I was searching through the eCCP site for some interesting antitrust reading material, which it always carries in surplus, and came across this testimony from Joe Sims (here is his Jones Day bio) at the Section 2 hearings discussing the lack of certainty in monopolization cases…

Read the full piece here. 

There’s just so much paper going back and forth on Leegin that it’s hard to keep up.

In addition to various briefs and commentaries and Commissioner Harbour’s de facto brief (also discussed here), there has been some interesting correspondence between Rep. Conyers, Chair of the House Committee on the Judiciary, and Deborah Platt Majoras, Chair of the FTC.

Read the full piece here. 

For the next two days, the Section 2 Hearings will explore “different methods of evaluating monopoly power in single-firm conduct cases, including issues relating to market definition, the Cellophane fallacy, the use of direct evidence, single-firm markets, and technology markets.”

Read the full piece here.

Thursday night I will be speaking at a dinner and discussion sponsored by the eSapience Center for Competition Policy (eCCP) on the pending Leegin decision and the application of per se rules to minimum RPM.

Read the full piece here.

The tentative recommendations of the Antitrust Modernization Committee are out, and include Commissioner vote counts for various propositions. The recommendations largely take the form of propositions that the AMC Commissioners joined, did not join, or were undetermined. Here are a few that caught my eye on an initial read-through (note that 2-5 apply to merger analysis).

Read the full piece here. 

The FTC announced this week perhaps its best decision since . . . well, ever.

Read the full piece here.

One of the more interesting parts of the November 29 DOJ/FTC hearing on loyalty discounts (where I presented these remarks) was the panelists’ discussion of a number of “propositions” advanced, for purposes of discussion only, by the agencies. Unfortunately, we didn’t have time to discuss all the propositions. I’ve reproduced them below the fold, along with my own thoughts on whether they’re sound. (Please note the agencies’ insistence that “[t]hese propositions are solely for the purpose of discussion and do not necessarily represent the agencies’ views.”)

Read the full piece here.

Dan Crane and Thom (who has promised more remarks!) have now both posted their prepared remarks for the Section 2 hearings panel on bundled discounts. Both call for bright-line, administrable liability rules for all forms of unilateral exclusionary conduct, and have important things to say about designing antitrust rules for bundled discounts. Both are worth reading in their entirety. Administrable rules that sensibly balance Type I and II errors are certainly an indisputably admirable goal for antitrust analysis and bundled discounts have proven to be a particularly tricky form of conduct for Section 2 analysis. Despite all of the agreement around here between Thom, Dan and I on the design of antitrust rules in a world of costly Type I errors, I think I have found a topic upon which I can at least offer a mild dissent (or at least a different perspective) regarding the usefulness of the analogy of various anticompetitive theories of bundled discounting practices to exclusive dealing.

Read the full piece here.

As promised, I am posting here my powerpoint slides for my testimony on exclusive dealing at the FTC/DOJ Section 2 Hearings, as well as the two papers upon which my analysis is based…

Read the full piece here.