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Antitrust and Free Markets (By William Markham, © 2022)
Antitrust law exists to protect free markets from undue restraints and illicit monopolization, whether imposed by a public body acting ultra vires or by private actors. This law is a corollary to our laws on patents and copyrights, which are best understood as narrow exceptions to the general rule that markets must remain free of public and private restraints.

“Welcome Antitrust Reform Now Pending in Congress,” By William Markham, © 2021
Senator Klobuchar’s Bill Really Might Become Law. Senator Amy Klobuchar (D-Minn.) has proposed a landmark antitrust bill, entitled the “Competition and Antitrust Law Enforcement Reform Act,” which after negotiation and...


The Qualcomm Case Isn’t Even a Close Call: Qualcomm Blatantly Misused Its Standard-Essential Patents in Violation of Antitrust Law (By William Markham, © 2020)
The Extraordinary Qualcomm Case. The defining antitrust issues of our time are at stake in the landmark case of Fed Trade Comm'n v. Qualcomm Inc., (N.D. Cal. 2017, Case No. 17-CV-00220-LH) ("Qualcomm"). Qualcomm specifically concerns standard-essential patents and...


The DOJ’s Investigation of the Auto Producers’ Draft Agreement with California: It Is Misguided and Likely an Abuse of Power. By William Markham
The United States Department of Justice has reportedly begun an antitrust investigation of four major automakers for possible unlawful collusion in violation of United States antitrust law. The cause of this investigation? The automakers tentatively agreed with the...


The Amex Decision (By William Markham)
I respectfully and strongly disagree with the Supreme Court's recent decision in the Amex case, in which the Supreme Court ruled, by a narrow 5-4 majority, that the government plaintiffs had failed to establish a prima facie case against American Express Company...


Antitrust in Our Modern Gilded Age (By William Markham)
David Leonhardt of The New York Times has written a superb, groundbreaking article on the evolution of commerce in the United States (“The Charts That Show How Big Business Is Winning,” The New York Times, June 17, 2018). Relying on an original statistical analysis,...


The DOJ Should Block the Proposed Merger of AT&T and Time-Warner (By William Markham)
On conventional antitrust grounds, which have not been argued in a generation but remain sound law and the controlling law, the Department of Justice should block the proposed merger of AT&T and Time-Warner. AT&T is a dominant distributor of media content,...


Breaking up the High-Tech Oligarchy (William Markham, San Diego)
A media columnist for the NY Times has suggested in a recent column that it is better that the essential technology platforms are operated by only five large companies -- Google (Alphabet), Facebook, Amazon, Microsoft, and Apple. (See NY Times, Nov. 1, 2017, "The...


Amazon’s Merger With Whole Foods Market (By William Markham)
Amazon has announced that it plans to acquire all of the stock of Whole Foods Market, the nation's largest retailer of high end, organic groceries. Amazon already sells groceries at retail, filling online orders and making home deliveries, and it likely seeks to use...


“The Border-Adjustment Tax Is a Bad Idea Whose Time Has Not Come” (By William Markham, San Diego)
The Trump Administration, working with a coalition in Congress, apparently intends to propose a border-adjustment tax or “BAT.” Under this tax, a company subject to US tax law will no longer be permitted to deduct the cost of any good or service that it imports, and...


“A Major Decision on Defining Relevant Geographic Markets in Hospital Cases” By William Markham
The Third Circuit recently issued a brilliant decision on the issue of determining the relevant geographic market in hospital cases (FTC v. Penn State Hershey Medical Center (3rd Cir. 2016, Case No. 16-2365). Hershey specifically concerns the antitrust challenge...


“Exclusive Dealing, Explained” By William Markham, San Diego Attorney
Exclusive-dealing can constitute an antitrust violation under certain circumstances. If a firm becomes the exclusive dealer of a good, it can be held liable under Section 1 of the Sherman Act, which condemns only practices that have already harmed competititve...


“Group Boycotts, Explained” By William Markham, San Diego Attorney
Here is a succinct statement of the modern doctrine on group boycotts, which is a term of art in antitrust jurisprudence. A “group boycott” is a business practice by which two or more companies (the “boycotting companies”) agree not to do business with one or more...


The Pendulum Begins to Swing Back, by William Markham
The antitrust pendulum is swinging back in the right direction. This development, long in the making and now more and more in evidence, is the culmination of our long experiment with lax antitrust enforcement, or even thinly disguised hostility to antitrust...


“The Libor Offenders Cannot Be Saved by the Doctrine of Ancillary Restraints” By William Markham, San Diego Attorney
I wrote a short while ago in this column about the Libor case. I write about it again to explain the distinction between “naked restraints of trade” and “ancillary restraints of trade.” Naked trade restraints are presumptively unlawful under the Sherman Act and are...
Our Nation’s Two Economic Priorities: Infrastructure Spending and A Revival of Antitrust Enforcement (By William Markham, San Diego Attorney)
During this holiday season I choose to comment on our country’s two overriding economic priorities – the restoration of our failing infrastructure (including a massive conversion to renewable energy wherever practicable) and a revival of classical antitrust law to...


Another Gem from the Silicon Valley (By William Markham, San Diego Attorney)
I have heard through the grapevine that a group of venture capitalists in the Silicon Valley plan to fund a company that will collect data about what various high-tech companies pay in salary and benefits to their various classes of employees. This company will then...


The Apple E-Book Case: A Primer and Comments on the Second Circuit’s Affirmance
The Second Circuit’s Affirmance. The Second Circuit recently rendered its decision in the Apple e-book case, affirming the judgment against Apple after a bench trial in the Southern District of New York. By this judgment, Apple was held liable under Section 1 of the...


Google Owes No Duty to Provide a Platform to Rival Search Engines (By William Markham)
Professor Tim Wu of Columbia University, who invented the term “net neutrality,” is a highly regarded expert on the internet and a former adviser to the Federal Trade Commission, which enforces federal antitrust laws. He is a recognized authority on the markets for...



The Worst Antitrust Decision Ever (By William Markham)
THE WORST ANTITRUST DECISION ON THE BOOKS (By William Markham, © 2015) I have read the briefs and my initial assessment has been confirmed: Judge Buchwald’s infamous decision in the Libor price-fixing cases must be overruled, or else antitrust no longer means...


Facts in Support of the Rhetoric on the Merger of Comcast and Time-Warner (By William Markham)
Here are some key facts to support my analysis of the merger of Comcast and Time-Warner: If the merger were permitted to proceed (even with the promised divestitures), the combined company would have more than 30% of all television subscribers and 33% of all internet...


The Department of Justice Should Sue to Block the Merger of Comcast and Time-Warner (By William Markham, San Diego Attorney)
I am strongly opposed to this proposed merger and think that the Department of Justice will likely act to enjoin it. The court case should be thrilling business drama, and I hope that this time the good guys win. (I am sure that the executives at Comcast and...


Apple Should Lose Its E-Book Appeal (By William Markham, San Diego Attorney)
After predictably losing at trial in the e-book case, Apple has brought an appeal that apparently received a grave, serious hearing of its seemingly frivolous, non sequitur challenges, which were rightly rejected with little ceremony by Judge Coates during the...


Is Antitrust Law Implicated Only When a Monopolist Abuses its Monopoly to Exact Monopoly Rents? By William Markham, San Diego Attorney
My recent discussion of what to do about Amazon begs a more fundamental question: Is it unlawful monopolization when a firm employs openly predatory or anti-competitive tactics in order to acquire or preserve a monopoly position, even if the firm does not afterwards...


Has Amazon Abused an Essential Facility or Solicited Unlawful Price Discrimination in Violation of US or California antitrust law? By William Markham, San Diego Attorney
In this note I continue to consider Amazon’s recent heavy-handed treatment of Hachette and other book-publishers by “burying” their books in its system so that customers cannot find them, and by delaying the delivery of these books to the few determined customers who...


More on the Heavy Hand of Amazon (By William Markham, San Diego Attorney)
To my earlier comments about Amazon in my blog, I add the following points. I have waded into these troubled waters after reading disheartening accounts of Amazon’s shoddy treatment of book publishers, whose books are consigned to the netherworld of Amazon’s site...


Has Amazon Become An Antitrust Offender? By William Markham, San Diego Attorney
Are the antitrust laws implicated by Amazon’s new strategy of depriving sellers of access to its platform unless they offer it market-beating prices that they cannot offer to anyone else? The short answer is that the practice exposes Amazon to arguable but problematic...


Price-Fixing (By William Markham, San Diego Attorney)
Price-fixing merely means that two companies that are genuinely independent of one another have acted in concert to fix, raise, lower or otherwise manipulate the going prices for products or services that they each provide. Price-fixing constitutes a serious, per se...


Business Valuation 101 (By William Markham)
The best indicator of a company’s value is its price-to-earnings ratio: At what price could you purchase the company? This price is the current valuation of the company. How does this price compare to the company’s present earnings, which are the company’s revenues...


Real Estate Valuation 101 (By William Markham)
The best predictors of the long-term value of a parcel of real property are the following two ratios: (1) the price-to-rents ratio; and (2) the price-to-income ratio. The price-to-rents ratio is the direct comparison of (1) the price of the property; and (2) the...


“The Apple-Amazon Duel: Price-Fixing Is Not a Proper Response to a Superior Business Model. But What Is?” (By William Markham)
Did Amazon Violate Antitrust Law in Order to Dominate the Sale of E-Books? The other day I received a query from someone who, like many others, was under the impression that Amazon had used antitrust abuses in order increase its sales at the expense of impoverished...


“Ambiguous Language That Appears in Business Contracts” by William Markham
It often happens that two parties to a contract will later disagree over the meaning of a particular term or phrase set forth in the contract, and that the term or phrase in question really can be construed to have more than one simple application. Where this occurs,...


The Antitrust Economics of a Proposed Merger (By William Markham)
3M, the company that makes post-its, yesterday abandoned its proposed merger with Avery, which is a large company that makes a variety of office supplies (this post was made on October 4, 2012). 3M did so after the United States Department of Justice objected to the...


The Bad Arguments Made By Apple and the Hold-Out Book Publishers (William Markham, San Diego, CA)
It is now clear that the publishers and Apple intend to defend themselves by arguing that they did nothing wrongful at all, but on the contrary each publisher independently entered into an agreement with Apple without advance knowledge that the other major publishers...


“Laying a Foundation For Your Evidence” by San Diego Attorney William Markham
By William Markham (© 2010) An objection to “foundation” can mean that the examiner has asked the witness to provide information before establishing any of the following: Relevance. The examiner has asked the witness to provide information without first establishing...


“The Law on Market Definitions” by William Markham, San Diego Attorney
Defining the relevant market is a necessary predicate task in most antitrust cases. Challenged conduct cannot be said to restrain trade within a market, or to monopolize a market, until the market is defined. Arguably, the most important work of an antitrust...
MR. MARKHAM’S ARTICLES ON ANTITRUST LAW
AN OVERVIEW OF ANTITRUST LAW (By William Markham, © 2000)
“Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.”
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ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, © 2022)
“Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce.”
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HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (William Markham, © 2021)
“Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence….,”
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READ MR. MARKHAM’S ARTICLES ON TRIAL PROCEDURE AND CONTRACT LAW
MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, 2011)
“I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial.”
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ANATOMY OF A LAWSUIT (By William Markham, © 2007)
“This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish.”
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AN OVERVIEW OF CONTRACT LAW (By William Markham, 2002)
“Contract law lies at the heart of our system of laws and serves as the foundation of our entire society…. Our society depends upon free exchange in the marketplace at every level. Contract law makes this possible.”
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