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,”...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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,...
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...
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...
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...
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...
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 enforcement, which began in the 1970s. It a necessary response to the facts on the ground.
In the real world, you see, there are only three practical options.
Option number one is an economy composed of free-markets, in which most of the key markets eventually become dominated by monopolies or oligopolies; then over time the firms that control the markets end up controlling our politics and society while giving us inferior products and especially inferior service. I call this the option of cartels and monopolies.
Option number two is to discipline or break up the monopolies and oligopolies by the use of oppressive regulations and public oversight; then over time society suffers because everyone is over-regulated by a stultifying bureaucracy. I call this the option of misguided over-regulation.
Option number three, which is very imperfect, has the advantage of being better than the other two alternatives, to paraphrase Winston Churchill. It recognizes that market economies are the best way to organize economic and social life but by their own tendencies they eventually give way to the an economy dominated by cartels and monopolies. At the same time, trying to correct these failings by intensive regulation leads to an Orwellian misery that all of us wish to avoid. So what we need is vigorous antitrust enforcement, not the mushy, measly stuff bequeathed to us by the Chicago School of Economics. The Sherman Act was not enacted to ensure that firms charge only their marginal costs for their products and services, but otherwise they can do whatever they wish. No, it was enacted to curb the excesses and harm of extreme concentration of economic power in our key markets.
I think many on the right and left are reminding themselves that we have antitrust law, and it has its intended and proper uses.
