Thursday, September 28, 2006
The following are the complaint, docket sheet, TRO motion, and proposed TRO disposition in this case. For those note familiar with the case, the complaint alleges predatory and exclusionary conduct by Hospital Corporation of America in terminating contracts for hospital services with United Healthcase of Colorado in December 2005. Among the allegations are leveraging of imaging services and misuse of patient data.
Thursday, September 21, 2006
Monday, September 11, 2006
Those following the debate over the proposed amendment to the Copyright Act to create a three year right to exclude for fashion may be reminded of the 1941 Supreme Court decision in Fashion Originators Guild v FTC. In that the case, the Court upheld a decision by the FTC to enjoin practices in the fashion industry that amounted to self-regulation and "private copyright." Members of the industry had set up a private system of adjudication that allowed manufacturers of fashion to go after retailers caught selling knock-offs and counterfeits. The Supreme Court upheld the FTC finding that this practice was anti-competitive.
It should not be surprising that we see this move again, but this time in the Congressional arena. The proposed bill would parallel provisions of the Copyright Act that protect boat hull design to create copyright protection for fashion design. Interestingly, that boat hull provisions were partially a response to the Supreme Court decision in Bonito Boats v. Thundercraft, in which the Court held that Florida legislation that prohibited certain means of copying boat hull designs was preempted by the Copyright Act. In its Bonito Boats decision, the Supreme Court famously stated that intellectual property was an exception to the norm of competition.
There is an argument for the amendment of course, made well by Professor Scafidi in various parts of her blog. After all, if the boating industry gets protection, why not fashion. (Currently boat hulls get 10 years of protection, more than triple the three years proposed for fashion.) Furthermore, the Supreme Court has made a royal mess of trademark protection for trade dress, perhaps the better place for this sort of subject matter. In its 2000 decision in Wal-Mart v. Samara, the Court did address trademark protection for clothing design (at least the patterns imprinted on clothing) and said it can get protected if it has secondary meaning but secondary meaning need not be shown if it is packaging and not configuation. Okay, the bad sentence construction is mine, but it is meant to convey the confusion from that case.
But there is a case that competition should just play its course. The case is made by Professors Raustila and Sprigman in a forthcoming Virginia Law Review article. Today's Wall Street Journal cirtes the article and seems to concur that protection, even if only for three years, will upset the dynamic of the marketplace and process of innovation that has shaped the industry for over one hundred years. Recall the famous property chestnut Doris v Cheney Brothers in which the Second Circuit through an opinion written by Learned Hand rejected a misappropriation claim brought in fact pattern similar to what is being complained about today. With all the concern made over piracy, we need to be equally concerned with the other "p," for protection.
Thursday, September 7, 2006
The FTC and DOJ have come out against Assembly Bil 5596 in New York, which proposes expanding the scope of unauthorized practice of law to include certain real estate practices that are currently provided by non-attorneys. In their joint comment, the two agencies stated that "the proposed legislation's expansion of the definition of the practice of law unnecessarily limits competition between attorneys and non-attorneys." The agencies also warn about consumer harm.
Tuesday, September 5, 2006
Max Huffman, who teaches law at The University of Cincinnati Law School, has posted a thoughtful article on SSRN which addresses the question of the Empagran exception, allowing extraterritorial application of US antitrust law to conduct outside the US that affects US commerce. Professor Huffman's article concludes that the scope of this exception should be understood within the framework of antitrust standing doctrine, as developed in Associated General Contractors.
Also of interest is Alan J. Meese, professor of law at William & Mary Law School, has published another fascinating article that brings transaction cost analysis to bear on how we understand competition in antitrust law: Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust, 1(1) Journal of Competition Law and Economics 21-95 (2005). Professor Meese touches on a theme of deep interest to me: how models of competition shape our understanding of markets and legal regimes. This issue is particularly important for intellectual property law, an idea I am developing in a current piece on natural monopoly, deregulation and intellectual property reform. Also, some of Professor Meese's ideas overlap quite nicely with a piece by Professor Jeffrey Harrison on market power that is forthcoming in the SMU Law Review (and on which I comment). But more on this last set of articles in a later post.