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Antitrust Insights and Analysis

Brussels on the Hudson: New York Imports European Merger Control

Posted  10/18/21
By Ethan E. Litwin, Jeffrey I. Shinder
In 2004, the European Commission re-wrote its Merger Regulation, making its well-established dominance test subservient to a U.S.-style significant lessening of competition (SLC) standard.  In 2021, New York State is poised to do the opposite: legislating market dominance as the touchstone for the evaluation of mergers that affect the 10th largest economy in the world.  The similarities between the pre-2004 European...

Standard-Essential Patents Are Being Reintroduced to Antitrust Standards With the Welcome Demise of the “New Madison” Approach

Posted  10/15/21
By David Golden
The U.S. Department of Justice’s (“DOJ”) hands-off approach to antitrust enforcement involving standard-essential patent (“SEP”) licensing may soon be relegated to the dustbin of history, where it belongs. DOJ’s Antitrust Division is currently re-evaluating the Department’s December 2019 Policy Statement on Remedies for SEPs, which largely removed SEPs from antitrust scrutiny under former Assistant...

National Association of Realtors Spars with Justice Over Unapproved Settlement in Battle Over Commission-Related Policies

Posted  10/12/21
By Harrison J. McAvoy
Last month, the National Association of Realtors (“NAR”), the largest real estate industry trade association in the United States, filed suit against the U.S. Department of Justice (“DOJ”), seeking to end an investigation into policies governing multiple listing services (“MLSs”) that reduce competition among real estate brokers. The petition, filed in federal court in Washington D.C., claims that the...

The Five Developments You Should Follow if You Want to Know What Antitrust Enforcers Are Doing in the Fields of Agriculture

Posted  10/11/21
By Taline Sahakian, Alan H. Schwartz
While you may have noticed how expensive your recent trips to the supermarket have become, have you thought about why?  Is it because of the pandemic? Shipping problems?  Is it due to problems with the food supply? The short answer is “all of the above,” but, according to the Biden administration, antitrust abuses—including consolidation in the agriculture industry—could also be playing a major role in...

DOJ and States Seek to Halt Takeoff of American Airlines and JetBlue’s Joint Venture

Posted  09/28/21
By James J. Kovacs
The United States Department of Justice, six states and the District of Columbia recently unveiled an innovative antitrust complaint filed in the U.S. District Court for the District of Massachusetts seeking to dissolve American Airlines and JetBlue’s “Northeast Alliance.” While the complaint characterizes the agreements between the two airlines as a “de facto merger,” the antitrust enforcers take the...

Consumers Are Poised to Gain an Advocate for Privacy Rights at the Federal Trade Commission

Posted  09/24/21
By Paulette Rodríguez López
The Biden administration has sent a strong signal it is serious about regulating technology behemoths with its latest pick for Commissioner of the Federal Trade Commission, Alvaro Bedoya—a leading privacy advocate. On September 13, 2021, President Biden nominated Bedoya—Visiting Professor of Law and Founding Director of the Center on Privacy and Technology at Georgetown University Law School—for the final...

Antitrust Has Failed

Posted  09/22/21
By Ethan E. Litwin
By any measure, the last 40 years of U.S. antitrust enforcement has been an abject failure. Despite a statutory regime supposedly designed to protect competition and protect consumer welfare, public antitrust enforcers have failed to achieve either goal.  Responsibility for this gross dereliction of duty is decidedly non-partisan: For more than 20 years, enforcers loosely associated both political parties have...

Rocking the Boats: Federal Government Tackles Competition in Maritime Shipping

Posted  09/21/21
By J. Wyatt Fore
The Federal government is taking a closer look at the maritime shipping industry—and for good reason. In 2000, the 10 largest shipping companies controlled just half of the world container shipping market.  Today, it’s more than 80%. As goods are increasingly manufactured in Asia and then transported to the United States, ocean carriers control a critical chokepoint.  This shift, combined with COVID-19,...

An Epic Fail or an Epic Win for Tech Antitrust?

Posted  09/20/21
By Ankur Kapoor
On September 10, the court issued its judgment in the trial of Epic Games, Inc. v. Apple Inc., ruling in Apple’s favor on nine out of Epic’s ten claims and on Apple’s counterclaims, but in Epic Games’ favor on its claim under California’s Unfair Competition Law.  Judge Yvonne Gonzalez Rogers’ 180-page, single-spaced findings of fact and conclusions of law are the first exposition, by a U.S. court, of...

In the Dog Days of Summer, Prescription Pet Food Conspiracy Case Beats a Motion to Dismiss in Kansas

Posted  09/2/21
By Taline Sahakian, Alysia A. Solow
Is there any truth to the allegations that pet food manufacturers have conspired to monopolize and artificially inflate prices in the prescription pet food market?   The Court of Appeals of Kansas says possibly—or at least that Stevie Kucharski-Berger’s case making those allegations can withstand a motion to dismiss and seek proof of those claims through discovery. Kucharski-Berger, upon advice of, and with a...
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