Showing archive for: “Supreme Court”
UMC Rulemaking After Magnuson-Moss: A Textualist Approach
Introduction The Federal Trade Commission’s (FTC) ability to conduct substantive rulemaking under both its “unfair methods of competition” (UMC) and “unfair and deceptive practices” (UDAP) mandates was upheld by the U.S. Court of Appeals for the D.C. Circuit in 1973’s National Petroleum Refiners Association v. FTC. Nonetheless, the FTC has seldom exercised this authority with ... UMC Rulemaking After Magnuson-Moss: A Textualist Approach
How US and EU Competition Law Differ
U.S. and European competition laws diverge in numerous ways that have important real-world effects. Understanding these differences is vital, particularly as lawmakers in the United States, and the rest of the world, consider adopting a more “European” approach to competition. In broad terms, the European approach is more centralized and political. The European Commission’s Directorate ... How US and EU Competition Law Differ
Old Ideas and the New New Deal
Over the past decade and a half, virtually every branch of the federal government has taken steps to weaken the patent system. As reflected in President Joe Biden’s July 2021 executive order, these restraints on patent enforcement are now being coupled with antitrust policies that, in large part, adopt a “big is bad” approach in ... Old Ideas and the New New Deal
Congress Should Not Grant the FTC Untrammeled Authority to Obtain Monetary Relief
The U.S. House this week passed H.R. 2668, the Consumer Protection and Recovery Act (CPRA), which authorizes the Federal Trade Commission (FTC) to seek monetary relief in federal courts for injunctions brought under Section 13(b) of the Federal Trade Commission Act. Potential relief under the CPRA is comprehensive. It includes “restitution for losses, rescission or ... Congress Should Not Grant the FTC Untrammeled Authority to Obtain Monetary Relief
Alston Decision Shows Consumer Welfare Standard Isn’t Broken
From Sen. Elizabeth Warren (D-Mass.) to Sen. Josh Hawley (R-Mo.), populist calls to “fix” our antitrust laws and the underlying Consumer Welfare Standard have found a foothold on Capitol Hill. At the same time, there are calls to “fix” the Supreme Court by packing it with new justices. The court’s unanimous decision in NCAA v. ... Alston Decision Shows Consumer Welfare Standard Isn’t Broken
What Lina Khan’s appointment means for the House antitrust bills
Her appointment also comes as House Democrats are preparing to mark up five bills designed to regulate Big Tech and, in the process, vastly expand the FTC’s powers. This expansion may combine with Khan’s appointment in ways that lawmakers considering the bills have not yet considered. This is a critical time for the FTC. It ... What Lina Khan’s appointment means for the House antitrust bills
The Supreme Court Misses the Big Consumer Welfare Picture in NCAA v. Alston
In its June 21 opinion in NCAA v. Alston, a unanimous U.S. Supreme Court affirmed the 9th U.S. Circuit Court of Appeals and thereby upheld a district court injunction finding unlawful certain National Collegiate Athletic Association (NCAA) rules limiting the education-related benefits schools may make available to student athletes. The decision will come as no ... The Supreme Court Misses the Big Consumer Welfare Picture in NCAA v. Alston
NY ‘Abuse of Dominance’ Bill Attacks Consumer Welfare and the US Antitrust Tradition
U.S. antitrust law is designed to protect competition, not individual competitors. That simple observation lies at the heart of the Consumer Welfare Standard that for years has been the cornerstone of American antitrust policy. An alternative enforcement policy focused on protecting individual firms would discourage highly efficient and innovative conduct by a successful entity, because ... NY ‘Abuse of Dominance’ Bill Attacks Consumer Welfare and the US Antitrust Tradition
The Future of FTC Equitable Monetary Relief after AMG Capital Management
The U.S. Supreme Court’s just-published unanimous decision in AMG Capital Management LLC v. FTC—holding that Section 13(b) of the Federal Trade Commission Act does not authorize the commission to obtain court-ordered equitable monetary relief (such as restitution or disgorgement)—is not surprising. Moreover, by dissipating the cloud of litigation uncertainty that has surrounded the FTC’s recent ... The Future of FTC Equitable Monetary Relief after AMG Capital Management
Congress Should Not Legalize a News Media Cartel
Amazingly enough, at a time when legislative proposals for new antitrust restrictions are rapidly multiplying—see the Competition and Antitrust Law Enforcement Reform Act (CALERA), for example—Congress simultaneously is seriously considering granting antitrust immunity to a price-fixing cartel among members of the newsmedia. This would thereby authorize what the late Justice Antonin Scalia termed “the supreme ... Congress Should Not Legalize a News Media Cartel
The NCAA: Dr Jekyll or Mr Hyde?
The U.S. Supreme Court will hear a challenge next month to the 9th U.S. Circuit Court of Appeals’ 2020 decision in NCAA v. Alston. Alston affirmed a district court decision that enjoined the National Collegiate Athletic Association (NCAA) from enforcing rules that restrict the education-related benefits its member institutions may offer students who play Football ... The NCAA: Dr Jekyll or Mr Hyde?
Why Restoring Internet Freedom Was a Landmark Accomplishment
I am pleased to participate in this retrospective symposium regarding Ajit Pai’s tenure as Federal Communications Commission chairman. I have been closely involved in communications law and policy for nearly 45 years, and, as I’ve said several times since Chairman Pai announced his departure, he will leave as one of the most consequential leaders in ... Why Restoring Internet Freedom Was a Landmark Accomplishment
