Syllabus Parts I, II

Transcription

1 Antitrust II (Spring 2019) Judge Douglas H. Ginsburg Professor of Law Antonin Scalia Law School at George Mason University Office: 450-I Syllabus Parts I, II Welcome to Antitrust II This course examines advanced topics in antitrust law. Specific topics include vertical restraints, criminal enforcement, innovation markets, exemptions and immunities, the territorial scope of U.S. antitrust law, and remedies. We will examine Supreme Court doctrine, influential modern lower court decisions, and government enforcement guidelines. Economic concepts and thinking characteristic of modern antitrust analysis are integrated throughout the course. No background in economics beyond what you learned in Antitrust I is necessary or assumed. Antitrust I is a prerequisite for this course. LL.M. students may seek a waiver of this requirement. Class: We will meet Tuesdays and Thursdays from 10:00 am to 11:50 am. We will not meet on some regularly scheduled class dates. We will meet 21 times in all. Office Hours: I am available via appointment and . Casebook: Andrew I. Gavil, William E. Kovacic, Jonathan B. Baker, and Joshua D. Wright, Antitrust Law in Perspective: Cases, Concepts and Problems in Competition Policy (2016) (3rd Edition). We will also read recent cases, enforcement agency guidelines, scholarly commentary, and other supplementary materials that I will post on TWEN or that are otherwise available on the web. Grading: The final exam will account for 100% of your grade, subject to a discretionary class participation adjustment of 1/3 rd of a grade in either direction. You should come to class having read and thought about the material, and ready to participate in a discussion. Final Exam: The final exam is scheduled for May 7 at 12:00 PM. There is no make up exam. Final Exam Permissible Materials: Open book; your own notes; no commercial publications. Tentative Syllabus: We may deviate from the tentative syllabus with assignments based upon current events or new cases, to accommodate guest speakers, or for other scheduling reasons, etc. Please make sure you are signed up to receive updates via TWEN. 1

2 Vertical Restraints: READING ASSIGNMENTS Tues. Jan. 15 Sylvania a. Figures 6-1 and 6-2, Casebook pp b. Sylvania and notes, Casebook pp c. Douglas H. Ginsburg, Vertical Restraints: De Facto Legality Under the Rule of Reason, Supplement at 1-15 d. CJEU, Press Release, Coty Germany, Supplement at Thurs. Jan. 17 Leegin a. Leegin, Casebook pp b. Benjamin Klein, Competitive Resale Price Maintenance in the Absence of Free-Riding Supplement at c. Problem 6-1, Casebook pp State Antitrust Law: Tues. Jan. 22 State Antitrust Law a. O Brien v. Leegin Creative Leather Prods., Inc. (Kan.), Supplement at b. Partee v. San Diego Chargers (Cal.), Supplement at c. Frank H. Easterbrook, Antitrust and the Economics of Federalism, Supplement at d. Richard Posner, Federalism and the Enforcement of Antitrust Laws by State Attorneys General, Supplement at e. Reuters: U.S. states allege broad generic drug price-fixing collusion (2017), Supplement at Antitrust Exemptions: Thurs. Jan. 24 First Amendment: a. Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., Supplement at b. United Mine Workers of Am. v. Pennington, Supplement at c. California Motor Transp. v. Trucking Unltd., Supplement at d. Prof l Real Estate Investors, Inc. v. Columbia Pictures Indus., Casebook pp e. Law 360: FTC Loses Assault On Shire Unit's Serial FDA Petitions, Supplement at f. Law 360: 3rd Cir. Questions 'Imminent' Shire Antitrust Actions, Supplement at g. FTC v. Abbvie (excerpt), Supplement at Tues. Jan. 29 Debate: Does Enforcement of Any of the Antitrust Laws Have Any Net Public Benefit? Attendance recommended for the entire duration of the debate and assigned for the class hours (10:00 to 11:50). Thurs. Jan. 31 Relation to Other Federal Laws: a. Note on Antitrust Federalism, Casebook pp b. Fed. Baseball Club v. Nat l League of Prof l Baseball Clubs, Supplement at

3 c. Radovich v. Nat l Football League, Supplement at d. Brown v. Pro Football, Supplement at e. Brady v. Nat l Football League, Supplement at f. USS-POSCO Indus. v. Contra Costa Cty. Bldg. & Const. Trade Council, Supplement at g. Marina Lao, Workers in the Gig Economy: The Case for Extending the Antitrust Labor Exemption, Supplement at h. Credit Suisse v. Billings, Supplement at i. Douglas H. Ginsburg & Daniel Haar, Resolving Conflicts Between Competition and Other Values (excerpt), Supplement at Tues. Feb. 5 State Action Immunity: a. Note on State Regulation, Casebook pp b. Parker v. Brown, Supplement at c. Cal. Retail Liquor Dealers Ass n v. Midcal Alum., Inc., Supplement at d. Phoebe Putney, Casebook pp Thurs. Feb. 7 State Action Immunity, cont d: a. North Carolina Dental, Casebook pp b. Teladoc, Inc. v. Texas Medical Board, Supplement at c. FTC Staff Guidance on Active Supervision of State Regulatory Boards Controlled by Market Participants (2015), Supplement at d. Joseph M. Miller, Comments on Competition in Healthcare & Certificates of Need, Supplement at e. Dissenting Statement of Commissioner Brill, Supplement at f. Heartland Institute, Rolling Back South Carolina s Certificate of Need Law, Supplement at g. Wall Street Journal, For Hospital Chains, Competition is a Bitter Pill, Supplement at h. Rebecca H. Allensworth, The New Antitrust Federalism, Supplement at Territorial Limitations: Tues. Feb. 12 Foreign Trade Antitrust Improvements Act (FTAIA) a. Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a, Supplement at 255 b. Hartford Fire, Casebook pp c. Empagran, Casebook pp d. Minn-Chem, Inc. v. Agrium, Inc., Supplement at e. Motorola Mobility LLC v. AU Optronics Corp., Supplement at f. In re Capacitors Antitrust, Supplement at Thurs. Feb. 14 International Comity and Cooperation a. Note on Act of State doctrine, Sovereign Immunity, and Comity, Casebook b. Pallavi Guniganti, Courts Are Wrong Audience for Comity Arguments, Says Judge Wood, GLOBAL COMPETITION REVIEW, Supplement at c. Davis Polk client letter re: Vitamin C Antitrust Litigation, Supplement at d. Animal Science Products, Inc. v. Hebei (In re Vitamin C Antitrust Litigation), 585 U.S. (2018), Supplement at

4 e. Edward Swaine, Cooperation, Comity, and Competition Policy: United States, Supplement at f. Note on International Convergence, Casebook g. ABA Presidential Transition Report (International Section), Supplement at h. Hollman & Kovacic, The International Competition Network: Its Past, Current and Future Role, Supplement at i. Douglas H. Ginsburg & John M. Taladay, The Enduring Vitality of Comity in a Globalized World (excerpt), Supplement at Fri. Feb. 15 George Mason Law Review Symposium: Attendance recommended for as much of the day as you are not in class. Antitrust Remedies: Tues. Feb. 19 Section 5 of the FTC Act (Prof. Wright to Present) a. Casebook pp b. Section 5 Policy Statement, Supplement at 356 c. Statement of the FTC on the Issuance of the Section 5 Policy Statement, Supplement at d. Dissenting Statement of Commissioner Ohlhausen regarding the FTC Section 5 Policy Statement, Supplement at e. Joshua D. Wright and Angela M. Diveley, Unfair Methods of Competition After the 2015 Commission Statement, Supplement at Thurs. Feb. 21 Civil Remedies a. Casebook pp (Nat l Soc y Prof l Eng rs; Microsoft; note on treble damages) b. Excerpt of Complaint in United States v. Google, Inc., Supplement at c. Press Release for Google-ITA Consent Decree, Supplement at d. Douglas H. Ginsburg & Joshua Wright, Antitrust Settlements: A Culture of Consent, Supplement at e. Douglas H. Ginsburg & Joshua Wright, The Costs and Benefits of Antitrust Consents, Supplement at Tues. Feb. 26 Criminal Enforcement Program a. Gregory Werden, Scott Hammond, Belinda Barnett, Deterrence and Detection of Cartels (2012), Supplement at b. DOJ Press Release Concerning Changes to the Division s Carve-Out Practice, Supplement at c. Douglas H. Ginsburg and Joshua Wright, Antitrust Sanctions, Supplement at [Note: Only the first 22 pages are assigned; the Appendix is optional] d. GAO Report, Stakeholder Views on Impact of 2004 Antitrust Reform Are Mixed, but Support Whistleblower Protection (2011), Supplement at e. Law360, Senate Oks Antitrust Whistleblower Bill, Sends It to House (Nov. 16, 2017), Supplement at f. DOJ Antitrust Division, Principal Deputy Assistant Attorney General Andrew Finch Delivers Remarks at Antitrust in the Financial Sector: Hot Issues & Global Perspectives (May 2018), Supplement at g. NYU Program on Corporate Compliance and Enforcement, Department of Justice Offers Incentive for Antitrust-Based Corporate Compliance, Supplement at

5 h. DOJ Antitrust Division, Criminal Enforcement Trends Charts (through 2018), Supplement at i. PaRR, EC has another record fining year, but cartel enforcement down, Supplement at Thurs. Feb. 28 Criminal Sentencing and Guest Speaker on Criminal Enforcement (To be confirmed) a. CPI, 25 Years of Leniency Programs: A Turning Point in Cartel Prosecution, Supplement at b. John Taladay, Time for a Global One-Stop Shop for Leniency Markers, Supplement at c. Casebook pp (Criminal sanctions; Hoffman-LaRoche sentencing submission) d. United States v. VandeBrake, Supplement at e. Plea Agreements with Antitrust Division Post-VandeBrake, Law360, Supplement at f. Albert Foer, Douglas H. Ginsburg, Robert Lande, and Joshua Wright, How DOJ Can Fix the Price Fixers, USA TODAY (May 29, 2015), Supplement at g. Pallavi Guniganti, DoJ Alumni Assail Ginsburg, Wright, Foer and Lande Proposal, GLOBAL COMPETITION REVIEW, Supplement at Antitrust and Intellectual Property: Tues. Mar. 5 Background Principles and the Microsoft Lawsuit a. Casebook pp b. Jonathan Baker, Beyond Schumpeter vs. Arrow: How Antitrust Fosters Innovation, Supplement at c. United States v. Microsoft, Casebook pp ; Thurs. Mar. 7 The Qualcomm Cases a. KFTC Summary of Complaint and Sanctions, Supplement at b. FTC Press Release, FTC Charges Qualcomm With Monopolizing Key Semiconductor Device Used in Cell Phone, Supplement at c. Dissenting Statement of Commissioner Ohlhausen, In re Qualcomm, Inc., Supplement at d. Koren Wong-Ervin, Douglas H. Ginsburg, Anne Layne-Farrar, Scott Robins, and Ariel Slonim, A Comparative and Economic Analysis of the U.S. FTC s Complaint and the Korea FTC s Decision against Qualcomm, Supplement at e. FTC v. Qualcomm Inc., Decision on Qualcomm s Motion to Dismiss, Supplement at f. FTC v. Qualcomm Inc., Order Granting FTC s Motion for Partial Summary Judgment, Supplement at g. Sullivan & Cromwell client letter, District Court Holds That FRAND Commitment Requires Patent Owner to License All Comers, Including Chip Makers, Supplement at Tues. Mar. 12 Spring Break Thurs. Mar. 14 Spring Break Tues. Mar. 19 Patents and the SEP Holdup Problem 5

6 Thurs. Mar. 21 Patent Assertion Entities Tues. Mar. 26 Product Hopping Thurs. Mar. 28 No Class: ABA Section on Antitrust Law, Spring Meeting: Attendance strongly recommended Tues. Apr. 2 No Class Thurs. Apr. 4 Guest Speaker: Pinar Akman (University of Leeds) Tues. Apr. 9 Pay for Delay, a/k/a Out-of-Court Settlements Thurs. Apr. 11 Guest Speakers: Careers in Antitrust Tues. Apr. 16 No Class Thurs. Apr. 18 No Class Tues. Apr. 23 No Class Thurs. Apr. 25 No Class FINAL EXAM: May 7, 2019 at 12:00 P.M. 6