BLOG | WILLIAM MARKHAM

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.

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 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 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...

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...

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,...

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,...

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 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 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...

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 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...

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 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...

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...

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 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...

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 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...

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...

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...

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...

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...

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...

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...

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...

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...