Showing archive for: “Rule of Reason”
The Supreme Court Needs to Intervene and Bring Rationality to Tying Law – and It May Wish to Look at Loyalty Discounts as Well
In Collins Inkjet Corp. v. Eastman Kodak Co. (2015) (subsequently settled, leading to a withdrawal of Kodak’s petition for certiorari), the Sixth Circuit elected to apply the Cascade Health Solutions v. PeaceHealth “bundled discount attribution price-cost” methodology in upholding a preliminary injunction against Kodak’s policy of discounting the price of refurbished Kodak printheads to customers ... The Supreme Court Needs to Intervene and Bring Rationality to Tying Law – and It May Wish to Look at Loyalty Discounts as Well
Amateurism and Antitrust: The 9th Circuit Gets It Right
On September 30, in O’Bannon v. NCAA, the U.S. Court of Appeals for the 9th Circuit held that the National Collegiate Athletic Association’s (NCAA) rules that prohibited student athletes from being paid for the use of their names, images, and likenesses are subject to the antitrust laws and constitute an unlawful restraint of trade, under ... Amateurism and Antitrust: The 9th Circuit Gets It Right
Keith Hylton on Joshua Wright
When I first heard that Josh had resigned from the FTC, I wondered if the news would cause a stock market sell-off. I checked later that day, and the Dow closed slightly up, plus .39 percent. This suggests several possible explanations. One is that the stock market had already priced in Josh’s departure. Another is ... Keith Hylton on Joshua Wright
FTC Commissioner Joshua Wright gets his competiton enforcement guidelines
Today, for the first time in its 100-year history, the FTC issued enforcement guidelines for cases brought by the agency under the Unfair Methods of Competition (“UMC”) provisions of Section 5 of the FTC Act. The Statement of Enforcement Principles represents a significant victory for Commissioner Joshua Wright, who has been a tireless advocate for ... FTC Commissioner Joshua Wright gets his competiton enforcement guidelines
The 2nd Circuit’s Apple e-books decision: Debating the merits and the meaning
On Thursday I will be participating in an ABA panel discussion on the Apple e-books case, along with Mark Ryan (former DOJ attorney) and Fiona Scott-Morton (former DOJ economist), both of whom were key members of the DOJ team that brought the case. Details are below. Judging from the prep call, it should be a ... The 2nd Circuit’s Apple e-books decision: Debating the merits and the meaning
The Second Circuit Misapplies the Per Se Rule in U.S. v. Apple
In its June 30 decision in United States v. Apple Inc., a three-judge Second Circuit panel departed from sound antitrust reasoning in holding that Apple’s e-book distribution agreement with various publishers was illegal per se. Judge Dennis Jacobs’ thoughtful dissent, which substantially informs the following discussion of this case, is worth a close read. In ... The Second Circuit Misapplies the Per Se Rule in U.S. v. Apple
The FTC, not the FCC, Should Police Internet Abuses
The FCC’s proposed “Open Internet Order,” which would impose heavy-handed “common carrier” regulation of Internet service providers (the Order is being appealed in federal court and there are good arguments for striking it down) in order to promote “net neutrality,” is fundamentally misconceived. If upheld, it will slow innovation, impose substantial costs, and harm consumers ... The FTC, not the FCC, Should Police Internet Abuses
The 2015 International Competition Network’s (ICN) Unilateral Conduct Workbook Chapter on Tying and Bundling
In a recent post, I presented an overview of the ICN’s recent Annual Conference in Sydney, Australia. Today I briefly summarize and critique a key product approved by the Conference, a new chapter 6 of the ICN’s Workbook on Unilateral Conduct, devoted to tying and bundling. (My analysis is based on a hard copy final ... The 2015 International Competition Network’s (ICN) Unilateral Conduct Workbook Chapter on Tying and Bundling
Highlights from Josh Wright’s Interview in The Antitrust Source
Anyone interested in antitrust enforcement policy (and what TOTM reader isn’t?) should read FTC Commissioner Josh Wright’s interview in the latest issue of The Antitrust Source. The extensive (22 page!) interview covers a number of topics and demonstrates the positive influence Commissioner Wright is having on antitrust enforcement and competition policy in general. Commissioner Wright’s ... Highlights from Josh Wright’s Interview in The Antitrust Source
Commissioner Wright Nails It on Minimum RPM
FTC Commissioner Josh Wright is on a roll. A couple of days before his excellent Ardagh/Saint Gobain dissent addressing merger efficiencies, Wright delivered a terrific speech on minimum resale price maintenance (RPM). The speech, delivered in London to the British Institute of International and Comparative Law, signaled that Wright will seek to correct the FTC’s ... Commissioner Wright Nails It on Minimum RPM
Why the New Evidence on Minimum RPM Doesn’t Justify a Per Se or Quick Look Approach
Mike Sykuta and I recently co-authored a short article discussing the latest evidence on, and proper legal treatment of, minimum resale price maintenance (RPM). Following is a bit about the article (which is available here). Despite the U.S. Supreme Court’s Leegin decision holding that minimum RPM must be evaluated under antitrust’s Rule of Reason, the ... Why the New Evidence on Minimum RPM Doesn’t Justify a Per Se or Quick Look Approach
How the FCC Will Lose on Net Neutrality
Today’s oral argument in the D.C Circuit over the FCC’s Net Neutrality rules suggests that the case — Verizon v. FCC — is likely to turn on whether the Order impermissibly imposes common carrier regulation on broadband ISPs. If so, the FCC will lose, no matter what the court thinks of the Commission’s sharply contested ... How the FCC Will Lose on Net Neutrality
