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TOTM I’ve recently finished reading Jonathan Baker’s Preserving a Political Bargain: The Political Economy of the Non-Interventionist Challenge to Monopolization Enforcement, forthcoming in the Antitrust Law . . .
I’ve recently finished reading Jonathan Baker’s Preserving a Political Bargain: The Political Economy of the Non-Interventionist Challenge to Monopolization Enforcement, forthcoming in the Antitrust Law Journal.
Baker’s central thesis in Preserving a Political Bargain builds on earlier work concerning competition policy as an implicit political bargain that was reached during the 1940s between the more extreme positions of laissez-faire on the one hand and regulation on the other. The new piece tries to explain what Baker describes as the “non-interventionist” critique of monopolization enforcement within this framework.
Read the full piece here.
TOTM Much has been made of Judge Sullivan’s recent decision in City of New York v. Group Health Incorporated and its implications for the UPP test . . .
Much has been made of Judge Sullivan’s recent decision in City of New York v. Group Health Incorporated and its implications for the UPP test and market definition in merger cases under Section 7 of the Clayton Act. Given the 2010 Proposed Horizontal Merger Guidelines’ (2010 HMGs) shift toward diversion ratios and margins and away from market shares, the blogosphere has sold Judge Sullivan’s decision as sign that the agencies might have a tough time selling the UPP to federal courts in the post-2010 HMG world.
Scholarship Abstract State Consumer Protection Acts (CPAs) were designed to supplement the Federal Trade Commission’s mission of protecting consumers and are often referred to as “little-FTC . . .
State Consumer Protection Acts (CPAs) were designed to supplement the Federal Trade Commission’s mission of protecting consumers and are often referred to as “little-FTC Acts.” There is growing concern that enforcement under these acts is not only qualitatively different than FTC enforcement, but may be counterproductive for consumers. This article examines a sample of CPA claims and compares them to the FTC standard. It identifies qualitative differences between CPA and FTC claims by commissioning a “Shadow Federal Trade Commission” of experts in consumer protection. The study finds that many CPA claims include conduct that would not be illegal under the FTC standards and that most of the cases with illegal conduct would not warrant FTC enforcement. Even among CPA cases where the plaintiff prevailed, nearly half do not include illegal conduct under the FTC standard and most of the cases with illegal conduct would not invoke FTC enforcement. The results clearly suggest private litigation under little-FTC Acts tends to pursue a different consumer protection mission than the Bureau of Consumer Protection at the Federal Trade Commission.
TOTM Judge Frank Easterbrook once opined that observing predatory pricing was a bit like seeing a unicorn — in the sense that it was a phenomena . . .
Judge Frank Easterbrook once opined that observing predatory pricing was a bit like seeing a unicorn — in the sense that it was a phenomena around which there was much lore but not much empirical evidence. The debate over the current expansion of Section 5 liability increasingly has become about the search for a different sort of “unicorn” — follow-on actions. The conventional wisdom is that private rights of action in the US, ceteris paribus, militate in favor of less aggressive enforcement of Section 2 relative to other countries. It follows, some have argued, that an expansive view of Section 5 is appropriate because it avoids the social costs — and in particular the chilling effects on efficient behavior associated with potential antitrust liability — associated with false positives.
TOTM I’m still working through the 2010 Horizontal Merger Guidelines, and like Dan, I find myself puzzling over some of the revisions, and in favor of . . .
I’m still working through the 2010 Horizontal Merger Guidelines, and like Dan, I find myself puzzling over some of the revisions, and in favor of others. I wanted to start with some first impressions. The big movement here, is that the new HMGs repudiate the market definition requirement in the new Section 4 and in Section 6 on Unilateral Effects. Consider the language in Section 4 on market definition…
TOTM David Balto has penned a short apologia of the FTC’s Intel case (HT: Danny Sokol). Unfortunately his defense (and, unfortunately, the FTC’s case) is woefully . . .
David Balto has penned a short apologia of the FTC’s Intel case (HT: Danny Sokol). Unfortunately his defense (and, unfortunately, the FTC’s case) is woefully misguided.
Balto writes…
TOTM 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 . . .
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…
Popular Media 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 . . .
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.
Popular Media The Obama administration’s announcement yesterday to approve, with some modifications, the merger between Live Nation and Ticketmaster marked a fittingly undramatic end to what many . . .
The Obama administration’s announcement yesterday to approve, with some modifications, the merger between Live Nation and Ticketmaster marked a fittingly undramatic end to what many hoped would be the watershed to a new economic policy. The administration’s decision instead reflected a commitment to principle over politics and pragmatism over populism.
