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FTC Claims Sweeping Powers against ‘Unfair’ Competition

Popular Media Reflecting on the decades of merger challenges brought to that point under the Clayton Antitrust Act of 1914, Justice Potter Stewart observed in 1966 that . . .

Reflecting on the decades of merger challenges brought to that point under the Clayton Antitrust Act of 1914, Justice Potter Stewart observed in 1966 that “the sole consistency I can find” is that “the Government always wins.”

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Antitrust & Consumer Protection

Letter to AAG Kanter Re: SEPs and Patent Pools

Written Testimonies & Filings As former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law, we write to express our support . . .

As former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law, we write to express our support for the Avanci business review letter issued by the Antitrust Division of the U.S. Department of Justice on July 28, 2020 (the “2020 business review letter”). The 2020 business review letter represented a legally sound and evidence-based approach in applying antitrust law to innovative commercial institutions like the Avanci patent pool that facilitate the efficient commercialization of new standardized technologies in the fast-growing mobile telecommunications sector to the benefit of innovators, implementers, and consumers alike.

Read the full letter here.

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Intellectual Property & Licensing

Banco Central Erra en su Enfoque Sobre Comisiones de Tarjetas

Popular Media El Banco Central de Costa Rica (BCCR) interpreta la regulación de las comisiones por el uso de tarjetas de crédito o débito como una justificación . . .

El Banco Central de Costa Rica (BCCR) interpreta la regulación de las comisiones por el uso de tarjetas de crédito o débito como una justificación para establecer topes máximos, de tal forma que los emisores recuperen únicamente los costos operacionales y estáticos del sistema.

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Financial Regulation & Corporate Governance

Biden’s Data Flows Order: Does It Comport with EU Law?

TOTM European Union officials insist that the executive order President Joe Biden signed Oct. 7 to implement a new U.S.-EU data-privacy framework must address European concerns about U.S. . . .

European Union officials insist that the executive order President Joe Biden signed Oct. 7 to implement a new U.S.-EU data-privacy framework must address European concerns about U.S. agencies’ surveillance practices. Awaited since March, when U.S. and EU officials reached an agreement in principle on a new framework, the order is intended to replace an earlier data-privacy framework that was invalidated in 2020 by the Court of Justice of the European Union (CJEU) in its Schrems II judgment.

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Data Security & Privacy

FCC Auctions and the Benefits of Unlicensed Spectrum

TOTM What should a government do when it owns geese that lay golden eggs? Should it sell the geese to fund government programs? Or should it . . .

What should a government do when it owns geese that lay golden eggs? Should it sell the geese to fund government programs? Or should it let them run wild so everyone can have a chance at a golden egg?

That’s the question facing Congress as it considers re-authorizing the Federal Communications Commission’s (FCC’s) authority to auction and license spectrum. Should the FCC auction spectrum to maximize government revenue? Or, should it allow large portions to remain unlicensed to foster innovation and development?

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Telecommunications & Regulated Utilities

There Isn’t Such a Thing as Free Privacy Protection

Popular Media Hardly a day goes by without the Federal Trade Commission announcing plans to clamp down on the tech industry. Its latest foray, a proposal for far-reaching . . .

Hardly a day goes by without the Federal Trade Commission announcing plans to clamp down on the tech industry. Its latest foray, a proposal for far-reaching rules to counter the bogeyman of “commercial surveillance,” comes like a great dark cloud: essentially hazy but portentous and sweeping.

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Data Security & Privacy

How Should the Law Tackle Rapidly Evolving Financial Technologies?

Popular Media The use of technology to provide financial services (FinTech) represents one of the most fascinating interplays in economic history in the last 150 years. Beginning with the . . .

The use of technology to provide financial services (FinTech) represents one of the most fascinating interplays in economic history in the last 150 years. Beginning with the introduction of the telegraph in 1838 and the first transatlantic cable in 1866, technological innovation defined the development of global financial markets throughout the 19th century. Similarly, Barclay’s introduction of the automatic teller machine in 1967 represents one of the most important financial innovations in the banking sector in the last century and initiated financial players’ shift toward digital infrastructure. Over the last half-century, the global financial industry has become one of the top purchasers of IT products. Regulation has struggled to keep apace.

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Financial Regulation & Corporate Governance

The FTC’s UMC Statement Creates a Target for Federal Courts

TOTM The Federal Trade Commission’s (FTC) recently released Policy Statement on unfair methods of competition (UMC) has a number of profound problems, which I will detail below. But . . .

The Federal Trade Commission’s (FTC) recently released Policy Statement on unfair methods of competition (UMC) has a number of profound problems, which I will detail below. But first, some praise: if the FTC does indeed plan to bring many lawsuits challenging conduct as a standalone UMC (I am dubious it will), then the public ought to have notice about the change. Providing such notice is good government, and the new Statement surely provides that notice. And providing notice in this way was costly to the FTC: the contents of the statement make surviving judicial review harder, not easier (I will explain my reasons for this view below). Incurring that cost to provide notice deserves some praise.

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Antitrust & Consumer Protection

Gus Hurwitz on the FTC and the Rule of Law

Presentations & Interviews ICLE Director of Law & Economics Programs Gus Hurwitz joined a panel at the Gray Center’s Oct. 14 conference, “The Administration of Antitrust: The FTC . . .

ICLE Director of Law & Economics Programs Gus Hurwitz joined a panel at the Gray Center’s Oct. 14 conference, “The Administration of Antitrust: The FTC and the Rule of Law.” The panel also featured Ashley Baker of the Committee for Justice and Howard Shelanski of the Georgetown University Law Center, and was moderated by ICLE Nonresident Scholar Joshua Wright. Audio of the discussion, archived by the Gray Center’s Gray Matters podcast, is embedded below.

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Antitrust & Consumer Protection