Antitrust Law Research Articles

The good, the bad, and the ugly of US antitrust

Abstract This article examines the bad and ugly as the US federal agencies seek to rejuvenate competition. The bad is legislative hiatus to update the antitrust laws for the digital economy. The ugly is when courts push their own economic beliefs, without regard for the congressional intent and aims of the antitrust laws. Regardless of who wins, the rule of law (and those most dependent on the antitrust law) suffer. To correct America's market power problem, the article proposes restoring the constitutional balance, where the courts adjudicate, the legislature legislates, and enforcers enforce.

Analytical Review of Court Cases Involving the Antitrust for the Second Quarter of 2023

Analysis of the legal positions of courts in cases of violation of antimonopoly legislation in terms of consideration of issues: antimonopoly control over trading, calculation of the amount of income for criminal prosecution for violation of antimonopoly legislation, provision of preferences.Purpose: formation of uniform approaches in law enforcement practice in cases of violation of antitrust laws.

Tying in two‐sided markets with heterogeneous advertising revenues and negative pricing

AbstractWe offer a theory of anticompetitive tying in two‐sided markets when below‐cost or negative pricing is possible. With the coexistence of two consumer groups (one regarding tying and tied goods as complementary and the other as independent), a tying‐good monopolist may face difficulties in extracting rent under separate sales and wish to use tying to directly capture the large advertising revenue created in the complementary segment. We uncover two distinct mechanisms by which tying raises monopoly profits but reduces social welfare. Our theory of tying can be applied to real‐world antitrust law enforcement, such as the Google Android case.

The media coverage of antitrust enforcement: Evidence from Italy

This paper studies the media coverage of the antitrust proceedings completed by the Italian Antitrust Authority between 1994 and 2019. The empirical analysis considers the news on antitrust investigations published in the top Italian newspapers by circulation. The data reveal that the newspapers favor the conclusion (against the start) of proceedings, antitrust cases regarding immaterial services and investigations that establish a violation of antitrust law. In addition, the probability of media coverage increases if foreign firms are involved in cartel proceedings. While the press equally covers cartels and abuses, the imposition of unfair conditions is the most mentioned antitrust offense. These results are important for the public dimension of antitrust law and antitrust enforcement. An unbiased media coverage of antitrust enforcement can in fact foster the crucial collaboration of third parties in reporting alleged antitrust infringements. In addition, policymakers can draw crucial information from completed antitrust investigations and consider the possible regulation, deregulation or re-regulation of industries and companies frequently involved in the antitrust cases.

Sustainability of “Traditional Antitrust” under the Challenge of “Sustainability” and Digitization

Antitrust law arose from political pressures and has been subject to political pressures all the time. Recently, the slogan of the digital and economic transformation of society has been spread and there have been discussions about the impact of this social trend on the nature and goals of competition law. The digitalization of antitrust itself does not affect the already rather controversial debate on the goals of competition law. While digitalization does not change the goals of competition law, and competition law “only” has to deal with the challenge of adapting to technological developments within its tool-box, the so-called sustainability is associated with pressures to change and expand the goals of antitrust themselves. However, the protection of competition and consumer welfare must remain a priority, and competition authorities should not be forced to pursue a political agenda outside their remit under the pretext of a significant social change. Considerations of the so-called sustainability, however defined, must be addressed in the context of a classical competitive analysis, which provides enough flexibility to do so even today

Impact of the Antimonopoly Law on Small and Medium-sized Enterprises

The operator commitment system in the antitrust law, also known as the antitrust enforcement settlement system, is a moderated enforcement system in which the enforcement authority and the suspected monopoly operator reach a settlement agreement by way of negotiation to resolve monopoly disputes. On the whole, the operator commitment system in China is deficient in legislation, leading to many problems often encountered in practice. This paper introduces the basic meaning, legislative status and practice of the operator commitment system in the anti-monopoly law, analyzes its deficiencies, and puts forward relevant suggestions for improvement.

Digital Davids, global Goliaths, and the Web3 sling

The Web 2.0 digital economy, centered on dominant platforms, generates substantial opportunities for managers and entrepreneurs yet creates critical dependencies. Platform-dependent businesses engage in competitive actions—rivalrous, competitive-cooperative, and relational—vis-à-vis digital platforms to gain a fair share of economic value. While the (supposedly) trustworthy custodians of digital data have captured a disproportionate share of revenue and profits, Web3 promises to tilt the balance away from dominant platforms by providing mechanisms that replace centralized organizational trust with decentralized technological trust. Here, innovations such as blockchains and smart contracts complement antitrust laws and regulations in limiting platform power. Furthermore, this study suggests that end users, peers, and regulators may play an important role in helping businesses draw investors’, users’, and customers’ attention away from Web 2.0 platforms. To effectively leverage decentralized trust as a novel aspect of competitive actions, business leaders must pursue Web3 technologies that are reliable, high-growth market segments that are credible, and ventures that are investable.

Maybe we have all been wrong about antitrust law

There is a broad push for antitrust reform in the USA. Critics have proposed legislation that would overrule what they regard as mistaken or unwise judicial decisions and an array of new laws that would impose broad restrictions on the large digital platforms. Critics have complained that the law is too defendant-friendly and is focused too much on economic welfare and not enough on other values like fairness and equality that are said to have motivated antitrust legislation in the first place. So far, however, the progressive leaders of the US antitrust agencies have not persuaded courts to overturn criticized legal doctrine or to adopt important new principles, and the proposed legislation has not gotten close to enactment. More conservative commenters think US antitrust law is working well and does not need substantial reform. Among other things, these commenters adhere to the view that false positives are more costly than false negatives; and they continue to welcome rules like those governing predatory pricing,1 refusals to deal,2 and two-sided platforms3 that make it almost impossible for plaintiffs to win. Today, at least, conservative arguments find a generally hospitable audience in a conservative judiciary.

The Super League, the European Sports Model and antitrust law

The Super League, the European Sports Model and antitrust law

Platform Governance: The Antitrust Option

Background: This policy review unpacks the complexities of applying competition law to platforms. These complexities arise from competing schools of thought, multisided market environments, and a limited capacity to address broader questions of platform governance. Analysis: A comparative analysis of a selection of cases and legislation is used to illuminate the diversity of approaches within competition and antitrust laws. Conclusions and implications: Reform-minded scholars, activists, and policymakers should engage the antitrust option with realistic expectations and simultaneously continue to seek policy alternatives to this framework.

Moderating Globalization: Is There a Role for Antitrust Law? A Comparison of the Relevance of Entry, Expansion and Imports in US and EU Merger Proceedings

This paper attempts to locate the issue of innovation and foreign entry, in particular new entrants from China, in recent US and EU merger decisions. In the first part, the paper examines to what extend US and EU authorities considered foreign entry in recent major merger decisions such as Bayer/Monsanto, Dow/DuPont and ChemChina/Syngenta. The outcome of this short analysis shows that the EU Commission has in recent years begun to accept the argument of foreign entry, in particular from China, as long as the market shares of the merging parties are not too high. The US has not explicitly discussed the question of foreign entry in the above-named decisions. However, in the case Whirlpool/Maytag the US authorities accepted, despite high market shares of the parties, the argument of foreign entry and approved the merger. With regards to innovation, entry into future product markets is not considered favourable to the merging parties by the EU Commission. ‘Innovation competition’ or early ‘pipeline products’ is rather used as an argument to demonstrate that the merging parties hold market power in product markets in the future. Based on the selected case law, the US authorities, by contrast, did recognize entry into future product markets as an argument in favour of the merging parties. In its second part, the paper looks at the pros and cons of forming ‘national champions’ and discusses competition law enforcement in light of the numerous and politically powerful Chinese state-owned enterprises (SOEs). Global competition/antitrust law and policy, foreign entry in merger decisions and China, innovation competition, entry criteria in US/EU mergers, climate change

Is iFood Starving the Market? Antitrust Enforcement in the Market for Online Food Delivery in Brazil

This article examines the decisions taken by the Brazilian Competition Authority, the Administrative Council for Economic Defence (CADE) in two antitrust cases related the dominant food delivery platform iFood, one merger review and one investigation into exclusive dealing agreements. Through an in-depth examination of the case documents, this article uncovers the evolution in CADE’s comprehension of the competition dynamics in multi-sided digital markets, while also revealing gaps and inadequacies in the authority’s substantive and procedural antitrust enforcement. Based on the findings, the article draws lessons that can help strengthen the authority’s approach to digital platform cases in the future. Firstly, CADE must adapt its steps of analysis and develop new theories of harms that are better tailored to the characteristics of multi-sided platforms. Secondly, CADE should conduct more rigorous merger reviews that take into account the wider impact of dominant platforms’ business strategies on the ecosystem of players orbiting them. Thirdly, the article highlights the importance of the authority building its capacities and expertise to detect competition problems from an early stage, design effective remedies, and ensure these remedies are enforced effectively. These recommendations underscore the significance of continuously updating the enforcement framework and enhancing the capabilities of the competition authority to keep pace with the rapidly evolving digital economy. digital markets, competition law, antitrust, exclusivity dealing, merger review, theories of harm, online food delivery, Brazil

The battle for reform of US antitrust law

The Biden administration has sought to make a big difference in US antitrust law. At the outset, it assessed the current state of antitrust as weak and laggard, not fit for the 21st century, and out of step with the world. It seeks to change the course of the law as well as the conversation. How well is it doing? How likely is it to succeed? Redrawing the coalitions as the Reformers versus the Neoliberals, it concludes on a note of hope for the Reformers. The problem surfaced politically—with the politicians and ‘the people’—before it became a common subject of conversation in the expert antitrust community. It surfaced before Joe Biden was elected President of the USA and on both sides of the political aisle. People were concerned with the high price of goods and services and the increasing concentration of markets; they believed that markets were working for the elites and not for them, and that antitrust law was a collaborator. Antitrust became a plank of the Democratic Party in the presidential election of 2020, championed by Bernie Sanders, Elizabeth Warren, and Amy Klobuchar. Famously, President Joe Biden issued an Executive Order declaring that the US economy had a big competition deficit and that we needed a whole-of-government approach to instill competition into all segments of the economy. He appointed a team of like-minded advocates—Tim Wu to head competition policy at the White House, Lina Khan to chair the Federal Trade Commission, and Jonathan Kanter to head the Antitrust Division of the Department of Justice.

The consumer welfare standard and avoiding the dangers of polarized debate in the USA

The Biden Administration is seeking to redefine US antitrust policy that it views as largely responsible for historical underenforcement of antitrust laws in the USA.1 To achieve this, President Biden appointed progressive reformers to leadership positions2 and lawmakers are proposing amendments to the antitrust laws.3 These reforms could be described as a battle for the very soul of antitrust though such policy shifts in antitrust enforcement are not unprecedented.4 Arguably a victor of a previous antitrust policy battle was the Chicago School with its core underlying assumption that markets self-correct.5 Allied to that view was its emphasis on economic theory and analytical methods that rely heavily on economic analysis, especially the consumer welfare standard (CWS). A complete overhaul of US antitrust enforcement policy has yet to take place, but the current leadership of the US antitrust agencies have not held back in their criticism of the Chicago School with what they describe as its ‘focus on “consumer welfare”’ that is ‘warping America’s antimonopoly regime’ and ‘largely blinded enforcers to many of the harms caused by undue market power, including on workers, suppliers, innovators and independent entrepreneurs’.6 While the Chicago School’s influence was profound, focusing solely on the Chicago School does ignore the influence of other scholarship, including the modern Harvard School, and other influential scholars.7 This current ‘obsession’ with the Chicago School without a broader discussion of the nuanced views of many other scholars is polarizing the debate, including over the use of the CWS.8

Policy realignment and competition in attention markets

Over the past decade, a rapid shift in public attitudes towards large corporations has propelled antitrust law from obscurity to a favourite tool among progressive and conservative populists.1 Several factors account for this rise in antitrust’s political salience, one of which is the remarkable success of a new wave of anti-bigness advocates in attention markets.2 These advocates have branded themselves as 21st-century trustbusters, promoting their anti-bigness agenda as an ‘anti-monopoly movement’. They have adeptly converted their gains in attention markets into political influence and control over antitrust institutions. Their achievements have sparked both optimism and concerns that we might be witnessing an anti-monopoly realignment, with anti-bigness ideologies on the verge of reshaping antitrust policies. This essay explores the plausibility of an anti-monopoly realignment transforming antitrust law and policy. At the core of the anti-bigness movement lies the belief that failed antitrust policies have contributed to, or exacerbated, a wide range of social, economic, and political problems, resulting in ‘excessive market concentration [that] threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers’, denying the public the ‘benefits of an open economy’, and ‘widening racial, income, and wealth inequality’.3 Building on this premise, anti-bigness crusaders contend that their anti-monopoly agenda will restore competition in the American economy and reverse the trends.

Democracy and law in the new American antitrust

There is an inverse relationship between those who argue that judges, guided by economists, are well suited to the task of determining the ultimate social value of an individual merger or business practice, and those who believe that antitrust law plays a central role in the protection of human freedom and democracy. The more one is concerned with private sector threats to freedom, the more one treats antitrust as a public enterprise and seeks simple, administrable, publicly legible rules, with less discretion for judges, and a limited role for case-specific economic analysis. Conversely, if one is relatively unconcerned with democratic threats from the private sphere (or takes as a prior that only campaign finance law can address such threats), the more one understands antitrust as a microeconomic technical enterprise and seeks a single standard that is methodologically legible to economists, with a significant role for case-specific economic analysis. The Biden administration’s extraordinary re-invigoration of American antitrust in the name of democracy, workers, and macro-economic vitality should be understood in these terms.

Resetting Section 2

Large firms are receiving closer antitrust scrutiny today than at any time in recent history, although digital platforms are bearing the brunt. Some of these firms are dominant, with large market shares in the products they sell, but often they are not. Is this new scrutiny insufficient, excessive, or misdirected? This essay briefly considers whether and how Section 2 of the Sherman Act should be reset to address these new concerns. It argues, first, that much of the recent attention is misdirected because it has not identified the monopoly problem correctly. Secondly, US antitrust law could benefit from an ‘abuse of dominance’ standard somewhat like that imposed in the European Union. Thirdly, it argues that the fundamental concern of Section 2 law remains unilateral conduct that threatens reduced market output and increased prices. Finally, it urges caution in pursuing structural relief as a non-merger remedy.

Global competition law turbulence: some consequences for US antitrust

‘All competition laws will have to be like US antitrust law. It is the model we will all have to follow’. Such comments have been common in competition law (a.k.a. antitrust law) circles around the world for decades. The substantive elements of the US antitrust law model—in particular, the reliance on economics as the source and measure of competition law norms and a focus on consumer welfare as the sole goal of competition law—have been widely viewed as a model by students, scholars, practitioners, and administrators in many competition law regimes. The model’s influence on foreign developments is well enough known, but its role as the centre of a system of relationships among competition laws around the world is less often noticed. This system is, however, likely to be an important factor in the ‘realignment’ of US antitrust law that is the theme of the current symposium. Most discussion of realignment issues in the US look almost exclusively at domestic factors, but this view misses much of its importance. My objectives here are: (i) to highlight key characteristics of the model-centred global system and (ii) to identify its potential impact on the realignment of US antitrust law.1

Enforcement of US antitrust law in labour markets

In recent years, the US government has begun to focus antitrust enforcement efforts on labour markets. In 2022, for example, the Department of Justice (DOJ) blocked Penguin Random House’s acquisition of Simon & Schuster based on the theory that the merger would reduce compensation for authors.1 In the same year, the DOJ settled a lawsuit with three poultry processing plants that allegedly exchanged information on compensation of plant workers for the purpose of collaborating on pay decisions.2 The DOJ has also brought several criminal complaints against firms and individuals for fixing wages and agreeing not to poach one another’s employees, and it has intervened in numerous private cases to express its views on the application of antitrust to labour markets.3 The Federal Trade Commission (FTC) has also gotten involved. In 2020, the FTC submitted a filing before a state commission criticizing a hospital merger that it predicted would lower the wages of nurses.4 In 2023, the agency forced several companies to drop covenants not to compete that it had imposed on their employees.5 And in the same year, the FTC proposed a rule banning covenants not to compete.6 The two agencies are also reportedly planning to include a section on labour markets in their updated merger guidelines.7 Private antitrust litigation against employers is also flourishing.

What about the Supreme Court? The lurking threat to US antitrust reform

What about the Supreme Court? The lurking threat to US antitrust reform