Washington Post columnist Steve Pearlstein offers a novel explanation for “regulatory failure.”  The D.C. Circuit, has, Pearlstein asserts, “has intimidated, undermined and demoralized the regulatory apparatus” by giving insufficient deference to regulators and “opinions that routinely ignore the plain language of statute and the clear intent of Congress.”   Pearlstein holds up three Republican appointees as examples of this sort of runaway anti-regulatory judicial activism.  Strong stuff.  What’s the evidence?  Pearlstein relies on the recent Comcast v. FCC, an opinion authored by Judge Tatel (Clinton appointee, in case you were wondering).  It is also worth noting that two of the judges cited have taken senior status and only Kavanaugh joined recently.  Pearlstein then refers to the D.C. Circuit’s review of the Federal Trade Commission’s case against Rambus.  He describes it as follows…

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Wednesday, April 7, J.P. Stadtmueller, U.S. District Court Judge for the Eastern District of Wisconsin, gave the green light for DOJ’s antitrust case against Dean Foods to move forward. Dean had filed a motion to dismiss based on its assertion that the DOJ had failed to provide sufficient evidence to support the DOJ’s antitrust claim and had failed to provide a sufficiently specific definition of the relevant market in which the anti-competitive effects were alleged to exist.  Stadtmueller concludes his ruling by stating…

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News items continue to pile up suggesting that the FTC is likely to challenge Google’s acquisition of mobile application and website advertising provider, AdMob. See this recent article from the Wall Street Journal and this from Yahoo!, for example.

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The Wall Street Journal is reporting that major institutional investors — CalPERS, CalSTRS, the Teacher Retirement System of Texas, etc. — have collectively adopted a set of recommended practices that is “rankling” private equity firms. Had I not discussed the article in my Antitrust class, I’d use it as the basis for an exam question. Here are the basics…

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The DOJ has posted the transcript from the recent DOJ/USDA hearings on antitrust in agriculture here.  I figured our readers might be especially interested in seeing Christine Varney’s comments (especially without having to slog through all 350 pages to find them!).  I have bolded some of the most interesting parts of her comments.

Read the full piece here. 

Summary

“Michael Carrier has written a timely and interesting book. There is much to like about the book, in particular its accessible format and content. I do fear that it is a bit overly ambitious, however, hoping both to educate the completely uninitiated as well as to develop a more advanced agenda, and at times it reads like two separate books. I suppose related to this criticism are my more detailed comments, which perhaps distill down to this: The book repeatedly and appropriately canvasses both sides of some pretty heated debates, nicely presenting the most basic arguments, and suggesting if not saying that these are matters about which we are profoundly uncertain. Nevertheless, with what seems to me to be little support (and with only essentially anecdotal empirical support), Carrier then chooses sides.

For example, the concept of the innovation market is contentious and unsettled. Carrier presents truncated versions of both sides of this debate and then summarily votes in favor of innovation markets, slyly offering to confine the analysis to pharmaceutical industry mergers, but nevertheless offering a “framework for innovation-market analysis.” Frankly, the framework strikes me as little more than a stylized merger analysis under the Guidelines, with a “Schumpeterian Defense” thrown in for good measure (but extremely limited, and essentially the same as the traditional failing firm defense). I see little here to suggest that the innovation market analysis, even as styled by Carrier, will do much effectively to incorporate dynamic efficiency concerns into antitrust. And there are other examples. I would have preferred to see a book that went into far greater depth in defending these sorts of choices among uncertain alternatives.”

A Senate panel approved the Leegin Bill on a voice vote (HT: Main Justice).  The story behind the link suggests that there is some Republican opposition brewing.  I suspect there will be hearings.  The Bill’s findings make the following two observations…

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The soda industry is trending toward vertical integration, which Coke and Pepsi acquiring their largest bottlers.  From the WSJ…

Read the full piece here.