Antitrust and Trade Regulation Commons^™

Upon Further Review: Reconsidering Clarett And Player Access To The Nfl, Matthew Strauser

Marquette Sports Law Review

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Reflections On Matsushita And Equilibrating Tendencies: Lessons For Competition Authorities, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd

Faculty Articles

Recent changes in the pharmaceutical industry have spurred an unprecedented wave of mergers and acquisitions. Some researchers and agencies have questioned whether pharmaceutical consolidation could impede drug innovation. However, as I explain in this Article, these concerns are largely based on an outdated understanding of the drug innovation ecosystem. Whereas a few decades ago almost all drug discovery took place inside traditional pharmaceutical companies, today most drug innovation is externally-sourced from biotech companies and smaller firms. Internal R&D is no longer the primary source, or even an important source, of drug innovation. As a result, analyses that focus on the …

Biologics As The New Antitrust Frontier: Reflections, Riposte, And Recommendations, Daryl Lim

Faculty Scholarly Works

No abstract provided.

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie E. Zink

Vanderbilt Journal of Entertainment & Technology Law

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health.

This Article is both timely and necessary, as the public is continually bombarded …

Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller

Faculty Publications & Other Works

Trade associations can play a procompetitive role in an economy but, as an association of actual and potential competitors, can also raise important competition law issues that must be addressed carefully by legal counsel. This Issue Paper presents a hypothetical problem that illustrates many of the issues that counsel can confront in representing a trade association, its members, or company executives. The Issue Paper raises many of the issues from a United States' perspective with occasional comparative examples from other jurisdictions. Carefully consider how your jurisdiction would, and should, address these all too real issues. In thinking about the …

Drug Pricing—The Next Compliance Waterloo, Seth Whitelaw, Nicodemo Fiorentino, Jennifer O'Leary

Mitchell Hamline Law Review

No abstract provided.

Antitrust And Inequality: The Problem Of Super-Firms, Shi-Ling Hsu

Scholarly Publications

Increasing concern about economic inequality has coincided with an unsettling ascendancy of some large, technologically integrated “super-firms,” which have grabbed large market shares in multiple markets, and cast doubt upon the future viability of a wide range of businesses, many of which have been important local and regional employers. It is thus unsurprising that these two trends have knocked together in public discourse, and that antitrust law been proposed as one way of helping to remedy economic inequality. This essay notes that antitrust law is generally a poor fit for reducing economic inequality, but one aspect is worthy of note: …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Matsushita At Thirty: Has The Pendulum Swung Too Far In Favor Of Summary Judgment?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Supreme Court's ruling in Matsushita Electric Industrial Co. v. Zenith Radio Corp. marked the end of judicial hostility to Rule 56 motions and effectively legitimized the use of summary judgment in antitrust cases. The 5-4 decision dramatically altered the antitrust litigation landscape both procedurally and substantively. Procedurally, the decision underscored the trans-substantive nature of summary judgment, making clear that summary judgment is as appropriate in complex antitrust cases as in any other area of the law. Matsushita also made clear that the legal standards for summary judgment mirror the legal standards for directed verdict at trial. In …

Vertical Mergers And The Mfn Thicket In Television, Erik Hovenkamp, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Increasingly, cable and satellite TV services (known as “MVPDs”) seek to acquire upstream programming creators, as illustrated by AT&T’s recent merger with Time-Warner. At the same time, the pay-TV industry is rife with “most-favored nation” (MFN) agreements, which can sharply constrict the competitive process. The most problematic variety, so-called “unconditional” MFNs, raise serious antitrust concerns, as they may forestall effective entry by new streaming-based platforms; penalize pro-competitive deviations from the status quo; and facilitate de facto coordination among integrated MVPDs.

While vertical mergers in the industry have received significant antitrust attention, the MFN concerns are interrelated. Problematic MFNs may naturally …

Cartel Ringmaster Or Competition Creator? The Ebooks Case Against Apple (2013), Jonathan Baker

Contributions to Books

In 2013, a federal district court found that Apple had orchestrated a cartel agreement involving it and five major book publishers three years earlier, when Apple opened the iBookstore in conjunction with the introduction of its iPad tablet computer. According to the court, Apple organized collective action by the publishers to take away ebook pricing authority from Amazon, an aggressive discounter, and to raise the retail prices of ebooks.

This chapter describes the case from an economic point of view. It examines the competing views of the government and Apple over the competitive impact of various provisions in the iBookstore’s …

Resolving Self-Driving Car Patent Conflicts: Arbitration In Waymo V. Uber And Future Autonomous Vehicle Patent Disputes, Ilya Gorelik

Cardozo Journal of Conflict Resolution

Waymo and Uber should have entered into a mutually agreed upon arbitration agreement to resolve their patent claims, and future conflicting self-driving car developers should consider doing the same. Uber was already willing to enter arbitration, and while Waymo resisted being forced into arbitration in the past, it would have the opportunity to influence the terms of the arrangement. Arbitration would benefit both Waymo and future patent holders, as well as Uber and future parties accused of patent infringement, as it would provide a cheaper alternative to litigating those claims while also keeping the procedure more confidential, providing Waymo a …

Reaching For The Stars: A Proposal To The Ftc To Help Deter Astroturfing And Fake Reviews, Matthew Barish

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Fair Use & Fair Play: Olympic Marketing In The Information Age, Alex Locke

Cardozo International & Comparative Law Review

The note critiques the overreach of intellectual property protections surrounding the Olympics, which have led to hyperlitigation, stifled public engagement, and disproportionately harmed smaller entities while benefiting large corporations. It proposes reforming the Ted Stevens Olympic and Amateur Sports Act by incorporating a fair use framework, modeled after the Copyright Royalty Board, to balance intellectual property enforcement with public participation and transparency. This approach aims to address the challenges posed by ambush marketing and sponsorship protection in the modern media landscape while ensuring equitable opportunities for all stakeholders.

The Trope Of Parity, Michael Del Priore

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, C. Scott Hemphill, Philip J. Weiser

Publications

This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.

We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test, a plaintiff …

Linking The Public Benefit To The Corporation: Blockchain As A Solution For Certification In An Age Of "Do-Good" Business, Margaret D. Fowler

Vanderbilt Journal of Entertainment & Technology Law

As part of its now-infamous emissions scandal, Volkswagen spent tens of millions of dollars on advertising geared toward environmentally conscious consumers. The scandal is an example of "greenwashing," which, along with the corresponding term "fairwashing," represents the information asymmetry present in product markets that involve claims of social and environmental responsibility in companies' production practices. As consumers and investors demand responsible production practices from both traditional corporations and entities organized under the newer corporate form known as public benefit corporations (PBCs), it becomes even more important to verify that those entities' supply chains are, in fact, meeting standards for the …

Table Of Contents

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

Table of Contents

Antitrust Immunity For Joint Ventures Among Alliance Airlines, Fred Lazar

Journal of Air Law and Commerce

This article addresses four fundamental questions:

1. If joint ventures and, particularly, metal-neutral joint ventures produce significant benefits for consumers, then why not grant them antitrust immunity while subjecting them to periodic reviews that ensure benefits continue to materialize and exceed the potential costs of lessening competition?

2. Alternatively, why not grant antitrust immunity to a joint venture with a time limit and subject it to another review on whether the immunity should be extended for another fixed period of time?

3. Or, why not attach conditions other than carve-outs to any immunized joint ventures?

4. Finally, should immunity have …