Antitrust

Whither Antitrust?

by Lee Gesmer on April 6, 2009

A new administration often means a new approach to federal agency enforcement of the antitrust laws.  And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC.  The business and legal communities want to know, what can we expect?

James W. Lowe and Thomas Mueller of Wilmer Hale attempt to answer some of these questions in their article Whither US Antitrust?, published in the March 2009 issue of the Global Competition Review.… Read the full article

A Blog Symposium, Hosted by Truth on the Market

Take a book: Innovation for the 21st Century, Harnessing the Power of Intellectual Property and Antitrust Law, by Michael A. Carrier.  Invite several IP and antitrust luminaries to comment on the book.  The result: a  “Blog Symposium” on the book organized by Truth on the Market.  The Symposium is described as follows:

The format will be as follows.Today we’ll have posts from Crane, Manne, Weiser, and Wright on aspects of Innovation for the 21st Century which focus on competition policy.Tomorrow, Professors Frischmann, Kieff, and Crouch will focus on the intellectual property related proposals.Professor Carrier will have the opportunity to respond to the posts Tuesday evening or Wednesday.And of course, we hope that both participants and our normal group of high quality commentators will find some time to mix it up in the comments.The participants have been given broad leeway to discuss general themes in Carrier’s work or hone in on specific policy proposals.

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Free The Market! by Gary Reback

by Lee Gesmer on March 19, 2009

Gary Reback, famed antitrust/IP lawyer and long-time thorn in the side of Microsoft, has written a book entitled “Free The Market!”.  The book will be released in mid-April and is available on preorder at Amazon now.

Based on a few excerpts on Reback’s web site it looks like this will be an anecdotal, “in-the-trenches” book (as opposed to theoretical/academic) that should be well worth reading for those interested in the antitrust/IP wars of the last two decades. Reback was truly in the center of most of the big cases during these years, and I hope his book captures the legal issues, strategies and behind-the-scenes events that he witnessed.

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U.S. District Court Judge Richard Stearns has issued a summary judgment decision dismissing AVX Corp.’s claims of an an antitrust violation by Cabot Corporation, based on allegations of illegal tying by Cabot.

A tying arrangement is where a seller says, “I’ll sell you product A, but only if you also buy product B.”  Product B is said to be “tied” to product A, the “tying product.”  A little thought and common sense would cause even an economist to conclude that if the seller doesn’t have market power in product A, rather than be forced to buy product B a rationale buyer will look around for another seller, who can sell it product A without the “tie.”  In fact, this is just the conclusion the Supreme Court reached in the Illinois Tool case in 2006.

In the AVX v. Cabot case Judge Stearns noted that “AVX offers no evidence that Cabot had a sufficiently dominant market position to ‘force’ it into a multi-year purchase agreement for a product that it did not want.”  The fact that AVX was unable to satisfy this element of an illegal tying arrangement doomed its antitrust claim.… Read the full article