ACCESS AND INFORMATION REMEDIES IN HIGH-TECH ANTITRUST

Abstract

As antitrust becomes more complex, so do its remedies. While access and disclosure remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements only recently in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high-technology industries at the forefront of antitrust enforcement. Interestingly, these cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgement that the doctrine (and its equivalents) remain an important and needed part of the antitrust toolkit. This article will examine the growing use of complex behavioral remedies in both merger and monopolization cases, which suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Among the examples I use are the Microsoft and Intel litigation in the United States and the European Union, as well as more recent merger consent decrees involving Google-ITA, Comcast-Universal, and Livenation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.