David H. Evans

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The Bayer/Monsanto Digital Farming Licensing Remedy: Structural or Behavioral?

The European Union (“EU”) recently concluded its investigation of the Bayer Monsanto transaction.  As part of the remedy, Bayer has agreed to license to BASF its “entire global digital agriculture product portfolio and pipeline products to ensure continued competition on this emerging market.”  According to the EU’s press release, “[d]igital agriculture uses public data such … Continue Reading

Ozzy Osbourne is an Antitrust Plaintiff

Ozzy Osbourne has filed an antitrust suit against against AEG, the operator of the O2 Arena in London and operator of the Staples Center in LA, among others.  Ozzy is alleging that AEG is illegally requiring artists perform at Staples if they want to perform at O2, the “Staples Center Commitment.”  It is a fairly … Continue Reading

CNN: Is There A First Amendment Defense to an Anticompetitive Merger?

Shortly after the Justice Department’s challenge to AT&T’s acquisition of Time Warner was announced, a rumor floated that AT&T had offered to divest CNN to assuage the Division’s concerns.  The gist of the rumor was that the Division is suing to block an otherwise legitimate transaction as an act of revenge against CNN because CNN … Continue Reading

QVC/HSN :: A Deal You Probably Weren’t Thinking About

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 … Continue Reading

What EU‘s Fine of Google $2.7 Means for Antitrust Exposure

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 … Continue Reading

Alarmist Algorithms: Why Pricing Bots Won’t Be the End of Society

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 … Continue Reading

And the World’s Most Valuable Resource is . . . Data! Holy Cow, No Way!

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 … Continue Reading

What Would an Illegal Price Fixing Bot Look Like? Sending Price Fixing Robots to Price Fixer Robot Jail

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 … Continue Reading

Price Setting Bots Aren’t Price Fixing Bots, and Airline Tariff Publishing is Wrong

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 … Continue Reading

Antitrust in a Clinton Administration

Regardless of your political affiliation, it is worth understanding the potential changes to antitrust enforcement in the next administration.  We will take a look at how antitrust might be handled by each of the two major party candidates.  This week, we’ll take a look at a possible Clinton administration. The Clinton Campaign has released an … Continue Reading

Fortiline LLC: Invitations to Collude in Dual Distribution Systems

Fortiline LLC distributes ductile iron pipe. It competes with the manufacturer which somewhat regularly undercuts its distributor in the market.  Fortiline on several occasions asked the manufacturer not to do so.  Fortiline emailed the manufacturer complaining that the manufacturer was not keeping its numbers up compared to other manufacturers.  Fortiline also stated that “[w]ith this … Continue Reading

Causality and Diluting Trademarks Through Online Searches: What the FTC Missed in 1800Contacts

The FTC sued 1800Contacts for entering into a series of agreements with competitors that limited the competitors’ ability to bid on certain trademarked terms as search terms in online search term auctions. Search engines like Google sell search terms. An advertiser will bid for a search term.  If it wins, its advertisement will be listed … Continue Reading

Didi Acquires UberChina

Uber Technologies Co. announced today that it was selling its Chinese affiliate to rival Didi Chuxing Technology Co.  The Wall Street Journal reports that the sale is the end of a three-year effort by Uber to penetrate the Chinese market.  In the end, Uber had approximately 10.1 million riders to Didi’s 42.1 million.  Didi merged … Continue Reading

Microsoft buys LinkedIn for $26.2 Billion – Antitrust Issues?

Microsoft has an entrenched, enduring monopoly in both personal computer operating systems and office software. LinkedIn is the largest business-oriented social network.  Are there antitrust issues with the combination?  Likely not. Microsoft is not strong in social media, and LinkedIn doesn’t make operating systems or business software. So there does not seem to be many … Continue Reading

Screening Room Alone Won’t Save AMC-Carmike

Last month, AMC and Carmike announced plans to merge. They would form the nation’s largest cinema chain with over 8,000 screens. Also last month, Napster founder Sean Parker announced a new product—Screening Room—which will stream first-run movies into the home potentially in competition with entities like AMC/Carmike. Screening Room customers purchase a proprietary box for … Continue Reading

News Corp Complains about Google

News Corp Complains about Google News Corp recently filed a complaint with the European Commission against Google over “improper scraping of content for use in search results.”  News Corp alleges that Google takes News Corp content and makes it available in Google’s search results.  According to News Corp, displaying their content on Google’s sites bypasses … Continue Reading

Antitrust Issues in Common Ownership of Natural Competitors: A New Storm Coming

On Wednesday, March 9, 2016, Assistant Attorney General of the Antitrust Division Bill Baer testified before the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights that the Division is presently investigating minority common ownership of natural competitors in concentrated industries.  These investigations are likely in response to two important papers—an economic analysis by … Continue Reading

Germany’s Probe of Facebook

On Wednesday, March 2, 2016, the Bundeskartellamt (BKA), Germany’s antitrust enforcer, announced that it had initiated a probe of Facebook.  In announcing the probe, BKA president Andreas Mundt stated that, “For advertising-financed internet services such as Facebook, user data are hugely important.  For this reason it is essential to also examine under the aspect of … Continue Reading

Beware: You May Not Be Immune

New York State Health Care—DSRIP, PPSs, COPAs and Antitrust “Immunity” New York has received permission to use over $8 billion in Medicare and Medicaid funds to revamp how healthcare is provided throughout the State.  As part of this process, the New York State Department of Health (DOH) is encouraging, and sometimes, requiring, competing healthcare and … Continue Reading

The FTC’s Third Point Settlement: Not A Controversy

On August 24, 2015, the Federal Trade Commission entered into an agreement with hedge fund Third Point settling allegations that Third Point violated the HSR Act by acquiring shares in Yahoo! In 2011 without reporting the acquisition prior to consummation.  Third Point had acquired shares valued at more than the size-of-transaction at the time but … Continue Reading
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