Antitrust enforcers may be seeing a lot of their old friends at Microsoft thanks to the Internet search deal the computer giant has reached with Yahoo!  As Constantine Cannon’s Matt Cantor discusses in his recent article, “Microsoft-Yahoo! ‘Partnership’ Is Anti-Competitive“, the deal raises substantial antitrust issues that may doom it.

It appears that Microsoft and Yahoo!’s proposed “partnership,” which provides for Yahoo! to exit the search business and rely exclusively on Microsoft’s search engine, Bing, will cause the Internet search market – which has indisputably high barriers to entry – to shrink to a duopoly consisting of Bing and Google.  If the DOJ applies traditional antitrust analysis, the deal should be viewed as presumptively anticompetitive, and the partnership will survive the Department’s scrutiny only if one of the legally cognizable antitrust merger defenses can be established. click here for more »

“You see there is only one constant.  One universal.  It is the only real truth.  Causality.  Action, reaction.  Cause and effect.”

 — The Merovingian in The Matrix Reloaded

Characters in science fiction films such as The Matrix series and The Time Traveler’s Wife have struggled with life-or-death issues of causation.  As highlighted by recent decisions of the U.S. Court of Appeals for the District of Columbia, however, issues of causation can be just as fatal to antitrust enforcement.

Although causation may not be the only real truth, for antirust enforcers it can be the make-or-break issue that determines whether they can maintain an antitrust case against a dominant firm.  While a great deal of attention has rightly been focused on how to correctly identify monopolies and exclusionary conduct, relatively little attention has been given to the legal standard for proving that a firm’s conduct has, in fact, (a) caused the exclusion of rivals, and (b) caused or maintained a monopoly. click here for more »

In the 2000 Presidential election, Americans became painfully aware of the dirty secret of their democracy — that the integrity of our elections depends on a messy patchwork of voting machines that use disparate and often archaic systems.  Since then, efforts have been made to improve and standardize the system but the weaknesses of the system remain and are particularly apparent in contested close elections.  Now the integrity of our election systems is being raised in a surprising new context — antitrust merger enforcement.  click here for more »

Being a parent means great responsibilities – especially if you’re a corporate parent with subsidiaries active in the European Union.  As a result of the European Commission’s Akzo Nobel case, such corporate parents now face greater antitrust liability for the conduct of their 100%-owned subsidiaries.

On September 10, 2009, the European Court of Justice dismissed Akzo Nobel’s appeal of a 2007 judgment of the Court of First Instance.  The 2007 judgment confirmed a 2004 European Commission decision that fined Akzo Nobel subsidiaries for their participation in a cartel.  What makes this decision particularly noteworthy is that the subsidiaries’ parent company, Akzo Nobel, NV, was held jointly and severally liable on the basis of its 100% ownership of those subsidiaries. click here for more »

The Supreme Court’s 2007 decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, overruled the per se rule applying to resale price maintenance and replaced it with a rule of reason analysis.  Nevertheless, 13 states still forbid resale price maintenance, and the adherence of another eight states to federal precedent remains an open question. Moreover, 37 states filed an amici curiae brief with the Supreme Court to implore the court not to overturn the per se rule.  Also, the Vertical Restraints Guidelines issued by the National Association of Attorneys General (“NAAG”) have not been revised in response to the Leegin decision and continue to describe resale price maintenance as per se illegal. click here for more »