Antitrust and Trade Regulation Commons^™

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Vanderbilt Law Review

This Note analyzes how courts' leniency affects a particular category of anticompetitive buyer conduct: agreements between employers that restrict competition in labor markets. If, as courts and commentators generally agree, the goal of antitrust law is to promote the welfare of consumers, how should courts balance the welfare of workers and customers under antitrust analysis? Arguably, worker welfare should be included in consumer welfare. If so, anticompetitive agreements between employers benefit one subset of consumers (customers), while hurting another subset (workers). The persistent procustomer and antiworker effect of such complicates a court's choice to find conduct per se unreasonable or …

The New Antitrust Federalism, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

"Antitrust federalism, " or the rule that state regulation is not subject to federal antitrust law, does as much as-and perhaps more than-its constitutional cousin to insulate state regulation from wholesale invalidation by the federal government. For most of the last century, the Court quietly tinkered away with the contours of this federalism, struggling to draw a formal boundary between state action (immune from antitrust suits) and private cartels (not). But with the Court's last three antitrust cases, the tinkering has given way to reformation. What used to be a doctrine with deep roots in constitutional federalism is now a …

Modifying Merger Consent Decrees To Improve Merger Enforcement Policy, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes my short proposal for reviewing and modifying merger consent decrees to permit additional relief if the provisions of the initial consent merger are found to fail to preserve or restore competition in a reasonable period of time after the merger was consummated. My proposal also would involve more frequent reviews of consummated mergers that have been cleared without challenge, particularly those that were close calls. While “Don't Look Back” might be the best anthem for artists, economic decision theory would not support that approach to merger policy.

Predicting the impact of proposed mergers and remedies on consumers …

Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur

Fordham Law Review

A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants’ real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. This Article collects and describes rulings that reflect such themes in Second Circuit antitrust jurisprudence. The court’s long history in this substantive space, its likely continued exposure to critical antitrust questions, and the importance of this area of the law to our national economy assure that others will be examining and shedding further light on the Second …

The Failed Superiority Experiment, Christine P. Bartholomew

Journal Articles

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

Leniency Programmes In Polish And Us Antitrust Law And The Access To Leniency Materials In Private Damages Actions In Cases Of Cartels And Other Restrictive Agreements, Dorothy Hansberry-Bieguńska, Małgorzata Krasnodębska-Tomkiel, Materna Grzegorz

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

The article addresses issues concerning access to leniency materials by private damages action litigants in cases of restrictive agreements, and analyzes relevant legal provisions in Polish and US laws. With regard to the former, the article considers both its current rules as well as a draft act which will serve to implement the EU Damages Directive (Directive 2014/104/EU). The issue of disclosure of leniency materials to private damages action litigants is analyzed from the perspective of its impact on the effectiveness of leniency programmes. This article questions whether the upcoming legislation concerning access to leniency materials may lessen the readiness …

Calculating Damages Caused By Bid Rigging, Marta Stryszowska, Joanna Piechucka

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

The article discusses the various stages and methods of estimating damages caused by bid-rigging. Emphasized first is the importance and essence of constructing a counterfactual scenario describing what would have happened in the absence of bid-rigging. Discussed next are the technical and practical aspects of the use of the various damage-estimation methods. They include: comparator-based methods, financial-analysis-based methods, and market-structure-based methods. The description of each method is accompanied by examples of their use. Finally, the article analyses the practical considerations related to the choice of a given method (among the range of various methods available) in the context of the …

Frank Wijkmans, Maaike Visser, Sarah Jaques, Evi Noël, The Eu Private Damages Directive. Practical Insights (Minutes Of The Closed Workshop 2015), Intersentia, Cambridge-Antwerp-Portland 2015 (Review By Agata Jurkowska-Gomułka), Agata Jurkowska-Gomułka

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

Review of the book by Frank Wijkmans, Maaike Visser, Sarah Jaques, Evi Noël

The Binding Effect Of Final Decisions By The President Of The Office For Competition And Consumer Protection, The Court For Competition And Consumer Protection And The Court Of Appeal, And Its Consequences For Public And Private Competition Law Enforcement, Teresa Kaczyńska, Joanna Lenart

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

This article analyses the issues linked to the binding effect of national competition authorities’ and appeal courts’ final decisions on civil courts, introduced by Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (the Directive ), which requires implementation into the Polish legal system. Although in principle the adoption of this solution should contribute to an increase in the effectiveness of private competition law enforcement, its shape and scope …

Reducing Antitrust Fines And Limiting The Liability Of Sme For Antitrust Violations – Proposal Of The Interpretation Of The Specific Inability To Pay Criterion, Katarzyna Wiese

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

Directive 2014/104/EU provides for a limitation of the liability of SMEs in cases where the application of its normal rules on joint and several liability would irretrievably jeopardise their economic viability and cause their assets to lose all their value. The meaning of this provision is everything but clear and commentators have voiced unanimous and harsh criticism of the chosen wording. This article presents a proposal for the interpretation of this provision based on its observed parallel with the requirements for a reduction of the fine imposed by the European Commission in antitrust cases.

Reimbursement Of State Aid Under Article 108(3) Third Sentence Tfeu Within The Context Of Private Enforcement Of Eu State Aid Law, Łukasz Stępkowski

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

This paper constitutes an attempt at suggesting practical means of enforcement of Article 108(3) third sentence TFEU under Polish law. The author undertakes to analyse the norm of EU law and seeks a procedural basis of its enforcement under Polish law (as a law of an EU Member State). The goal is to verify whether there are any means to secure effectiveness for Article 108(3) third sentence TFEU under Polish law. The paper takes account of the jurisprudence of the CJEU as well as that of Polish courts.

Discussion Of The Implementation Process Of Directive 2014/104/Ue/Eu In Poland, Spain And The Uk, Jacek Sadurski

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

This article deals with a number of chosen topics concerning the implementation process of Directive 2014/104/UE of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. The Author endeavors to compare legislative solutions and steps with regards to the implementation process of the Directive which are being currently undertaken in Poland, Spain and Great Britain. He notes certain legislative initiatives which may be taken into consideration during the preparation process on the …

The Termination Of A License Agreement On The Use Of A Repertoire By A Collective Rights Management Organization That Abuses Its Dominant Position With Respect To Neighbouring Rights. A Case Comment To A Judgement Of The Court Of Appeals In Cracow Of 25 June 2015, I Aca 466/15, Marcin Mioduszewski

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

Collective rights management organizations (which manage copyright as well as related/neighboring rights) operating without an approved tables of copyright royalties, are entitled to license, or to terminate an existing license agreement, only for an important reasons. The dispute over a mere royalty rate, without the presence of any other disputable issue, cannot be considered as an important reason under Article 106(2) of the Act on Copyright and Related Rights, justifying the termination of a license agreement for the repertoire of such organization, or a refusal to enter into such contract at all. The shape of the collective management system in …

Pursuing Damages Claims Based On Competition Law Breaches Before Polish Courts [In Polish: Dochodzenie Przed Sądem Polski Roszczeń Odszkodowawczych Z Tytułu Naruszenia Reguł Konkurencji] (Red. A. Piszcz, D. Wolski), Wydawnictwo Naukowe Wydziału Zarządzania Uw, Warszawa 2016 (Review By Piotr Machnikowski), Piotr Machnikowski

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

Review of the book edited by Anna Piszcz and Dominik Wolski.

Piotr Semeniuk, The Concept Of A “Single Economic Unit” In Competition Law [In Polish: Koncepcja Jednego Organizmu Gospodarczego W Prawie Ochrony Konkurencji], Wydawnictwo Naukowe Wydziału Zarządzania Uw, Warszawa 2015 (Review By Zbigniew Jurczyk), Zbigniew Jurczyk

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

Review of the book by Piotr Semeniuk

Table Of Contents

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

Table of contents

Winner Of The “Great Owl” Cars Honorary Award In 2016

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

Winner of the award - prof. dr. hab. Stanisław Sołtysiński

The Academic Achievements Of Professor Stanisław Sołtysiński In The Widely Defi Ned Competition Law Field (Laudation By Professor Marek Szydło Commemorating The Granting Of The Great Owl Award For The Entirety Of Professor Sołtysiński’S Academic Achievements In The Competition Law Field), Marek Szydło

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

Warsaw 20 April 2016

Cars Award For The Best Publication In The Field Of Competition Law And Protection In 2013-2015

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

Winner of the award – dr hab. Cezary Banasiński

Discretion In Competition Law: The Perspective Of Dr Cezary Banasiński (Laudation By Professor Agata Jurkowska-Gomułka Commemorating The Granting Of The Cars Award 2016), Agata Jurkowska-Gomułka

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

Warsaw, 7 June 2016