The Antitrust Attorney Blog

Three Reasons To Hire An Appellate Lawyer

May 29, 2021 | Bona Law PC

So let’s say that you are general counsel of a company suing a larger competitor for Monopolization and Attempted Monopolization under Sherman Act, Section 2 based upon that monopolist competitor’s tying arrangements, exclusive dealing agreements, and their refusal to deal with you. You have a great case; that much was made clear in your summary judgment briefing and the attached economist reports.

But you turn on your computer, hear the “You’ve Got Mail,” voice, and see a short email from your antitrust attorney. Attached is the trial-court opinion granting summary judgment against you. Oh no! Then the phone rings, you answer, and your lawyer methodically explains exactly how the judge got it wrong.

You are heart-broken. You really thought you’d get through this stage, and were already thinking about the trial. You are going to appeal. That is an easy decision. There is so much at stake, and it really does look like the trial court made some mistakes.

Here are three reasons why you should hire an appellate attorney, or at least add one to the team:

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What Pandemic Changes Will Be Lasting and Affect Antitrust Practice?

May 18, 2021 | Bona Law PC

Author: Steven J. Cernak

With the number of vaccinations rising and mask mandates going away, it appears that life might be heading back towards something like the “old normal.” But during the pandemic, businesses and consumers formed new habits. How many of those new actions will continue post-pandemic and how will those changed processes affect antitrust practice? With all the caveats about predicting the future, here is one set of opinions.

Joint Ventures

At the beginning of the pandemic, many law firms chose to remind their readers that antitrust laws still applied and, for instance, price-fixing was still per se illegal. We chose to remind our readers that pro-competitive joint ventures of various sorts have always been fine under the antitrust laws and might prove useful to businesses struggling to survive a pandemic and lockdowns. The DOJ and FTC also reminded everyone that antitrust laws still applied but, to their credit, also pointed to permissible joint ventures. They also streamlined their review processes for parties wanting an advisory opinion on joint efforts related to the pandemic.

Obviously, it is too early to tell if there has been any change in the number of price-fixing and similar conspiracies consummated during the pandemic; however, it does appear that many businesses did use joint ventures to improve efficiency. As of this writing, at least six joint efforts took advantage of DOJ’s streamlined Business Review Letter processes to obtain greater antitrust certainty about their joint efforts. Also, over 160 notices under the National Cooperative Research and Production Act were filed with DOJ and the FTC in the past twelve months. While many of those notices were merely updates from a much smaller number of joint ventures to disclose changes in membership of the consortium, they do provide some evidence that many companies remembered the pro-competitive business benefits of some collaborations of competitors. As businesses look for ways to improve efficiencies in uncertain times, look for these collaborations to continue.

Pricing

Pricing at all levels of distribution sends key signals to consumers, distributors, and manufacturers and so is often an important antitrust topic. As we explained early in the pandemic, however, price gouging is not a violation of the federal antitrust laws. State price gouging laws and contractual provisions were used early in the pandemic to protect consumers from high prices and manufacturers from blame for high prices by authorized and other distributors. Fears of price gouging seemed to fade early in the pandemic and, other than isolated incidents caused by temporary shortages, seem unlikely to return; instead, the pricing issue currently top of mind is general price inflation, a topic not covered by antitrust laws.

Supply Chain Issues—From Just in Time to Just in Case?

At the beginning of the pandemic, it was shortages of toilet paper and other paper products. Here near the end, it is a shortage of computer chips for motor vehicles (and other products), chicken, and other products. Both the products and the causes of the shortages seem to have changed during the pandemic. The toilet paper shortage was caused by a sudden and extreme temporary increase in demand; the more recent ones are caused by various supply chain and labor issues resulting in multiple and long-term dislocations.

At bottom, many of these dislocations stem from companies trying to implement their interpretations of the Toyota Production System, particularly a just-in-time supply chain. Such supply chain management reduces costs and inefficiencies by eliminating buffer stocks and working closely with a smaller network of suppliers. In normal times, such systems reduce costs; however, they can be fragile and unable to quickly adjust to exogenous supply shocks, like natural disasters or unexpected bankruptcies. All such systems are based on assumptions that such shocks will not take place or that sufficient additional supply can be quickly found and substituted. When those assumptions turn out to be wrong, businesses can suffer.

Will living through these trying times cause businesses to think more about “just-in-case” supply? Will manufacturers be more likely to object on antitrust grounds to supplier consolidation that leaves one fewer potential, even if not current, supplier? Will “5-to-4” mergers now be problematic? Will the FTC object to a hospital merger that could reduce supply unlikely to be used except in a pandemic? If businesses, economists, and enforcers modify their thinking on “efficiencies”, merger review results could be different at least on the margins.

Fewer Smoke-Filled Rooms But Not Necessarily Less Price Fixing

Business travel seems to be coming back, though apparently more slowly than personal travel. As companies and their employees have become more comfortable interacting virtually, it seems unlikely that travel to trade association and other meetings of competitors will soon, if ever, get back to prior levels. If so, there would be fewer opportunities for competitors to physically meet in typical “smoke-filled rooms” or hotel bars or other places where anti-competitive agreements have been hatched in the past. But that does not mean fewer opportunities to collude—it just means the conspirators will use Zoom, WhatsApp or many other communication and messaging methods. Fortunately, DOJ has understood these trends for years, as detailed in the links here. For counselors and antitrust compliance specialists, we might need to update our training examples.

Zoom—The Next Google?

Remember when you first discovered Google? Not only how well the search engine worked but how clean the site was, except when it included cute drawings and links like the Santa Tracker on Christmas Eve? Might be hard to remember now but the company whose motto was “Don’t be evil” seemed to be universally popular. Now? Well, it still remains at least respected and used by a lot of people, but it has also gathered enemies across the political spectrum and around the globe, often for alleged antitrust violations.

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The PGA Tour faces off with the Premier Golf League: An Antitrust Problem?

May 8, 2021 | Bona Law PC

Author: Luke Hasskamp

Any time a dominant market player takes aggressive steps in the face of competition, that can catch people’s eye, especially those attuned to antitrust issues. That reality is true for the PGA Tour and its response to reports of efforts to launch a competitor golf league—the Premier Golf League.

For professional golfers and their fans, a pretty significant story broke this week about an upstart golf league seeking to get off the ground. The long-rumored Premier Golf League, or PGL, resurfaced, with the promise of upending professional golf across the globe. The PGL looks to attract some stars of the game with substantial, guaranteed contracts worth tens of millions of dollars, and massive payouts for each event, with a reported season-long payout total of one billion dollars.

Updates

1. Is Antitrust Litigation the Next Stop in the PGA Tour’s Battle with the Upstart LIV Golf League?

2. Is the PGA’s Suspension of 17 Players Out of Bounds Under the Federal Antitrust Laws?

In response to news about the PGL, the PGA Tour has taken several steps. The Tour started by introducing a so-called “Player Impact Fund,” which would award $40 million in annual bonuses to the top 10 players considered to drive fan and sponsor engagement, even if they’re not consistently winning. Unlike most earnings on Tour, these bonus payments would not be directly tied to a player’s performance during tournaments. This response seems like a legitimate and pro-competitive way to respond to market competition.

Perhaps more interestingly, the PGA Tour has also taken other, more aggressive steps in response to this potential competition. Specifically, PGA Tour commissioner Jay Monahan threatened the game’s top players with suspension or even permanent expulsion from the Tour if they sign on with a proposed Premier Golf League. The Tour has long required players to limit their participation in non-Tour events; indeed, it has required the Tour’s express permission. But this latest action has taken things to the next level.

Our antitrust ears perk up any time a company tells those associated with it that they’ll be permanently banned if they do business with a competitor. And it reminds us of parallels in the sports world, particularly with professional baseball. Indeed, baseball has a long history with antitrust and labor issues stemming from would-be competitors, such as bare-knuckle tactics, player suspensions, and extensive litigation, including multiple cases to reach the Supreme Court. We have detailed that saga in several articles:

Part 1: Baseball and the Reserve Clause.

Part 2: The Owners Strike Back (And Strike Out).

Part 3: Baseball Reaches the Supreme Court.

Part 4: Baseball’s Antitrust Exemption.

Part 5: Touch ’em all, Curt Flood.

In short, for decades, professional baseball thwarted competition and suppressed salaries in the face of direct antitrust challenges by preventing player free agency and punishing (i.e., banning) players who opted to play for other leagues. Baseball, of course, at least for now, has an exemption from antitrust liability.

Moreover, not only is it easy to argue that the PGA Tour is a monopoly whose conduct might implicate Section 2 of the Sherman Antitrust Act, but the PGA Tour also has relationships with other entities that could implicate Section 1 of the Sherman Act, which bars anticompetitive agreements.

To begin, the PGA Tour recently launched a “Strategic Alliance” with the European Tour, meant to enhance “collaboration on global scheduling, prize money and playing privileges for both tours’ memberships.” There are many pro-competitive reasons for such as alliance, but there is also no question that the potential competition from the Premier Golf League was a significant factor.

Moreover, the PGA Tour has relationships with many key market actors, including sponsors, media companies, and other interests that could further complicate these issues. For example, what if sponsors withdraw from endorsement deals with a player because of his decision to join the PGL? Does this suggest an unlawful group boycott?

Relatedly, there are key golf events—such as golf’s four annual majors and the Ryder Cup—that are not explicitly run by the PGA Tour but are tied to performance in Tour events. Indeed, success on the PGA and European Tours is the primary way players qualify for major events. What if those events agree not to allow PGL players to qualify? Or even more blatantly, what if those events revoke invitations to players who have already qualified (for example, winners of the Masters, Open Championship, and PGA Championship receive lifetime invitations)?

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Hart-Scott-Rodino (HSR) Premerger Notification and Antitrust: What You Need to Know Now

April 27, 2021 | Bona Law PC

Author: Steven J. Cernak

Hart-Scott-Rodino or HSR, the U.S. premerger notification program, has undergone several major changes since the beginning of the pandemic. Some FTC Commissioners have suggested even more changes. HSR filers, both frequent and infrequent, need to understand these current developments.

As this blog has discussed frequently (see here, here, and here), the US was the pioneer among global competition law regimes in requiring parties to most large mergers and similar transactions to obtain approval from the jurisdiction’s enforcer before closing. Under HSR’s latest thresholds, both buyers and sellers for most transactions whose value exceeds $92M must submit a form and certain documents relating to the parties and the transaction and then wait for 30 days. The FTC and DOJ use that time to decide whether to ask for more information or allow the transaction to close. While those basics have not changed, some of the details are new.

Until the pandemic hit, the HSR system essentially had no way for parties to electronically submit forms and documents; instead, parties or their lawyers printed out paper copies and shipped them in by local couriers or overnight delivery services. Once the pandemic hit and government staffers started working from home, the FTC Premerger Notification Office, which oversees HSR submissions, had to develop a new system.

The resulting system requires parties to email the PNO and request a link that can then be used to upload the form and required documentary attachments. As with any system in which many large documents must be transferred, the time to upload the materials can vary by the size of the documents and the strength of the filer’s connection. While parties save the time and expense of delivery services, they should not count on instant uploads. Also, the PNO updated its instructions on the system several times in 2020 so that even filers who successfully submitted materials several months ago should look for revisions as recently as December. For instance, the materials must be submitted in pdf format with searchable text. As a result of these changes, frequent filers have had to adjust processes used for years to comply with the new procedures.

Parties have figured out those new processes, as evidenced by the huge number of filings over the last several months. While the number of HSR filings was down considerable early in the pandemic, that number increased until November 2020 had more than twice the number of filings of the same month in the previous year. February and March of 2021 also had increases of more than 100% year-over-year, disproving the guess by some observers, this author included, that the November figure was a blip caused by the end of the year and presidential administration.

The agencies continue to process all the filings, though not quite with the usual speed. To help the situation, the FTC suspended the early termination program by which the agencies affirmatively clear the most routine transactions in less than 30 days and allowed them to close. Now, all parties, even those to transactions that raise no antitrust issues, need to plan to wait the entire 30 days before closing.

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Deferred Prosecution Agreements and Effective Compliance Programs in the Antitrust World: The New Married Couple

April 21, 2021 | Bona Law PC

Authors: Luis Blanquez and Jon Cieslak

Deferred prosecution agreements (“DPAs”) in the antitrust world have been a hot topic on this side of the Atlantic during the past two years. DPAs seem to be slowly becoming an efficient instrument for the Department of Justice to tackle antitrust conspiracies, and we expect this trend to continue.

What is a DPA?

A DPA is a legal agreement between a prosecutor and a defendant where the former eventually drops any charges against the latter, if the terms of such agreement are met. In other words, a DPA is a contract to resolve a criminal enforcement action without the prosecution of charges.

If the defendant––either a company or an individual––complies with all the terms of the DPA during a period of time (usually two to three years), despite being initially charged, the prosecutor will dismiss the charges and the defendant will avoid a conviction. DPA terms commonly require a defendant to pay a fine, implement certain remedial measures to alleviate the wrongdoing, or take steps to ensure future compliance.

While DPAs are almost universally considered a positive outcome for the defendant, they do carry some risk. By agreeing to a DPA, a defendant admits to wrongdoing and waives any right to challenge a set of agreed facts that are sufficient to sustain a conviction. Accordingly, if a defendant fails to comply with the terms of a DPA, it will face prosecution and almost certain conviction.

The Role of DPAs in the DOJ Criminal and Antitrust Recent Guidelines

Until recently, if an antitrust defendant did not win the race for leniency, the DOJ Antitrust Division’s approach was to insist that the company plead guilty to a criminal charge with the opportunity to be an early-in cooperator, and potentially receive a substantial penalty reduction for timely, significant, and useful cooperation. This all-or-nothing philosophy highlighted the value of winning the race for leniency.

But all that changed in July 2019, when the Antitrust Division announced a new policy to incentivize antitrust compliance. These new guidelines were presented by AAG Makan Delrahim on July 11, 2019, at the Program on Corporate Compliance and Enforcement at the New York University School of Law: Wind of Change: A New Model for Incentivizing Antitrust Compliance Programs.

Delrahim explained that, unlike in the past, corporate antitrust compliance programs will now factor into prosecutors’ charging and sentencing decisions, allowing companies to qualify for DPAs or otherwise mitigate exposure, even when they are not the first to self-report criminal conduct.

In particular, Delrahim highlighted three important points.

First, that the adequacy and effectiveness of a compliance program is but one of the ten factors the Justice Manual directs prosecutors to consider when weighing charges against a corporation. Among the “Factors to Be Considered”, four in particular stand out as hallmarks of good corporate citizenship: (1) implement robust and effective compliance programs, and when wrongdoing occurs, they (2) promptly self-report, (3) cooperate in the Division’s investigation, and (4) take remedial action.
Second, that the DOJ’s new approach would allow prosecutors to proceed by way of a DPA when “the relevant Factors, including the adequacy and effectiveness of the corporation’s compliance program, weigh in favor of doing so.” DPAs, as the Justice Manual recognizes, “occupy an important middle ground between declining prosecution and obtaining the conviction of a corporation.”
Third, that the mere existence of a compliance program does not necessarily guarantee a DPA. Instead, “Department prosecutors are directed to conduct a fact-specific inquiry into “whether the program [at issue] is adequately designed for maximum effectiveness in preventing and detecting wrongdoing by employees. In making a charging recommendation, Antitrust Division prosecutors will evaluate the compliance program’s effectiveness or lack thereof, and holistically, consider it together with all the other relevant Factors.”

This marked a substantial policy shift for the Antitrust Division, which previously never considered DPAs as an option to resolve antitrust conspiracy cases. Under the DOJ’s existing leniency program, the antitrust Division was allowing full immunity exclusively to leniency applicants.

That’s not the case anymore––but make no mistake––only so long as the offending party has, as explained above, a truly robust and effective compliance program in place. And for that purpose, the recent Revised Guidance from the Criminal Division issued in June 2020 on the Evaluation of Corporate Compliance Programs is the last piece of this puzzle. The new Guidance provides additional information to assist prosecutors––both in antitrust and other investigations––in making informed decisions as to whether, and to what extent, a corporation’s compliance program was effective at the time of the offense. You can read more about it on our previous post:

The Department of Justice Policy and Guidance on Antitrust Compliance Programs and Antitrust Criminal Violations

A Detailed Look at the First Eight DPAs Under the New Policy Incentivizing Compliance

As a result of the new DOJ’s guidance on antitrust compliance programs and criminal investigations, we are starting to see an increased use of DPAs by the Antitrust Division. Let’s have a close look at the ones made public so far.

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What is a Lanham Act False Advertising Claim and Why Does it Matter for Competition?

April 17, 2021 | Bona Law PC

Author: Jarod Bona

You might have a Lanham Act claim if your competitor is making false statements to promote its products or services in a way that deceives customers and injures you because you lost business, for example, as a result.

Although many people think of the Lanham Act as a trademark statute—and it is—it also allows competitors to sue each other for false advertising.

So the Lanham Act is on the battlefield for competition as competitors often use lawsuits as part of their arsenal to gain whatever advantage they can.

The Lanham Act is particularly interesting because it allows competitor standing when harm is done to consumers, so long as the plaintiff suffered lost profits or something similar because of the false statements.

Indeed, Congress designed the competitor enforcement mechanism because competitors have both the knowledge and motivation to enforce the Lanham Act. The Supreme Court explained this enforcement rationale in its POM Wonderful LLC v. Coca-Cola case, which you can read about here:

“Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators.”

Importantly, however, the Supreme Court clarified in its Lexmark decision that the plaintiff need not necessarily be a competitor, so long as they suffered “an injury to a commercial interest in sales or business reputation proximately caused by the defendant’s misrepresentations.” This is an important opening and you can read more about our discussion of the Supreme Court’s Lexmark standing decision here. You might also read this Ninth Circuit decision on the Lanham Act.

The Lanham Act is, however, primarily a statute that competitors use to sue each other. You also see this in antitrust law—of course—and intellectual property law (including trade secret and trademark cases). And, under state law, competitors sue for tortious interference, of some sort, along with state statutes that prohibit false advertising and antitrust. And there are other causes of action, state and federal, that come up in specific circumstances.

For better or worse, business competition often takes a detour to the courthouse and companies use litigation to their advantage. Filing a lawsuit for the sake of filing one, without a meritorious claim, could subject you to actions for malicious prosecution, abuse of process, and even antitrust liability in certain circumstances. But companies with prima facie claims against their competitors often relish the opportunity to carry the market fight to the legal forum. We’ve seen this from both sides, many times, over the years.

Sometimes antitrust lawyers call themselves antitrust and competition lawyers. The reason for that is that in the United States our laws that govern competition are called “Antitrust” laws (because of the unique history of the federal statutes that went after the “Trusts” back in the day). Antitrust used to be “anti-trust.” But here is an important tip: If you add the hyphen to “antitrust,” you will tip off to antitrust lawyers that you aren’t that familiar with the subject. So if you want to seem like an insider, skip the hyphen.

In Europe and much of the rest of the world, by contrast, these law are called, straightforwardly, “Competition” laws. And the lawyers that practice in this area are called Competition Lawyers.

But there is a second great reason for US antitrust lawyers to more accurately describe themselves as antitrust and competition lawyers. That is because when you represent clients that compete in a marketplace, you experience their hard-core focus on competition and, necessarily, their competitors.

You help them manage the rules of competition, with your own tools. Many of those involve antitrust knowledge and experience. But—to really help your clients—you also need to understand and have experience with the other causes of action that come up among and between competitors. And that includes, of course, the Lanham Act.

So—while we can accurately call ourselves antitrust lawyers, we are really antitrust and competition lawyers because we advise clients on the rules of competition generally, which are much broader than simply the antitrust laws. We are soldiers on the legal battlefield of competition. Antitrust laws are great weapons, but they aren’t the only ones.

As sort of a related aside, I’ve been thinking a lot lately about what I have learned advising clients in antitrust and competition law. Over time, you experience competition in all forms. You see different ways that competitors try to knock each other out of the market, or otherwise take market share. Sometimes this is about competing better, but it is often about competing differently—that is, adjusting your service and product to not only differentiate yourself, but to create a new market altogether.

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Why You Should Consider Filing an Amicus Brief in an Appellate Case

March 27, 2021 | Bona Law PC

Author: Jarod Bona

An amicus curiae brief is filed by a non-party—usually in an appellate court like the US Supreme Court—that seeks to educate the court by offering facts, analysis, or at least a perspective that the party briefing doesn’t present. The term amicus curiae means “friend of the court,” and that is exactly what the parties that file these briefs are. They aren’t objective, but they are—without pay—helping out the court, like a friend might. Well, sort of.

Entities filing amicus briefs do so for a reason and that reason isn’t typically just court friendliness. In fact, as we will discuss below, there are many good reasons for someone to file an amicus brief.

Along with antitrust and commercial litigation, I’ve been an appellate litigator my entire career. I started out by clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis), then moved on to Gibson Dunn’s appellate group in Washington DC. So, as you might imagine, I’ve participated in many appellate matters. And without question some of my favorite briefs to write are amicus briefs. I’ve filed many of them over the years.

Indeed, at Bona Law, we have filed several amicus briefs on various topics (US Supreme Court (and here), Fourth Circuit, Eighth Circuit, Ninth Circuit, Tenth Circuit and a couple with the Minnesota Supreme Court, which you can read about here and here and here).

From the attorney’s perspective what I really like about amicus briefs is that they invite opportunities for creativity. The briefs for the parties before the court include necessary but less exciting information like procedural history, standard of review, etc. Then, of course, they must address certain necessary arguments. Even still, there is room for creativity and a good appellate lawyer will take a thoughtful approach to a case in a way that the trial lawyer that knows the case too well may not.

But what is great about writing an amicus brief is that you can pick a particular angle and focus on it, while the parties slog through other necessary details. The attorney writing the amicus brief figures out—with the client’s help—the best contribution they can make and just does it, as efficiently and effectively as possible.

Because the amicus brief should not repeat the arguments from the parties, the attorney writing the brief must develop a different approach or delve deeper into an argument that won’t get the attention it deserves from the parties. This is great fun as the attorney can introduce a new perspective to the case, limited not by the arguments below, but by the broader standard of what will help the court.

This means that the law review article that the attorney saw on the subject that hasn’t developed into case law is fair game. So is the empirical study from a group of economists that may reflect on practical implications of the decision confronting the court. Or the attorney might educate a state supreme court about what other states are doing on the issue. Often an industry association will explain to the court how the issue affects their members.

The point is that amicus briefs present opportunities to develop issues in ways that party briefs rarely do. Indeed, that is partly why they are valuable to courts.

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Did Antitrust Kill the Radio Star?

March 16, 2021 | Bona Law PC

Author: Jon Cieslak

Many guitarists and rock music fans have recently gotten to know Rick Beato. Beato is a musician, music producer, and, most recently, a YouTube personality. He regularly produces YouTube videos about a variety of music topics, headlined by his most well-known series, What Makes This Song Great?, which breaks down and discusses popular songs. He also occasionally discusses legal issues, particularly copyright law and fair use, as he has had videos removed from his YouTube channel.

In one video, Beato touches on antitrust law in his discussion of what he refers to as the Y2K curse. The Y2K curse refers to his observation that a large number of successful rock bands from the 1990s—Beato gives twenty eight examples, including Live, Cake, Counting Crows, Bush, Blur, Goo Goo Dolls, and Barenaked Ladies—“did nothing after the year 2000.” This is not because they stopped releasing albums; rather, their releases in the 2000s did not have the same commercial success. He admits that this was not a universal problem, as bands such as Foo Fighters, Green Day, Red Hot Chili Peppers, and Weezer were able to maintain their success.

So why did so many (but not all) rock bands suffer from the Y2K curse? Beato attributes much of it to a change in radio formats indirectly prompted by the Telecommunications Act of 1996. According to the FCC, the Act’s goal was “to let anyone enter any communications business—to let any communications business compete in any market against any other.” But what happened in practice was the drastic increase in the consolidation of media ownership, particularly in radio stations. As Beato explains, in 1983, 90% of American media was controlled by fifty companies. By 2011, 90% of American media was controlled by just six companies (GE, News-Corp, Disney, Viacom, Time Warner, and CBS). This consolidated media ownership resulted in “consolidated playlists” with far fewer “gatekeepers”—who are frequently now market researchers instead of DJs—deciding what music would be played on the radio. That smaller number of corporate gatekeepers, all concerned about offending the smallest number of potential listeners, resulted in less variety and eliminated the main outlet for many popular bands from the 1990s.

Assuming this is all true, would antitrust law provide a remedy for the loss of musical variety on the radio? After all, the goal of antitrust law is to prevent the ill effects of reduced competition.

Probably not. Antitrust law most likely would not provide a remedy because it generally does not recognize the loss of variety—without some associated detrimental effect on competition—as a cognizable anticompetitive harm.

This recalls an interesting debate among antitrust scholars about what “the primary concern of antitrust law” should be. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 51 n.19 (1977). The prevailing view—which the Supreme Court spurred with its Continental T.V. decision—is that federal antitrust laws should promote economic welfare (frequently referred to as consumer welfare) over other goals. As a leading antitrust treatise says, “economic concerns have generally dominated antitrust policy and trumped competing ‘populist’ concerns.” 1 PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 110 (5th ed. 2020). While the Supreme Court has never formally adopted the economic welfare standard—or any standard, for that matter—regulators, litigants, and courts frequently focus on price effects when evaluating alleged anticompetitive conduct. To be sure, those price effects should be based on quality-adjusted prices—i.e. prices that consider nonprice elements of a product that affect consumer preferences such as color, style, or brand reputation—but the economic welfare standard does not protect variety for variety’s sake.

Returning to Beato’s Y2K curse, application of the economic welfare standard would likely render antitrust law powerless to remedy the curse’s effects. The consolidation of media ownership and corresponding streamlining of radio playlists did not have the most common hallmarks of anticompetitive harm that courts usually consider. Prices for radio broadcasts did not go up. There was no substantial reduction in output of radio broadcasts. So unless a court was willing to find that the quality of radio broadcasts went down—while I would argue that Counting Crows are better than Limp Bizkit, I would not expect a court to take up the issue—it seems there was no loss of economic welfare and therefore no antitrust claim.

Not all antitrust scholars think this is the right result. Some have argued that the economic welfare standard is lacking precisely because it does a poor job of addressing nonprice competition. They have argued for a “consumer choice” standard instead of economic welfare, defined as business conduct “that harmfully and significantly limits the range of choices that the free market, absent the restraints being challenged, would have provided.” Neil W. Averitt & Robert H. Lande, Using the “Consumer Choice” Approach to Antitrust Law, 74 ANTITRUST L.J. 175, 184 (2007). If applied, the consumer choice standard would be more likely to provide a remedy for the Y2K curse.

Regulators and courts do sometimes consider diminished choices as indicative of anticompetitive activity. For example, in Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 528 (1983), the Supreme Court held that “[c]oercive activity that prevents its victims from making free choices between market alternatives is inherently destructive of competitive conditions.” In Realcomp II, Ltd. v. FTC, 635 F.3d 815 (6th Cir. 2011), the Sixth Circuit upheld an FTC decision finding that certain policies violated the antitrust laws when they “narrow[ed] consumer choice” and “hinder[ed] the competitive process” without examining price effects.

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Strong Winds of Change in the Antitrust World in Europe and the United States: Big Tech Under Cross Fire

March 14, 2021 | Bona Law PC

Author: Luis Blanquez

Interesting times to be an attorney; especially an antitrust attorney. If you work in private practice, you are likely witnessing the most significant transformation in the legal sector in the past 20 years. If you are an in-house lawyer, you are probably dealing with a new set of legal and commercial issues you couldn’t even imagine a few years ago. And if you are an in-house antitrust attorney in one of the Big Tech companies, then you are currently involved in the perfect storm.

During the past years, competition authorities all over the world have been closely monitoring the steady acquisition of power by Big Tech companies in the new digital economy. That’s the main reason why they have recently initiated antitrust investigations on both sides of the Atlantic. As Senator Mike Lee (R., Utah), recently mentioned: “antitrust enforcers were asleep at the wheel while Silicon Valley transformed from a center of innovation into a center of acquisition. Instead of competing to be the next Google, Apple, Facebook, or Amazon, today’s tech startups are pushed by their private-equity backers to sell out to Google, Apple, Facebook, or Amazon.”

At the same time, in the U.S. the Antitrust Subcommittee of the House Judiciary Committee issued last year its long-anticipated Majority Report of its Investigation of Competition in Digital Markets. The Report detailed its findings from its investigation of Google, Apple, Facebook, and Amazon along with recommendations for actions for Congress to consider regarding those firms. In addition, the Report included recommendations for some general legislative changes to the antitrust laws.

You can read more about it in our previous article: Classic Antitrust Cases: Trinko, linkLine and the House Report on Big Tech. Now, Senator Klobuchar, who chairs the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, in a keynote addressed at the annual State of the Net Conference, announced her antitrust reform legislation, the Competition and Antitrust Law Enforcement Act.

Meanwhile, in the European Union the European Commission is proposing new “ex ante” regulation to increase contestability and fairness in the digital markets, which includes: (i) The Digital Services Act (DSA)––addressed to protect end users and their fundamental rights online; and (ii) the Digital Markets Act (DMA)––which prohibits unfair conditions imposed by online platforms that have become or are expected to become what is called “gatekeepers” to foster innovation, growth and competitiveness.

So yes, Big Tech companies have too many irons in the fire. Let’s try to briefly summarize them here.

The New Proposed Competition and Antitrust Law Enforcement Act from Sen. Amy Klobuchar (D-MN) in the U.S.

In January 2021, Sen. Klobuchar, released her antitrust reform legislation, the Competition and Antitrust Law Enforcement Act, highlighting that “with a new administration, new leadership at the antitrust agencies, and Democratic majorities in the Senate and the House, we’re well positioned to make competition policy a priority for the first time in decades.” She also mentioned that current antitrust laws are inadequate for regulating companies like Amazon, Apple, Facebook and Google.

In a nutshell, the new proposed Act includes the following changes:

New Legal Standards To Determine Whether a Merger is Anticompetitive

The is the first attempt to change the existing standard relating to mergers that substantially lessen competition, to a new one that prohibits mergers that create an appreciable risk of materially lessening competition. The exact meaning of this new standard remains unclear, to say the least.

The new rules would also shift, in certain scenarios, the burden of proof of certain mergers from the government to private parties. These include (i) the acquisition of a competitor or nascent competitor by a company with market power or a market share of 50% or more; (ii) the acquisition of what is called a “disruptor”, (iii) and transactions valued at more than $5 billion, or the buyer is worth at least $100 billion.

Broader Scope To Prohibit Exclusionary Conduct

The proposed Act expands the concept of exclusionary conduct and defines it as any conduct that materially disadvantages competitors or limits their opportunity to compete. It creates a presumption of illegality in those scenarios where exclusionary conduct presents an appreciable risk of harming competition.

This is when a firm with market power, or a market share higher than 50%, engages in conduct that materially disadvantages actual or potential competitors or tends to foreclose or limit the ability or incentive of actual or potential competitors to compete.

Private parties will be still able to rebut such presumption by showing pro-competitive effects that eliminate the risk of harming competition.

Increase of Resources for Antitrust Authorities, More Civil Penalties and New Whistleblower Protections

The proposed Act includes an important funding increase of $300 million for both the FTC and DOJ.

It also increases civil monetary penalties, by imposing on private parties fines the greater of either: (i) 15% of the undertaking’s U.S. revenues in the prior calendar year, or (ii) 30% of the undertaking’s U.S. revenues in any business line affected or targeted by the unlawful conduct during the period of such conduct.

The new rules also provide further incentives to report potential antitrust violations. For instance, they extend anti-retaliation protections to civil whistleblowers, and in certain cases, even include an award up to 30% of the criminal fines.

In the meantime, Representative David Cicilline (Democrat – Rhode Island), who led the House’s investigation into Big Tech, and Senator Mike Lee, Senator (R., Utah), have also agreed to keep this momentum and discuss future changes to the antitrust laws, although with significant differences on their approach.

The Digital Services Act and the Digital Markets Act: A proposal to upgrade the rules governing digital services in the European Union

In the European Union things have not been quiet either.

As part of the European Digital Strategy, last December the European Commission finally published its proposals to regulate the digital sector. These include (i) Digital Services Act (DSA)––addressed to protect end users and their fundamental rights online; and (ii) the Digital Markets Act (DMA)––which imposes new ex-ante rules and prohibits unfair conditions imposed by online platforms that have become or are expected to become what are called “gatekeepers” to foster innovation, growth and competitiveness.

These proposals will now go to the European Parliament and European Parliament for discussion, to be adopted into law and enter into force at some point during 2022.

The DSA

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What is Noerr-Pennington Immunity and Is this Doctrine a Defense to an Antitrust Case?

March 6, 2021 | Bona Law PC

Author: Jarod Bona

You might wonder why industry trade associations can lobby the government without obvious antitrust sanction, even when—which is common—they seek regulations or actions that ultimately harm competition.

(By the way, if you are invited to a trade association meeting, you should read this.)

The answer is found in the Noerr-Pennington doctrine, which we will discuss here.

What is the Noerr-Pennington Doctrine?

The Noerr-Pennington immunity is a limited exemption from antitrust liability for certain actions by individuals or groups that are intending with that action to influence government decision-making, which can be legislative, executive, or judicial.

Importantly, for the Noerr-Pennington immunity to apply, the challenged action cannot be a sham that merely covers up an intent to interfere with a competitor’s ability to compete. The question of whether an action fits within the “sham” exception to Noerr-Pennington is often an area of intense dispute between the parties to litigation. You can learn more about the sham exception later in this article.

The purpose of the Noerr-Pennington doctrine is to protect the fundamental right to petition the government, including filing litigation in the courts. It also seeks to support the flow of information to the government. If you’ve read the First Amendment to our Bill of Rights, you might be familiar with this petitioning the government thing.

You may wonder why the doctrine has such an odd name—Noerr-Pennington. Why didn’t they name it the “government-petitioning” immunity or the “you-can-sue-who-you-want-without-incurring-antitrust-liability” doctrine?

Did two people named Noerr and Pennington invent the doctrine?

No—the Noerr-Pennington immunity developed from two cases in the crazy 1960s: Eastern Railroad Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965—better known as the first year the Minnesota Twins made the World Series, unfortunately losing to the Dodgers and the great Sandy Koufax).

In Noerr Motor Freight (we’ll label the case with the party name that made the doctrine title), a group of railroad companies conducted a joint publicity campaign targeting legislation that would make it harder for trucking companies to compete with them. Even though defendants’ conduct was anticompetitive in intent, the Court held that joint action for legislation was of sufficient importance to society that it should be exempt from antitrust liability.

In Pennington, a union and a group of large mining companies escaped antitrust liability for their group effort (i.e. conspiracy) to try to induce the Labor Department to set minimum wages at a level that would make it difficult for small mining companies to compete.

From these two cases, the doctrine took off and was expanded to other contexts, including court filings. Of course, there are limits and parties facing antitrust scrutiny can’t just point to some potential eventual political impact to their actions to capture Noerr-Pennington immunity.

Interestingly, the US Supreme Court in Allied Tube and Conduit Corp v. Indian Head, Inc., 486 U.S. 492 (1988), rejected Noerr-Pennington immunity for anticompetitive conduct before a private standard-setting body, even though local governments typically enact the standards set by that standard-setting group. If you are interested in where the lines are to meet the government petitioning part of the Noerr-Pennington doctrine, you should read Allied Tube.

What is the Sham Exception to the Noerr-Pennington Doctrine?

As you might expect with any exception, parties that want to get away with antitrust liability try to fit their conduct within it. That is one reason why the Supreme Court makes it clear that exceptions, exemptions, and immunities to the antitrust laws should be construed narrowly. (Unfortunately, many courts below the Supreme Court have not yet figured that out with respect to state-action immunity, as they are still applying it more broadly than I believe the Supreme Court has ordered through its recent decisions).

Anyway, to avoid abuse of the Noerr-Pennington doctrine, courts apply what is called a “sham exception.” This exception applies when the challenged conduct is intended to interfere with competition, rather than to legitimately influence official government conduct.

It isn’t always easy to understand when the “sham” exception applies, but one way to understand the difference is to compare the “process” of government petitioning from the “outcome” of government petitioning. When the anticompetitive conduct arises from the actual process—i.e. baseless litigation that bankrupts a competitor because of the legal fees—the sham exception applies. When the harm from the challenged conduct arises from the outcome of government petition—i.e. successfully convincing a government agency to pass a grossly anticompetitive regulation—the sham exception is less likely to apply.

One example of potentially “sham” petitioning activity outside of a litigation context is a situation in which a competitor will challenge its market adversary’s licensing application (of some sort) in an effort to delay it or otherwise interfere with its granting, outside of any issues with the merits.

Sometimes what you will see in the reality of a dispute is a combination of legitimate petitioning activity and other coercive anticompetitive conduct. In those instances, an antitrust defendant cannot use the activity protected by the Noerr-Pennington doctrine to shield the other unprotected anticompetitive conduct. Courts often have to distinguish between the two categories of conduct.

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