Antitrust Law Source

Is it time to change the focus of the antitrust laws? The debate is heating up

There is currently a tug-of-war going on over the heart and soul of the antitrust laws. Well, perhaps that is a bit dramatic. But it is certainly fair to say that there is surging sentiment that the antitrust laws, and specifically antitrust enforcement, should be recalibrated to address concerns that are “populist” in nature. This was particularly evident last week by the introduction of two bills by Sen. Amy Klobuchar (D-Minn.) that seek to make it easier for the antitrust agencies to challenge “undue market concentration.”

The first bill would amend Section 7 of the Clayton Act, the law that governs the antitrust legality of mergers and acquisitions, to reduce what the antitrust agencies (FTC and DOJ) must prove to a court in order to stop a proposed merger or acquisition. Presently, the agencies must prove that the merger/acquisition would “substantially” lessen competition in the relevant market. The proposed bill would replace the word “substantially” with “materially,” which is intended to mean something “more than a de minimis amount of harm to competition.” While the change may seem semantic, the intent is to reduce significantly the standard under which mergers/acquisitions are blocked. The bill would also radically change how the largest mergers/acquisitions are analyzed. Presently, there is no different standard for large or small mergers – the agencies must prove that the transaction would substantially lessen competition in the relevant market. Under the proposed bill, however, the largest mergers/acquisitions – those greater than $5 billion in value or involving a party with assets greater than $10 billion – would be presumed unlawful and the burden would be upon the merging parties to prove that the transaction did not materially lessen competition. The second bill would reduce the filing fee most parties must pay for notifying the agencies of an impending transaction (from $45,000 to $30,000) but significantly increase the fee for transactions worth $5 billion or more (from $285,000 to $2.25 million). Continue Reading

Access to “data” – the new competitive battlefield

Data is a buzzword popular in the media today. Most often we hear or read the word in conjunction with a breach of a major retailer or healthcare company. It is also used by companies to target us with behavioral advertising. But it also has become the new coin of the realm. Being neither a physical asset nor intellectual property, data has become the engine that powers much of our new commerce. And for precisely that reason, access to data is becomingly more of a competitive, and hence an antitrust, concern. Continue Reading

Don’t wannacry? Help your IT staff prevent ransomware

The latest cyberattack  making the news (and some say the largest to date) is the “Wannacry” ransomware.  The ransomware looks for computers containing an operating system vulnerability in the Microsoft Windows platform and then appears to infect computers… without a single click required.  My colleague, Brian Hall, outlines the risks employers may face when dealing with cyberattacks  — as well as how human resource departments can help protect their organizations in his recent blog post “Don’t wannacry? Help your IT staff prevent ransomware“.

NAD shoots down Bowflex’s claims of dramatic weight loss as unsupported; disclaimer not enough

Nautilus’s Bowflex TreadClimber just became the latest example of enforcement action against a health and fitness product by the National Advertising Division (NAD), a voluntary advertising self-regulatory body administered by the Better Business Bureau. More specifically, the NAD determined that Nautilus could not support its claim that one could lose substantial weight solely by using its product.

The TreadClimber combines the movements of a treadmill, a stepper and an elliptical machine. The television advertisement for the product, which featured the slogan “all you have to do is walk,” included a section where a man and two women discussed their substantial weight loss (60, 110, and 130 lbs), which was reinforced with visual images (such as picture of a woman when she was substantially heavier). It also discussed the mechanism of the TreadClimber with the claim that it could “burn up to two and a half times the calories of a treadmill in as little as 30 minutes three times a week.”

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