January 2021
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27 Reads
SSRN Electronic Journal
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January 2021
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27 Reads
SSRN Electronic Journal
January 2021
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5 Reads
SSRN Electronic Journal
July 2020
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13 Reads
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3 Citations
Journal of Antitrust Enforcement
Judge Koh handed down a sweeping opinion in May 2019 condemning as antitrust violations many of Qualcomm’s licensing practices related to its patented chips and standard-essential technology used in mobile devices. The district court opinion significantly expands the scope of liability for refusals to deal and for non-predatory pricing, further eroding the longstanding symmetrical approach to antitrust enforcement regardless of the kind of property involved. We find three glaring errors in the district court opinion. First, the court expands the exception to the general rule permitting refusals to deal, as laid out in Aspen Skiing, well beyond the outer boundary of Section 2 by inappropriately inferring a prior course of dealing and erroneously finding a willingness to sacrifice profits. Secondly, the district court accepted a price squeeze theory—characterized by the FTC as a ‘tax’ on OEMs transacting with Qualcomm’s rivals—directly contrary to the Supreme Court’s holding in linkLine. Thirdly, the court erroneously concluded that Qualcomm’s exclusive dealing arrangements with Apple violate the Sherman Act, despite a glaring failure by the FTC to prove substantial foreclosure, contrary to modern antitrust precedent and economic theory. The district court’s inappropriate extension of antitrust liability in three separate areas of well-settled antitrust doctrine is remarkable and threatens to upend important precedent that has successfully guided business conduct for many years. Further, the remedy transforms the role of antitrust courts from adjudicators to central planners, a role for which the Trinko Court expressly stated they are ill suited. The decision invites plaintiffs to use the Sherman Act to reach conduct that has been generally shielded from antitrust liability. That invitation is ill advised and should be rejected by the Ninth Circuit, and if necessary, the Supreme Court.
January 2020
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4 Reads
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1 Citation
SSRN Electronic Journal
January 2020
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6 Reads
SSRN Electronic Journal
January 2020
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2 Reads
SSRN Electronic Journal
January 2020
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15 Reads
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2 Citations
SSRN Electronic Journal
January 2020
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10 Reads
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5 Citations
SSRN Electronic Journal
January 2020
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23 Reads
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2 Citations
SSRN Electronic Journal
January 2020
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5 Reads
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1 Citation
SSRN Electronic Journal
... NCTs can vary along several dimensions, including duration, geographic scope, income level, occupation, and triggering conditions. [3][4][5][6][7][8][9] And the conditions under which states permit firms to obtain court orders enforcing NCTs also vary along several dimensions: several states broadly prohibit enforcement by declaring NCTs void; other states limit enforcement for some category of employees, such as low-wage earners, health care practitioners, or tech workers; and most states permit enforcement more widely, typically subject to some sort of "reasonableness" test. 3,5,6,10 Federal NCT regulations have been proposed, if not adopted or applied. ...
January 2023
SSRN Electronic Journal
... Consequently, an increasing number of companies have faced substantial fines (Thatchenkery & Katila, 2023). Despite this fact, companies that are trying to digitally transform their businesses are often exposed to pressure from large digital platform enterprises to sign mostly unfavourable contracts (Raskovich et al., 2023). The abuse of market power may have an adverse effect on consumer welfare as well as digital innovation (Raskovich et al., 2023). ...
January 2023
SSRN Electronic Journal
... The significance of market regulation is to ensure that consumers are protected from unfair practices in the market. Thus, an effective consumer regulation should address market failures in an inexpensive manner without hampering the competitive process so that consumers have choices regarding prices and products, and it should ensure that there are fewer barriers of entry and exit in the market (Koopman et al. 2015;Wright and Helland 2013). Apart from addressing market failure, market regulation also enhances the efficiency of the government programs, promotes civil rights, or provides for universal access to services deemed important (Dudley et al. 2017). ...
December 2017
... However, the survey data prove that this regulation is ineffective. Thus, regulatory strategies should be shifted from expost to ex-ante [3,4]. Therefore, we propose the prior commitment approach to improve the single ex-post regulatory strategy and establish an active regulatory mechanism, including ex-ante commitment and ex-post punishment. ...
January 2020
SSRN Electronic Journal
... Ibid., p. 299. 45 Ibid., p. 305.46 Ginsburg and Wright (2020).What is an "Effective" ASEAN Competition Law? 13Singapore Econ. ...
January 2020
SSRN Electronic Journal
... Bhattacharya's work [1] explores the "Nash Program," which aims to bridge cooperative and non-cooperative game-theoretic models [18], illustrating asymmetric bargaining power in the VirnetX case. Wright and Yun [21] write about various instances in which bargaining models were used in litigation. Furthermore, Kankanhalli and Kwan's study [8] delves into the sources of bargaining power in royalty negotiations, enhancing understanding of how bargaining power impacts royalty allocations. ...
January 2020
SSRN Electronic Journal
... Il s'agit, dans une logique conservatrice, de préserver les acquis d'une politique menée depuis les années 1970 et vue comme un gage d'efficacité économique et de prévention de la capture de la politique antitrust par des groupes d'intérêts ou par les pouvoirs publics dans une perspective interventionniste. La contribution présentée en mai 2020 par des économistes et des juristes réunis autour de l'International Center for Law and Economics 1 pour la commission constituée par la Commission des Lois de la Chambre des Représentants sur la situation des règles de concurrence et ses implications pour la protection de la concurrence dans les marchés numériques incarne cette conception (Barnett et al., 2020). L'ère jeffersonienne y est présentée comme un chaos initial (« un corpus juridique sans principe et incohérent, entaché de contradictions internes ») qu'un apport économique « moderne » a « transformé en un système gérable qui contribue positivement à la compétitivité américaine et au bien-être du consommateur » 2 . ...
January 2020
SSRN Electronic Journal
... The recent update by the U.S. Department of Justice and Federal Trade Commission to the Vertical Merger Guidelines has intensified the debate with respect to vertical merger enforcement, 1 with some commenters asserting that vertical mergers are relatively harmless. These arguments often rely heavily on surveys of the empirical economic literature as justification for a procompetitive presumption for vertical mergers (e.g., Lipsky et al., 2020;Wong-Ervin, 2019). For example, Wong-Ervin (2019, p. 1) states: "The generally accepted belief underlying modern antitrust analysis of vertical mergers … has been that they are generally procompetitive or neutral. ...
January 2020
SSRN Electronic Journal
... The sustainability obligations of Qualcomm are in particular [3][4][5][6][7][8][9], [14]: A. GOVERNANCE During all activities and relationships with the staking parties the company shows responsibility, honesty, transparency and ethical company methods. The company constantly improving its sustainable management, including better transparency, reporting, communications and measurable objectives. ...
January 2019
SSRN Electronic Journal
... On the side of Qualcomm, through this settlement, Qualcomm has not only achieved the purpose of maintaining its core business model but also Advances in Economics, Business and Management Research,volume 182 demonstrated the rationality, certainty, and stability of its business model to the outside world through the hand of Apple, and almost eliminated the possibility of any threat of lawsuits to overturn its business model in the future [10]. The six-year technology licensing agreement, which includes an option to extend for two years, essentially ties Apple into Qualcomm's boat. ...
January 2019
SSRN Electronic Journal