Will the FTC Scupper the Kroger/Albersons Merger?
The press is abuzz with news about the Federal Trade Commission’s (FTC) Feb. 26 announcement that it would challenge the proposed Kroger/Albertsons mega-supermarket merger, which had been in the works since the fall of 2022. If the FTC succeeds in obtaining a temporary restraining order and preliminary injunction in Oregon federal district court (a big ... Will the FTC Scupper the Kroger/Albersons Merger?
NetChoice, the Supreme Court, and the State Action Doctrine
George Orwell’s “Nineteen Eighty-Four” is frequently invoked when political actors use language to obfuscate what they are doing. Ambiguity in language can allow both sides to appeal to the same words, like “the First Amendment” or “freedom of speech.” In a sense, the arguments over online speech currently before the U.S. Supreme Court really amount ... NetChoice, the Supreme Court, and the State Action Doctrine
FCC’s Digital-Discrimination Rules: An Open Invitation to Flood the Field with Schlock
A half-dozen lawsuits have been filed to date challenging the digital-discrimination rules recently approved by the Federal Communications Commission (FCC). These cases were consolidated earlier this month and will now be heard by the 8th U.S. Circuit Court of Appeals. This has the hallmarks of a significant case that will almost certainly involve the U.S. ... FCC’s Digital-Discrimination Rules: An Open Invitation to Flood the Field with Schlock
The FTC Should Not Enact a Deceptive or Unfair Marketing Earnings-Claims Rule
Back in February 2022, the Federal Trade Commission (FTC) announced an advance notice of proposed rulemaking (ANPRM) on “deceptive or unfair earnings claims.” According to the FTC: [The Deceptive or Unfair ANPRM was aimed at] challenging bogus money-making claims used to lure consumers, workers, and prospective entrepreneurs into risky business ventures that often turn into ... The FTC Should Not Enact a Deceptive or Unfair Marketing Earnings-Claims Rule
From Europe, with Love: Lessons in Regulatory Humility Following the DMA Implementation
The European Union’s implementation of the Digital Markets Act (DMA), whose stated goal is to bring more “fairness” and “contestability” to digital markets, could offer some important regulatory lessons to those countries around the world that have been rushing to emulate the Old Continent. The first regards “regulatory humility.” Designing ex ante regulation to promote ... From Europe, with Love: Lessons in Regulatory Humility Following the DMA Implementation
Whose Failure Is the Failed Amazon/iRobot Merger?
The European Commission told Amazon in November 2023 of its preliminary view that the company’s proposed acquisition of iRobot restricted competition in the market for robot vacuum cleaners (RVCs) and could hamper rival RVC suppliers’ ability to compete effectively. The deal, the Commission asserted, would give Amazon incentive to foreclose iRobot’s competitors by engaging in ... Whose Failure Is the Failed Amazon/iRobot Merger?
DMA: Setting the Goalposts
In a little less than a month, the European Union’s Digital Markets Act (DMA) will start to bite, but how will it taste? By March 7, companies that were designated as “gatekeepers” in September 2023 will be required to meet the obligations of Articles 5, 6, and 7 of the DMA Regulation. With the exception ... DMA: Setting the Goalposts
Navigating the AI Frontier, Part I
The European Union is on the verge of enacting the landmark Artificial Intelligence Act (AI Act), which will—for better or worse—usher in a suite of new obligations, and hidden pitfalls, for individuals and firms trying to navigate the development, distribution, and deployment of software. Over the coming months, we will be delving into the nuances ... Navigating the AI Frontier, Part I
March-Right-on-In Rights?
The National Institute for Standards and Technology (NIST) published a request for information (RFI) in December 2023 on its “Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights.” It’s quite something, if not in a good way. March-In Rights Provide Very Limited Exceptions to Intellectual-Property Rights What are “march-in” rights? In brief, they ... March-Right-on-In Rights?
ICLE’s Amicus Briefs on the Future of Online Speech
Over the past few months, we at the International Center for Law & Economics (ICLE) have endeavored to bring the law & economics methodology to the forefront of several major public controversies surrounding online speech. To date, ICLE has engaged these issues by filing two amicus briefs before the U.S. Supreme Court, and another in ... ICLE’s Amicus Briefs on the Future of Online Speech
Using Bayh-Dole March-in to Set Patent Price Controls: An Assault on American Innovation
Under the Bayh-Dole Act, the federal government has the right to “march in” on patents on inventions created using taxpayer funds—to require the patentholder to license the federally funded patent to other applicants. The terms of the license must be “reasonable under the circumstances.” The act limits the exercise of march-in to specific circumstances related ... Using Bayh-Dole March-in to Set Patent Price Controls: An Assault on American Innovation
The FTC’s Misguided Campaign to Expand Bayh-Dole ‘March-In’ Rights
The Federal Trade Commission (FTC) has now gone on record in comments to the National Institute of Standards and Technology (NIST) that it supports expanded “march-in rights” under the Bayh-Dole Act (Act). But if NIST takes the FTC’s (unexpected, but ultimately unsurprising) contribution seriously, such an expansion could lead to overregulation that would ultimately hurt ... The FTC’s Misguided Campaign to Expand Bayh-Dole ‘March-In’ Rights
