Antitrust and Trade Regulation Commons^™

Resuscitating E-Commerce's Transnational Promise With Out-Of-Court Processes, Oladeji Tiamiyu

Sturm College of Law: Faculty Scholarship

E-commerce is increasingly taking a central role in conducting commercial transactions. This burgeoning industry has shaped how, when, and even why consumers transact. While catalyzed by the pandemic, increased use of e-commerce platforms is a multi-decade historical trend. Yet regulators throughout much of the world have been slow in how they regulate these platforms. In recognition of the growing importance of digital transactions, regulators have increasingly explored what should be the appropriate amount of oversight for platforms that have relied on substantial self-regulation. Regulation has increased the difficulty for private and public enforcement of antitrust laws, compromising a variety of …

Demystifying The Elusive Quest For Cyber Insurance Protection: The Need For New Contract Language, Deborah L. Johnson

Cardozo Law Review

Cyberattacks and electronic data breaches are on the rise, and the costs associated with those breaches can be astronomical. In response, the insurance industry has created a specialty market for cyber coverage. However, despite the number of cyber insurance policies currently offered on the market, insurers frequently deny claims for cyber coverage under both these specialty and traditional policies.

Examining the evolution of cyberattacks, data breaches, and the massive harm they can cause to businesses, this Article explores the legal and market obstacles to obtaining adequate cyber insurance coverage and offers potential solutions to policyholders and insurers to satisfy this …

Wireless Investors & Apathy Obsolescence, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Works

This Article discusses how a subgenre of retail investors makes investors’ apathy obsolete. In prior work, we dub retail investors who rely on technology and online communications in their investing and corporate governance endeavors “wireless investors.” By applying game theory, this Article discusses how wireless investors’ global-scale online interactions allow them to circulate information and coordinate, obliterating collective action problems.

The Retail Investor Report, Nick Einhorn, Jill E. Fisch, Sergio Alberto Gramitto Ricci, Monique Le, Christina M. Sautter

Faculty Works

In 2020, a wave of retail investors entered the stock market. In the last two years, approximately 30 million new retail investors opened brokerage accounts in the U.S. By 2021, retail investors comprised 25% of total equities trading volume, nearly double the percentage reported a decade prior.

And they’ve stuck around. In February 2023, retail investors across platforms set a new all-time high for weekly inflows, with $1.5 billion dollars pouring into the market in a single week.

Participation in the public markets remains high; more significantly, it has evolved. Public.com surveyed 2,000+ investors to compile its 2023 report. Public’s …

Horizontal Price Exchanges, Joseph E. Harrington Jr., Christopher R. Leslie

Cardozo Law Review

The private exchange of prices by competitors has long been a source of anticompetitive concern. Based on claims of possible procompetitive effects, the Supreme Court decided that antitrust challenges to these exchanges should be evaluated under the rule of reason. In reviewing the jurisprudence applying the rule of reason approach to horizontal price exchanges, we find it suspect as it is long on claims of procompetitive benefits but short on economic theory and evidence substantiating those claims. To fill this gap, this Article injects economic reasoning into the judicial discussion. While our analysis identifies several reasons for these exchanges to …

Antitrust And Sustainability: A Landscape Analysis, Columbia Center On Sustainable Investment, Sabin Center For Climate Change Law

Columbia Center on Sustainable Investment

Competition policy and antitrust law are experiencing a global renaissance. New market realities such as digital market gatekeepers, the financialization of firms, highly concentrated markets, a rising labor movement, industrial policy, and trade wars, among others, are radically reshaping how this policy area is understood and applied.

Sustainability concerns have also been a driving force for reconstituting antitrust to meet twenty-first century challenges. It is now widely accepted that competition policy – both its aims and its enforcement – has wider societal impacts beyond competition, including effects on democracy, economic inequality, growth and innovation, racial and gender imbalances, privacy, geopolitical …

Venture Predation, Matthew T. Wansley, Samuel N. Weinstein

Articles

Predatory pricing is a strategy firms use to suppress competition. The predator prices below its own costs to force its rivals out of the market. After they exit, the predator raises its prices to supracompetitive levels and recoups the cost of predation. The Supreme Court has described predatory pricing as “rarely tried” and “rarely successful” and has established a liability standard that is nearly impossible for plaintiffs to satisfy. We argue that one kind of company thinks predatory pricing is worth trying and at least potentially successful—venturebacked startups.

A venture predator is a startup that uses venture finance to price …

Tinjauan Asas Demokrasi Ekonomi Atas Penyalahgunaan Posisi Dominan Dalam Membatasi Pengembang Teknologi Di Era Industri Kreatif : Studi Atas Tarif Layanan Google Play Store, Meriyanti Djaka

Jurnal Hukum & Pembangunan

National economic development in the creative industry era really requires community participation in utilizing technology, one of which is by developing digital application technology. Distribution of digital applications is generally marketed through the Google Play Store because of its very high market share in Indonesia. In marketing their products, technology developers charge a service fee of around 15-30% of in-app purchase sales for the applications they develop. This research aims to prove the abuse of a dominant position by companies distributing digital applications through the Google Play Store which limits technology developers, as well as reviewing this with the principles …

Regulating Best Interest: Sec Confronts The Brave New Markets, Rayaan Hossain

University of Miami Business Law Review

This Note comments on how recent developments in securities regulation deal with today’s securities industry challenges. As usual, the law advances much slower than technology. After decades of debate over heightened standards for broker-dealers giving investment advice, the Securities and Exchange Commission (“SEC”) introduced Regulation Best Interest (Reg BI). Our modern market demands that broker-dealers execute quick trades on behalf of their clients as well as provide broader investment advice. The popularity of online trading platforms (“OTPs”) only exacerbated the need for regulatory changes. The theme of this paper surmises how Reg BI responds to the rise of the retail …

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.

Why Economists Should Support Populist Antitrust Goals, Mark Glick, Gabriel A. Lozada, Darren Bush

Utah Law Review

Antitrust policy can be a powerful tool to tackle important social and economic problems. For decades antitrust enforcement has been shackled by the so-called Consumer Welfare Standard (“CWS”) that has limited the goals considered to be “legitimate.” The CWS limits antitrust goals to those that impact demand in markets, and primarily in output markets. Recently, new voices have come forward to suggest that antitrust policy should address several other important social objectives. Such goals include the traditional antitrust goals that motivated passage of the antitrust statutes, and which were discussed in Pre-Rehnquist Court opinions, including dispersion of economic and political …

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 …

Consumer-Facing Competition Remedies: Lessons From Consumer Law For Competition Law, Lauren E. Willis

Utah Law Review

Assigning consumers the task of disciplining markets is frequently attempted but rarely achieved. We teach financial literacy classes with the hope that consumers will avoid overly-risky and overly-costly financial products. We require calorie labels with the hope that consumers will use them to reduce obesity. We pre-select a no-overdraft default with the hope that consumers will stick with the default and avoid overdraft fees. None of these approaches are terribly effective at achieving the ends sought because, in each instance, the intervention—the classes, the disclosures, or the defaults—produce unexpected heterogeneous consumer responses and are met with a barrage of firm …

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 …

Why Is Frand Hard?, Michael A. Carrier

Utah Law Review

There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an …

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 …

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, …

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 …

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 …