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Blog o’ Blogs August

By  |  August 15, 2017

Summer lulls in many jurisdictions provide a fertile ground for introspection, revision and theory. International organisms, academics and practitioners have taken this time to address the coming storms as Antitrust and competition law continue to play catch-up with changing technologies and an increasingly complex global economy, where blurring lines between private and public, necessary and proprietary assets and recurring head-butting between competing jurisdictions making for an interesting and controversial midsummer’s edition…

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    On June 21-23, the OECD held a roundtable on the theme of “Algorithms and Collusion,” as part of a wider work stream on competition in the digital economy. The OECD roundtable reflects a shift in the debate over the antitrust implications of big data from concerns about the potential for companies to hoard big data…
    Jay Modrall (Kluwer Competition)
    The Washington Post editorial board understands online competition better than the European Commission does
    Last week the editorial board of the Washington Post penned an excellent editorial responding to the European Commission’s announcement of its decision in its Google Shopping investigation. Here’s the key language from the editorial:
    Geoffrey Manne (Truth on the Market)
    We’re living in a moment where an increasing share of our commerce and communications are being mediated by a handful of dominant platforms, and that has huge ramifications for competition in ways that it’s becoming clear the current antitrust regime is not fit to address…
    Stephen J. Cernak (Antitrust Connect)

    £14 billion consumer class action against MasterCard falls at the first hurdle
    On 21 July 2017, the Competition Appeal Tribunal (CAT) handed down its judgment in Merricks v MasterCard1refusing permission for opt-out class action proceedings to be brought against MasterCard. This judgment is significant: commercially, as it strikes out the largest damages claim ever issued in the UK courts (reported as being worth in the region of £14 billion ($18 billion)); and legally, because it provides important guidance on how the CAT will apply the new opt-out collective action regime…
    (Norton Rose Fulbright)

    Last week, a Rhode Island Congressman published a letter he sent to the Chairman of the House Judiciary Committee requesting that the committee hold a hearing on the recently-announced Amazon-Whole Foods merger.  This post explores when and why Congress holds hearings on particular mergers and what power Congress has to stop a merger…
    Daniel A. Friedman & Robert P. LoBue (Antitrust Update)
    In Part 1 of this article, I argued that the Sherman Act was unconstitutional as a criminal statute because it is void for vagueness.  A statute that criminalizes all restraints of trade cannot be saved by the Supreme Court explaining what Congress really must have really meant. What passed constitutional muster when the Sherman Act was a misdemeanor[1] merits another look now that the statute carries a maximum jail time of 10 years in prison…
    Robert Connolly (Cartel Capers)
    The Resolution of Banco Popular: Too Big to Fail but Unlikely to Raise Competition Concerns
    The financial crisis led to the bail out of several banks which were considered to be “too big to fail.” Considering the costs of those bail outs for the European taxpayer and in view of the importance of financial stability for the proper functioning of the EU’s internal market…
    Christian Grobecker (Kluwer Competition)
    On companies funding legal research: beyond the sound and the fury
    Wow! As soon as the Google decision came out, the atmosphere got very nasty (so much so, in fact, that it occasionally bordered on the comical). And just when I thought things were calming down, the so-called Campaign for Accountability released its bomb: a database of research work directly or indirectly, actually or potentially, financed by Google…
    Pablo Ibanez Colomo(Chilling Competition)
    Democratic Party “Better Deal” Antitrust Proposals Would be a “Worse Deal” for the American Economy and Consumers
    On July 24, as part of their newly-announced “Better Deal” campaign, congressional Democrats released an antitrust proposal (“Better Deal Antitrust Proposal” or BDAP) entitled “Cracking Down on Corporate Monopolies and the Abuse of Economic and Political Power.”  Unfortunately…
    Alden Abbott (Truth on the Market)
    When is the Filed Rate Doctrine a Defense to an Antitrust Lawsuit?
    The doctrine of federal antitrust law includes several immunities and exemptions—entire areas that are off limits to certain antitrust actions. This can be confusing, especially because these “exceptions” arise, grow, and shrink over time, at the seeming whim of federal courts…
    Jarod Bona (The Antitrust Attorney)
    Some Comments from Brent Snyder, former Antitrust Division Criminal Deputy, as he Heads to the Hong Kong Competition Commission
    If you ever wanted to sell a student on pursuing a career in antitrust because of the interesting possibilities, Brent Snyder’s career (which is far from over) would be a good case in point.  Mr. Snyder graduated with Honors from the University of Texas School of Law, where he was an Associate Editor of the Texas Law Review…
    Robert Connolly (Cartel Capers)
    Agent v Principal? Agency in Australian Competition Law
    A recent decision by the High Court of Australia found that an agent may be in competition with its principal where certain features arise, such as the agent having the freedom to set its own prices or prioritize its own interests over those of its principal…
    (Norton Rose Fulbright)