As the U.S. Sentencing Commission considers reforms of the guidelines for antitrust crimes, it should take action to affirm the importance of antitrust compliance programs as an essential tool in the fight against cartels, and to provide a balance against the Antitrust Division’s past approach of refusing to consider compliance programs in any case for any purpose. The Division has been an outlier in the Department of Justice in rejecting the Sentencing Commission’s premise that companies may have violations even when they have good programs. The Division’s “one-size-fits-all” policy of never giving any type of benefit or credit for diligent compliance efforts, no matter what the f [...]
The Federal Trade Commission is meant to be, and is, an expert body on antitrust laws. So, when a case like McWane—that raises both collusion and exclusion issues—is in front of the FTC, it seems reasonable to expect to receive guidance that is more helpful than we might get from a jury or generalist judge on two questions important to those of us who counsel clients daily. Unfortunately, the two opinions in this matter raise more questions than they answer.
McWane, Inc. is the only U.S. producer of ductile iron pipe fittings and one of a small number of sellers of the product in the country. McWane was accused by the FTC both of excluding its few rivals from the domestically-produ [...]
On 5 December, the European Commission published a package of measures to reduce the administrative burden of EU merger control, which will apply as of 1 January 2014.
The package extends the scope of the simplified procedure for non-problematic cases. This means that more transactions may be notified using the Short Form CO, which will reduce the burden notwithstanding the fact the “Short” Form CO is still a fairly lengthy document. The European Commission considers that its proposed changes could allow up to 60-70% of all notified mergers to qualify for review under the simplified procedure, which is about 10% more than today.
The European Commission has also introduced various amendm [...]
Attention antitrusters! I’m pleased to pass along news of interest to all lawyers and economists active in antitrust litigation: The American Antitrust Institute has instituted a new award program to recognize those each year who have made the most significant contributions in antitrust enforcement.
While I don’t speak for the group, I expect the goal is to recognize and encourage private plaintiff or other enforcement actions that make the most significant doctrinal or theoretical contributions to an effective competition law.
Details for nominations and self-nomination appear below; my thanks to Wolters Kluwer and AntitrustConnect for allowing me to publicize this award.
The smart phone wars have led to heated discussions over standard setting in technology markets. It seems only a question of time before the standard setting debate spills over into other areas. My personal candidate is the standard setting that underpins product quality, origin and safety certification.
Certification – where invisible features matter
An average consumer comes face to face with product certification in her local grocery store. Organic meat, cage-free eggs and fair-trade coffee are only a few examples of certified products, which increasingly populate store shelves. The expansion of green markets has also prompted certification and labelling programs for a wide [...]
What would likely be the last major acquisition in the car rental industry may soon be completed, with the blessing of the Federal Trade Commission. The pending acquisition of Dollar Thrifty Automotive Group, Inc. by Hertz Global Holdings, Inc., currently under review by the FTC, would cement the positions of the three major car rental companies by combining the second and fourth largest competitors.
Completion of the transaction would bring to a close years of consolidation in the industry. Antitrust approval of a combination of any of the three remaining firms—Enterprise Holdings, Inc., Avis Budget Group, Inc., and Hertz—would be highly unlikely.
Hertz announced on October 18 that it [...]
According to standard economic theory, unfettered free markets lead to an efficient allocation of resources. Importantly, this result is generally taken to hold only insofar as market failures are absent. One of these failures, market power, is defined as the ability to elevate prices above competitive levels for a significant period of time. Generally speaking, the exercise of market power harms consumer welfare.
This logic appears quite general and is commonly accepted by policy makers. Indeed, precisely for this reason most competition authorities aim to limit firms’ ability to gain or exercise market power. However, can it be the case that markets are efficient, even in the presence of [...]
In the past six months since Google’s public disclosure of its Federal Trade Commission (FTC) antitrust investigation, much of the debate around the issue has been focused on the evolution of search–how it has changed over the past decade, how information is presented to users, and where information comes from to provide users with the very best and most useful search results. As we all well know, search engines like Google have become an incredibly powerful tool and are hardly recognizable from their old format of traditional “ten blue links.”
Today, search is smarter and more dynamic–rich with real-time content, news, images, maps and reviews. Search no longer provides users a simple [...]
Welcome to AntitrustConnect. At this time of new direction and change in antitrust enforcement and practice, Wolters Kluwer Law & Business is excited to sponsor this blog as a forum for analysis, commentary, and discussion of antitrust issues for lawyers and economists in the field.
There has been much discussion about the reinvigoration of antitrust enforcement with the change in administration in Washington. Whether or not one agrees that enforcement efforts at the federal antitrust agencies have been revitalized in the last 12 to 18 months, new antitrust leadership has brought change.
Shortly after being sworn in as Assistant Attorney General in charge of the Department of Justice An [...]
In American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2010), the Supreme Court held that the NFL acting through its incorporated subsidiary NFL Properties, Inc. (NFLP) was not a single entity but rather a combination of its 32 individual member teams for purposes of the plaintiff’s antitrust challenge to an exclusive licensing agreement. The teams had licensed their trademarks and insignia exclusively to NFLP, which then issued a single exclusive license for the production of logo-bearing caps to Reebok, thus ousting American Needle or anyone else from producing NFL caps.
The American Needle decision could conceivably rest on alternative rationales for its separate entity [...]