Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘antitrust’

Bad ideas in our time: emergency merger moratorium

I’m quoted in Jack Arnholz’s report for ABC News on some of the problems with a very bad new scheme from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez for a ban on corporate mergers . Excerpt:

“A bill like this would harm the economy in general. It would in particular threaten workers, consumers, investors and those affected by the coronavirus,” Walter Olson, a senior fellow at the Cato Institute, told ABC News.

“In crisis conditions especially, mergers are a way for companies with a relevant strength, such as a strong balance sheet or superior distribution channels, to combine with others that may be weaker yet have vital assets such as promising research, a loyal consumer base, or a superior product line. If mergers are blocked, some weaker, yet valuable companies, will flounder, discontinue research, furlough workers or even enter bankruptcy,” he added.

Despite its prominent sponsors, the proposal is unlikely to pass a Republican-controlled Senate and White House. Olson said that the possibility the bill becomes law is unlikely.

“This bill is an exercise in political symbolism, not the way an advanced democratic country should approach antitrust policy. It’s the equivalent of a Trump tweet — it lets off steam, everyone can take sides, and it allows momentary domination of a not especially meaningful conversation until everyone moves on to the next,” Olson said.

Mergers are also a main means by which successful tech startups hit the mainstream and win wide distribution for their products; absent the prospect of being able to exit this way, fewer funders and principals will be interested in going the startup route.

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January 29 roundup

  • Authorities arrested man who stood in front of courthouse passing out leaflets encouraging jury nullification. Michigan Supreme Court should uphold his First Amendment rights [Clark Neily and Jay Schweikert on Cato Institute brief in Michigan v. Wood, earlier here, here, and here]
  • Also on the topic of jury nullification, is that an appropriate metaphor for things happening with the Senate and impeachment? [Jim Galloway, Atlanta Journal-Constitution, quotes me]
  • In 2018 an Eleventh Circuit panel green-lighted a suit claiming that it was unconstitutional for Alabama to enact a law pre-empting Birmingham’s local enactment of a higher minimum wage, on the claim that the white-led state lawmaking majority had acted with the purpose and effect of injuring African-Americans, who (it was argued) were more likely to be beneficiaries of the wage mandate. Now the full circuit en banc (over a dissent) has dismissed the case on standing grounds without deciding whether disparate racial impact can taint otherwise neutral laws [Lewis v. Governor of Alabama]
  • New California law CCPA, promoted as giving consumers the right to see and delete their data, results in users being required to yield up more data and creates new security risks [Kashmir Hill, New York Times via Gus Hurwitz (“anyone who didn’t see this coming shouldn’t be in the business of writing laws”)]
  • Wasatch Brewery’s Polygamy Porter (“take some home to the wives”) is deemed okay by regulators in its own state of Utah, but is too naughty for their counterparts in North Carolina [Hayley Fowler, Charlotte Observer]
  • Symposium on “The Politicization of Antitrust” with Luigi Zingales, Alec Stapp, and others [Truth on the Market] And “The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals” with Makam Delrahim, Maureen Ohlhausen and others [Federalist Society National Lawyers Convention]

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Talking Warren’s big antitrust plans

“Presidential candidate Elizabeth Warren wants to break up big tech firms and impose new regulation on firms with high revenues. Walter Olson discusses what that might look like in practice.” I join Caleb Brown for a Cato podcast on themes outlined in this space last week. Related: Geoffrey Manne and Alec Stapp last March on Warren’s plans for tech and antitrust (“To Warren, our most dynamic and innovative companies constitute a problem that needs solving.”)

Bonus: earlier posts on Warren and her economic plans including white-collar prosecution, exit tax, regulation of private equity, and corporate governance first, second, third posts as well as political spending and labor co-determination.

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Nevada’s antitrust deal sheds light on Elizabeth Warren’s big plan

T-Mobile and Sprint, the #3 and #4 wireless carriers, would like to combine so as to more effectively compete with Verizon and AT&T, the two dominant players in the cellular service market. Various states went to court against the merger, arguing (dubiously) that the combination would harm consumers and drive up prices. And now, via Reuters, this:

Also on Monday, Nevada said it would withdraw from the lawsuit in exchange for early deployment of the next generation of wireless in the state, creation of 450 jobs for six years and a $30 million donation to be distributed by Nevada Attorney General Aaron Ford and aimed at helping women and minorities, Ford’s office said.

How blatant can you get? The best touch, of course, is the $30 million fund with which to ingratiate lucky beneficiaries around the state. (“The recipients of these grants for the use of the charitable contribution will be at the discretion of Nevada’s attorney general” — that is, the same AG Ford who filed and settled the state’s case, and from whose press release is excerpted that sentence.) It looks a lot like the familiar cozytown set-up in many cities in which permission to build a large development or win a public contract just might call for a hefty donation to a local nonprofit with ties to the mayor and council.

Notwithstanding the best efforts from some quarters to develop per se rules in hopes of generating clear and predictable legal outcomes, antitrust law remains a world of subjective interpretation in which government office-holders are left with great discretion regarding how and against whom to wield enforcement power. Whether you want to call it logrolling or use a less flattering term like “extortion,” the temptation is to trade off antitrust leniency for some of the other sorts of favors business might be able to render government actors.

All of which brings us to presidential candidate Elizabeth Warren’s and other candidates’ new proposals for antitrust, which a CNBC headline accurately reports (as to Warren’s) “would dramatically enhance government control over the biggest U.S. companies.” In particular, the proposals would invite the government far more deeply into oversight of business practices, including refusal to share “essential” facilities with competitors, pricing goods below the cost of production, and much more, as well as mergers and acquisitions.

It’s hard to know whether Sen. Warren sees all this new arbitrary discretion as a bug, or a feature, in her enormous plan. Either way, an accumulation of power that tempting will sooner or later attract appointees seeking either a political whip hand over the U.S. corporate sector, a source of payouts like that in Nevada, or both. [cross-posted from Cato at Liberty]

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Antitrust, taxes, and the decline of old Hollywood

The Paramount consent decrees with the U.S. Department of Justice in and after 1948 helped spell an end to the old motion picture studio system, as the Hollywood giants could no longer own theaters to exhibit their films or use block-booking practices to ensure distribution of less popular output. Now, seventy years later, the decrees may at last be on their way out. “Today, as a resurgent left, sometimes joined by the populist right, demands a return to punitive taxes and blunderbuss enforcement of U.S. antitrust laws, the Hollywood experience offers a timely reminder of how economic crusaders can destroy what they don’t understand. By hampering creativity and increasing risk, ill-informed antitrust action can ultimately harm the consumers it is supposed to protect.” [Virginia Posstrel, Yahoo/Bloomberg; background, Ted Johnson/Deadline and Alex Weprin/Hollywood Reporter; related last year]

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Great moments in media concentration law

This is just absurd: to comply with federal regulations barring owners of daily newspapers from also owning local broadcast stations, the owner of the venerable Dayton Daily News in Ohio may knock it down to three-times-a-week publication so that it won’t count as a daily anymore. Keith J. Kelly of the New York Post spotted the story, Cox Media Group outlined the plan in a press release a few weeks ago, and Joshua Benton at Nieman Lab has more:

To increase the quality of local journalism in Ohio, the Federal Communications Commission is requiring three newspapers to stop printing daily….

Did you get that? To strengthen the local news ecosystem in Dayton, the government is making its biggest newspaper publish less.

The rules date back to 1975 when the Federal Communications Commission (FCC) adopted regulations barring cross-ownership of local broadcast and newspaper properties while grandfathering in existing arrangements. It was never a good rule, but progressive social critics then as now traced countless social ills to media concentration and for-profit ownership of the press (what’s new these days is that populist conservatives crusade against the corporate media too).

Don’t blame today’s FCC. Two years ago the agency voted to scrap the decades-old newspaper/broadcast cross-ownership rules, recognizing that the local news market had gone through convulsive changes in the meantime, with new media sources cutting deeply into ad revenues and the economics of newspaper publishing taking one deep hit after another. (Local broadcasting economics has suffered too, even if not as badly.) But opponents sued, and in September a Third Circuit panel struck down the deregulatory effort, a move that immediately called into question the terms of a pending deal transferring partial control of the large Cox Media Group, which got its start long ago with the venerable Dayton paper.

Others, such as Jonathan Rauch, have pointed out that antitrust laws may need easing anyway if newspapers are to organize successful ways to finance journalism in the online economy. And as we’ve warned before, there are special dangers in unleashing antitrust law on the media sector, where it can leave government with a corrupting influence over whether opposition papers are profitable and who gets to own them. But does anyone really think Dayton residents are better off if their local newspaper stops publishing every day?

[cross-posted from Cato at Liberty]

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October 30 roundup

  • Under investigation and facing the same sorts of tactics he once used against Wall Street, Giuliani may now have reason to appreciate the sorts of principled civil libertarians who stand firm against prosecutorial excess [Ira Stoll]
  • U.S. dominance in social media is the envy of the rest of the world. Politicians’ trustbusting zeal could change that [Amy-Xiaoshi DePaola, Cronkite News/Arizona PBS, thanks for quoting me]
  • Walgreen’s had a tussle with Wegman’s over the trademark use of a big script “W,” but has not gone after with another well-known organization with such a letter symbol, the Washington Nationals [Richard Patterson, American University IP Brief back in 2011]
  • British Columbia human rights tribunal rejects groin-waxing complaint, finding that complainant “engaged in improper conduct”, “filed complaints for improper purposes”, and gave testimony that was “disingenuous and self-serving,” along with having “targeted small businesses, manufactured the conditions for a human rights complaint, and then leveraged that complaint to pursue a financial settlement from parties who were unsophisticated and unlikely to mount a proper defense.” [Joseph Brean, National Post, Justice Centre, opinion in Yaniv v. Various Waxing Salons (No. 2), earlier]
  • “University of Louisville Students Can’t Sue Escort for Exposing Prostitution in the Louisville Basketball Program” [Eugene Volokh]
  • Intending no disrespect, Your Honor, you should think twice before doing this [Zachary Halaschak, Washington Examiner (“Two male judges shot after female judge gives middle finger during drunken night out”; Indiana)]

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Cato Supreme Court Review 2018-19

The full Cato Supreme Court Review for the 2018-19 term can be read here, with an introduction by Trevor Burrus. Among this year’s highlights: Michael McConnell on the Maryland Peace Cross case and government-sponsored religious symbols, Bruce Kobayashi and Joshua Wright on the Apple indirect-purchaser antitrust case, Braden Boucek on the Tennessee liquor Commerce Clause case, and Simon Lecturer George Will on “The Insufficiently Dangerous Branch.”

Or listen to a Cato audio with Trevor Burrus, Ilya Shapiro, and Caleb Brown:

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Higher education roundup

  • Federal judge upholds Harvard’s admissions policy against charges of discrimination against Asian Americans, appeal likely [Anemona Hartocollis, New York Times; Roger Clegg/Martin Center; Neal McCluskey, Hechinger Report (“private institutions should be free to have affirmative action, but it should be prohibited at public institutions”); Ilya Shapiro, WSJ last year]
  • In Florida, following an initiative from Gov. Ron DeSantis, state universities expected to adopt versions of “Chicago Statement” committing to freedom of expression [Mary Zoeller, FIRE]
  • Under antitrust pressure from the U.S. Department of Justice, college association drops guidelines discouraging “poaching” students and other competition for enrollment. Could mean big changes in admissions process [Scott Jaschik, Inside Higher Ed]
  • In case you missed this angle in the astounding Bruce Hay story earlier: Hay “has already run afoul of [Harvard] investigators for reaching out to journalists (namely me), which they view as an act of retaliation” under Title IX [Kera Bolonik]
  • “The Galling Push for a Student Debt Bailout” [Cato Daily Podcast with Christian Barnard and Caleb Brown] If more of the same is what you want, you’re in luck with the House majority’s new College Affordability Act [Neal McCluskey, Cato]
  • The story of Oberlin College’s town-gown legal debacle in the Gibson case [Abraham Socher, Commentary] Return of the loyalty oath, cont’d: update on University of California requirement that all faculty candidates “submit an equity, diversity and inclusion statement as part of their application” [Nora McNulty, Daily Bruin; Stephen Bainbridge; earlier] Professor at the New School exonerated after quoting James Baldwin [FIRE] Students at University of Tennessee, Knoxville, have a lot of sensitivity training in their futures. Coming to 4-H too? [Hans Bader]

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August 20 roundup

  • UK: “British newspapers can legitimately mock parrots and compare them to psychopaths, the press regulator has ruled, after an unsuccessful complaint that the Daily Star misrepresented the emotions of a pet bird.” [Jim Waterson, Guardian]
  • Cato scholars regularly crisscross the country talking to students. Book one (maybe me) at your campus this Fall [Cato Policy Report]
  • Local-government preemption, single-use plastics, lemonade stands, Sen. Cardin on redistricting: my new post at Free State Notes recounts my experience attending the Maryland Association of Counties summer conference;
  • Can a police officer be criminally prosecuted for refusing to risk his life to stop a school shooter? [Eugene Volokh on Marjory Stoneman Douglas High School case]
  • I’m quoted on press freakout over new proposed religious liberty regs: “This is a narrowly drawn rule for a minority of federal contractors. It’s really not that radical and not that new.” [Brad Palumbo, Washington Examiner]
  • Beware proposals that would transform antitrust law into general bludgeon for avenging all sorts of grievance against big business [Glenn Lammi, WLF]

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