Thom answers this question in the affirmative in his excellent post about the Ninth Circuit’s analysis in Masimo and is disappointed that the Ninth Circuit rejected the discount attribution standard as the sole test for Section 2 in favor of a separate inquiry as to whether the bundled discount arrangement resulted in a substantial foreclosure of distribution and competitive harm.  Thom describes this reasoning as “sorely disappointing.”  I’m tentatively not convinced things are as bad as Thom sees them and want to explain why.  Maybe Thom can persuade me that I ought to be more upset about Masimo than I am.

Read the full piece here.

The European Commission has issued a Statement of Objections in response to Oracle’s proposed acquisition of Sun.  The deal had already cleared the DOJ’s review.  Oracle is none too happy about the development, issuing a strongly-worded statement.  Here’s a taste…

Read the full piece here.

The New York Times is reporting that New York’s attorney general, Andrew Cuomo, has filed an antitrust suit against Intel.  According to the report…

Read the full piece here.

Professor Adam Levitin is not impressed by our prediction of the effect on consumer credit of the CFPA.  Readers might recall that, using estimates from the literature on the effect of regulatory shocks on interest rates and of the long-term debt elasticity, we offered a (in our words) “rough calculation” of the “lower bound” of the effect of the CFPA Act on consumer credit at 2.1%.  Professor Levitin says that we just “make up the numbers” and that they do not pass the “straight-faced test.”  In his paper (and second blog post) Professor Levitin offers more of the same formula: a combination of assertions unsupported by evidence, ad hominem attacks, and insistence to his prior assumption that the CFPA will reduce the cost of credit without imposing serious regulatory costs (again, without substantiation).  He writes that his real problem with our analysis is that “The key point here, however, is the impact of the legislation is speculative and certainly not susceptible to precise statistical predictions.”

Read the full piece here. 

The Ninth Circuit, whose PeaceHealth decision moved the law on bundled discounting in the right direction, recently issued another decision on bundled discounts. That decision, Masimo Corp. v. Tyco Health Care Group, L.P., threatens to limit PeaceHealth‘s effectiveness.

Read the full piece here. 

Today the Obama administration announced with great pride that its economic stimulus plan created or saved about 650,000 jobs.  “Thank goodness!” reads the subtext.  If not for all those new and protected jobs, the unemployment numbers would be really bad!

Read the full piece here.

Last week Josh discussed the American Booksellers’ Association’s effort to get the Justice Department to pursue antitrust charges against Walmart, Target, and Amazon for engaging in a vigorous, consumer-benefiting price war.

Read the full piece here.

The Economist seems to think so, relying on evidence from this new paper by Joel Waldfogel and Ben Shiller.  Waldfogel and Shiller find that, relative to uniform pricing at $.99, alternative pricing schemes including two part tariffs and various bundling schemes could raise producer surplus by somewhere between 17 and 30 percent.  Those are large numbers, which raises the obvious question: why is Apple leaving so much money on the table? Or are they? I doubt it.

Read the full piece here.

Thanks to all of our participants in the Merger Guidelines Symposium.  We hope many of you, as well as our readers, will look back over the collected posts and engage in an ongoing dialogue in the comments over the many interesting ideas raised here.  You will find all of the posts from the symposium by clicking on the “merger guidelines symposium” link to the right, under the “blog symposia” heading.  For you reference, we have also collected all of the posts below.

Read the full piece here.