Since the premerger notification program of Hart-Scott-Rodino (HSR) was passed in 1976, challenges to consummated mergers in the U.S. have dwindled and for good reason: Under HSR, antitrust enforcers can stop mergers that “may be” anti-competitive before they harm consumers. U.S. antitrust enforcers, however, might be considering more such challenges. While they are legally possible,…
Last month, the Seventh Circuit in Viamedia Inc. v. Comcast Corp.[1] found that refusal to deal claims can still be successfully alleged under Sherman Act Section 2 if plaintiff’s allegations mirror those in Aspen Skiing closely enough. If it stands, the opinion will make it much more difficult for monopolist defendants to dismiss such claims…
Steven J. Cernak[1] For this panel, we have been asked to revisit now-Judge Frank Easterbrook’s seminal 1984 article, “Limits of Antitrust”. Is it still an appropriate guide to antitrust enforcement, both for the FTC and U.S. courts? Or, like many of the rest of us 35 years later, is it a little creaky and, perhaps,…
Living Essentials LLC, the maker of 5-hour Energy drinks, has faced two recent suits in California federal courts alleging violations of Robinson-Patman’s prohibitions on price and promotional discrimination. The suits should teach other suppliers, especially those that sell to Costco, that private RP enforcement is alive and well and still requires careful planning of prices…
“We’re living in a moment where an increasing share of our commerce and communications are being mediated by a handful of dominant platforms, and that has huge ramifications for competition in ways that it’s becoming clear the current antitrust regime is not fit to address.” “It is evident that business has grown to such an…
The Federal Trade Commission’s new Economic Liberty Task Force, launched by FTC Acting Chairman Maureen Ohlhausen, is an important step that addresses concerns from this blogger and others that the FTC’s commissioners should do more to head off the competitive restraints imposed by certain state licensing requirements. The move is consistent with recent efforts by…
On January 25, 2017, the Trump administration designated Commissioner Maureen Ohlhausen as Acting Chairman of the Federal Trade Commission. Because Ohlhausen has been a Commissioner since 2012 (and held other FTC positions before that), she certainly left plenty of tea leaves for antitrust practitioners to read as they tried to guess how she would act…
Like students going back to school, members of the antitrust community returned last week from summer vacations and started debating the finer points of antitrust policy at various conferences. As is often the case, the highlights included speeches by top antitrust enforcers. And there were plenty of speeches – multiple speeches by each of the…
Occupational licensing has been under antitrust attack in the last several years, from two Supreme Court cases narrowing the state action exemption to numerous reports on local regulations such as taxi medallions. The proposed Alternatives to Licensing that Lower Obstacles to Work Act (ALLOW) Act could prove to be another step in lightening the load…
The most recent edition of the ABA Antitrust Section’s Antitrust Law Journal has yet another thoughtful piece from Dick Steuer. Titled “Antitrust Overhaul” this is not the first time Steuer has covered a big-picture antitrust question in a thought-provoking, readable piece. Here, he suggests that an “overhaul” of the language of the U.S. antitrust laws…
