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The most important book on antitrust ever written. It shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses.
The question of how to properly enforce against RPM has been a contentious debate for decades on both sides of the Atlantic. The catalyst is the acceptance that RPM can generate both anti-competitive effects and pro-competitive efficiencies that need to be properly balanced to ensure against Type I/Type II errors and to create viable legislation. Part I focuses on 100 years of US origins and the current legal approach to VR enforcement, which reveals the precedent responsible for the transition between per se illegality and the rule of reason thresholds at the federal level. Nine anti-competitive and 19 pro-competitive theoretical models are also introduced to clearly demonstrate the true nonconsensus existent between economists as to whether RPM is deleterious enough to justify a stringent approach to RPM regulation. Part II closely examines the EU origins and current legal structure, where RPM has maintained its hardcore by-object designation pursuant to Art. 101(1) TFEU with the consequence of having no safe harbours, no applicability of the De Minimus Doctrine, an onerous negative rebuttable presumption, non-severability of the agreement and almost no chance of obtaining an exemption under Art. 101(3). This is exacerbated by the EC’s lack of guidance on how to prove all conditions necessary for an Art. 101(3) exemption and when a vertical arrangement actually escapes Art. 101(1) applicability. The aim of this book is to examine the economic models, historical origins and legal structures of the US/EU regimes to develop proposals on how to modify the EU’s current legal structure to ensure proper enforcement of RPM behaviour that actually enhances legal certainty through a more aligned approach at the national level. Part III proposes five solutions which scrutinise the concepts of appreciability, hardcore and by-object restraints, to implement modifications to EU’s current legal framework to ensure RPM receives reasonable and equitable treatment in line with economic theory.
Resale price maintenance (RPM) is a controversial pricing practice for managing retail distribution channels. In Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007), the Supreme Court abolished a nearly century-old per se rule against RPM established in Dr. Miles Medicine Co. v. John D. Park & Sons (1911). Henceforth, RPM will be judged under federal antitrust law by the rule of reason - a less restrictive standard that requires courts to weigh all the relevant circumstances of a case to assess whether a practice unreasonably restrains trade. Despite that the decision in Leegin leaves many unanswered questions, the decision has prompted an increasing number of consumer goods manufacturers to adopt RPM in the management of their retailer relationships. Recently, the widespread use of restrictive pricing practices in the retail distribution of contact lenses has drawn attention and elevated debate over the practice. Pending lawsuits in the industry have been identified as an important "test case" for antitrust's new vertical pricing regime following Leegin. Drawing upon relevant literatures from law, economics, and business, together with publically available information, important questions in the debate and related cases that share significance for scholarship and practice are elaborated upon and examined. We hope this examination reveals insights helpful to understanding the antitrust implications of contact lens manufacturers' pricing practices and for advancing academic knowledge, marketing practice, and competition policy involving RPM.
A dynamic and competitive environment, underpinned by competition law policy, is an essential characteristic of successful market economies. To satisfy the growing demand for information on current approaches and practices in competition law policy, the project "Framework for the Design and Implementation of Competition Law-Policy" was initiated by the World Bank, with participation by OECD. This ensuing volume reflects the main issues that arise in design and implementation of competition law and policy in order to assist countries in developing an approach that suits their own needs and conditions. The views articulated in this publication suggest that the administration and enforcement of competition law policy should assign the greatest importance to fostering economic efficiency and consumer welfare.
Theoretical discussions among competition lawyers and economists on the approach to Resale resale Price price Maintenance maintenance (RPM) and Vertical vertical Territorial territorial Restrictions restrictions (VTR) have often caused controversy. However, commentators agree that there is a lack of comprehensive study surrounding the topic. This book explores these two forms of anticompetitive conduct from legal, historical, economical, and theoretical points of view, focusing on the EU and US experiences. The author expertly goes beyond the current legal practice to explain, among other things, what approach should apply to RPM and VTR, and why RPM and VTR are introduced in situations where procompetitive theories would not make economic sense, or do not apply in practice. The book takes account of economic values, such as efficiency and welfare, as well as other values, such as freedom, fairness and free competition. Scholars and students of law will find the book’s depth of legal, economic and historical analysis to be a rich contribution to the scholarship. This book will also be of use to EU and US practitioners, and enforcers dealing with RPM and VTR cases.
Throughout the world, the rule against price fixing is competition law's most important and least controversial prohibition. Yet there is far less consensus than meets the eye on what constitutes price fixing, and prevalent understandings conflict with the teachings of oligopoly theory that supposedly underlie modern competition policy. Competition Policy and Price Fixing provides the needed analytical foundation. It offers a fresh, in-depth exploration of competition law's horizontal agreement requirement, presents a systematic analysis of how best to address the problem of coordinated oligopolistic price elevation, and compares the resulting direct approach to the orthodox prohibition. In doing so, Louis Kaplow elaborates the relevant benefits and costs of potential solutions, investigates how coordinated price elevation is best detected in light of the error costs associated with different types of proof, and examines appropriate sanctions. Existing literature devotes remarkably little attention to these key subjects and instead concerns itself with limiting penalties to certain sorts of interfirm communications. Challenging conventional wisdom, Kaplow shows how this circumscribed view is less well grounded in the statutes, principles, and precedents of competition law than is a more direct, functional proscription. More important, by comparison to the communications-based prohibition, he explains how the direct approach targets situations that involve both greater social harm and less risk of chilling desirable behavior--and is also easier to apply.
This Handbook grapples conceptually and practically with what the sharing economy - which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives - means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.
Reorganized for increased accessibility, The 1997 edition of ANTITRUST ANALYSIS presents coverage of current issues with the same incisive -- and effective -- approach that has earned the book its premier reputation in the field. The distinctive emphasis on textual explanations that has always characterized Antitrust Analysis continues in the Fifth Edition. These strong textual discussions convey essential background information and necessary economic principles. Further, less significant cases have been trimmed. The authors' vast expertise in antitrust and economics is shown in a casebook of truly unrivaled quality. ANTITRUST ANALYSIS, Fifth Edition, opens with a clear introduction To The history of antitrust law and a cogent presentation of important economics material. The authors then explore: horizontal agreements monopolization vertical agreements mergers price discrimination Reflecting ongoing movement in the antitrust arena, Areeda and Kaplow now address new developments in: intellectual property health care international aspects of antitrust law
Algorithms are ubiquitous in our daily lives. They affect the way we shop, interact, and make exchanges on the marketplace. In this regard, algorithms can also shape competition on the marketplace. Companies employ algorithms as technologically innovative tools in an effort to edge out competitors. Antitrust agencies have increasingly recognized the competitive benefits, but also competitive risks that algorithms entail. Over the last few years, many algorithm-driven companies in the digital economy have been investigated, prosecuted and fined, mostly for allegedly unfair algorithm design. Legislative proposals aim at regulating the way algorithms shape competition. Consequently, a so-called “algorithmic antitrust” theory and practice have also emerged. This book provides a more innovation-driven perspective on the way antitrust agencies should approach algorithmic antitrust. To date, the analysis of algorithmic antitrust has predominantly been shaped by pessimistic approaches to the risks of algorithms on the competitive environment. With the benefit of the lessons learned over the last few years, this book assesses whether these risks have actually materialized and whether antitrust laws need to be adapted accordingly. Effective algorithmic antitrust requires to adequately assess the pro- and anti-competitive effects of algorithms on the basis of concrete evidence and innovation-related concerns. With a particular emphasis on the European perspective, this book brings together experts and scrutinizes on the implications of algorithmic antitrust for regulation and innovation.