Abstract

In bpost and Nordzucker the Grand Chamber of the European Court of Justice has finally arrived at a unified test for ne bis in idem, applicable to all areas of EU law. It rejected the antitrust-specific threefold condition of idem (same offender, same facts, and same protected legal interest) developed in Aalborg Portland and Toshiba, and focused solely on material acts, in line with Van Esbroek and Menci. The judgements are extremely timely given the increasing risks of overlapping decisions as a result of recent legislative initiatives undertaken at EU and national level targeting large online platforms. The paper maintains that, although bpost and Nordzucker are welcomed, some relevant issues remain unaddressed and may undermine the sound implementation of the ne bis in idem principle in the digital economy.

ICLE Chief Economist Brian Albrecht was a guest on the Federal Drive with Tom Temin podcast to discuss new rules proposed by the Federal Trade Commission (FTC) to ban workplace noncompete agreements. The full episode is embedded below.

The infrastructure bill that President Joe Biden signed in November 2021 included a provision requiring the Federal Communications Commission to prevent discrimination in access to broadband internet based on race, ethnicity, color, religion, or national origin.

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Remember the hysteria when Japanese investors bought Rockefeller Center and threatened the American car industry with obliteration? Recent commentary served as the latest example in a long line of xenophobic scare tactics by claiming that “foreign adversaries” are funding “frivolous litigation” to “weaken critical industries” or to obtain trade secrets or intellectual property.

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In a prior post, I made the important if wholly unoriginal point that the Federal Trade Commission’s (FTC) recent policy statement regarding unfair methods of competition (UMC)—perhaps a form of “soft law”—has neither legal force nor precedential value. Gus Hurwitz offers a more thorough discussion of the issue here.

Read the full piece here.

ICLE Academic Affiliate Keith Hylton appeared in a spot on CBS News Boston to discuss the Senate Judiciary Committee’s investigation of Ticketmaster in the wake of widespread problems with the sale of tickets for Taylor Swift’s upcoming tour. As Hylton told the station:

For now, says Prof. Hylton, those sky-high prices look like something the market is willing to bear. “I don’t know what the evidence is that consumers are suffering from high prices. And they certainly seem all too happy to pay enormous prices of their own volition to go to these concerts,” he says.

Just today there was evidence of the federal government’s willingness to go after big corporations as the Justice Department filed an antitrust suit against Google over its online advertising practices. But Hylton says they likely need a lot more evidence before doing the same with Live Nation/Ticketmaster.

Video of the full piece is embedded below.

Under a recently proposed rule, the Federal Trade Commission (FTC) would ban the use of noncompete terms in employment agreements nationwide. Noncompetes are contracts that workers sign saying they agree to not work for the employer’s competitors for a certain period. The FTC’s rule would be a major policy change, regulating future contracts and retroactively voiding current ones. With limited exceptions, it would cover everyone in the United States.

Read the full piece here.

ICLE Director of Law & Economics Programs Gus Hurwitz joined Steptoe & Johnson LLP’s The Cyberlaw Podcast, offering two explanations for the Federal Aviation Administration recent system outage, which grounded planes across the country, as well as puzzling over the Federal Trade Commission’s peculiar determination to write regulations that will outlaw most non-compete clauses. The full podcast episode is embedded below.

Just before Christmas, the European Commission published a draft implementing regulation (DIR) of the Digital Markets Act (DMA), establishing procedural rules that, in the Commission’s own words, seek to bolster “legal certainty,” “due process,” and “effectiveness” under the DMA. The rights of defense laid down in the draft are, alas, anemic. In the long run, this will leave the Commission’s DMA-enforcement decisions open to challenge on procedural grounds before the Court of Justice of the European Union (CJEU).

Read the full piece here.