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PeaceHealth and De Facto Exclusive Dealing, Part III

TOTM Josh’s thoughtful response (Bitchslap? Nah.) to my post criticizing the Ninth Circuit’s recent Masimo decision raises a number of important matters. I started to just . . .

Josh’s thoughtful response (Bitchslap? Nah.) to my post criticizing the Ninth Circuit’s recent Masimo decision raises a number of important matters. I started to just submit a comment to Josh’s post, but then I figured a reply was post-worthy. (I don’t want the antitrust nerds who read these technical posts — and here’s to you, dweeby friends! — to miss the discussion.)

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Antitrust & Consumer Protection

Gelbach, Helland and Klick on Single Firm, Single Event Studies

TOTM Larry Ribstein points to the new paper from Gelbach, Helland and Klick on Valid Inference in Single Firm, Single Event Studies.  This is an important . . .

Larry Ribstein points to the new paper from Gelbach, Helland and Klick on Valid Inference in Single Firm, Single Event Studies.  This is an important paper with implications for finance, securities litigation and antitrust where event studies are frequently used as economic expert evidence.  Ribstein gives a good, non-technical explanation of its contribution…

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Antitrust & Consumer Protection

Hayek and the Fall of the Wall

TOTM As we reflect back on the remarkable events of twenty years ago, and as we witness more and more centralized economic planning in our own . . .

As we reflect back on the remarkable events of twenty years ago, and as we witness more and more centralized economic planning in our own society, we should pause to remember what the fall of the wall revealed.

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Innovation & the New Economy

Should PeaceHealth Apply to De Facto Exclusive Dealing Claims?

TOTM 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 . . .

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.

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Antitrust & Consumer Protection

Oracle is nonplussed; the DOJ is . . . plussed?

TOTM 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.  . . .

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…

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Antitrust & Consumer Protection

As New York goes, so goes the FTC?

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

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Antitrust & Consumer Protection

The CFPA’s Effect on Consumer Credit and A Wager Proposal for Professor Levitin

TOTM 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 . . .

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.”

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Financial Regulation & Corporate Governance

PeaceHealth Should Apply Even When a Bundled Discount Results in “De Facto” Exclusive Dealing

TOTM 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, . . .

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.

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Antitrust & Consumer Protection

Of Broken Windows and Broken Policy

TOTM 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 . . .

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!

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Intellectual Property & Licensing