ICLE Director of Law & Economics Programs Gus Hurwitz joined Steptoe & Johnson LLP’s The Cyberlaw Podcast to discuss (among other topics):

• The FTC is likely to strengthen enforcement tools for its consent decrees, mainly by tagging individuals with potential fines for violations. Gus doubts this will work out well in practice.
• The FTC is also end-running a recent Supreme Court decision that denied it the authority to impose certain financial penalties. Now the Commission will bring cases jointly with state agencies who have that authority.
• That private antitrust cases remain hard to win, especially without evidence, as Amazon and major book publishers gain the dismissal of antitrust lawsuits over book pricing.
• An upcoming executive order to cool off the fight over data transfers across the Atlantic

The full podcast episode is embedded below.

Abstract

Computational antitrust promises not only to help antitrust agencies preside over increasingly complex and dynamic markets, but also to provide companies with the tools to assess and enforce compliance with antitrust laws. If research in the space has been primarily dedicated to supporting antitrust agencies, this article fills the gap by offering an innovative solution for companies. Specifically, this article serves as a proof of concept whose aim is to guide antitrust agencies in creating a decision-trees-based antitrust compliance API intended for market players. It includes an open access prototype that automates compliance with Article 102 TFEU, discusses its limitations and lessons to be learned.

The Federal Trade Commission (FTC) recently held a closed session to hear an appeal from its own counsel of a decision handed down in February by an FTC administrative law judge (ALJ) rejecting the commission’s arguments that Altria’s 2020 acquisition of a 35% stake in e-cigarette maker Juul was anticompetitive and harms consumers. It is likely that the commission will side with the arguments it approved its own complaint counsel to develop, declaring itself the winner and Altria and Juul the losers.

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As it has before in its history, liberalism again finds itself at an existential crossroads, with liberally oriented reformers generally falling into two camps: those who seek to subordinate markets to some higher vision of the common good and those for whom the market itself is the common good. The former seek to rein in, temper, order, and discipline unfettered markets, while the latter strive to build on the foundations of classical liberalism to perfect market logic, rather than to subvert it.

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The Federal Trade Commission (FTC), an agency historically concerned with vigorous market competition that leads to more output and lower prices, has of late been seemingly determined to raise prices for consumers.

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The objective of the error-cost framework is to ensure that antitrust rules, enforcement decisions, and judicial outcomes minimize the costs of (1) erroneous condemnation and deterrence of beneficial conduct (“false positives,” or “Type I errors”); (2) erroneous allowance and under-deterrence of harmful conduct (“false negatives,” or “Type II errors”); and (3) the costs of administering the system (including the cost of making and enforcing rules and judicial decisions, the costs of obtaining and evaluating information and evidence relevant to decision-making, and the costs of compliance).

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The business press generally describes the gig economy that has sprung up around digital platforms like Uber and TaskRabbit as a beneficial phenomenon, “a glass that is almost full.” The gig economy “is an economy that operates flexibly, involving the exchange of labor and resources through digital platforms that actively facilitate buyer and seller matching.”

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The Biden administration wants us to believe it is doing everything in its power to reduce prices for consumers. It seems that its most recent appointee to the Federal Trade Commission didn’t get the message. Alvaro Bedoya, who joined the commission in May, argued during a recent speech that the agency should resurrect the Robinson-Patman Act. For consumers, that will mean higher prices, exactly the opposite of what the Biden administration claims to be working toward.

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Over the past two years, the Federal Trade Commission has suffered a series of stinging defeats in headline matters: the reversal in August 2020 of the district court order in the agency’s lawsuit against Qualcomm; the near-dismissal in June 2021 of one of its lawsuits against Facebook, and, most recently, the rejection in February and September 2022, respectively, by administrative law judges of its lawsuits against Altria and Illumina.

Read the full piece here.