Category: U.S.A.

G.C.R.: Immunity, Sanctions & Settlements.

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This is admittedly super cool and super useful !! The Global Competition Review (G.C.R.) has an amazing “Know-How” Compilation on “Immunity, Sanctions & Settlements” across all major competition jurisdictions. So if you want an answer to a query related to sanctions and immunity’s across various jurisdictions or even for a particular jurisdiction, simply tick mark the relevant boxes and the answers come right on. 🙂 Even important F.A.Q.’s have  been compiled for ease of access and the answers have also been compiled by authoritative practitioners in he field in the relevant jurisdictions. On a cursory glance, I’ve found almost all basic questions covered within them and in some even more.

 

There are similar compilations for “Private Litigation” and “I.P. & Antitrust”.

By far one of the coolest initiatives in competition law jurisprudence. (Ya I know I sound like a total nerd. :D)

Gabriele Accardo, Vertical Antitrust Enforcement: Transatlantic Perspectives on Restrictions of Online Distribution under E.U. and U.S. Competition Laws.

As a follow up to my previous post,  I recently read a very nice Working Paper by Gabriele Accardo, titled “Vertical Antitrust Enforcement: Transatlantic Perspectives on Restrictions of Online Distribution under E.U. and U.S. Competition Laws.” 

 

The paper lucidly discusses the growth, economics, advantages and disadvantages of the E-Commerce Sector and looks at how E.U. and U.S. competition laws deal with restrictions of online sales in distribution agreements. It discusses how “…The growing importance of online commerce highlights how vertical competition law enforcement is still an important building block of competition law policies, both in the U.S. and in Europe”. While discussing the difference in approach between the two jurisdictions, the paper highlights the new competition law rules adopted by the E.U. specifically targeting restrictions of online sales in distribution agreements and explains why the U.S. antitrust doctrine is less concerned about the need to adopt specific rules applicable to restrictions of online sales.

The Speed Limit Debate

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As the Network Neutrality debate rages in the U.S. over the Comcast – Time Warner Merger, here are two interesting pieces on the flak which Comcast is receiving. It goes without saying, Comcast isn’t happy and it seems to have started losing it’s cool over the issue.

 

The first is an article on how Network Neutrality is already being subverted through the indirect route of the broadband network. This is not surprising, as the potential for this abuse was already pointed out some time ago by Susan P. Crawford in the Yale Law and Policy Review.

 

The second is a novel solution (and one which I really liked) by BitTorrent, Inc. CEO Eric Klinker on reaching a middle ground on the Network neutrality debate and torrent websites: pay the torrent websites to slow down rather than the websites paying the network provider for equal treatment at par with other websites.  Interestingly, BitTorrent, according to the post, “has voluntarily remained in a “slow lane” of sorts for several years because of the uTorrent Transport Protocol (uTP), which reduces the speed of data transmissions when they might harm other applications. BitTorrent and its users don’t get paid for relying on this protocol, of course, but Klinker suggested they should.”

First Ever Extradition On An Antitrust Charge

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In what is being claimed (and probably is)  as the first ever extradition on an Antitrust charge, Romano Pisciotti, an Italian national, was extradited from Germany to the United States  on a charge of participating in a conspiracy to suppress and eliminate competition by rigging bids, fixing prices and allocating market shares for sales of marine hose sold in the United States and elsewhere, the Department of Justice announced today. According to the Department of Justice (D. O. J.) of the U.S.:

 

“This first of its kind extradition on an antitrust charge allows the department to bring an alleged price fixer to the United States to face charges of participating in a worldwide conspiracy,” said Assistant Attorney General Bill Baer in charge of the Department of Justice’s Antitrust Division. “This marks a significant step forward in our ongoing efforts to work with our international antitrust colleagues to ensure that those who seek to subvert U.S. law are brought to justice.”

 

A copy of the Official Press Release can be found here. 

 

P.S.: For those who don’t know, Antitrust laws in the U.S.A. provide for both civil and criminal remedies.

Why the CCI Google Investigation faces Difficulty.

A recent Economic Times Article states that the “probe by Indian authorities to examine if Google abused its dominant position in the Internet search engine market is progressing at a sluggish pace, mainly due to a lack of understanding on Internet-related issues.” Furthermore, it also stated that “India (presumably through the C.C.I.) has sought the FTC’s help in this matter.”

While the reason stated above is probably true, I feel another important reason the investigation faces difficulty is becaue of the direction the D. G. Office seems to be taking to reach its goal. This is evident from the second line quoted above, where the article states that the C.C.I. is looking for aid from the F.T.C. There is no harm in asking for aid from others, but in this case, the Commission may be asking for aid from the wrong people. One needs to understand that the F.T.C. and the European Commission have SETTLED their cases with Google on the basis of certain commitments they received from the company. (See here for the F.T.C. commitments and here for the E.U. commitments). It is more than evident from their respective press release and the commitments received from Google that both the competition authorities never approached the investigation with an intention to prosecute. Their primary intention was merely to ensure competitiveness without disrupting the market (being the internet search engine market and online advertisement market) to the best possible extent. The merits of such an approach are of course debatable, but are presently outside the scope of this post. What is important is that settlements require a mediative approach (far different from an adjudicatory approach) and this is not the approach the C.C.I. wishes to follow. Even if it wishes to, it as of now can’t, as explained in a previous post.

It is better if the Commission looks eastwards to the Australian Competition and Consumer Commission (A.C.C.C.) for help. The judgement of the Federal Court of Australia is the only case which Google has lost on allegations against its Adwords programme, which is the primary subject of investigation even in India.Google-confused

Status And Effect of Cooperative Joint Ventures under Indian Competition Law

My article titled “Status And Effect of Cooperative Joint Ventures under Indian Competition Law” has recently been published in the Competition Law Reports (January, 2013 Edition)

In the article, I elaborate in detail the competition law regarding cooperative joint ventures and present the measures and methods which may be adopted by the Commission when it is finally called upon to handle such issues. Part I being the introduction, Part II elaborates upon the concept of cooperative/contractual joint ventures and provides a definition for the phrase and elaborates as to what exactly would constitute a cooperative joint venture.  Part III elaborates in detail the EU law regarding cooperative joint ventures, including the important Orders and Judgements in EU competition law on the same. Part IV focuses on the competition law (or anti-trust law) in the United States of America (U.S.A.) regarding such agreements. Part V deals with the problem of cooperative joint ventures under the Competition Act, 2002 and suggests the preferred method of analysis which may help the Commission best analyze such ventures or agreements.

Click here for a copy of the article and please do leave your comments and feedback on the same.

Lost the race to Economic Times. :P

We were planning a detailed post with a critical analysis on the Department of Justice (DoJ) complaint filed against the five publishers (Hachette, Penguin, Simon and Schuster, Macmillan and Harper Collins) alleging their agreement with Apple to be anti-competitive, but unfortunately, The Economic Times (ET) beat us to it !! 🙂

Being an excellent article, we would like to only add to what Avinash Celestine has written in his article.

What we fail to understand is that as publishers,  the copyrights to the E-Books, be it on Amazon or Apple, are owned by the publishers themselves. Why did they not simply negotiate better terms with Amazon on wholesale prices on E-books ?!?! Also, as of now, they don’t really have a lot to complain about regards pricing, as per this blogpost, which claims that publishers may ultimately end up earning approximately seven dollars per E-Book copy “sold” (this is primarily due to the new agency model which publishers forced Amazon to implement, but more on that below.)

Also, if they were so concerned about the consequent fall in wholesale and retail prices of print books, why did they enter into the E-Books market in the first place ?!?! The publishers are themselves also partly to blame for there conundrums and add to that they decide to counter it by digging their own graves even deeper through an agreement with Apple. (this is the exact sentiment expressed by another blogger involved with the publishing business). Britannica realised that whether the organisation or customers liked it or not, it was time to go digital. The publishers should have learnt the same. They should have made a choice. In fact, to quote Jorge Cauz, president of Encyclopedia Britannica, Inc.

“print may not completely vanish from the market, but I think it is going to be increasingly less important. Many publications will never have a print analog and will only be printed on digital formats.”

Also, the Apple-publishers deals seems to be a classic case of a corporate panic attack with adverse consequences. Publishers should have realised that despite all the hype around E-Books, the fact remains that hard copy books will never really go out of fashion. Libraries will continue to buy them for quite some time. People like the author himself (who does not own a Kindle and is not even interested in getting one) prefer hard copy books over E-Books any day and always will. There is always a certain special comfort which one derives from actually holding a paper book and to be able to physically turn the pages with your fingers. granted, their demand shall fall as compared to today, but the losses could have easily been recouped through a better deal with E-Book retailers.

Which bring us to the other side of the story, which is exactly what publishers did in the agreement with Apple. Therefore, how exactly is it anti-competitive ?? After all, some would even say that Amazon was playing dirty, so the publishers decided to play dirty as well. This is probably the reason why Apple and the publishers who have not settled are willing to fight it out. The problem lies in the fact that they later used this agreement to force Amazon to do the same as well, i.e., sell the books under the exact same condition as Apple, effectively leading  to the abuse of  a re-emerged dominant position in the E-Book market.

It is intriguing how Amazon, which isn’t exactly innocent itself, has managed to gain the most out this entire quagmire and has largely escaped legal censure. However, in conclusion, we would like to stress on the fact that in a way, the reason for such disputes is because of the media revolution which we are experiencing right now on a daily basis. Laws are unfortunately till a large extent still ambiguous, with situations and cases as we are facing today never having been predicted when they were enacted, and it is safe to assume that such disputes shall arise for quite some time to come till one gains clarity. Till that extent, it really isn’t anybody’s fault. Not Amazon’s. Not the publishers. Not Apple’s.

Legal Analysis of Google’s AdWords Programme and its Conflict with Indian Competition Law

I have recently written a post for the India Law and technology Blog titled “Legal Analysis of Google’s AdWords Programme and its Conflict with Indian Competition Law”.

The post shall try’s to determine whether there is any substance in the allegations leveled against the internet giant of violating competition laws across various jurisdictions and whether there is a solution available to Google without banning the software all together.