The MoginRubin blog offers informative analysis and insightful commentary on timely issues related to competition and antitrust actions, mergers, acquisitions and associated regulatory and legislative activity.
Written by Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP For the third time in as many months, the U.S. federal antitrust enforcement authorities -- the Federal Trade Commission and the Antitrust Division of the Department of Justice -- have filed a statement of interest in an antitrust case alleging that the use of a common algorithmic pricing program by multiple competitors constitutes price fixing in violation of Section 1 of the Sherman Act. The government’s statement in Cornish-Adebiyi v. Caesars Entertainment, D. N.J., No. ...
Written by Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP The Second Circuit U.S. Court of Appeals has reinstated an antitrust complaint brought by pharma firm, Regeneron Pharmaceuticals, Inc., against the Swiss pharmaceutical giant, Novartis Pharma AG, and outside fulfillment firm, Vetter Pharma International GmbH. The appeals court held that it was error for the district court to reject Regeneron’s antitrust claims. The district court should have credited the plaintiff’s product market definition and the complaint should not have ...
Written by Jonathan Rubin, Partner and Co-Founder of MoginRubin LLP It is an application of artificial intelligence (“AI”) that many businesses, agencies, legislators, lawyers, and antitrust law enforcers around the world are only beginning to confront. It is also among the top concerns of in-house counsel across industries. Competitors are increasingly setting prices through the use of communal, AI-enhanced algorithms that analyze data that are private, public, or a mix of both. Allegations in private and public litigation describe ...
In a recently published paper, a pair of academics propose that the application of artificial intelligence can offer a potent weapon against antitrust behavior in the Big Tech sector. This is the very industry that has advanced this technology, noted one of those academics, Giovana Massarotto, a Center for Technology, Innovation and Competition academic fellow at the University of Pennsylvania Carey Law School and an adjunct professor at the University of Iowa. She underscored this fact in an article for Bloomberg Law, in which she maintains ...
In its 56-page Feb. 13 report, the GAO listed three issues that should be considered: Which agency or agencies should oversee Internet privacy. What authorities an agency or agencies should have to oversee Internet privacy, including notice-and-comment rulemaking authority and first-time violation civil penalty authority. How to balance consumers’ need for Internet privacy with industry’s ability to provide services and innovate. The Federal Trade Commission, the lead agency when it comes to Internet privacy, has not issued privacy regulations ...
Suit says company improperly uses market power to achieve exclusivity. The U.S. Department of Justice and 11 states have sued Google LLC in federal court in Washington, D.C. for unlawfully maintaining its position as “monopoly gatekeeper for the internet” by blocking competitors in Internet search and search advertising markets. “For many years, Google has used anticompetitive tactics to maintain and extend its monopolies in the markets for general search services, search advertising, and general search text advertising -- the cornerstone of ...
By Jonathan Rubin The case involves questions "on the frontier edges" of U.S. antitrust law, according to the judge overseeing it. It is a legal battle between a $4 billion company (Epic Games, Inc.) and a $260 billion company (Apple, Inc.) in a market that's valued at $160 billion globally. At the center of the legal battle is the distribution of a digital one: a mobile application played by hundreds of millions of gamers on billions of devices around the world. It's no small matter, and Apple has scored a temporary victory in the suit, which ...
At a conference earlier this year on the Committee on Foreign Investment in the United States, or CFIUS, Assistant Treasury Secretary Thomas P. Feddo spoke with pride of the Committee’s increased funding, jurisdiction, expenditures, and more aggressive review activities. Feddo began the speech by detailing how CFIUS has implemented the 2018 Foreign Investment Risk Review Modernization Act, or FIRMMA, which expanded its jurisdiction and increased its funding. The Committee has invested in new IT infrastructure and personnel, and since May of ...
Dan Mogin, Jonathan Rubin, Jennifer M. Oliver, and Timothy Z. LaComb
October 15, 2020'Apple wanted us out of the App Store.' In January 2018 Apple investors complained publicly about the lack of parental controls on their popular devices. At one point even CEO Tim Cook expressed concern about the addictive nature of social media. Vancouver-based app entrepreneur Justin Payeur saw this as validation for the Boomerang Parental Control app he was developing. What is really needed, apparently, is an app to move apps through the Apple Store app approval process. Reasons for rejecting and requiring changes to the app were numerous, ...
At the end of the beloved 1939 film The Wizard of Oz, Dorothy famously says to her Auntie Em, "There's no place like home!" It's one of the best known quotes from one of the happiest of happy endings to ever come to movie theaters. But there was much more going on behind the scenes than just Munchkinland. The year before the film was released movie studios and the government clashed when the government enjoined certain of the studios' most lucrative distribution and licensing practices. Alleging a breach of antitrust law, the government ...
While rare, this use of CFIUS powers may be a harbinger. Making good on his threats and citing national security risks, President Donald J. Trump signed an executive order on Friday, Aug. 14, 2020, demanding the unwinding of a Chinese company's acquisition of what would become TikTok, the short-form video-sharing-app sensation. This begins the unspooling of Beijing-based ByteDance Ltd.'s $1 billion acquisition of Shanghai-based Musical.ly in 2017, the predecessor to TikTok. ByteDance, which is incorporated in British territory in the Cayman ...
When should 'marketplace platforms' be treated as markets controlled by operators? It poses a new brand of antitrust problem: private parties controlling platforms that work like marketplaces. This week, Epic Games, maker of mobile app juggernaut "Fortnite," filed suit in federal court against Apple, and then Google, for banning the app from their stores. "Epic Games has defied the App Store Monopoly," the company announced via social media. "In retaliation, Apple is blocking Fortnite from a billion devices." Epic drew fire from the platforms ...
The CEOs of Amazon, Apple, Facebook, and Google are scheduled to appear before the U.S. House of Representatives’ Judiciary Antitrust Subcommittee on Monday, July 27, 2020 in a hearing titled, “Online Platforms and Market Power, Part 6: Examining the Dominance of Amazon, Apple, Facebook, and Google.” Modified House rules currently permit witnesses to attend virtually. According to the Subcommittee’s press release, it has been scrutinizing the companies’ domineering presence in their respective markets and the corresponding “adequacy of ...
Live Nation Threatens Anyone Who Doesn’t Play Along, Plaintiffs Allege Concert-goers tired of paying “supracompetitive fees” on ticket purchases from Ticketmaster LLC filed a class action against the company and its parent, promoter Live Nation Entertainment, Inc., in U.S. District Court for the Central District of California on April 28 for abusing its more than 70% share of the primary ticketing market (i.e. where tickets are initially sold) for major concerts. The merged companies are also aggressively deploying anticompetitive tactics in ...
Living by the adage “if you can’t beat them, join them,” tobacco giant Altria Group, Inc. acquired a 35% stake in e-cigarette market leader Juul Labs, Inc. in December 2018. As part of the deal, Altria agreed to not compete with Juul in the e-cigarette market for six years and use its marketing and financial resources to help Juul further cement its dominance. Photo by Spencer Davis on Unsplash This deal was always going to face significant antitrust headwinds from regulators. Not only is the transaction an agreement by competitors to ...
For believers in free markets it is important that they operate free of “shenanigans,” Food & Drug Administration (FDA) Commissioner Stephen Hahn said during a joint workshop with the Federal Trade Commission (FTC) on March 9, 2020. The event set in motion the agencies’ joint effort to address the difficulties in biosimilar uptake – a market rife with anticompetitive practices - and to restrict dissemination of false and misleading information on biosimilar efficacy or safety. “Shenanigans” and “whack-a-mole” became catch phrases during ...
Live Nation Entertainment, Inc., owner of some of the world’s biggest music venues, events and festivals, is currently operating under what the Department of Justice’s Antitrust Division calls “the most significant enforcement action” of an existing antitrust consent decree in its history, one that has secured stricter and longer lasting terms designed to rein in the event conglomerate’s anticompetitive behavior. Photo by Yvette de Wit on Unsplash The DOJ action began more than a decade ago after the company acquired Ticketmaster ...
Big Tech mergers make big headlines, but there is much more to a deal than how much money changes hands. More important questions need to be answered, such as how much future innovation might be lost, how much healthy competition will be eliminated, and what volumes of consumer data will suddenly be controlled by one or only a handful of companies. Some lower-cost acquisitions fly under the radar of antitrust law enforcement agencies. But should they? Criticized for ignoring “killer acquisitions” and going too easy on Big Tech – approving more ...
Anticompetitive conduct and misleading advertising practices in the burgeoning biosimilars market – where nearly identical versions of bioilogics are made by different companies – have captured the attention of federal regulators. The U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) have announced their joint commitment to promoting competition and pursuing biologic product makers that make false statements. The agencies seek to improve patient access to biologics and to curb the prices consumers are charged for ...
Morgan Stanley’s proposed $13 billion all-stock acquisition of the popular E*TRADE online discount brokerage made big headlines last week. While no major antitrust problems are immediately apparent, the deal is part of a trend of consolidation in the financial services industry triggered by disruptions to profits like zero commission trading. The deal now heads for shareholder and regulatory review. According to the New York Times, this is the biggest acquisition in the financial sector since the 2008 meltdown, and signals Morgan Stanley’s ...
The U.S. Treasury Department’s final regulations, giving it more power to scrutinize any national security risks that may arise from deals between U.S. and foreign companies, are scheduled to go into effect this week, Feb. 13, 2020. The regs implement the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) and provide the interagency Committee on Foreign Investment in the United States (CFIUS) broader authority over certain investments and real estate transactions. Critics say the regs will change cross-border M&A deal-making ...
Imagine purchasing a lamp that only uses light bulbs designed specifically to fit that lamp. No other bulb will do. Or a flashlight that requires triangular batteries? What if you bought a car whose wheels were secured with seven lug nuts rather than the standard five? Product makers would find it much more costly to design and manufacture parts for non-standard products, and they would pass those costs along to you, the consumer. These are simple illustrations of where we would be without industrial standards, and particularly ...
Jonathan Rubin, Jennifer M. Oliver
January 28, 2020Charles Schwab Corp. has announced it will acquire TD Ameritrade Holding Corp. for $26 billion in stock. But the merger should receive significant attention from the Antitrust Division of the U.S. Department of Justice and potentially affected private parties given the significant antitrust issues it raises. Registered Investment Advisor (RIA) Custodial Market Both Schwab and Ameritrade are well known for their brokerage services, but both also serve as RIA custodians for money managed by independent advisors registered with the U.S. ...
The Federal Trade Commission (FTC) is challenging Illumina Inc.'s $1.2 billion acquisition of Pacific Biosciences of California Inc. (PacBio), calling it an unlawful attempt by Illumina to maintain its monopoly over the U.S. market for next generation DNA sequencing (NGS). In their case, antitrust enforcers in the U.K. say the effects would be global; that the acquisition would increase prices and dampen competition and innovation. The U.K. action sparked a lengthy response from the companies which argue that the deal is good for the industry ...
Claiming Comcast Corp. is using its significant buying power and ambitious nationwide acquisition strategy to dominate the lucrative regional sports network industry, Altitude Sports & Entertainment has sued the cable colossus in a Colorado federal court for Sherman Act and Colorado Antitrust Act violations. Altitude alleges Comcast is deploying “predatory” negotiation tactics to drive it out of business and then raise consumer prices once competition is eliminated. With so much buying muscle in the Rocky Mountain region, Comcast is a ...
You have to give Google credit. It’s no quitter. Despite pressure in the United States and Europe that might tell other companies to take a breath, Google took another in a series of steps to collect and leverage individuals’ healthcare data. In a deal valued at $2.1 billion, the company has entered into a definitive agreement to acquire Fitbit, Inc., the maker of popular health-tracking device wearables. This deal is yet another one that challenges the conventional analysis of what might constitute an anticompetitive merger in the context of ...
Reuters broke the story that the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) is conducting a national security review of the owners of TikTok, a social media video-sharing platform that claims a young but formidable U.S. audience of 26.5 million users. CFIUS is engaged in the context of TikTok owner ByteDance Technology Co.’s $1 billion acquisition of U.S. social media app Musical.ly two years ago, a deal ByteDance did not present to the agency for review. Meanwhile, U.S. legislators are concerned about ...
Moderator & Speaker: Daniel J. Mogin | Managing Partner, MoginRubin LLP Speakers: Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor: Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions. Highly publicized ...
California Governor Gavin Newsom has signed several amendments to the California Consumer Privacy Act of 2018. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. You can read MoginRubin Partner Jennifer M. Oliver's take on the changes in her Oct. 10 post, titled CCPA Changes Sent to Governor’s Desk as January Effective Date Draws Closer and Compliance Costs Loom Large. Going into ...
Several amendments to the California Consumer Privacy Act of 2018 are headed to Gov. Gavin Newsom’s desk. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. One bill, which attempted to address the non-discriminatory provisions of the CCPA and its potential impact on sellers’ popular customer rewards programs, didn’t make it out of the Senate. Going into effect in January and still ...
The U.S. Department of Justice Antitrust Division has inserted itself into a case that questions whether the Anti-Malware Testing Standards Organization, Inc. (AMTSO) and some of its members are creating standards in a manner that violates antitrust laws. AMTSO says it is exempt from such per se claims by the Standards Development Organization Act of 2004 (SDOA). Symantec Corp., an AMTSO member, says the more flexible “rule of reason” applies – that it must be proven that standards actually undermine competition, which the recommended ...
Jonathan Rubin, Timothy Z. LaComb
August 07, 2019Ubiquitous modem chips allow our smart devices to communicate with each other over cellular networks using industry standards like 4G LTE. A small group of companies (and nations) are racing for global leadership in 5G, considered by many to be the second coming of mobile connectivity and experience. 5G promises not just faster phones, but smarter cars and homes, augmented and virtual reality, and better national defense systems. 5G is creeping into U.S. consumer markets now. Qualcomm Inc., Intel Corp., Taiwan’s MediaTek Inc., and China’s ...
Qualcomm Inc. has asked U.S. Judge Lucy H. Koh of the Northern District of California to stay, pending appeal to the Ninth Circuit U.S. Court of Appeals, her decision that the company's modem chip licensing practices violate the Sherman Act and constitute unfair competition practices under the Federal Trade Commission Act. Qualcomm calls the decision “irreparably flawed” and the FTC case's case “lacking any plausible theory of competitive harm.” FTC Bureau of Competition Director Bruce Hoffman hailed the decision as "an important win for ...
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