The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.\nThis is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s prohibition of unfair methods of competition to be almost a dead letter. According to this view, Section 5 should be read merely as extending Sherman Act enforcement authority to the FTC. Even though the statute outlaws a clearly distinct category of conduct, it is argued that ‘unfair methods of competition’ should be defined by reference to Sherman ‘rule of reason’ case law.

Journal Article Still (at least) one decade behind: US competition policy in the healthcare industry Get access Barak D Richman Barak D Richman School of Law, Duke University, Durham, NC, USAClinical Excellence Research Center, Stanford University School of Medicine, Palo Alto, CA, USA Corresponding author: E-mail: richman@law.duke.edu Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, jnad035, https://doi.org/10.1093/jaenfo/jnad035 Published: 20 June 2023

There is a broad push for antitrust reform in the USA. Critics have proposed legislation that would overrule what they regard as mistaken or unwise judicial decisions and an array of new laws that would impose broad restrictions on the large digital platforms. Critics have complained that the law is too defendant-friendly and is focused too much on economic welfare and not enough on other values like fairness and equality that are said to have motivated antitrust legislation in the first place. So far, however, the progressive leaders of the US antitrust agencies have not persuaded courts to overturn criticized legal doctrine or to adopt important new principles, and the proposed legislation has not gotten close to enactment. More conservative commenters think US antitrust law is working well and does not need substantial reform. Among other things, these commenters adhere to the view that false positives are more costly than false negatives; and they continue to welcome rules like those governing predatory pricing,1 refusals to deal,2 and two-sided platforms3 that make it almost impossible for plaintiffs to win. Today, at least, conservative arguments find a generally hospitable audience in a conservative judiciary.

Abstract The exercise of unlawful monopsony power by buyer cartels depresses both the price paid and the quantity purchased. Consequently, producer surplus and social welfare decline from competitive levels. There are six classes of antitrust victims, but only one has standing to sue for antitrust damages in the United States. The other five are neglected. We identify the neglected victims in this article. We also suggest some ways to expand the protection offered by section 4 of the Clayton Act.

Abstract This is a time of passionate debate on the fundamental goals of competition law. Should there be a single overarching goal for all competition law and policy? Should that goal be framed in purely economic terms? Should antitrust focus on protecting the competitive process, preventing unfair market conduct, or the abuse of superior bargaining position? Should antitrust promote and protect democracy, address social and racial injustice, or address climate change and sustainability? How should multiple goals be administered, weighed, and traded off in enforcement priorities and litigation? There is a progressive turn in the USA at the moment. But regardless of the nature and direction of the desired change, there is the equally important issue of how to achieve lasting change that survives the inevitable change in enforcement personnel and political leaders over time. In this essay, I focus on how to achieve that lasting change regardless of the goals and direction of change that any particular jurisdiction seeks to adopt. Most of the specific examples come from current developments in the USA, but are illustrative of the process of lasting change in competition. Enforcement agencies are key players in this process, but are constrained by the constitutions, treaties, legislation, and court decisions of their jurisdictions. Any campaign for change therefore depends on the wise use of the full substantive and procedural powers assigned to them by the political branches of the government. Successfully achieving substantial change rarely happens by accident, and most often requires a combination of such factors as: (i) creatively using the full statutory powers assigned to the agencies, (ii) striving for a unified whole-of-government approach to competition policy and (iii) deeply engaging the general public.

Abstract Cases in the intellectual property rights (IPR)–Competition Law intersection have raised the issue of costs of enforcement of IPRs when dealing with the assessment of whether competition law has been breached. Importantly, a systematic underestimation of enforcement costs may be problematic for the protection of underlying investments behind intellectual property as well as obstruct the cooperation between an IPR holder and its licensees, in particular as regards patent rights. Cases on reverse payments indicate that payments by a patent holder to a generic manufacturer under a settlement agreement may well be legitimate in order avoid enforcement costs while not restricting competition. The hard stance on no-challenge clauses and termination clauses under the technology transfer block exemption regulation (TTBER) can destabilize the relation between two parties that would benefit from increased certainty when cooperating to commercialize new technology. In cases regarding the failure of parties to agree on fair and reasonable and non-discriminatory-licensing of standard essential patents, a correct approach has probably been taken in Huawei. However, it is doubtful to what extent the judgment is based upon a balancing exercise that explicitly factors in enforcements cost. Accordingly, it is argued that the current framework of analysis of cases in the intersection is inadequate to proper assess enforcement costs of IPRs.

Abstract In Magill, the Court of Justice of the European Union concluded that broadcasters were abusing their dominant positions by blocking a would-be competitor on the television-guide market from access to TV listing information. It is submitted in this article that the subsequent reinterpretation of Magill as an essential facilities case has its weaknesses, and that the ruling can be better explained by reference to the hold-up problem and a dynamic view of competition.

China’s e-commerce titan Alibaba was fined CNY 18.2 billion (approx EUR 2.3 billion) on 10 April 2021, setting a new record for antitrust fine in China.1 It took only 108 days for the State Administration for Market Regulation (SAMR), China’s antitrust authority, to complete this abuse of dominance case after it carried out an unprecedented scale of dawn raid in Alibaba’s headquarters on 24 December 2020. The Alibaba case marked a watershed in the development of Chinese antitrust enforcement against Internet platforms. The time in which the Internet market can flourish with barely any antitrust curb forever ended and a new era of high-pressure scrutiny on Internet companies has started. This article will first introduce the evolution of Chinese government’s regulatory policy towards the Internet sector and then provide some insights on the Alibaba case. For new industries and new business models, the Chinese government adopts an accommodative and prudential regulatory policy. This means that the government will not immediately embark on solving the problems brought about by new industries and new business models but will wait for some time to see how things develop. In 2017, e-commerce was named by Premier Li Keqiang as an example of such new things.2

Abstract This article traces and examines the lifecycle of Croatia’s competition system in the 1995–2018 period: from its inception until after the country acceded to the EU. It aims to identify the main challenges to achieving a higher level of competition system maturity in the context of a post-socialist economy. The article uses an extensive dataset using primary and secondary sources: original, in-depth interviews with key stakeholders (competition authority officials, judges, attorneys-at-law, in-house lawyers, journalists, and academics); quantitative data related to enforcement, budget, and human resources; and relevant media reports. Its unique findings include a specific evolutionary path with four distinct phases of development identified: Inception; Withdrawal; Pre-accession; and Post-accession, as well as two key challenges: institutional and competition culture embeddedness, and functional self-restraint of the competition authority. We argue that the challenges mentioned above, in the context of the competition system trajectory as portrayed in this article, prevent the system from evolving to a more mature stage. This country-specific study aims to contribute to the broader literature on the development of competition systems by examining the relevance of specific factors that influence their evolution.