Showing archive for: “MFNs”
Why I think the government will have a tough time winning the Apple e-books antitrust case
Trial begins today in the Southern District of New York in United States v. Apple (the Apple e-books case), which I discussed previously here. Along with co-author Will Rinehart, I also contributed an essay to a discussion of the case in Concurrences (alongside contributions from Jon Jacobson and Mark Powell, among others). Much of my ... Why I think the government will have a tough time winning the Apple e-books antitrust case
Have Elhauge and Wickelgren Undermined the Rule of Per Se Legality for Above-Cost Loyalty Discounts?
Einer Elhauge and Abraham Wickelgren, of Harvard and the University of Texas, respectively, have recently posted to SSRN a pair of provocative papers on loyalty discounts (price cuts conditioned on the buyer’s purchasing some amount, usually a percentage of its requirements, from the seller). Elhauge and Wickelgren take aim at the assertion by myself and ... Have Elhauge and Wickelgren Undermined the Rule of Per Se Legality for Above-Cost Loyalty Discounts?
Apple Responds to the DOJ e-Books Complaint
Apple has filed its response to the DOJ Complaint in the e-books case. Here is the first paragraph of the Answer: The Government’s Complaint against Apple is fundamentally flawed as a matter of fact and law. Apple has not “conspired” with anyone, was not aware of any alleged “conspiracy” by others, and never “fixed prices.” ... Apple Responds to the DOJ e-Books Complaint
The procompetitive story that could undermine the DOJ’s e-books antitrust case against Apple
Did Apple conspire with e-book publishers to raise e-book prices? That’s what DOJ argues in a lawsuit filed yesterday. But does that violate the antitrust laws? Not necessarily—and even if it does, perhaps it shouldn’t. Antitrust’s sole goal is maximizing consumer welfare. While that generally means antitrust regulators should focus on lower prices, the situation is more ... The procompetitive story that could undermine the DOJ’s e-books antitrust case against Apple
The Law and Economics of Any Willing Provider Laws
While I’m posting about health care regulation, I’d like to point TOTM readers to a short article with Jonathan Klick (University of Pennsylvania) summarizing the economics and empirical evidence surrounding “Any Willing Provider”(AWP) laws for the Washington Legal Foundation. We write: This analysis evaluates the antitrust law ramifications of proposals requiring pharmacy benefit managers (“PBMs”) ... The Law and Economics of Any Willing Provider Laws
DOJ’s Latest on Apple Investigation
From the WSJ: Publishers argue that the agency model promotes competition by allowing more booksellers to thrive. They say Amazon had sold e-books below cost and that agency pricing saved book publishers from the fate suffered by record companies. But the Justice Department believes it has a strong case that Apple and the five publishers ... DOJ’s Latest on Apple Investigation
The Apple E-Book Kerfuffle Meets Alfred Marshall’s Principles of Economics
From a pure antitrust perspective, the real story behind the DOJ’s Apple e-book investigation is the Division’s deep commitment to the view that Most-Favored-Nation (MFN) clauses are anticompetitive (see also here), no doubt spurred on at least in part by Chief Economist Fiona Scott-Morton’s interesting work on the topic. Of course, there are other important ... The Apple E-Book Kerfuffle Meets Alfred Marshall’s Principles of Economics
Gans on Apple and Antitrust
Joshua Gans has an interesting post examining potential antitrust issues involving Apple, an issue we’ve discussed here and here. Gans focuses in on the two most relevant issues: There are two aspects that might raise antitrust concern: (i) Apple’s exclusivity-like requirement that no external payment links be permitted in apps and (ii) Apple’s most-favored customer ... Gans on Apple and Antitrust
An update on the evolving e-book market: Kindle edition (pun intended)
[UPDATE: Josh links to a WSJ article telling us that EU antitrust enforcers raided several (unnamed) e-book publishers as part of an apparent antitrust investigation into the agency model and whether it is “improperly restrictive.” Whatever that means. Key grafs: At issue for antitrust regulators is whether agency models are improperly restrictive. Europe, in particular, ... An update on the evolving e-book market: Kindle edition (pun intended)
Carl Shapiro on BCBS and the New Merger Guidelines
?Carl Shapiro’s (DOJ) speech at the ABA Fall Forum contains (at least) two interesting tidbits worth highlighting for TOTM readers. The first is a discussion of the DOJ’s case against Blue Cross Blue Shield, which as discussed here, turns on an economic analysis of the use of most-favored nations clauses in contractual arrangements with hospitals: ... Carl Shapiro on BCBS and the New Merger Guidelines
Should Congress Repeal the McCarran-Ferguson Act?
While I’m focused on health care and antitrust, the question above is the subject of a conference at the Harvard Law School Petrie?Flom Center which looks like it has a great lineup. The conference is November 12th. Here is the conference description (HT: Larry Solum). Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at ... Should Congress Repeal the McCarran-Ferguson Act?
DOJ v. Blue Cross Blue Shield of Michigan
This should be an interesting case to watch. As I’ve discussed, if one excludes policy speeches and restricts focus to enforcement action and activity, it has been thus far difficult to distinguish the Obama Antitrust Division from the Bush II Antitrust Division when it comes to single firm or allegedly exclusionary conduct. But the DOJ’s ... DOJ v. Blue Cross Blue Shield of Michigan
