectiveness of bond collaterals is of great importance in the first place for bondholders, but in a broader perspective for the entire debt securities market. Ensuring that established collateral guarantees real security is a condition for increasing confidence in the market. This should be fostered by an appropriate interpretation of the law, consistent with the objectives of the regulation. The provisions only slightly regulate the matters related to the collateral administration agreement. Despite the small amount, the rules are inconsistent, and their application raises a lot of doubt. One of them is the question of when the security administration …

Principles Of Appealing Against Resolutions Of Bondholders’ Meetings – Selected Issues, Angelina Stokłosa

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

The article discusses selected issues related to the basic principles of appealing against the resolutions of bondholders’ meetings. To date this problem has not been much attention among academics, and all observations connected with it are only contributory. It should be assumed that the inclusion of the subject matter using the mechanism of “analogy”, i.e. by referring to the regulation on the broadly described in the doctrine of the regime of appealing against resolution of the general stockholders meetings’ in the corporations does not exhaust the subject. What is more, as it seems, this approach shall be regarded as methodologically …

Cancellation Of Interest Payments Under At1 Bonds – Regulatory Framework, Aleksander Kowalski

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

AT1 bonds are the newest type of hybrid financial instruments which, thanks to specific mechanisms of the issuer’s loss absorption, constitute a surrogate for the bank’s capital. One of these mechanisms is the special feature in the form of the possibility of total cancellation of the payment of interest by the issuer. In the early period of development of the AT1 bond market, the risk of suspension of interest payments based on discretionary rights of the issuer was quite commonly treated as unlikely. However, the risk of suspension of interest payments materialized at the beginning of 2016, when the rumors …