Showing archive for: “Monopolization”
McWane: Structure Isn’t Enough
A particularly unsettling aspect of the FTC’s case against McWane is the complaint counsel’s heavy (and seemingly exclusive) reliance on structural factors to prove its case. The FTC has little or no direct evidence of price communications and no econometric evidence suggesting collusion, and has instead spent a good deal of time trying to show ... McWane: Structure Isn’t Enough
McWane: Why Have An Administrative Law Judge?
Two modest offices on the first floor of the FTC building are occupied by the FTC Administrative Law Judge and his staff. Of all of the agencies with an ALJ, the FTC’s operation must be the smallest. The ALJ handles only a handful of trials each year. In the past, the FTC ALJ operation has ... McWane: Why Have An Administrative Law Judge?
FTC at a crossroads: The McWane case
Anyone familiar with the antitrust newstream realizes there is a tremendous amount of controversy about the Federal Trade Commission’s administrative litigation process. Unlike the Antitrust Division which fights its litigation battles in Federal Court, the FTC has a distinct home court advantage. FTC antitrust cases are typically litigated administratively with a trial conducted before an ... FTC at a crossroads: The McWane case
My New Paper on Defining Exclusionary Conduct
In our recent blog symposium on Section 5 of the FTC Act, Latham & Watkins partner Tad Lipsky exposed one of antitrust’s dark little secrets: Nobody really knows what Sherman Act Section 2 forbids. The provision bans monopolization, attempted monopolization, and conspiracies to monopolize, and courts have articulated formal elements for each claim. But the ... My New Paper on Defining Exclusionary Conduct
Why I think the Apple e-books antitrust decision will (or at least should) be overturned
On July 10 a federal judge ruled that Apple violated antitrust law by conspiring to raise prices of e-books when it negotiated deals with five major publishers. I’ve written on the case and the issues involved in it several times, including here, here, here and here. The most recent of these was titled, “Why I ... Why I think the Apple e-books antitrust decision will (or at least should) be overturned
Tesla and the Auto Dealers Lobby
In Continental T.V. v. GTE Sylvania (1977), Justice Powell observed that antitrust law should go easy on manufacturer restraints on dealer resale because manufacturers could always decide to integrate forward into distribution and bypass dealers altogether. As anyone who has followed electric car manufacturer Tesla’s recent travails will know, Justice Powell’s observation is not true ... Tesla and the Auto Dealers Lobby
Bringing the Error Cost Framework to the Agency: Commissioner Wright’s Proposed Policy Statement on Section 5 Unfair Methods of Competition Enforcement
FTC Commissioner Wright issued today his Policy Statement on enforcement of Section 5 of the FTC Act against Unfair Methods of Competition (UMC)—the one he promised in April. Wright introduced the Statement in an important policy speech this morning before the Executive Committee Meeting of the New York State Bar Association’s Antitrust Section. Both the Statement ... Bringing the Error Cost Framework to the Agency: Commissioner Wright’s Proposed Policy Statement on Section 5 Unfair Methods of Competition Enforcement
Final Reply to Steve Salop
Dan’s final post responding to Steve’s latest post. Other posts in the series: Dan, Steve, Dan, Steve, Dan, and Thom. It seems that it’s time to wind down and that a further tit-for-tat might not be productive, so I’ll close with a final comment on the first point that Steve makes—one that may undergird much of our disagreement. Steve asserts that “the $71 ... Final Reply to Steve Salop
Dan, Come Over to the Rule of Reason
Steve’s next, perhaps final, installment, responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: Steve, Dan, Steve, Dan, and Thom. My invitation comes with several hopefully final observations. (1) Dan says, “There’s neither input foreclose nor output foreclosure if a rival can neutralize a loyalty discount without pricing unprofitably.” My examples showed several reasons ... Dan, Come Over to the Rule of Reason
A Further Reply to Steve Salop
Dan’s next installment, responding to Steve’s latest post responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: Steve, Dan, and Thom. I’m happy to keep going back in forth with Steve until we wear out our welcome at TOTM, or simply wear out. [Keep ’em coming! – ed.] (1) There’s neither input foreclose ... A Further Reply to Steve Salop
Crane is not Right: A Response to Dan Crane on Loyalty Discounts
Guest post by Steve Salop responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: Steve, Dan, and Thom. (1) Dan says that price-cost test should apply to “customer foreclosure” allegations. One of my key points was that many loyalty discount claims involve “input foreclosure” or “raising rivals’ costs” effects, not plain-vanilla ... Crane is not Right: A Response to Dan Crane on Loyalty Discounts
Wright is Right, and Wright is Wrong: A Response to Steve Salop on Loyalty Discounts
Guest post by Dan Crane, responding to Steve’s post responding to Dan’s earlier post and Thom’s post on the appropriate liability rule for loyalty discounts. Something that Thom and I both said in our earlier posts needs to be repeated at the outset: I don’t know of anyone who disagrees with Steve and Josh that raising rivals’ costs (“RRC”) and ... Wright is Right, and Wright is Wrong: A Response to Steve Salop on Loyalty Discounts
