Monday, January 04, 2010

Antitrust Institute Picks "Best" and "Worst" Developments of Decade

This posting was written by John W. Arden.

When it came to antitrust developments during the last decade, the FTC and the European Commission were heroes, while the U.S. Supreme Court and the Bush Administration were zeros, according to rankings published last week by the American Antitrust Institute (AAI).

The AAI released a list of the 10 “most positive” and 10 “least helpful” antitrust developments, as compiled by Institute Director Robert H. Lande.

The “most positive” developments (in no particular order) were:

1. The emergence of Europe as a true equal of the U.S. in the enforcement of competition law.

2. The rise of post-Chicago antitrust analysis.

3. Continued development of the Department of Justice’s leniency program, including significant increases in cartel fines.

4. The European Union, FTC, and private cases against Intel.

5. The FTC’s Section 2 activity in the standard-setting area.

6. The FTC’s actions in the pharmaceutical reverse payments area.

7. The election of President Obama and the appointments of Assistant Attorney General Christine Varney and FTC Chairman Jon Leibowitz.

8. Competition advocacy on the part of the FTC and the large number of valuable reports produced by the FTC and Department of Justice.

9. The International Competition Network (ICN).

10. The emergence of the AAI as an effective voice in the antirust world.
The “least helpful” developments (in no particular order) were:

1. Every Supreme Court antitrust decision during the decade—including Trinko and Twombly—and the lower courts’ subsequent decimation of notice pleading.

2. The appointments of Justices Roberts and Alito to the Supreme Court and a large number of lower court judges not favorably disposed to antitrust.

3. The Department of Justice’s 2001 settlement with Microsoft.

4. The Bush Administration’s non-enforcement record, including the Department of Justice’s decision not to challenge the Whirlpool-Maytag deal.

5. The DC Circuit’s Rambus opinion.

6. The Oracle/PeopleSoft opinion, including Judge Walker’s disregard for consumer testimony.

7. Every Department of Justice amicus brief filed from 2001 to 2008.

8. Judge Jackson’s predilection for interviews and, partially for this reason, the loss of much of his Microsoft decision.

9. The Department of Justice’s Section 2 report (fortunately, the FTC refused to sign on, which made it DOA).

10. Runaway intellectual property rights, led by the Federal Court of Appeals (however, the Supreme Court is beginning to restore some balance with competition concerns).

The American Antitrust Institute is an independent, non-profit education, research, and advocacy organization based in Washington, D.C. Its stated mission is to “increase the role of competition, assure that competition works in the interests of consumers, and challenge abuses of concentrated economic power in the American and world economy.” Further information about the AAI appears here on the organization’s website.

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