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March 2013 Blog o’ Blogs

 |  March 26, 2013
March 2013, Volume 3, Number 3
The Supreme Court made the first of several antitrust decisions this year, so we have a judicial focus this month – not only about key decisions but also hearing from some eminent jurists. We also have updates on several of the pesty unresolved issues that authorities are struggling with – case action, punishment, eBooks, compliance, fines, and data protection. It’s a busy time in the competition arena.
A Warning About Competition
What was fundamentally at issue in the new case was what is called the “state action” exemption to federal antitrust prosecution.
Lyle Denniston (SCOTUSblog)
Supreme Court Antitrust Ruling Supports Public-Private Neutrality, Reduces Barriers to Privatization
This, then, is a case where advocates of a level playing field for privatization should rejoice at the outcome, regardless of their views on antitrust.
Alexander Volokh (Reason Foundation)
Supreme Court split on merchants’ antitrust case vs American Express
The U.S. Supreme Court appeared divided during oral arguments over a disputed arbitration clause that American Express Co has with merchants who accept its cards.
Andrew Longstreth (Reuters)
Why the EU’s Microsoft Fine is Self-Defeating
Penalizing Microsoft with a hefty fine is disturbing on several levels.
Dalibor Rohac (U.S. News)
Criticizing the FTC’s Proposed Order in the Google Patent Antitrust Case
Unfortunately, the FTC’s enforcement action in this matter had no proper grounding in antitrust law.
Geoffrey Manne (Truth on the Market)
Judge Posner on the limits of the per se rule against price fixing
Perhaps a more nuanced look at the rule is required given that Socony is “72 years old and showing its age.”
Proskauer (Lexology)
Wright & Ginsburg on Antitrust Goals
Shifting to defendants the burden of justifying any reduction in consumer choice would be merely a revival of the long ago repudiated inhospitality tradition in antitrust…
Lawrence Solum (Legal Theory Blog)
Credit for Compliance?
…whether companies that in good faith invest in a compliance programme that they take seriously, should get some credit for doing so when they are ultimately fined for behaviour that the programme failed to prevent or detect.
Stephen Kinsella (Kluwer Competition Law Blog)
Cartel enforcement
Ali Nikpay takes the view that the well-known enforcement problems are because of the requirement of dishonesty. 
Cosmo Graham (Competition Law Blog)
Data Protection and Antitrust Law
Competition rules apply to the acquisition and use of personal data exactly in the same way that they apply to any other input, and then there’s a specific layer of protection. 
Alfonso Lamadrid (Chillin’ Competition)
Consumer opt-outs: a damp squib?
From a case management point of view the proposals render it more attractive to run opt-out claims.
Anthony Maton (Kluwer Competition Law Blog)
Reselling e-Books and the One-Penny Problem
With unlimited e-book sales, every book’s price would eventually drop to a penny.
David Pogue (New York Times)
Are We in Danger of a Beer Monopoly?
It’s quite possible that the true monopolistic battles of the 21st century will not be among massive corporations but among the self-interested governments. 
Adam Davidson (New York Times)