Sophie Lawrance of Bristows has written a post on the US Department of Justice investigation into high frequency trading, a practice most recently brought into public view by Michael Lewis’s book Flash Boys. In addition to saying nice things about this blog, Sophie drew my attention to the US Ninth Circuit Allied Orthopedic case which, although it came out a few months before my publication deadline for Competition Law and Regulation of Technology Markets, I’m afraid I missed at the time. A Per Se Test for Legality It’s an interesting case: the Ninth Circuit applied a per se legality test to issues of product redesign, an approach which was roundly – and rightly – criticised in this article by some […]
A post in another place about Areeda’s article on essential facilities – “an epithet in need of limiting principles” – reminded me that limiting principles are not only needed to decrease the risks of over-enforcement. Areeda’s legitimate concern about nuance being lost in the application of precedent applies also to precedents which limit liability. They are relevant to under-enforcement as well. From hard cases to bad law Areeda wrote: “As with most instances of judging by catch-phrase, the law evolves in three stages: (1) An extreme case arises to which a court responds. (2) The language of the response is then applied -often mechanically, sometimes cleverly- to expand the application. With too few judges experienced enough with the subject to […]
Alfonso Lamadrid on Chillin Competition, commented earlier today on an interesting paper by Javier Berasategi bringing together issues of competition law, supermarkets and technology. In passing he noted that I’d already brought groceries and tech together with my “exploding banana hypothesis.” I’m grateful to him for highlighting my valuable contribution to the jurisprudence on perishable fruit and cross border trade. For the curious, here are the relevant paragraphs from my book on competition law and regulation of technology markets: 7.07 Are there circumstances where product design can achieve what would otherwise be unlawful under the competition rules? 7.08 For example, EU competition law prohibits many vertical restraints that restrict parallel trade. In the United Brands case the Commission, in a decision upheld […]
Most press comment has been on the Commission’s investigation into Google’s search practices. The Commission has another pending case, however, into Google’s handling of the Android operating system. Alfonso Lamadrid of Garrigues (disclosure: a friend) has written an excellent three part analysis of the complaints against Android lodged with the European Commission. Without commenting on any of his tentative conclusions, the articles highlight the issues to be considered better than anything else you’re likely to read unless and until the Commission makes a decision. (And I know that some will say “even after any Commission decision…”) Post 1 on background + market definition Post 2 on predatory pricing claims Post 3 on the bundling allegations There’s then a guest post […]