Showing 9 of 93 Publications in Labor & Monopsony

Antitrust at the Agencies Roundup: Supply Chains, Noncompetes, and Greedflation

TOTM The big news from the agencies may be the lawsuit filed today by the U.S. Justice Department (DOJ) and 16 states against Apple alleging monopoly . . .

The big news from the agencies may be the lawsuit filed today by the U.S. Justice Department (DOJ) and 16 states against Apple alleging monopoly maintenance in violation of Section 2 of the Sherman Act. It’s an 86-page complaint and it’s just out. I’ll write more about it next week.

Two quick observations: First, the complaint opens with an anecdote from 2010 that suggests lock-in (a hard case under antitrust law), but demonstrates nothing. Second, the anecdote is followed by a statement that “[o]ver many years, Apple has repeatedly responded to competitive threats… by making it harder or more expensive for its users and developers to leave than by making it more attractive for them to stay.” 

Read the full piece here.

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Antitrust & Consumer Protection

An Ill-Advised New Policy for Contractors Gambles with Americans’ Livelihoods

Popular Media This week, the Department of Labor’s new rule on independent contracting goes into effect. It will now be more difficult to engage in freelancing, gig work or certain types . . .

This week, the Department of Labor’s new rule on independent contracting goes into effect. It will now be more difficult to engage in freelancing, gig work or certain types of independent work — a Biden administration labor-agenda standard that is far stricter than it was under the Trump or Obama administrations.

Read the full piece here.

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Innovation & the New Economy

A Competition Perspective on Physician Non-Compete Agreements

Scholarship Abstract Physician non-compete agreements may have significant competitive implications, and effects on both providers and patients, but they are treated variously under the law on . . .

Abstract

Physician non-compete agreements may have significant competitive implications, and effects on both providers and patients, but they are treated variously under the law on a state-by-state basis. Reviewing the relevant law and the economic literature cannot identify with confidence the net effects of such agreements on either physicians or health care delivery with any generality. In addition to identifying future research projects to inform policy, it is argued that the antitrust “rule of reason” provides a useful and established framework with which to evaluate such agreements in specific health care markets and, potentially, to address those agreements most likely to do significant damage to health care competition and consumers.

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Antitrust & Consumer Protection

Will the FTC Scupper the Kroger/Albersons Merger?

TOTM The press is abuzz with news about the Federal Trade Commission’s (FTC) Feb. 26 announcement that it would challenge the proposed Kroger/Albertsons mega-supermarket merger, which had been . . .

The press is abuzz with news about the Federal Trade Commission’s (FTC) Feb. 26 announcement that it would challenge the proposed Kroger/Albertsons mega-supermarket merger, which had been in the works since the fall of 2022. If the FTC succeeds in obtaining a temporary restraining order and preliminary injunction in Oregon federal district court (a big if), it plans to review the transaction in an administrative hearing beginning in late July.

Read the full piece here.

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Antitrust & Consumer Protection

Liya Palagashvili on the State of Independent Contractors

Presentations & Interviews ICLE Academic Affiliate Liya Palagashvili joined the She Thinks podcast episode to discuss harms and threats to independent contracting stemming from a new U.S. Labor . . .

ICLE Academic Affiliate Liya Palagashvili joined the She Thinks podcast episode to discuss harms and threats to independent contracting stemming from a new U.S. Labor Department rule. Video of the full episode is embedded below.

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Innovation & the New Economy

Dan Gilman on Antitrust Agencies’ Scrutiny of Labor

Presentations & Interviews ICLE Senior Scholar Daniel J. Gilman took part in a virtual panel convened by the Federalist Society on the Federal Trade Commission (FTC) and U.S. . . .

ICLE Senior Scholar Daniel J. Gilman took part in a virtual panel convened by the Federalist Society on the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) recent moves to put labor issues at the center of antitrust enforcement and policy making. Video of the full event is embedded below.

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Antitrust & Consumer Protection

Liya Palagashvili on California’s War on Independent Contractors

Presentations & Interviews ICLE Academic Affiliate Liya Palagashvili joined the Labor Relations Radio podcast to discuss her recent study on the damaging effects of California’s war on independent . . .

ICLE Academic Affiliate Liya Palagashvili joined the Labor Relations Radio podcast to discuss her recent study on the damaging effects of California’s war on independent contractors through the disastrous A.B. 5. The full episode is embedded below.

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Innovation & the New Economy

The Conundrum of Out-of-Market Effects in Merger Enforcement

TOTM Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National . . .

Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National Bank and Topco are often cited on behalf of the proposition that this means any single cognizable market, and that anticompetitive effects in one market cannot be offset by procompetitive effects in another.

That would appear to simplify antitrust analysis, and it certainly can. But as is so often the case in antitrust, apparent simplicity can be confounding in application. Is it really true that harm in any market, however narrow, is grounds to block a merger, whatever its broader effects? Is that the best reading of legal precedent? Is it required? And is it either practicable or desirable?

Read the full piece here.

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Antitrust & Consumer Protection

ICLE Amicus to US Supreme Court in McDonald’s v DesLandes

Amicus Brief INTEREST OF AMICUS CURIAE[1] The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy center aimed at building the . . .

INTEREST OF AMICUS CURIAE[1]

The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy center aimed at building the intellectual foundations for sensible, economically grounded policy. ICLE promotes the use of law and economics methodologies, as well as the results of economic research, to inform public policy debates, and it has longstanding expertise in antitrust law. It has filed amicus briefs in this Court and others around the country. See, e.g., Apple Inc. v. Epic Games, Inc., No. 23-344 (U.S.); United States v. Am. Airlines Grp. Inc., No. 23-1802 (1st Cir.); Giordano v. Saks Inc., No. 23-600 (2d Cir.).

ICLE respectfully submits that the decision below undermines the economic foundations of antitrust law by presuming that a potentially procompetitive restraint is per se unlawful, rather than analyzing the restraint under the default rule of reason. The Court should grant the petition for a writ of certiorari to clarify that the type of restraint at issue here is presumptively procompetitive and thus subject to the rule of reason.

ICLE scholars have written extensively on issues closely related to this case, and respectfully submit that their expertise will help clarify the economic problems with the decision below and highlight the reasons for the Court to grant certiorari.

SUMMARY OF ARGUMENT

This Court has clearly and repeatedly recognized that “[t]he rule of reason is the accepted standard for testing whether a practice restrains trade in violation of [Sherman Act] § 1” and that per se prohibitions are “con- fined to restraints … ‘that would always or almost al- ways tend to restrict competition and decrease output.’” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885–86 (2007) (quoting Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988)). The decision below cannot be reconciled with those important principles.

The Seventh Circuit committed at least three errors that threaten the economic foundations of antitrust law and are worthy of this Court’s attention.

First, the Seventh Circuit inverted the strong presumption in favor of rule of reason analysis—a presumption that is critical in preventing antitrust law from deterring productive and beneficial conduct. Plaintiffs can overcome that presumption, but only when they show that the challenged restraint falls squarely within a class or category that “always or almost always” harms competition. Leegin, 551 U.S. at 885–86. For a court to make that prediction with confidence, it must have sufficient experience with the restraint. Here, the Seventh Circuit turned settled law on its head. From a dearth of experience, the court of appeals reasoned that a per se claim was plausible and sustainable. This approach threatens to chill Interbrand competition.

Second, the Seventh Circuit sustained a per se challenge to a restraint that has significant procompetitive virtues. The challenged contractual provision was designed, and chiefly functioned, as a vertical restraint. The economic literature shows that intrabrand vertical restraints tend to benefit competition. While there are circumstances under which certain vertical restraints can be anticompetitive, there is no literature demonstrating that they are typically anticompetitive. In the franchise context, intrabrand vertical restraints strengthen the franchise’s brand overall and thus foster competition. The existence of some horizontal aspects or applications of such a restraint, moreover, does not negate these procompetitive virtues. The rule of reason fosters consideration of such issues, whereas the Seventh Circuit’s decision curtails it.

Third, the Seventh Circuit held that positive effects on consumers cannot justify a restraint in the labor market. This holding is in deep tension with this Court’s admonition that antitrust analysis focus on “the commercial realities” of a business or industry rather than on “formalistic distinctions.” See Ohio v. Am. Express Co., 138 S. Ct. 2274, 2285 (2018) (“AmEx”) (quoting Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 466–67 (1992)). Second, the decision below is at odds with this Court’s teaching that “reasonableness” is a holistic endeavor, which incorporates consideration of consumer welfare. See NCAA v. Alston, 141 S. Ct. 2141, 2151 (2021). As petitioners explain, a growing circuit split on this fundamental, analytical issue warrants this Court’s immediate attention.

[1] Pursuant to S. Ct. Rule 37.2(a), counsel for all parties have been notified about the filing of this brief. No counsel for a party authored this brief in whole or in part and no person or entity other than amicus, its members, or counsel made a monetary contribution to its preparation or submission.

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Antitrust & Consumer Protection