Showing papers by "Spencer Weber Waller published in 2011"

Corporate Governance and Competition Policy.

Abstract: Corporate governance law addresses the misaligned incentives between officers and directors of publicly-owned companies and their shareholders and how this can lead to the destruction of shareholder value. Antitrust law governs the interaction between corporations and other economic actors in the marketplace and prohibits and penalizes anticompetitive agreements, unilateral conduct which unreasonably injures competition, and mergers and acquisitions which may substantially lessen competition. This article explores the puzzling lack of meaningful interaction between these two fields of law which govern the internal and external operations of key economic players in our economy. While a handful of commentators have lamented the lack of a closer organic connection between these two bodies of law, most do not even notice. This article goes beyond the conventional disconnect and discusses how to create a more unified approach to two key area of business law in order to promote the interests of both shareholders and consumers in a more systematic and meaningful way.

Antitrust and Social Networking

Abstract: IBM. ATT. Microsoft. Intel. IBM (redux). Google. Twitter. Facebook. All are present or former leaders in key high-tech sectors. These firms also all have been the subject of serious antitrust scrutiny over the past three decades. All have been referred to at different times as “monopolies” in the colloquial sense, and in the more technical antitrust sense, and have been the target of public and private investigations and/or litigation relating to monopolization, attempted monopolization, or the abuse of a dominant position in the United States, the European Union, the EU member states, and other jurisdictions. The goal of this essay is to focus on social networking sites as the most recent locus of these competition concerns and to create a framework to analyze the competition law concerns of social network sites. It may well be too early to definitively resolve the many antitrust issues in this rapidly evolving market, but it is not too soon to define the issues and analyze the way they will be resolved as antitrust law undertakes its traditional role of defining and limiting the abuse of market power in key high-tech industries. I also seek to create a framework to understand and evaluate from an antitrust perspective continuing issues of network effects, essential facilities, infrastructure, and their application to social network sites and related software platforms, taking into account the added complication that most of the markets in question do not currently charge consumers and exhibit features of what economists call two-sided markets. I conclude not with a call to action, but with more of a checklist of which competition law issues matter most and which represent the greatest antitrust risks faced by the current market leader Facebook as social networking continuing to evolve and grow in importance.

Consumer Protection in the United States: An Overview

Abstract: This chapter, which will appear in a forthcoming international anthology on consumer protection law, is a broad overview of United States consumer protection law and enforcement. It focuses on the utterly decentralized nature of consumer protection law in the U.S. and the combined roles of federal, state, local, and private law in deterring, detecting, and punishing deceptive and unfair conduct that injures consumers. It further summarizes federal, state, local, and private litigation options to obtain damages, restitution, and injunctive relief for consumers on an individual and class action basis. It ends with a partial list of consumer associations and other private non-profit group working in the consumer protection field.

Brands, Competition and the Law

Abstract: Brands matter. In modern times, brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Coca-Cola, Nike, Google, Disney, Apple, Microsoft, BMW, Marlboro, IBM, Kellogg’s, Louis-Vuitton, and Virgin are all large companies, but they are also brands that present powerful, valuable tools for business. Business is fully aware of that power and value. Contrary to the law’s conception of trademarks, brands are used to indicate far more than source and/or quality. Indeed those functions are far down on the list of what most businesses want for their brands. Brands allow businesses to reach consumers directly with messages regarding emotion, identity, and self-worth such that consumers are no longer buying a product but buying a brand. Businesses pursue that strategy to move beyond price, product, place, and position and create the idea that a consumer should buy a branded good or service at a higher price than the consumer might otherwise pay. Branding explicitly contemplates reducing or eliminating price competition as the brand personality cannot be duplicated. In addition, this practice can be understood as a product differentiation tactic which allows a branded good to turn a commodity into a special category that sees higher margins compared to the others in that market space. In other words, brands have important effects on competition and the marketplace. Given that both trademark law and antitrust law address business competition, one might expect them to address brands as they fit into each doctrine’s areas of concern and that together trademark and antitrust law would offer a coherent legal regime to manage the way in which brands affect competition. That, however, is not the case. This article begins the process of broadening the legal understanding of brands by explaining what brands are and how they function, how trademark and antitrust law have misunderstood brands, and the implications of continuing to ignore the role brands play in business competition. We conclude that branding is so central to the business world, the modern economy, and the law that legal discourse must understand the brand or it will continue to reach incoherent results as it tries to navigate the realities of business competition in the 21st century.

Access and Information Remedies in High Tech Antitrust

Abstract: As antitrust cases becomes more complex, so does its remedies. Patterns are beginning to emerge in the dizzying array of remedies in recent monopolization and merger cases. Like the cases themselves, the remedies increasingly focus on access to network industries and platform technologies. In an economy increasingly dominated by information and information technology, access is often dependent on seamless interoperability. It is thus not surprising that antitrust remedies increasingly also have focused the disclosure of competitively necessary information as well as the protection of competitively sensitive information obtained from actual or potential competitors. Finally, the more complex the remedy, the greater the need for sophisticated oversight and dispute resolution mechanisms that rely on third-party experts and typically exceed the resources and strengths of the enforcement agencies. While access and information remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements in recent times in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high technology industries at the forefront of antitrust enforcement. When taken together, these recent cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgment that the essential facilities doctrine, and similar access remedies, remain an important and needed part of the antitrust toolkit. This essay will examine the growing use of complex behavioral remedies in both merger and monopolization cases that suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Particularly in settlements, commitments, and consent decrees, the Antitrust Division, Federal Trade Commission, and the European Commission have permitted mergers and unilateral conduct by dominant firms conditioned upon complex behavioral commitments include: 1) Continued obligations to supply or license competitors and customers with vital inputs on fair and non-discriminatory terms; 2) Continued obligations to allow competitors access to networks on fair and non-discriminatory terms; 3) The disclosure of intellectual property, know how, and technical information necessary to make these access obligations meaningful; 4) Creation of firewalls and other devices to prevent the dominant or merging firms from misusing competitively sensitive information obtained through their ongoing relationships with their competitors and customers; and 5) The use of special masters, technical committees, monitors, regulatory bodies, and the creation of third-party alternative dispute resolution procedures to handle the inevitable disputes that will arise without requiring the agencies or courts to act as long-term regulators of the industries and firms in question. I use examples such as the Microsoft and Intel litigation in the U.S. and the EU, as well as more recent U.S. merger consent decrees involving Google-ITA, Comcast-Universal, and Live Nation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.