N-Data Settlement Approved 3-1

The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier dissent is here).  I think is a sleeper candidate for one of the most important antitrust events of the year as it potentially signals a remarkable expansion of the Commission’s Section 5 Act.  You can read the public comments on N-Data here.  Bruce Kobayashi and I (in this paper) have criticized the decision on a number of grounds, most importantly the adequacy of alternative state contract and federal patent remedies to mitigate patent holdup problems coupled with the potential for significant welfare losses in the form of allowing antitrust remedies (including private follow-on and state litigation) when we extend antitrust liability to breach of contract or even good faith modifications.