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The Justice Department lost another merger the other day.  This one was their challenge to Sabre’s acquisition of Farelogix.  Sabre aggregates air fares in a hosted environment and serves about 50 percent of the market.  Farelogix developed, and then open sourced, a peer-to-peer solution for the airline/travel agent industry (the “new distribution capability”), and

On March 24, 2020, the Antitrust Division of the Justice Department and the Bureau of Competition of the Federal Trade Commission announced that they are adopting expedited processes for reviewing potential collaborations or other activities for antitrust issues in response to the COVID-19 pandemic.  The Agencies recognized the urgency of the coronavirus event and stated

UPDATE:  The FTC announced today that the deadline to file comments on the Draft Vertical Merger Guidelines has been extended to February 26.  In addition, the FTC and DOJ will host two public workshops (March 11 and 18) in Washington, DC, on the draft guidelines.

On January 10, the Federal Trade Commission and Department of

Presidential Candidate Elizabeth Warren thinks Big Tech is too big and wants it—and, in particular, Amazon, Facebook and Google—broken up and their past mergers and acquisitions unwound. And the FTC recently announced it was forming a Task Force to look into the technology markets. There do seem to be issues with Big Tech. But is antitrust, as currently practiced, the best tool to address them?  Ms. Warren contemplates this by suggesting a new regulatory regime should be implemented to control Big Tech.  Should we treat platforms like a regulated utility?  Should we pass a new antitrust law that supplements current common law and allows for more vigorous enforcement?  Or are there tools available to modern antitrust that can address Big Tech and the issues Ms. Warren identifies?  We ask those questions and suggest some high-level responses to further the dialogue.

Continue Reading Elizabeth Warren Wants to Break Up Big Data – Could She Do It?

The Luxembourg Competition Authority recently handed down a decision that found an app-based taxi booking system, Webtaxi, was not a hardcore violation of the relevant competition law banning price fixing.  The algorithm determined the precise fare the passenger would pay for a trip.  The taxis remained competitors otherwise and the cabs on the app represented only 26 percent of the relevant taxi market.  Fares were otherwise negotiable.  The Authority found the efficiency gains material and the pricing reasonably necessary to obtain the gains.   Specifically, they found the app would reduce fares, reduce empty taxis, reduce pollution, and reduce waiting times.  They also found that the collective price setting was “necessary” to achieve these goals.   Absent the price fixing, customers would not choose the nearest taxi but the one with the best price.

This “venture” would be condemned as naked price fixing in the States. The only integration the venture offers is the app.  The only thing the app does is set the fare and allocate the customer to nearest physical taxi participating in the app.  At 26 percent of the market, the conspiracy would likely fail as consumers could switch to non-participating taxis relatively easily, but that doesn’t mean it isn’t a conspiracy of “collusion.”  The US has regularly, and for over a century, condemned price fixing agreements that set “fair prices.”

Uber and Lyft are different than Webtaxi. They are more than mere aggregations of independent drivers (notwithstanding what they may claim about the independence of their drivers and the view of the lower court).  Uber sets their prices.  Uber provides them with the technology and branding as well as a widely distributed app that is easy to use.  They provide a rating system.  And there is system competition.  Incumbent taxi companies.  Lyft.
Continue Reading Webtaxi: A Wrong Decision on “Algorithmic Price Fixing”

On June 14, 2018, in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., the Supreme Court held that Courts are not obliged to accept statements from a foreign government agency on the meaning and effects of its laws but should consider other evidence in addition to such statements to judge their value.  The

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