Antitrust and Trade Regulation Commons^™

Allocation Of The Burden Of Proof In Administrative Proceedings Conducted Under The Law On Counteracting The Unfair Use Of Contractual Advantage In The Trade Of Agricultural And Food Products, Krzysztof Kanton

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

The article analyzes evidentiary aspects in proceedings conducted by the President of the Polish Competition and Consumer Protection Authority (President of UOKiK) on the basis of the legal provisions on counteracting the unfair use of contractual advantage in the trade of agricultural and food products. The above aspects, including the fundamental issue of the allocation of the burden of proof within the framework of administrative proceedings, are currently gaining in importance, taking into account UOKiK’s strict policy of enforcing the above provisions, and the increasing penalization imposed on entrepreneurs under the legislation in question. It is particularly crucial to ensure …

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

The Ineffectiveness Of Pactum De Non Cedendo Under The Act On Counteracting Excessive Delays In Commercial Transactions As An Instrument Of Countering Unfair Contractual Practices, Krzysztof Żebryk

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

In contracts concluded in the course of trade, contractual limitations are quite common that exclude or restrict the admissibility of transferring debt, owed to a creditor under a commercial transaction, without the consent of the debtor (pactum de non cedendo). Due to disproportions in contractual strength, which put the weaker party to the contract in a position of economic dependence, contractual clauses of this type may be a problem affecting the financial condition of micro, small and medium-sized enterprises, as well as maintaining their financial liquidity. In a broader context, they may be a problem for maintaining competitiveness overall. The …

The Decision-Making Practice Of The President Of Uokik In Excessive Delays In Payments Cases, Piotr Gogol, Aleksandra Ziemnicka

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

This article summarizes the key conclusions resulting from the decision-making practice of the President of UOKiK in cases of excessive payment delays in proceedings completed in 2021–2022. The analysis includes the duration of the proceedings, the method of their closure, as well as the problem of the interpretation of the legal concepts affecting the direction of the decisions issued.

Protecting The Rights Of Sellers On Multilateral Platforms Under The Digital Markets Act (Dma) Regime – Selected Issues, Adrian Żądło

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

This article discusses the two legal regimes that will apply in the future to the operation of multilateral marketplace platforms – the fi rst arising from general EU competition law, and the second introduced through the application of the Digital Markets Act. The former is discussed based on reports, legal literature, and the decisions issued by the European Commission in the combined cases AT.40462 Amazon Marketplace and AT.40703 Amazon Buy Box. The other legal regime to affect the operation of multilateral marketplace platforms is based on an analysis of the Digital Markets Act and other relevant legislation. Finally, after the …

Public Law Protection Of Fair Payment Terms In The Light Of The Enforcement Experiences Of The President Of Uokik On The Basis Of The 2020 Act On Counteracting Excessive Delays In Commercial Transactions, Aleksandra Dziurkowska, Tomasz Feliszewski

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

The aim of the article is to analyze the reasons why the Polish legislator decided to introduce administrative and legal tools in order to fi ght against payment gridlocks. The paper also provides statistical data of previous proceedings conducted by the President of UOKiK on the basis of the Act on Counteracting Excessive Delays in Commercial Transactions. In addition, it discusses how such proceedings look like in practice from the perspective of the undertakings concerned, and what practical problems must be solved by the involved entrepreneurs in order to meet the expectations of President of UOKiK.

Issues Of “Constitutionality” Of The Method Of Calculating And Adjusting Administrative Penalties Imposed On Entrepreneurs Resulting From The Act On Counteracting Excessive Delays In Commercial Transactions, Jadwiga Stryczyńska, Kamila Białasik

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

Proceeding conducted on the basis of the Act on Counteracting Excessive Delays in Commercial Transactions (the Act), cause significant doubts of a practical and interpretation nature. The structure of some of the provisions introduced by the Act gave rise to doubts which, due to their nature and the position of the entrepreneur, may be perceived as violating the basic rights of a party in administrative proceedings. Practice shows that some of the rules of the Act have caused a difference in the state of entrepreneurs in similar factual situations. Moreover, the conducted proceedings, their length and their level of complexity, …

Presumption Of Significant Disparity In Economic Strength Under The Act On Counteracting The Unfair Use Of Contractual Advantage In The Trade In Agricultural And Food Products, Paweł Sopalski

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

The new Act on counteracting the unfair use of contractual advantage in the trade in agricultural and food products is related to the implementation of Directive (EU) 2019/633 of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. It introduces a presumption of a significant disproportion in economic strength by indicating the thresholds for the annual turnover of entities that are subject to assessment. The presumption is an evidentiary short cut in the course of proceedings. The use of the presumption requires the turnover of the entrepreneur to …

The Role And Powers Of Non-Governmental Organizations (Ngos) In Proceedings On Practices Of An Unfair Use Of A Contractual Advantage, Magdalena Knapp, Piotr Włodawiec

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

The article outlines the actions that a non-governmental organization can take at various stages of proceedings on practices of an unfair use of a contractual advantage. The NGOs can mitigate the effects of the so-called “fear factor”, which allows stronger buyers to impose unfair terms of cooperation on their “weaker” suppliers. The authors analyze the procedural rights of NGOs in administrative proceedings pending before the President of UOKiK, and in judicial proceedings conducted before the Polish Competition and Consumer Protection Court (SOKiK) as a result of an appeal fi led against a decision issued by the President of UOKiK. The …

Case Comment On The Judgment Of The Polish Supreme Administrative Court (Nsa) Of 17 February 2023, Ref. No. Act: Ii Gsk 1458/19, On The Assessment Of The Constitutionality Of The Sanction Of Repealing The Classifi Cation And Categorization Of An Entity As A Hotel Facility, And The Deletion Of Such Entity From The Register Of Hotel Facilities, Dominik Borek

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

This article quotes the facts described in the judgment of the Polish Supreme Administrative Court (NSA) of February 17, 2023, fi le ref. file: II GSK 1458/19. The commented judgment is of great importance for the Polish hotel market, as it concerns the possibility of issuing, under the current legal regime, of decisions repealing the classification and categorization of an entity as a hotel facility and to its removal from the relevant register of hotel facilities, when it is established that the entity in question does not meet the requirements of fire, sanitary or construction safety. The constitutionality of the …

Review Of The Book By Magdalena Knapp, Legal Protection Of Entrepreneurs In The Public Interest Against The Unfair Use Of A Contractual Advantage, C.H. Beck, Warsaw 2022, Konrad Kohutek

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

No abstract provided.

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

Textualism As An Ally Of Antitrust Enforcement: Examples From Merger And Monopolization Law, Robert H. Lande

Utah Law Review

This Article will first briefly present an overview of the textualist method of statutory interpretation. It will then briefly engage in a textualist analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. At least in these areas, textualist analysis should, if anything, help re-invigorate antitrust enforcement.

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Utah Law Review

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of …

Navigating Name, Image, And Likeness Policy In College Athletics – Issues And Solutions, Daniel Erber

Brooklyn Journal of Corporate, Financial & Commercial Law

College athletics, specifically the NCAA, has faced legal challenges throughout its history. In the wake of Alston and other Supreme Court decisions regarding antitrust violations tied to student-athlete benefits, many states proposed and passed laws explicitly allowing student-athletes at NCAA institutions to utilize their names, images, and likenesses for commercial purposes. With the state laws in direct conflict with NCAA rules, college sports entered an era of extreme uncertainty. While the NCAA attempts to maintain its grip on the commercial endeavors of student-athletes and member institutions, states and society are pushing a free market agenda geared towards liberalizing the economic …

Minor League With A Major Issue: How Baseball's Federal Antitrust Exemption Has Devastated Minor League Baseball, Hallie Arena

West Virginia Law Review Online

In 1922, the United States Supreme Court exempted Major League Baseball (“MLB”) from the Sherman Antitrust Act in the landmark decision Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. Despite growing criticism from the players, fans, and the courts, this exemption holds true today. Although MLB players have slowly been given greater contracting rights, minor league players have been left behind in this fight. MLB’s antitrust exemption negatively affects MiLB and allows league owners to exploit players for little salary, often forcing them to live at or below the poverty line. Poor living conditions, coupled …

Gotta Get Those Ill-Gotten Gains: Improving The Ftc's Authority To Seek Disgorgement In Antitrust Cases, Kathryn Buggs

Michigan Law Review

Disgorgement is an equitable monetary remedy that requires a defendant to give up all ill-gotten gains from their illegal conduct. Unlike damages, which can be compensatory, deterrent, or even punitive in nature, disgorgement focuses primarily on deterring future illegal conduct. It relies on the simple moral premise that wrongdoers should not be allowed to retain the profits of their wrongdoing. Especially in antitrust litigation involving complex, multilayered supply chains, damages can underestimate the true harm suffered as a result of anticompetitive conduct. Disgorgement, if calculated properly and litigated thoughtfully, has the potential to provide redress for the full amount of …

Gamestopped: How Robinhood’S Gamestop Trading Halt Reveals The Complexities Of Retail Investor Protection, Neal Newman

Faculty Scholarship

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop …

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …