Competition Matters

Everywhere these days, folks are talking about big data. (Apparently, even machines are talking amongst themselves using big data in an ecosystem called the Internet of Things.)  Last week, Chairwoman Ramirez spoke about the privacy implications of the big data revolution, and specifically, about the FTC’s law enforcement efforts to protect consumer privacy from the risks associated with the collection and use of consumer data.

These days, the sharing economy is all around us. One person might use her smartphone to get an Uber ride to a dinner arranged through Feastly. Another might hire a Taskrabbit to clean up his garden for spring and order custom pots for his flowers from a seller on Etsy. But do these new services come with risks to competition and consumers? And how should regulations governing traditional suppliers be tailored to apply to them?

A fundamental principle of competition is that consumers – not regulation – should determine what they buy and how they buy it. Consumers may benefit from the ability to buy cars directly from manufacturers – whether they are shopping for luxury cars or economy vehicles. The same competition principles should apply in either case.

According to the Bureau’s Statement on Negotiating Merger Remedies, the goal of a structural merger remedy is to maintain or restore competition in the markets affected by the merger while allowing the parties to proceed with those parts of the merger that do not raise competitive concerns. Usually, this approach results in a Commission order to divest key assets or capabilities to a buyer that will become a new competitor in the market and that can maintain the competitive status quo.

In recent investigations of hospital mergers, the merging parties often make the argument that the acquired firm is flailing, if not outright failing. Thus, the argument goes, the transaction is necessary to keep the acquired hospital in operation. But courts have set stringent requirements for meeting the failing firm defense, and as set out in the Horizontal Merger Guidelines §11, a company can assert what is known as a “failing firm” defense only if

Some will remember 1976 as the year of the nation’s bicentennial, but it was also the year that Congress gave the antitrust agencies an important tool to prevent harmful mergers before the harm occurs and before the assets and operations of the merging parties are joined in a way that precludes effective relief after-the-fact. 

There is still time to submit public comments on the FTC’s proposal to study the effectiveness of its remedial orders in merger cases. Fifteen years have passed since the Bureau’s previous Divestiture Study, which resulted in a number of important findings that caused the Commission to refine its approach and improve its orders.

Yesterday, the Supreme Court affirmed the Fourth Circuit’s decision to uphold the FTC’s order against the North Carolina State Board of Dental Examiners In a tour-de-force opinion laying out the proper scope of the state action doctrine first articulated in Parker v.

Reminder: your appointment is coming up soon! Staff of the Federal Trade Commission and the U.S. Department of Justice Antitrust Division just posted the agenda for next week’s two-day health care workshop. One look, and you won’t need a second opinion – you definitely will want to attend.