Antitrust and Trade Regulation Commons^™

Seminar “Challenges In Trade Relations In The Food Supply Chain After The Entry Into Force Of The Law On Contractual Advantage”, March 7th, 2018, Faculty Of Management Of The University Of Warsaw, Adam Jasser

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

No abstract provided.

Dariusz Aziewicz, Assessment Of The Market Power Of An Entrepreneur Within The Supervision Of Horizontal Concentrations Of Entrepreneurs, University Of Warsaw Faculty Of Management Press, Warsaw 2017, Pp. 329, Cezary Banasiński

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

No abstract provided.

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the U.S. Department of Justice …

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected that conclusion, recognizing that in …

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express clearly exercised …

Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan

Life of the Law School (1993- )

No abstract provided.

Clarifications And Gratitude, Chris Sagers

Law Faculty Articles and Essays

Certain things in this book plainly require clarification to avoid misunderstanding. In fact, I think this little discussion was among three people who mostly agree with each other, except that the reviewers may not have known it because I failed to explain myself well enough. Because I didn't, they mostly didn't discuss what I always intended to be the book's real contribution and its most interesting material.

I start out in Part I by trying to restate what I see as the problem that is the book's only immediate concern. That restatement is a first draft for how I will …

An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke

Cleveland State Law Review

The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …

Football In London? An Antitrust Examination Of The National Football League’S International Expansion Efforts, Michael Scott

Cardozo International & Comparative Law Review

The NFL's potential international expansion to the UK presents significant antitrust challenges in both the US and the UK, requiring careful navigation of legal frameworks and strategic planning to avoid scrutiny.

Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari

Pepperdine Law Review

Healthcare companies are consolidating at an alarming rate. From hospitals, to providers’ offices, to insurance companies, there are increasingly fewer consumer choices and more monopolies, which calls for heightened antitrust enforcement. Interestingly, antitrust enforcement authority in the healthcare industry is shared between the Federal Trade Commission (FTC), which presides over hospital and provider mergers, and the Department of Justice (DOJ), which presides over health insurance mergers. Although the FTC has challenged many hospital and provider mergers, the DOJ has only challenged six health insurance mergers. Furthermore, last year, the DOJ ultimately approved all health insurance mergers. In 2017, in United …

Antitrust As Corporate Governance: Why A Firm's Mission Is To Earn No Profit, Ramsi Woodcock

Law Faculty Popular Media

The consumer welfare standard in antitrust law requires that firms maximize the margin between price and product quality, a quantity called consumer welfare by economists. This standard, adopted in the 1970s, resolves the long-running debate about which corporate constituency has a right to the profits of the firm, because profits and consumer welfare are a zero-sum game: Profits can be generated only by reducing the margin between price and quality, in effect redistributing wealth from consumers to firms. The rule that consumer welfare must be maximized therefore means that profits must be minimized. The consumer welfare standard requires that firms …

Antitrust's Unconventional Politics, Daniel A. Crane

Law & Economics Working Papers

For the first time in a generation, political pressure is growing to reform antitrust in a considerably more interventionist direction. To the bafflement of many observers, these political pressures are emerging simultaneously from both wings of the political spectrum. Although unconventional in presentist right/left terms, antitrust's ideological ambiguity has longstanding historical roots. This Essay examines three historical friction points that help explain the current political dislocations around antitrust reform: (1) the coupling of ideological aversion to large scale in government and business; (2) the shifting meaning of the word "monopoly," from exclusive governmentally granted privilege to privately obtained market power; …

Change Has More Than One Name, Anna Piszcz

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

From the Editor-in-Chief.

Prevention Of The Abuse Of Significant Market Power In The Sale Of Agricultural And Food Products In The Czech Republic – Selected Issues, Małgorzata Salitra

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

The article presents an outline of regulations concerning the abuse of significant market power in the sale of agricultural and food products in the Czech Republic. The article presents selected, most significant – in the author’s opinion – changes introduced as a result of the amendment of the Significant Market Power Act in the sale of agricultural and food products and its abuse. The publication focuses mainly on material and legal rules, in particular: the subjective and objective scope of the Act, the definition of ‘significant market power’, the list of practices that constitute an abuse of significant market power, …

Draft Ecn+ Directive – Discussion Concerning The Need For Another Amendment Of Polish Competition Law, Grzegorz Materna

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

The article concerns the new EU Draft Directive (ECN+ Directive) – an initiative of the European Commission to modernize the decentralized system of EU competition law enforcement introduced by Council Regulation (EC) No 1/2003. The Draft Directive broadly interferes with the status and investigative powers of national competition authorities (NCAs). It establishes the minimum scope of the investigative and decision-making powers of NCAs, enhances convergence of many procedural aspects in this area and the power to impose sanctions. The aim of the article is to present, in a comprehensive way, the proposed act and to determine its possible impact on …

An Undertaking’S Liability For An Infringement Of Competition Law Made By Its Associates In European Case Law, Michał Surdyk

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

This article analyzes latest EU case law on the liability of undertakings for infringements of competition law committed by their associates, understood as persons providing services to those undertakings. The article highlights important implications of the views expressed in the case law. In particular, the article discusses the extending of the concept of a single economic unit and accepting of an undertaking’s liability for certain third persons, which are independent from the single economic unit concept.

Protection Of Business Secrets In Proceedings Before The President Of The Polish Competition Authority, Joanna Affre, Małgorzata Kozak, Anna Wawruch

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

The article aims to discuss the applicable standards, as far as the scope of the protection of confidential information (business secrecy) is concerned, in proceedings before the Polish National Competition Authority (President of UOKiK) as well as in appeal proceedings before the Court of Competition and Consumer Protection (SOKiK). It also includes comments regarding both the application of the provisions themselves and their amendment. The analysis of current provisions covers planned changes corresponding with the implementation of Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information …

Public Enforcement Versus Private Enforcement – Decyzja Zobowiązująca A Powództwo Odszkodowawcze. Glosa Do Wyroku Ts Z 23 Listopada 2017 R. W Sprawie C-547/16 Gasorba Sl, Josefa Rico Gil, Antonio Ferrándiz González Przeciwko Repsol Comercial De Productos Petrolíferos Sa, Kamil Dobosz

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

The article deals with the Court of Justice judgement in the Gasorba case. Answering the preliminary question, the ECJ authorizes therein a national court to reach a different conclusion with respect to the practice at hand than the assessment found in a European Commission commitment decision, which was solely preliminary. The ECJ states that such a decision should be treated as evidence prima facie by a national court. The judgement constitutes a seminal input to the discussion on the relationship between private and public enforcement. Implications stemming from it, as well as the opinion of the Advocate General delivered in …

May Information Provided By A Leniency Applicant Be Included In A Public Version Of An Infringement Decision? Case Comment To The Judgement Of The Court Of Justice Of 14 March 2017 In Case C-162/15 P Evonik Degussa Gmbh V The Commission, Patrycja Szot

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

The Article discusses the judgment of the Court of Justice in the Evonik case and the key findings stemming from it. Considered in particular are the following issues: the scope of a Hearing Officer’s competences and legal grounds which leniency applicants may invoke in defence of their confidentiality claims. Further, the limits concerning the use of information provided in a leniency application are discussed, in particular the prohibition on including quotations from the leniency application and information enabling the identification of the source of other information provided in leniency documents. The author also examines the EU Commission’s broad competences to …

(Un)Changeable Application Of National And Eu Competition Law – About The Relationship Between National And Eu Antitrust Regimes. Case Comment To The Judgement Of The Court Of The Eu Of 30 September 2016 In Case T-70/15 Trajektna Luka Split D.D. V The Commission, Kamil Dobosz

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

The article delves into the judgement of the General Court in the Trajektna case. The essential problem therein concerns a possibility to declare an assessment of market behaviour under national competition law as tantamount to an assessment under EU antitrust law. The very issue in this context is that domestic rules are equivalent to those in the Treaty. Nonetheless, such an approach may raise doubts since merely literal correlation does not suffice to render both legal bases exchangeable. Another relevant aspect is leaving a space to manoeuvre for national courts to act when the proceedings are carried out before them. …