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Keith Hylton on Ticketmaster & Taylor Swift

Presentations & Interviews ICLE Academic Affiliate Keith Hylton appeared in a spot on CBS News Boston to discuss the Senate Judiciary Committee’s investigation of Ticketmaster in the wake . . .

ICLE Academic Affiliate Keith Hylton appeared in a spot on CBS News Boston to discuss the Senate Judiciary Committee’s investigation of Ticketmaster in the wake of widespread problems with the sale of tickets for Taylor Swift’s upcoming tour. As Hylton told the station:

For now, says Prof. Hylton, those sky-high prices look like something the market is willing to bear. “I don’t know what the evidence is that consumers are suffering from high prices. And they certainly seem all too happy to pay enormous prices of their own volition to go to these concerts,” he says.

Just today there was evidence of the federal government’s willingness to go after big corporations as the Justice Department filed an antitrust suit against Google over its online advertising practices. But Hylton says they likely need a lot more evidence before doing the same with Live Nation/Ticketmaster.

Video of the full piece is embedded below.

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Antitrust & Consumer Protection

The FTC’s Misguided Case Against Meta

Popular Media Lina Khan has been an outspoken critic of Big Tech since her law school days, demonstrating a singular focus on the big bad guys—first Amazon . . .

Lina Khan has been an outspoken critic of Big Tech since her law school days, demonstrating a singular focus on the big bad guys—first Amazon and then others. Now, as the chairwoman of the Federal Trade Commission, she has the chance to test her antitrust theories in court. But the FTC’s ongoing challenge against Meta, the parent company of Facebook, reveals the weakness of going after Big Tech in any way possible.

Read the full piece here.

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Antitrust & Consumer Protection

What are your thoughts regarding start-up acquisitions? – Geoffrey Manne

Presentations & Interviews Competition Policy International interviewed ICLE President & Founder Geoffrey A. Manne in August 2022. In the video embedded below, he discusses what potential restrictions on . . .

Competition Policy International interviewed ICLE President & Founder Geoffrey A. Manne in August 2022. In the video embedded below, he discusses what potential restrictions on so-called “killer acquisitions” could mean for entrepreneurs’ ability to create startups.

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Antitrust & Consumer Protection

Do you believe the vertical merger guidelines need to be changed? – Geoffrey Manne

Presentations & Interviews Competition Policy International interviewed ICLE President and Founder Geoffrey A. Manne in August 2022. In the video embedded below, he discusses whether the Federal Trade . . .

Competition Policy International interviewed ICLE President and Founder Geoffrey A. Manne in August 2022. In the video embedded below, he discusses whether the Federal Trade Commission and U.S. Justice Department should change their guidelines for vertical mergers.

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Antitrust & Consumer Protection

What are your thoughts regarding start-up acquisitions? – David Teece

Presentations & Interviews Competition Policy International interviewed ICLE Academic Affiliate David Teece in September 2022. In the video embedded below, he discusses the concept of “potential competition” and . . .

Competition Policy International interviewed ICLE Academic Affiliate David Teece in September 2022. In the video embedded below, he discusses the concept of “potential competition” and the consumer-welfare effects of startup acquisitions.

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Antitrust & Consumer Protection

Business as Usual for Antitrust

Popular Media President Joe Biden’s antitrust enforcers were desperate for a win. While claiming to be tough on antitrust, their track record has been far from impressive. . . .

President Joe Biden’s antitrust enforcers were desperate for a win. While claiming to be tough on antitrust, their track record has been far from impressive. The Federal Trade Commission and the Justice Department have challenged fewer mergers than they did during the Trump administration, and their challenges have rarely been successful. Now, the DOJ’s antitrust division has succeeded in blocking the merger of two publishing houses: Penguin–Random House and Simon & Schuster. Three weeks after the U.S. District Court in Washington, D.C., handed down an order halting the deal, Penguin’s corporate owner Bertelsmann made it official: the $2.2 billion merger has been scrapped.

Read the full piece here.

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Antitrust & Consumer Protection

The End of Reason at the FTC

TOTM In a 3-2 July 2021 vote, the Federal Trade Commission (FTC) rescinded the nuanced statement it had issued in 2015 concerning the scope of unfair methods of competition under . . .

In a 3-2 July 2021 vote, the Federal Trade Commission (FTC) rescinded the nuanced statement it had issued in 2015 concerning the scope of unfair methods of competition under Section 5 of the FTC Act. At the same time, the FTC rejected the applicability of the balancing test set forth in the rule of reason (and with it, several decades of case law, agency guidance, and legal and economic scholarship).

Read the full piece here.

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Antitrust & Consumer Protection

Motion to FTC from L&E Scholars for Leave to File Amicus in GRAIL-Illumina Adjudication

Amicus Brief Amici curiae are seventeen law professors, economists, and former government officials with expertise in antitrust, patent law, and law and economics.

Interest of Amici Curiae

Amici curiae are seventeen law professors, economists, and former government officials with expertise in antitrust, patent law, and law and economics. Their work has appeared in the American Economic Review, the Journal of Law and Economics, the Yale Law Journal, and the Harvard Law Review, among others, and collectively has been cited more than 16,000 times. As scholars and former public servants, they have an interest in promoting the coherence and development of legal doctrines consonant with sound economic principles and in ensuring that both consumers and the general public benefit from new inventions and technologies. They have no stake in any party nor in the outcome of this proceeding. Amici write to serve the Commission and the public interest by elaborating the legal and economic principles that frame this dispute. The amici and their affiliations are listed in the Appendix.

Introduction

This case presents a complex set of transactions whereby Illumina, Inc. (“Illumina”) created GRAIL, Inc. (“GRAIL”), spun it off while retaining a minority interest, and now has reacquired it. Complaint Counsel seeks to unwind this recent reacquisition. But as Chief Administrative Law Judge D. Michael Chappell’s Initial Decision (“ID”) recognized, vertical mergers are structurally distinct from horizontal mergers. Horizontal mergers carry inherent risks of anti-competitive effect; vertical mergers, by contrast, often offer procompetitive benefits. (See ID 169.) Unwinding this transaction would set a dangerous precedent by deterring innovative companies like Illumina from developing and commercializing new products or, at a minimum, restricting consumers’ access to those products. Antitrust enforcers should be held to a higher burden before risking such market disruptions.

An overbroad presumption against vertical mergers—of the type Complaint Counsel advocates here—is particularly inappropriate in the complicated institutional landscape of biopharmaceutical markets, especially those still in their infancy. Here, for example, it is difficult to predict how the market for Multi-Cancer Early Detection Tests (“MCEDs”) will operate, particularly when true alternatives to GRAIL’s products from other producers are still years away. (See ID 143.) Given the singular importance of capital investment in developing, testing, and commercializing MCEDs, the risks to consumers of blocking such investment are particularly high. Accordingly, courts have refused to enjoin vertical mergers without compelling, concrete evidence that a vertical merger is likely to harm competition to a substantial degree. See, e.g., United States v. AT&T, Inc., 916 F.3d 1029, 1032 (D.C. Cir. 2019). Scholars and courts alike have recognized that the efficiency gains from vertical mergers make it impossible to treat this class of transactions as presumptively anticompetitive. As Judge Chappell acknowledged, challenges to vertical mergers require a more fact-intensive inquiry. (ID 168-69.)

Nor should a company’s self-imposed restraints, such as Illumina’s Open Offer, be discounted in the way that Complaint Counsel advocates. (See Complaint Counsel Br. (“CC Br.”) 35.) The Open Offer is a market fact, not a legal remedy, and implicates Complaint Counsel’s prima facie case. Market participants should be encouraged to structure their operations ex ante to avoid potential anticompetitive effects. When markets are new and incentives are speculative, the Commission should not presume that a company in a vertical merger would breach its contractual obligations, especially when there are clear performance metrics that are easily monitored and enforced by the relevant parties.

The potential costs of preventing vertical mergers are high, as experience in emerging-technology markets amply demonstrates. Given the ultimate benefits to consumers, the Commission should be wary about importing the strong presumptions from horizontal-merger law and upsetting a model of spin-off and reacquisition that offers significant procompetitive benefits to consumers.

Read the full brief here.

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Antitrust & Consumer Protection

FTC Could Soon Face High Court Reprimand

Popular Media It is likely that the commission will side with the arguments it approved its own complaint counsel to develop, declaring itself the winner and Altria and Juul the losers.

The Federal Trade Commission (FTC) recently held a closed session to hear an appeal from its own counsel of a decision handed down in February by an FTC administrative law judge (ALJ) rejecting the commission’s arguments that Altria’s 2020 acquisition of a 35% stake in e-cigarette maker Juul was anticompetitive and harms consumers. It is likely that the commission will side with the arguments it approved its own complaint counsel to develop, declaring itself the winner and Altria and Juul the losers.

Read the full piece here.

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Antitrust & Consumer Protection