Category Archives: Competition

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

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, … Continue Reading

Webtaxi: A Wrong Decision on “Algorithmic Price Fixing”

By David H. Evans on August 9, 2018 Posted in Competition

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 … Continue Reading

Courts Must Only Offer “Respectful Consideration” to Foreign Governments’ Statements Interpreting Their Laws in Antitrust Cases

By David H. Evans on July 5, 2018 Posted in Competition

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 Court … Continue Reading

Ozzy Osbourne is an Antitrust Plaintiff

By David H. Evans on March 27, 2018 Posted in Competition

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

Tronox v. FTC: Ingenious or an Exercise in Futility?

By David H. Evans on February 1, 2018 Posted in Agreements, Competition, Federal Trade Commission, FTC

In what may be the first case ever, a party to an FTC administrative merger challenge has filed suit in U.S. District Court asking the court to halt the administrative proceeding and order the FTC to pursue a preliminary injunction motion in that court. The gravamen of their argument is that the outside date for … Continue Reading

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

By David H. Evans on December 18, 2017 Posted in Competition, Mergers & Acquisitions

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

Where to Get Bad Advice on MAP Policies

By Kelley Drye on August 3, 2017 Posted in Competition

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 … Continue Reading

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

By David H. Evans on July 24, 2017 Posted in Competition, Federal Trade Commission, FTC, Mergers & Acquisitions

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

By David H. Evans on July 19, 2017 Posted in Competition, European Commission, International

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

By David H. Evans on June 22, 2017 Posted in Competition, FTC

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!

By David H. Evans on May 18, 2017 Posted in Competition, Privacy

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

By David H. Evans on April 13, 2017 Posted in Competition, Consumer Protection

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

By David H. Evans and Robert N. Fenili on March 22, 2017 Posted in Competition, Consumer Protection, DOJ, European Commission, International

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

Bill MacLeod’s Message From The Chair (Fifty Countries and Counting, Sixty Sessions and More – at Spring Meeting)

By Kelley Drye on February 14, 2017 Posted in American Bar Association Section of Antitrust Law, Competition, Consumer Protection

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, … Continue Reading

William MacLeod, Chair, ABA Section of Antitrust Law, Provides Introductory Note to the 2017 Presidential Transition Report

By Kelley Drye on January 26, 2017 Posted in 2017 Presidential Transition Report, American Bar Association Section of Antitrust Law, Competition, Consumer Protection, Federal Trade Commission, FTC, Health Care, Intellectual Property, Investigations, Privacy, Trump Administration, vertical mergers

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 … Continue Reading

The Antitrust Forecast

By William C. MacLeod on November 9, 2016 Posted in Competition, DOJ, FTC

It’s not that hard to predict. If you want to factor the antitrust forecast into your business plans, you have two weather patterns looming. We can assess the first one quite accurately already. And notwithstanding all the speculation, we can get a pretty good feel for the second front as well. Forget about the first … Continue Reading

Antitrust in a Clinton Administration

By David H. Evans on October 18, 2016 Posted in Competition

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

By David H. Evans on September 6, 2016 Posted in Competition, Federal Trade Commission, FTC

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

By David H. Evans on August 31, 2016 Posted in Agreements, Competition, Federal Trade Commission

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

By David H. Evans on August 2, 2016 Posted in Competition, International

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

Implementation of the Damages Directive: The Changing Landscape of EU Competition Law

By Mindy Pava on July 27, 2016 Posted in Competition, European Commission, International

Somewhat overshadowed by media attention surrounding the repercussions of the Brexit vote and subsequent impact on the United Kingdom’s laws and economy, the landscape of Europe’s competition law regime is undergoing a notable change this year, as well. By December 27, 2016, each EU member state is required to implement the European Union’s Damages Directive … Continue Reading

Screening Room Alone Won’t Save AMC-Carmike

By David H. Evans on May 10, 2016 Posted in Competition, Federal Trade Commission, Mergers & Acquisitions

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

By David H. Evans on April 19, 2016 Posted in Competition, European Commission, International

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