Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

A Member of the Law Professor Blogs Network

Saturday, January 13, 2007

Top Antitrust Law Firms in the World

Posted by D. Daniel Sokol

The Global Competition Review just released its annual GCR Top 100 -- its ranking of the Top 100 law firms in the world based on the strength of their antitrust practices.  Topping this year's chart is Howrey.

January 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, January 12, 2007

Thoughts on Microsoft

Posted by D. Daniel Sokol

Classes at Wisconsin begin on Tuesday, which is also the first meeting of my seminar on international and comparative antitrust.  One class will focus on comparative Microsoft cases in the US, EU, Japan and Korea.  Just as I thought that the scholarship on the US Microsoft saga was complete (and my syllabus set), Harry First and Andy Gavil have just posted an excellent working paper on SSRN that provides an interesting and heretofore unexplored angle.

"Re-Framing Windows: The Durable Meaning of the Microsoft Antitrust Litigation"
NYU Law School, Public Law Research Paper No. 06-39
NYU Law and Economics Research Paper No. 06-55
Utah Law Review, 2006
 
ABSTRACT: The success, failure, and durable meaning of major antitrust cases often turn on how they are framed before the courts and the public. In the Microsoft monopolization litigation, the government plaintiffs framed the case as one in which Microsoft sought to extinguish the threat to its Windows monopoly with a comprehensive strategy of using monopoly power to exclude potential rivals, rather than succeeding through superior products. In decided contrast, Microsoft argued that the government plaintiffs, acting at the behest of losing competitors, were attempting to interfere with a dynamic and continually evolving industry, one in which Microsoft actually faced potent competitive threats.

For a time the plaintiffs' narrative was ascendant. The narrative began to lose ground, however, when a new administration took office in Washington and settled the case on terms that were unlikely to bring competition to the market in which Microsoft had improperly maintained its monopoly. The re-framing of the Windows case was underway. In this article we trace the reframing process. We begin by reviewing the original trial and appellate court decisions, upholding the core of the plaintiffs' case. We show how the seeds for reframing, planted in the court of appeals' decision, were subsequently used by the Justice Department to justify a settlement. We then review the settlement decree's administration to demonstrate how disappointing its results have been. Indeed, the government that once prosecuted Microsoft has now come full circle to defend many of Microsoft's core business strategies and to criticize antitrust enforcement agencies elsewhere in the
world that are still attempting to stop Microsoft's exclusionary conduct. As Microsoft has been reframed, the case has thus become a vehicle for redirecting antitrust doctrine and enforcement away from the problems of monopoly, especially in the new economy, in part by demeaning the value of government antitrust enforcement.

The history of the public prosecution of Microsoft reminds us that major monopolization cases are important to bring but politically difficult to manage to successful conclusion. If the effort to reframe the Microsoft case succeeds, our concern is that the already limited public power available to pursue private power in the public interest will be circumscribed and the historic role of the government to challenge competition-related abuses of private power may be crippled.

Update- January 15

Harry First has alerted me to another Microsoft article of his, this one forthcoming in the Wisconsin Law Review.  Extra points for publishing with  UW!

Download hfirst_microsoft_and_the_evolution_of_the_intellectual_property_concept_print_version.pdf

January 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Introducing New Co-Blogger

Posted by Shubha Ghosh

It is with great pleasure that I introduce my new co-blogger, D. Daniel Sokol, currently a Hastie Fellow at The University of Wisconsin Law School.   Danny is a productive and engaging scholar with a great academic and  practice background.    He also has many fantastic ideas to increase the profile of the blog, including changing the name to Antitrust and Competition Policy (we hope, starting next week).  Please welcome Danny and follow the progress of the new and improved blog!

January 12, 2007 | Permalink | Comments (0) | TrackBack (1)

Baker and Pitofsky on Staples/Office Depot

Posted by D. Daniel Sokol

Jonathan Baker and Robert Pitofsky have just posted an article on SSRN regarding the story behind the Staples/Office Depot case, arguably one of the crown jewels of the Pitofsky FTC period.

ABSTRACT: This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC's successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.

January 12, 2007 | Permalink | Comments (0) | TrackBack (0)

What Happened to Antitrust? Observations from the Annual AEA Meeting

Posted by D. Daniel Sokol

This past week, thousands of economists from around the world met at the annual meeting of the American Economics Association.  What is particularly interesting from the standpoint of this blog is how few IO panels there were.  Is antitrust no longer sexy?

January 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 10, 2007

Timely Paper on Antitrust and Patents

Posted by Shubha Ghosh

Professor Christopher Leslie of Chicago Kent Law School has uploaded an interesting paper on SSRN advocating use of antitrust law to challenge the licensing of invalid patents.  Professor Leslie specifically questions the requirement under current law that the patent holder must enforce an invalid patent in order to state a claim for a Sherman Act violation.   

The paper is timely in light of the decision by the Supreme Court on January 9 in the Medimmune v Genentech case.  The slip opinion is linked below.  In Medimmune, the Court held that  a licensee had standing under Article III and the Declaratory Judment Act to challenge the validity of a patent without repudiating the license.  The decision is an important, and controversial, one for licensing practice and for the existing institutional arrangements for challenging patent validity.  Professor Leslie's proposal suggests yet another mechanism for insuring the integrity of the patent system.

Download Medimmune.pdf

January 10, 2007 | Permalink | Comments (0) | TrackBack (0)

Minimum Resale Price Maintenance Under Scrutiny

Posted by Shubha Ghosh

In December 2006, the Supreme Court granted cert in Leegin v PSKS.  The Court is asked to review the standard of review for minimum resale price maintenance.  In 1997, the Court ruled in Khan that maximum resale price maintenance was subject to the rule of reason, overruling fifty year old precedent set in Albrecht.  In Leegin, the Court will be addressing even more established precedent: the 1911 precedent of Dr. Miles holding that minimum resale price maintenance is per se illegal.   Given the Court's ruling in Khan, now almost a decade old,  the grant of cert in Leegin is not surprising.  Whether the Court will overrule Dr. Miles is another matter.  My sense is that Dr. Miles is superprecedent, to quote the Chief Justice, in the area of antitrust, and I do not see much academic or practitioner pressure to overturn the 1911 decision.   Furthermore,  the argument has been to distinguish maximum from minimum resale price maintenance with the per se rule making sense in the latter case but not in the former.   

The Fifth Circuit opinion, following Dr. Miles, is linked below:

Download Leegin.pdf

January 10, 2007 | Permalink | Comments (0) | TrackBack (0)