Lessons from \u3ci\u3eAmex\u3c/i\u3e for Platform Antitrust Litigation

I. Introduction II. A Brief History of a Long Litigation ... A. The District Court Rules for Plaintiffs Based on a One-Sided Market Definition ... B. The Second Circuit Reverses, Applying a Two-Sided Market Definition ... C. The Supreme Court Affirms, Embracing a Two-Sided Market Definition III. Lessons from Amex ... A. Lesson One: A Full Rule of Reason Analysis—Not Some Form of Relaxed Review Advocated by the Government—Applies to Vertical Agreements Between a Platform and Customers on One Side of the Platform ... B. Lesson Two: For That Rule of Reason Analysis, a Plaintiff First Must Define a Relevant Market That Includes Both Sides of Two-Sided Transaction Platforms C. Lesson Three: When the Relevant Market Is Two-Sided, a Plaintiff Must Demonstrate That the Challenged Conduct Harmed Competition in the Market as a Whole IV. Misperceptions About Amex ... A. Fallacy One: Two-Sided Market Definition Does Not Apply to “Mature” Platforms ... B. Fallacy Two: A Platform’s Conduct Should Be Condemned If Platform Consumers on One Side Are “Subsidized” by Those Who Do Not Use the Platform … C. Fallacy Three: Amex Will Complicate and Confuse Antitrust Analysis in a Wide Range of Case

The Counterproductivity of Protectionist Tariffs

This paper questions whether protective tariffs are counterproductive as political-influence tools. This thesis will examine protective tariffs implemented throughout history in different circumstances and levels of technological development. In every case examined, the results and principles behind protective tariffs remain constant. The historical examples utilized in this research include Civil War taxes, the Smoot-Hawley tariff, and Trump’s tariffs against China in 2018. Each of these examples serve as consequential representations of protectionist tariff policy. Protectionist tariffs artificially raise prices and restrict markets while simultaneously propping up inefficient industries. Thus, this paper explores whether the benefits of protectionist tariffs justify their use as political influence tools considering their negative side effects

Concepcion's Pro-Defendant Biasing of the Arbitration Process: The Class Counsel Solution

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. This investment advantage enables the defendant to wield superior litigation power against each plaintiff skewing the outcome of individual arbitrations in its favor and frequently rendering claims not worth filing. Concepcion perpetuates the bias by precluding the use of a class arbitration solution. We propose that courts neutralize the Concepcion bias by appointing class counsel to represent each plaintiff in individual arbitrations. Without threatening Concepcion's holding that arbitral efficiency precludes class arbitration unless the parties specify otherwise, the class counsel solution equalizes the parties' investment incentives to transform individual arbitrations into a socially useful legal system for promoting the deterrence, compensation, and other public policy objectives of federal and state substantive law

Cruises, Class Actions, and the Court

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it

Issues in the Interpretation of 180-Day Exclusivity

Congress created 180-day exclusivity for generic drug applicants in the 1984 Hatch-Waxman amendments to the Federal Food, Drug, and Cosmetic Act (FDCA) and amended it substantially in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA). The core concept of this exclusivity as it has been applied by FDA and the courts is that the first generic drug applicant to challenge an innovator\u27s patent is entitled to six months of exclusivity against subsequent patent challengers for the same innovator drug. The 180-day exclusivity provision is governed by sections 505(j)(5)(B)(iv) and 505(j)(5)(D) of the FDCA, and it is intended to encourage generic applicants to challenge innovator patents. Although the basic idea is simple and the language enacted in 1984 was correspondingly brief, over the years the provision has given rise to a substantial number of interpretive disputes, both at the agency and in the courts. The courts are still grappling with interpretation of the 1984 provision, and it is already apparent that the amended language will trigger additional disputes. An earlier article in this journal traced the history of the 180-day exclusivity provision from 1984 through its amendment in 2003 and court cases in 2004. This article updates the earlier piece through the end of 2006 but is arranged by issue rather than in a chronology. Part II presents the original and amended statutory language. For the most part, the amended language applies only to abbreviated new drug applications (ANDAs) filed after December 8, 2003, provided there was no paragraph IV certification to the reference drug prior to that date. We refer to these as new ANDAs and to all other ANDAs as old ANDAs. Part III presents the interpretive issues that have been addressed by FDA and/or the courts and describes their resolution with respect to old ANDAs and, where different, new ANDAs

Legal, Risk and Ethical Aspects of Analytics in Higher Education

The collection, processing and retention of data for analytical purposes has become commonplace in modern business, and consequently the associated legal considerations and ethical implications have also grown in importance. Who really owns this information? Who is ultimately responsible for maintaining it? What are the privacy issues and obligations? What practices pose ethical challenges? This paper in the CETIS Analytics series covers legal, ethical and related management issues surrounding analytics in the context of teaching, learning and research and their underlying business processes. It is based on current UK law, set in the context of publicly funded Further and Higher Education and their mission. With a primary focus on personal data, it considers the rights and expectations of the data subjects (students, researchers, employees) and the responsibilities of institutions, above campus services, suppliers and funders