I often feel a certain deflation after the Supreme Court decides an antitrust case. After watching a case for months, prognosticating about it with other antitrusters, reading umpteen blog posts, reading the briefs if you’re into it and even some amici briefs if you’re really into it, the Court then rules one way or the other, and usually tailors its opinion pretty narrowly, breaking no meaningfully new ground. I suppose many will have that feeling about Tuesday’s decision in Federal Trade Commission v. Phoebe Putney Mem. Hosp. Sys., and some are already saying that Justice Sotomayor’s brief opinion for a unanimous Court is just a narrow application of garden variety state action [...]
Keep an eye out for the Court’s decision on certiorari in McCray v. Fidelity Nat’l Ins. Co., 682 F.3d 229 (3rd Cir. 2012). I have my fingers crossed that it may be the case in which the Court finally does the right thing with the accursed “filed rate doctrine.” I filed a brief in support of certiorari in the case on behalf of myself, eighteen leading antitrust scholars, and the American Antitrust Institute.
Pretty much everybody who is not a regulated industry is in agreement about the FRD, an old rule now commonly associated with Louis Brandeis’s famous opinion in Keogh v. Chicago & Nw. Ry. Co., 260 U.S. 156 (1922). Specifically, they all pretty much agree that the FRD is ba [...]
On Friday morning the FTC announced that it had closed its investigation of Universal Music Group’s acquisition of EMI’s recorded music division. The Commission will not seek any concessions or take other action. Elsewhere I’ve written and said that I think the merger is probably awfully anticompetitive and that it should be blocked completely.
A few thoughts.
From any older-fashioned structuralist, Philadelphia-National-Bank sort of perspective, the merger looks pretty illegal. It is in effect a world-wide 4-to-3. In U.S. markets the existing concentration and the increase in concentration are well in the range of likely anticompetitive effect under the traditional Merger Gu [...]
During this past couple of years, my friend and colleague Barak Richman of the Duke law school has made a small cottage industry of pissing off organized Judaism. Himself newly the president of a synagogue in North Carolina, he turned his frustrating experience in hiring a new rabbi into a study of the antitrust treatment of collusive or exclusionary practices that happen to involve religious officials. His much discussed paper on the topic is forthcoming in the Pepperdine Law Review, and it has lately gotten some pretty high-profile attention.
Well, the rabbis have noticed. Personally, I think they ought to face antitrust scrutiny. Based on their protestations so far, I think they [...]
Well, okay, I guess there might just possibly have been an appellate decision this week of even more pressing moment, but I believe something important and very positive happened in the Seventh Circuit yesterday: the en banc reversal in Minn-Chem, Inc. v. Agrium, Inc., No. 10-1712 (7th Cir. June 27, 2012) (en banc) (“Potash II”). The court ruled that plaintiffs had pled a foreign price-fixing conspiracy that it is subject to U.S. antitrust under the Foreign Trade Antitrust Improvements Act. I suppose Potash II is itself a case primarily about FTAIA, and it is now second in importance within the FTAIA caselaw only to the Supreme Court’s Empagran ruling. But as I’ve suggested before, I [...]
This morning the Court granted certiorari in Federal Trade Commission v. Phoebe Putney Health, No. 11-1160, on appeal from an execrable pair of opinions in the Eleventh Circuit and the Middle District of Georgia.
At issue is a local hospital merger that would give the acquiror 100% in its county and upwards of 90% in a larger multi-county area of rural southern Georgia. The Commission’s otherwise slam-dunk 13(b) action was stymied, however, because the merger received an extremely cursory, purely formal and after-the-fact rubber-stamp from a largely inactive county hospital commission created under a 1941 Georgia statute. Primarily at issue was whether the state of Georgia had “clearly [...]
Ah, the Spring Meeting. God I love it.
Admittedly, the ABA Antitrust Section Spring Meeting, perhaps the profession’s preeminent event, is in some respects getting to be just a bit of a circus. What were once a handful of calm, early evening cocktail receptions in the bowels of the Marriott have grown into a deafening barrage of extravagant drink-fests, which have spilled over into the many posh surrounding hotels and restaurants, including the Willard and that exclusive, trendy new home of $20 hamburgers, Central Michel Richard. One venue on Thursday afternoon featured, in addition to the inability to hear, mini-sombrero party-favors and a mariachi band. And as proof how much the [...]
Senator Rand Paul of Kentucky, the freshman Republican and Tea Party favorite, is only slightly more famous as the son of Representative Ron Paul than as the deliberate namesake of Ayn Rand. Last Thursday he introduced a genuine humdinger.
Deploying that prowess for economic and legal analysis that may characterize many ophthalmologists, Senator Paul seems to believe the bill does no more than limit FTC jurisdiction (consider his comments to that effect to The Hill).
But that is quite wrong. His so-named “Anti-Trust Freedom Act of 2012” would entirely repeal federal antitrust as to any conduct by “individuals.” It provides in its entirety as follows:
The Sherman Act (15 U.S.C. [...]
The next Term may see significant SCOTUS consideration of the state action immunity, the first such case since 1992. The decision below in the defendants’ favor was quite plainly wrong, and so it might also become only the second antitrust case in twenty years in which the Court has ruled for a plaintiff. That would be a nice result since it would shield the plaintiff here, the Federal Trade Commission, from yet another unjustified indignity at the hands of the increasingly anti-enforcement courts of appeals (see, e.g., this recent decision).
To wit, while no petition has yet been filed, the Solicitor General has confirmed that he will seek review in FTC v. Phoebe Putney Health System, I [...]
In a recent letter to the House Transportation and Infrastructure leadership, all four sitting Federal Trade Commissioners joined in “grave concern” over that Committee’s plan to kick the agency out of the iconic, art deco building that FDR built for it nearly 75 years ago. The House Committee and its chairman intend to turn the building into a wing of the National Gallery of Art.
When I first heard about this mess (in February of 2011, when the Commissioners wrote a similar letter), I had thought the story was really about competition policy and the politics of regulation. Its apparent theme was poignant, bitter symbolism: a hostile and radically conservative House majority, int [...]