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 definition, that focuses on means of distributing products to consumers, and that includes the Internet, will suggest the transaction will have very little effect on competition, and should be allowed to close.  A narrow product market definition that focuses, say, on television shopping as a unique form of entertainment to consumers, and therefore a unique channel in which to sell products, may very well result in a challenge.

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

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

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

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 “abundance” of data “changes the nature of competition,” and in particular that “with data there are extra network effects” (emphasis added).  Ultimately, they declare, “antitrust authorities need to move from the industrial era into the 21st Century.”  These statements are interesting, worth thinking about but basically wrong.  Big data is about your personal preferences, perhaps even your thoughts and future actions, being for sale.  It is about your privacy, not about competition.

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

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

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

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,

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

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

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