Showing archive for: “Harm to Competition”
FTC UMC Roundup – Trojan Horse Edition
Things are getting spicy in the administrative state. This week we have the first formal indication of new rules coming out of the FTC. We have lobbyists lobbying, and influencers influencing, CEOs loitering, and academics … academicing? We have some review and preview of what’s at stake with administrative law. We’ve got interesting upcoming events. ... FTC UMC Roundup – Trojan Horse Edition
The ABA’s Antitrust Law Section Sounds the Alarm on Klobuchar-Grassley
Sens. Amy Klobuchar (D-Minn.) and Chuck Grassley (R-Iowa)—cosponsors of the American Innovation Online and Choice Act, which seeks to “rein in” tech companies like Apple, Google, Meta, and Amazon—contend that “everyone acknowledges the problems posed by dominant online platforms.” In their framing, it is simply an acknowledged fact that U.S. antitrust law has not kept ... The ABA’s Antitrust Law Section Sounds the Alarm on Klobuchar-Grassley
The FTC Abandons the Free Market
In December 2021, the Federal Trade Commission (FTC) released its statement of regulatory priorities for 2022, which describes its intention to expand the agency’s rulemaking activities to target “unfair methods of competition” (UMC) under Section 5 of the Federal Trade Commission Act (FTC Act), in addition to (and in some cases, presumably in place of) ... The FTC Abandons the Free Market
Chevron and Administrative Antitrust, Redux
[Wrapping up the first week of our FTC UMC Rulemaking symposium is a post from Truth on the Market’s own Justin (Gus) Hurwitz, director of law & economics programs at the International Center for Law & Economics and an assistant professor of law and co-director of the Space, Cyber, and Telecom Law program at the ... Chevron and Administrative Antitrust, Redux
Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook
Introduction The States brought an antitrust complaint against Facebook alleging that various conduct violated Section 2 of the Sherman Act. The ICLE brief addresses the States’ allegations that Facebook refused to provide access to an input, a set of application-programming interfaces that developers use in order to access Facebook’s network of social-media users (Facebook’s Platform), ... Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook
Attention Markets: They Know Them When they See Them
A raft of progressive scholars in recent years have argued that antitrust law remains blind to the emergence of so-called “attention markets,” in which firms compete by converting user attention into advertising revenue. This blindness, the scholars argue, has caused antitrust enforcers to clear harmful mergers in these industries. It certainly appears the argument is ... Attention Markets: They Know Them When they See Them
Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple
The International Center for Law & Economics (ICLE) filed an amicus brief on behalf of itself and 26 distinguished law & economics scholars with the 9th U.S. Circuit Court of Appeals in the hotly anticipated and intensely important Epic Games v Apple case. A fantastic group of attorneys from White & Case generously assisted us ... Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple
In Apple v Epic, 9th Circuit Should Remember that Antitrust Forbids Enhancing, not Exercising, Market Power
On March 31, I and several other law and economics scholars filed an amicus brief in Epic Games v. Apple, which is on appeal to the U.S. Court of Appeals for Ninth Circuit. In this post, I summarize the central arguments of the brief, which was joined by Alden Abbott, Henry Butler, Alan Meese, Aurelien ... In Apple v Epic, 9th Circuit Should Remember that Antitrust Forbids Enhancing, not Exercising, Market Power
Final DMA: Now We Know Where We’re Going, but We Still Don’t Know Why
After years of debate and negotiations, European Lawmakers have agreed upon what will most likely be the final iteration of the Digital Markets Act (“DMA”), following the March 24 final round of “trilogue” talks. For the uninitiated, the DMA is one in a string of legislative proposals around the globe intended to “rein in” tech ... Final DMA: Now We Know Where We’re Going, but We Still Don’t Know Why
Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
For decades, consumer-welfare enhancement appeared to be a key enforcement goal of competition policy (antitrust, in the U.S. usage) in most jurisdictions: The U.S. Supreme Court famously proclaimed American antitrust law to be a “consumer welfare prescription” in Reiter v. Sonotone Corp. (1979). A study by the current adviser to the European Competition Commission’s chief ... Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
Antitrust Policy and National Security Interests
U.S. antitrust policy seeks to promote vigorous marketplace competition in order to enhance consumer welfare. For more than four decades, mainstream antitrust enforcers have taken their cue from the U.S. Supreme Court’s statement in Reiter v. Sonotone (1979) that antitrust is “a consumer welfare prescription.” Recent suggestions (see here and here) by new Biden administration ... Antitrust Policy and National Security Interests
Oldie-but-Baddie: The Revival of an Antitrust ‘Efficiencies Offense’?
Recent antitrust forays on both sides of the Atlantic have unfortunate echoes of the oldie-but-baddie “efficiencies offense” that once plagued American and European merger analysis (and, more broadly, reflected a “big is bad” theory of antitrust). After a very short overview of the history of merger efficiencies analysis under American and European competition law, we ... Oldie-but-Baddie: The Revival of an Antitrust ‘Efficiencies Offense’?
