Antitrust: Antitrust Law & Policy eJournal最新文献

{"title":"The Vital Role of Private Antitrust Enforcement In The U.S. Commentary on the 2019 Antitrust Annual Report: Class Action Filings In Federal Court","authors":"American Antitrust Institute","doi":"10.2139/ssrn.3860356","DOIUrl":"https://doi.org/10.2139/ssrn.3860356","url":null,"abstract":"The American Antitrust Institute (AAI) and the University of San Francisco School of Law (USF Law) released a commentary (Commentary) on a new annual report examining antitrust class actions in federal court from 2009 to 2019. The 2019 Antitrust Annual Report (2019 Report) finds that cases settled since 2009 have recovered more than $24 billion on behalf of victims of antitrust violations. The 2019 Report, which expands on last year’s 2018 Antitrust Annual Report (2018 Report) was jointly produced by USF Law and Huntington National Bank.<br><br>Private enforcement actions are brought under two main federal statutes—the Sherman Antitrust Act and the Clayton Antitrust Act—and various states’ laws. The laws prohibit collusive agreements, monopolization, and mergers that are likely substantially to lessen competition. Federal courts oversee many private enforcement actions.<br><br>“With increasing concerns over the ill effects of high market concentration in critical sectors and markets, private enforcement is more important than ever,” said AAI President Diana Moss. “We see strong evidence of increased filings and recoveries in antitrust class actions from 2009-2019, and at the same time we see federal antitrust enforcement action, particularly against illegal conspiracies, in decline. Private enforcement remains a critical tool in the U.S. enforcement system and can deliver meaningful compensation to victims and deter future illegal conduct. The 2019 Report and Commentary together highlight the significant results achieved through private antitrust enforcement,” explained Moss.<br><br>“The 2019 Antitrust Annual Report is the second installment in this pioneering annual research effort,” Professor Joshua Davis, Director of the Center for Law and Ethics, University of San Francisco School of Law, noted. “The law firms prosecuting private antitrust enforcement actions play a crucial role in the public interest as private attorneys general, particularly when enforcement by federal agencies is waning. The U.S. system relies almost entirely on private enforcement to compensate victims. Moreover, private damages often dwarf the sanctions imposed by government actors, providing a critical deterrent to wrongdoers,” Professor Davis explained.<br><br>“The depth and breadth of the data assembled in the 2019 Report provides critical perspective for understanding trends in public and private enforcement over time,” said Laura Alexander, AAI’s Vice President of Policy. “With this report, we can better understand the real impact of pivotal court decisions on the ability of private enforcers to bring cases and recover compensation for victims illegal anticompetitive conduct.”<br><br>The AAI-USF Law Commentary highlights a number of key takeaways from the 2019 Report’s data on antitrust actions over the period 2009-2019. These collectively signal the efficiency and effectiveness of private enforcement — and the antitrust class action in particular.<br><br>Private en","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134262212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What NCAA v. Alston Means for Professional Sports Leagues","authors":"Jodi S. Balsam","doi":"10.2139/ssrn.3914964","DOIUrl":"https://doi.org/10.2139/ssrn.3914964","url":null,"abstract":"The Supreme Court in Alston held that the National Collegiate Athletic Association (NCAA) and its member conferences violated the antitrust laws by collectively restricting, in the name of amateurism, the education-related benefits offered to college athletes. While the Court accepted that NCAA amateurism serves consumers by offering a brand of athletic contests distinct from professional sports, it found the NCAA’s fluctuating and incoherent definition of amateurism insufficient to justify the breadth of its student-athlete compensation rules. As a result, student athletes will now have access to, for example, graduate or vocational school tuition, payments for academic tutoring, paid post-eligibility internships, and similar education-related benefits, as long as these benefits are not tantamount to a professional athlete’s salary. Despite this defeat for the NCAA joint venture, the Court recognized the value of joint ventures generally, and clarified the framework for evaluating their competitive impact. Specifically referring to sports leagues, the unanimous Alston Court warned the lower courts against reflexively condemning joint venture arrangements that are necessary to create a product and advised deference to the business judgments of venture participants. Mining that vein of thought, this essay identifies three significant take-aways for professional sports leagues from the Alston decision: (1) “quick look” review is generally not appropriate to summarily disapprove sports league coordinated conduct under the antitrust laws; (2) “rule of reason” antitrust analysis does not require sports leagues to structure their business in the “least restrictive” way; and (3) to the extent a professional sports league is more analogous to an individual college athletic conference, as opposed to the entire NCAA, member clubs may have more latitude to coordinate their conduct without violating the antitrust laws.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"212 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115272877","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Indian Competition Law in the Digital Markets: An Overview of National Case Law","authors":"Shilpi Bhattacharya, Pankhudi Khandelwal","doi":"10.2139/ssrn.3897291","DOIUrl":"https://doi.org/10.2139/ssrn.3897291","url":null,"abstract":"In this foreword, we draw on certain aspects of CCI’s enforcement in digital markets in order to identify some noteworthy trends, provide a comparison with global jurisprudence and ascertain areas of concern for the future. It is not possible to do justice to the array of competition issues arising in India’s digital markets in this foreword. Therefore, our objective here is to advance certain aspects of Indian enforcement that in our opinion will benefit from greater dialogue. Accordingly, each section of this foreword is intended to induce further deliberation. The first section discusses closure of cases after prima facie review, the second section explores determinations of dominance, the third, fourth and fifth sections discuss abuses of dominance in digital markets through privacy reductions, unfair terms and preferential treatment, the sixth section examines algorithmic collusion before concluding the discussion.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125444440","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Declining Leniency Applications, Third Party Damages Claims and Liability Insurance: rebalancing the decision to apply for leniency","authors":"Beverley Williamson","doi":"10.2139/ssrn.3872587","DOIUrl":"https://doi.org/10.2139/ssrn.3872587","url":null,"abstract":"In the face of declining leniency applications, and the risk that that poses to the effectiveness of anti-cartel enforcement, this paper considers the role that competition law specific liability insurance could have on rebalancing the calculation for determining whether to self-report.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130190927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ajustando as Lentes: Novas Teorias Do Dano Para Mercados Digitais (Adjusting the Lenses: New Theories of Harm for Digital Markets)","authors":"B. Kira, D. Coutinho","doi":"10.2139/ssrn.3864978","DOIUrl":"https://doi.org/10.2139/ssrn.3864978","url":null,"abstract":"<b>Portuguese Abstract:</b> O artigo trata da aplicação de teorias do dano concorrencial a mercados digitais. A revisão da literatura e a experiência internacional apontam a necessidade de novas teorias do dano típicas de mercado digitais, para evitar aumentos de preços não monetários, redução da qualidade, efeitos deletérios à inovação, bem como o tratamento preferencial a certos bens ou serviços próprios (self-preferencing). A análise da jurisprudência da autoridade brasileira desde 2012 revela que, de forma incipiente, o CADE reconhece a importância de tais teorias do dano, mas ainda não as aplica sistematicamente na forma de testes. O artigo defende, ainda, que tais teorias, como categorias chave de análise, têm um papel inovador na própria aplicação do direito antitruste.<br><br><b>English Abstract:</b> This article examines the use of theories of harm in competition policy in cases involving digital markets. The review of the literature and reports published by foreign authorities point to the necessity of developing new theories of harm for digital markets, to address non-monetary price increases, the reduction of quality, deleterious effects to innovation, and self-preferencing practices. An analysis of previous cases decided by the Brazilian competition authority since 2012 shows that CADE has begun to recognise the relevance of these theories, but is yet to apply them systematically. The article argues that theories of harm, as frameworks for antitrust analysis, have an important role to play in innovating competition policy and in its enforcement.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122183325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Flexible Economic Regulation under a Liberal Worldview: The Case of the Proposal for a Digital Markets Act","authors":"J. Blockx","doi":"10.2139/ssrn.3852047","DOIUrl":"https://doi.org/10.2139/ssrn.3852047","url":null,"abstract":"Classical liberalism emphasizes the sovereignty of the legislator, based on the social contract. However, even in liberal politics, discretionary powers need to be granted to the judiciary and the executive in order to apply general rules to individual cases, including cases which could not be foreseen. This implies that rules need to be flexible, in particular when regulating areas marked by great uncertainty, such as fast-moving technology markets. The European Commission’s proposal for a Digital Markets Act builds in certain flexibilities, but could have gone further in this respect, also in light of the Commission’s own Better Regulation Toolbox.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121736066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Breaking Up Big Tech: Lessons from AT&T","authors":"Maham Usman","doi":"10.2139/ssrn.3859441","DOIUrl":"https://doi.org/10.2139/ssrn.3859441","url":null,"abstract":"Opinions by experts on whether the breakup of Big Tech is a valuable and viable solution range from one end of the spectrum to another. Despite strong advocacy by some to break up Big Tech companies as the best solution to the competition issues present in the technology sector, these proposals are often stated in basic terms with little specificity. Likewise, opposition to breaking up Big Tech often cites administrability by the courts as a key obstacle but does not provide specificity as to why this undertaking is out of the court’s abilities. This paper explores whether a breakup of the “Big Tech” companies is feasible given the unique nature of the technology business. Since characteristics like zero-price business models and advantageous network effects are central to today’s technology companies but were not major considerations during the last breakup in United States antitrust history—the divestment of the Bell Operating Companies from AT&amp;T in 1984—these are novel factors that must be taken into account when evaluating any proposal to break up Big Tech. This paper also uses specific examples from the business models of each of the four Big Tech companies to determine how a division of resources in a breakup could hypothetically affect those operations. Based off of those scenarios, the paper draws inferences on whether or not a structural remedy like a breakup or spinoff is advisable and whether or not the resulting companies would be able to function properly in the market after the divestiture. Since there has been so much recent endorsement for utilizing structural remedies in the current Big Tech federal antitrust lawsuits, advocates should appropriately analyze the mechanics of breakups and spinoffs and the potential effects they could have on companies and consumers alike.<br>","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126028642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic response to merger control: Evidence around national and supranational thresholds","authors":"Michael Weichselbaumer","doi":"10.2139/ssrn.3831141","DOIUrl":"https://doi.org/10.2139/ssrn.3831141","url":null,"abstract":"Size thresholds exist for overall, national merger review and for assignment to national versus supranational responsibility. I analyse competition effects close to these review thresholds. Firms could strategically pursue competition-reducing mergers before they come under any regulatory oversight. The results, though, point out another type of strategic behaviour by firms: 3-4 years after merger finalisation, 20 percent fewer procurement auctions receive more than one bid after mergers reviewed by national authorities, both in comparison to non-reviewed and to supranationally reviewed cases. Finding lower competition with a 3-4 year lag could be a result of the end of the forecast horizon of the competition authority. An interpretation applying to the positive competition effect for the supranationally regulated cases is that supranational regulation is helpful to avoid political interference.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"198 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123541841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Addictive Technology and Its Implications for Antitrust Enforcement","authors":"Niels J. Rosenquist, Fiona M. Scott Morton, Samuel Weinstein","doi":"10.2139/ssrn.3787822","DOIUrl":"https://doi.org/10.2139/ssrn.3787822","url":null,"abstract":"The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that increased choice in digital media will increase the likelihood that some firms will vie to offer higher quality and safer platforms. For this reason, evaluating harm to innovation (especially safety innovation) and product variety may be particularly important in social media merger and conduct cases. A critical element to enforcement of the antitrust laws in this space is a correct accounting of social media’s addictive qualities. Standard antitrust analysis seeks to prohibit conduct that harms consumer welfare. Economists have taught the antitrust bar that a reliable proxy for consumer welfare is the output of a product or service. However, output and welfare do not have this relationship when a product is addictive. In social media markets, increased output is often harmful, making this assumption incorrect. We argue that antitrust analysis must reject the output proxy and re-turn to a focus on consumer welfare itself in cases involving addictive social media plat-forms. In particular, courts should reject defenses that rely only on gross output measures without evidence that any alleged increases in output actually benefit consumers.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123590401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Big Data and Digital Markets Contestability: Theory of Harm and Data Access Remedies","authors":"Jan Kraemer, Daniel Schnurr","doi":"10.2139/ssrn.3789510","DOIUrl":"https://doi.org/10.2139/ssrn.3789510","url":null,"abstract":"\u0000 This article analyses the crucial role of user data for digital markets contestability and presents policy proposals devised to address growing concerns about the dominance of data-rich incumbents in digital markets. To this end, we discuss a data-driven theory of harm that would warrant ex-ante data access regulation and highlight that niche entry and growth should be the primary economic policy objective in digital markets characterized by strong data-driven network effects. We then evaluate regulatory data access remedies with respect to the involved economic trade-offs and their effectiveness for promoting niche entry and growth. Firstly, we analyse remedies that would limit the collection of user data by data-rich incumbents such as data silos and line of business restrictions. Secondly, we consider remedies that facilitate sharing of (user) data by opening up access to raw behavioural user data collected by data-rich incumbents. In particular, we propose a dual approach with two complementary types of data access remedies: bulk sharing of broad anonymized raw user data and continuous, real-time data portability of deep raw data that contain personally identifiable information. Finally, we comment on the recent proposal for a Digital Markets Act by the European Commission with respect to our findings.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115027936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}