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KOLN-TV – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Nebraska television station KOLN in a story about the crypto industry’s needs for cheap energy sources. You can read full story here.

“Basically, the business of crypto is converting electricity into computer computations,” said Gus Hurwitz, a law professor at the University of Nebraska College of Law.

…“We are definitely at a low point in the industry right now,” said Hurwitz, the law professor. “It’s possible we could get lower. Anyone entering into this market right now needs to be better capitalized, and capitalized in a less risky way than they likely were a year ago.”

…Nebraska towns and utility districts now hopefully fully understand the risks they might face with crypto companies, Hurwitz said.

“Companies, municipalities, investors, bankers, lenders – anyone who was willing to fund things – is going to be doing so with much more awareness of the risks,” he said. “I would not be willing to take anything on credit.”

Legal Newsline – ICLE Director of Competition Policy Dirk Auer was quoted by Legal Newsline in a story about California Attorney General Rob Bonta’s suit charging Amazon for pushing merchants on its platform to charge the lowest prices available. Read the full piece here.

“What it reflects is an attempt by enforcers to show they are doing something against Big Tech and increasing their popularity by taking on these companies,” said Dick Auer, director of competition policy at the International Center for Law and Economics, a research organization that advocates for free-market policies.

…Amazon argues California is trying to twist antitrust law by placing it on the same plane as third-party merchants on its site to create a picture of so-called “horizontal” collusion. But a federal court looking at similar claims ruled that Amazon is in a “vertical” arrangement with sellers, selecting the conditions under which they can offer products on its platform. And courts for decades have protected such arrangements against antitrust lawsuits, Auer of ICLE said, most commonly in minimum-price agreements manufacturers impose on retailers.

Courts have upheld minimum-price rules because they force retailers to compete on service instead of price, Auer said, reducing the risk customers will come away unsatisfied after a purchase. Amazon argues its policy of promoting low-price merchants is also a reasonable way to serve consumers looking for the best deal.

Amazon’s critics point to European antitrust law, which is less consumer-centric and has prohibited online merchants from offering low-price guarantees. Unfortunately, Auer said, studies of markets with and without such bans show they didn’t actually impact the prices consumers pay.

California has little chance of winning on claims the thousands of merchants selling products on Amazon.com are engaged in a vast horizontal conspiracy to raise prices everywhere else, Auer said. And after all the investigating AG Bonta’s office did, he said, one would expect more concrete evidence.

 

Yahoo News – ICLE Academic Affiliate John Lopatka was quoted by Yahoo News in a story about the antitrust suit filed by the U.S. Justice Department targeting Google’s digital advertising business. You can read full piece here.

Pennsylvania State University law professor John Lopatka said the stakes for Google increase with the Justice Department’s new lawsuit.

“The multiple actions expand the scope of the litigation for Google, and the greater scope somewhat increases its litigation burden,” Lopatka told Yahoo Finance. “Reaching negotiated settlements becomes harder as the number of plaintiff groups increases.”

Lopatka adds that a DOJ victory, as opposed to a victory by the states, would dramatically benefit private plaintiffs by establishing Google’s liability for anticompetitive conduct that injured them.

TechTarget – ICLE Senior Scholar Daniel Gilman was quoted by TechTarget in a story about a recent panel hosted by the Center for Data Innovation. You can read full piece here.

The Roomster case doesn’t get to some of the more complicated questions surrounding fake reviews, such as how to reach international entities engineering fake reviews, said Dan Gilman, senior scholar of competition policy at the International Center for Law & Economics and a former FTC attorney advisor. Gilman spoke during the webinar with Breyault.

He said it also doesn’t address whether to hold accountable businesses that incentivize consumers to leave reviews either through discounts or monetary rewards.

“It is a complex moving target,” Gilman said.

 

IPWatchdog – ICLE Academic Affiliate Adam Mossoff was quoted by IPWatchdog in a story about a recent joint forum of the U.S. Patent and Trademark Office (USPTO) and the Food and Drug Administration (FDA) regarding the relationship between patents and affordable access to medicines. You can read full piece here.

Professor Adam Mossoff of George Mason University, Antonin Scalia Law School, spoke on the same panel as Amin and urged the USPTO and FDA to focus on the evidence before making any sweeping changes. Mossoff has been vocally critical of I-MAK and authored a Policy Memo last year that called the organization’s data into question and later prompted letters from Senator Thom Tillis (R-NC) asking Amin/I-MAK, the USPTO and FDA for more information on how the data was derived and how it’s being used.

Mossoff reiterated in his statement at the listening session that I-MAK is relying on pending and abandoned applications in its count of patents covering individual drugs, which greatly skews the data. He told the USPTO and FDA panelists that he hopes they will put the evidentiary burden for proving systemic problems on those proposing systemic changes and that they will remember the data driving the debate is rife with serious questions about its veracity.

Reason – ICLE Chief Economist Brian Albrecht was cited by Reason in a story about the Federal Trade Commission’s proposed rule to ban all noncompete agreements in employment contracts. You can read full piece here.

As put by Brian Albrecht, chief economist at the International Center for Law and Economics, “If implemented, the FTC’s total ban of noncompetes replaces the decision making of businesses and workers, as well as the oversight of state governments, with a one-size-fits-all approach. Under that new regime, we need to ask: How quickly will they respond to new information—for example, that it had destructive implications? How easily can they make incremental changes?”

Law360 – ICLE President Geoffrey A. Manne was quoted by Law360 in a story about a 7th U.S. Circuit Court of Appeals case focusing on a challenge to no-poach agreements in place between McDonald’s and McDonald’s franchisees. You can read full piece here.

The International Center for Law & Economics and a group of scholars filed a brief on Tuesday criticizing the workers’ market definition and also the legal standard that the suit contends applies to the no poach provisions.

While the workers say the no poach terms should be considered automatically illegal under antitrust laws, the amicus brief argues a full rule-of-reason analysis is needed to balance potential harms against potential benefits. This is because the restrictions were vertical, or between companies at different points in the supply chain rather than between direct competitors, the brief says, and because they’re ancillary to the broader franchise agreements.

Geoffrey A. Manne, president and founder of the ICLE, told Law360 in an email Wednesday that with competition concerns in labor markets growing in significance, the case is particularly important for its application of antitrust law to franchise agreements. He said that vertical restraints like those at issue here are generally evaluated through a rule-of-reason analysis because they often foster competition between brands.

“While plaintiffs seek a departure from the rule of reason here, economic research confirms that vertical restraints — including franchisor/franchisee restraints — tend to be procompetitive,” Manne said.

CTFN – ICLE Director of Competition Policy Dirk Auer was quoted by CTFN in a story about the European Union’s Digital Markets Act. Read the full piece here.

“The DMA is framed in a structured way where you get gatekeepers and core platform services, and then people who want to plug into that core platform service,” said Dirk Auer, director of competition at the International Center for Law & Economics.

“The difficulty here is that it’s not that people are asking to interoperate with Microsoft as a third party. It’s that a newly acquired Activision Blizzard may no longer be on another platform, and I’m not sure the DMA has much to say about that.

“The DMA is trying to open up access to more core platform services, not make sure that gatekeepers are offering their ecosystem services on another platform,” Auer said.

Auer also said it was unclear whether Xbox would be considered a core platform service, the term used for the eight sectors the DMA will cover. Core platform services include online intermediation services, operating systems and cloud services.

Observador – ICLE Director of Competition Policy Dirk Auer was quoted by the Portuguese online newspaper Observador in a story about the Federal Trade Commission’s challenge to Microsoft’s proposed acquisition of Activision. You can read full piece (in Portuguese) here.

Em conversa com o Observador, Dirk Auer, especialista na área de Concorrência do International Center for Law & Economics (ICLE) e professor adjunto na Universidade de Liège, na Bélgica, defende que esta movimentação da FTC não se prende apenas com a questão dos títulos exclusivos, dividindo a questão em preocupações de curto e longo prazo. “A curto prazo”, destaca a preocupação de que “uma avalanche” de títulos exclusivos possa dar vantagem à Microsoft. “Essas preocupações parecem um pouco problemáticas, porque sugerem que a Microsoft ainda não é líder”, reconhece. “Mas, de qualquer forma, essa preocupação pode provavelmente ser resolvida com remédios”, nomeadamente com a garantia de que alguns títulos continuem disponíveis nas várias plataformas.

Já a “longo prazo, há a preocupação do cloud gaming”. Ou seja, um serviço em que seja possível jogar sem depender de um equipamento como uma consola mas sim da ligação à internet. A questão, defende Dirk Auer, é que este “é um mercado muito emergente” para haver preocupação com o facto de a Microsoft sequer “poder vir a liderar”. “Essa preocupação tem duas fraquezas: a primeira é que é algo extremamente a longo prazo. Isto não é um mercado que está maduro, ninguém usa cloud gaming hoje em dia, porque a infraestrutura de internet não está à altura”, contextualiza Auer. “Há muitas empresas neste campo a tentar percebê-lo, mas o mercado ainda não parece estar maduro”, recordando o exemplo de empresas como a Google. A tecnológica lançou há alguns anos o Stadia, um serviço de streaming de jogos na cloud, em que apenas era preciso uma ligação à internet e um comando para jogar. A fraca adesão ditou o anúncio do fim do serviço, no final de setembro.