On Competition Law and Economics

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Minimum advertised price (MAP) policies are becoming more and more popular.  Especially with the rise of cutthroat competition in the online marketplace, many producers are hearing from their resellers that they want margin protection, and are getting concerned with the possible erosion of their brand equity from widespread promotion of low pricing.  Naturally, many companies have turned to consultants and the internet for information on MAP policies.…
On July 6, 2017, QVC announced its intent to acquire the remaining 62 percent of Home Shopping Network it doesn’t already own.  More so than DraftKings or Walgreens, this transaction will demonstrate whether Trump’s election has had any effect on antitrust enforcement, and should be watched carefully.  HSN and QVC are very similar, and the ability to do the deal will turn on what product market definition wins the day.  A very broad product market…
The European Commission has fined Google €2.42 billion ($2.7 billion) after concluding the company had abused its dominance in search.  According to a letter from the EC announcing the results of its investigation, Google has a dominant market position in search, and the company leveraged that dominance to give itself an unfair advantage in comparison shopping search.  For example, according to the EC, when a consumer types in the name of a particular product, Google…
Federal Trade Commission Acting Chairman Ohlhausen and Commissioner McSweeny recently gave two very different speeches on algorithmic pricing. Commissioner McSweeny’s speech seemed to express concern that algorithms would lead to price fixing, coordination and higher prices.  The Chairman seemed less concerned.  The Chairman is likely correct.  Pricing bots are not a new, sinister specter haunting society like the trusts of the late 19th Century.  Nor are they boogeymen hiding under your bed waiting to raise…
The Economist recently announced that the world’s most valuable resource is now data, displacing oil for the top spot.  The “titans” of the digital era—Alphabet, Amazon, Apple, Facebook and Microsoft—look “unstoppable” as they are now the five “most valuable” firms in the world.  Amazon captures “half of all dollars” spent online, and Google and Facebook accounted for “almost all the revenue growth in digital advertising in America last year.”  The Economist claims that the…
A few weeks ago, we looked at price setting bots and whether what they were doing could constitute a violation of the Sherman Act. Generally, we concluded that a bot that set price off a competitor’s publicly available prices was not illegal.  In competitive markets, competitors set price at cost.  If they can set price based on a competitor’s price, the market is concentrated.  In a concentrated market, one would expect oligopolistic or parallel pricing;…
On Thursday, March 16, 2017, in a speech at the Bundeskartellamt’s 18th Conference on Competition, European Commissioner for Competition, Margrethe Vestager, discussed the specter of automated price fixing cartels.  She mentioned the Department of Justice suit against the poster vendor on Amazon as well as Google, which apparently prefers its own comparison shopping service over others.  These are very, very different things.  This post will focus on the legal and philosophical issues associated with price…
Bill MacLeod is serving as the ABA Section of Antitrust Law’s 2016-2017 Chair. Below is his most recent message as posted on the ABA website: Fifty Countries and Counting, Sixty Sessions and More – at Spring Meeting Competition and consumer protection are convening in Washington for an early spring this year.  Officials from Europe, Asia, Africa and the Americas, along with practitioners from over fifty countries will descend on D.C. for the one event that antitrust, advertising and…
Bill MacLeod, chair of the American Bar Association’s Antitrust Section and Kelley Drye partner, addressed the Section with an introductory note to their eighth sequential Presidential Transition Report. The 2017 Presidential Transition Report offers a retrospective of current state and federal antitrust and consumer protection law and policy, as well as recommendations for ways the new Trump administration might consider further strengthening policy and enforcement to deal with new antitrust challenges on the horizon. In his note, Mr. MacLeod…
The Premerger Notification Office of the Federal Trade Commission announced on November 28, 2016, that they were revoking previous informal advice regarding the scope of Items 4(c) and 4(d) of the HSR Form.  In the past, the PNO has taken the position that documents that would otherwise be responsive to Items 4(c) and 4(d) but discuss only foreign markets would not have to be submitted.  Effective November 28, filers may no longer exclude such documents.…