Antitrust and Trade Regulation Commons^™

In Support Of Ureaa: The Case For Timely, Uniform, And Comprehensive Action Against Restrictive Employment Agreements, Ryan Greenberg

University of Miami Business Law Review

Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law …

Anticompetitive Corporate Spin-Offs, Alexa Rosen Grealis

University of Miami Business Law Review

Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.

This Note posits that it is a mistake to …

Epic Games, Inc. V. Apple, Inc.: An Epic Opinion For Software Developers, Gabriella Veronica Coffield

University of Miami Business Law Review

Aside from Google Play, Apple’s App Store is where the majority of apps are downloaded from across the world. Recently, Apple has faced scrutiny for its management of the App Store and the control Apple has over the market due to the lack of competition. Additionally, developers have criticized the 30% fee Apple charges them for in-app purchases. The recent ruling by the Northern District of California in Epic Games, Inc. v. Apple, Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021) addressed this issue and issued an injunction allowing the possibility for developers to direct consumers to external links …

Hospital Mergers: The Symptoms Of Anticompetitive Consolidation & A Routine Checkup On The Horizontal Merger Guidelines, Stefan Rao Kostas

University of Miami Business Law Review

In 2021, President Biden issued an executive order that addressed the negative implications of market concentration within the healthcare industry. Specifically, President Biden called for the revision of the Horizontal and Vertical Merger Guidelines to enact antitrust safeguards that limit unchecked hospital mergers and promote competition. This Article delves into the role of the healthcare sector in the U.S. economy and how the current state of hospital mergers limits competition and, thus, the quality of care available to patients. Further, this Article studies U.S. federal regulations, case law, and merger retrospectives to uncover pitfalls within the current Horizontal Merger Guidelines. …

Now Streaming: How Streaming Services Are Following In The Antitrust Footsteps Of Hollywood’S Golden Age, Megan Elizabeth Norris

University of Miami Business Law Review

The entertainment industry is undergoing quite the transformation following the recent termination of the Paramount Consent Decrees, which effectively regulated the industry to prevent monopolization and promote competition for almost a century. The industry now faces a drastic surge in the utilization of streaming services and a new wave of antitrust issues.

“With great power comes great responsibility;” however, the dominant streaming companies in the industry have raised suspicion about emerging anticompetitive concerns. While long overdue, the termination of the Paramount Consent Decrees leaves a gaping hole in antitrust policy regarding the nuanced business practice of streaming platforms. Existing antitrust …

Czy Bez Regulacji Możliwa Jest Ekologiczna Kolej?, Ewelina Nieznalska, Anna Głusiec

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

This article deals with issues related to the introduction of ecological railways, and legal regulations in this area in Poland and in the European Union. The article provides an attempt to answer the question whether it is possible to introduce ecological railways without creating appropriate legal regulations within EU Member States.

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Economics Faculty Articles and Research

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …

Addressing Personal Data Collection As Unfair Methods Of Competition, Maurice E. Stucke

Scholarly Works

Enforcers, policymakers, scholars, and the public are concerned about Google, Apple, Facebook, Amazon, and recently Microsoft and their influence. That influence comes in part from personal data. These companies are “data-opolies,” in that they are powerful firms that control our data. The data comes from their vital ecosystems of interlocking online platforms and services, which attract users; sellers; advertisers; website publishers; and software, app, and accessory developers.

The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Cutting across political lines, many Americans think Big Tech’s economic power is a …

The Role Of Secondary Algorithmic Tacit Collusion In Achieving Market Alignment, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

The antitrust risks associated with the use of the same hub’s pricing algorithm by many sellers are now well-accepted. But what if many rivals use several different hubs for dynamic pricing? The common assumption is that in such instances, competition among the pricing hubs would support competition among the sellers. However, in this paper we argue differently and introduce the concept of secondary algorithmic tacit collusion, which leads to anticompetitive effects, independent of the conditions on the primary market. This phenomenon may lead to the evils of price-fixing but on far a wider scale. Contrary to traditional tacit collusion, this …

Clearing The Way To Renminbi Domination: Cips, Antitrust, And Currency Competition, Felix B. Chang

Faculty Articles and Other Publications

China watchers have decried the emergence of the Cross-Border Interbank Payment System (“CIPS”) as a turning point in the move to dethrone the U.S. dollar. This Article situates CIPS, which clears and settles Chinese renminbi transactions, with other financial market infrastructures, drawing lessons from how those entities have thrived or failed.

In recent conversations, CIPS has been conflated with other infrastructures (e.g., the SWIFT payment messaging system) and currency trends (e.g., de-dollarization and sanctions evasion). However, a currency clearinghouse is very different than most financial institutions. For CIPS, the market-maker in the adjacent trading market is the Chinese government, a …

Algorithmic Tacit Collusion, Maurice E. Stucke, Ariel Ezrachi

Book Chapters

No abstract provided.

Ncaa V. Alston (Case Notes), Carson Blakely

Tennessee Law Review

In August 2013, I was a thirteen-year-old immersed in the world of NCAA Football 14, a popular video game by Electronic Arts (EA). Through my digital replicas and the actual Tennessee Volunteer football players, my friends and I led the Vols to three consecutive BCS National Championships. My fictional character, a top running back, won three Heisman Trophies, which remains my greatest athletic accomplishment to date. Then, EA announced the discontinuation of the NCAA Football franchise, leaving millions of digital coaches, including myself, perplexed.1 Little did I know that the issue at hand was the complex legal realm of Name, …

Ncaa V. Alston, Emma S. Fowler

Tennessee Law Review

No abstract provided.

Endogenous Market Choice, Listing Regulations, And Ipo Spread: Evidence From The London Stock Exchange, Hafiz Hoque, John Doukas

Finance Faculty Publications

This study examines the endogenous market choice and its impact on underwriter spread if Alternative Investment Market (AIM) IPOs that meet Main Market (MM) listing requirements had issued equity in the MM during the 1995–2021 period. We find that the spread is 1.33% higher in the AIM than the MM for IPO listings that meet the MM listing requirements. This finding suggests that AIM companies, meeting the MM listing requirements, could have saved more than £100 million by going public through the MM than the AIM market. We also find that this spread differential is attributed to the issuing firms' …

Women In Shareholder Activism, Sarah C. Haan

Seattle University Law Review

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with …

A Called Third Strike: Professional Baseball’S Antitrust Exemption In A Post-Dobbs World, Matthew B. Couch

Campbell Law Review

Professional baseball has long enjoyed exemption from federal antitrust law due to a trio of Supreme Court cases. The last of these cases, Flood v. Kuhn, upheld the exemption on the basis of stare decisis, yet rejected the constitutional foundation on which it rested. This Comment argues that in the wake of the recent Supreme Court case, Dobbs v. Jackson Women’s Health Organization, the Roberts Court has provided a clear analytical framework for analyzing constitutional stare decisis that should apply to Flood. Applying the Dobbs framework, this Comment then shows how Flood fails every factor favoring continued …

The 2022 U.S. Steel/Aluminum Tariff Ruling: A Legal Reckoning For The United States And The Wto Over The National Security Exception In International Law, Klint W. Alexander

American University Law Review

On December 9, 2022, the World Trade Organization (WTO) issued landmark rulings against the United States in four cases brought by China, Switzerland, Norway, and Turkey involving the U.S. imposition and maintenance of restrictive trade measures on steel and aluminum imports dating back to 2018. The major effect of the rulings was to quash the idea that a WTO member had unfettered discretion to invoke the national security exception under Article XXI(b) of the General Agreement on Tariffs and Trade (GATT 1994) whenever it suits its interests. The recent decisions build upon important WTO precedents addressing the applicability of the …

The Critical Contribution Of Independent Accountability Mechanisms (Iams) To The Global Governance Paradigm, Owen Mcintyre

Perspectives

For several decades now, the environmental and social safeguard policies adopted by international financial institutions (IFIs), along with the related accountability frameworks provided by the independent accountability mechanisms (IAMs) established by each, have been at the very forefront of a global movement to extend good environmental and social governance values to the practice of international development finance. The complex of substantive and procedural standards of institutional conduct required under multilateral development bank (MDB) safeguard policies in respect of the assessment and implementation of bank-funded development projects or activities exemplifies the phenomenon of so-called “transnational” or “global” law - the rich …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …