Antitrust and Competition Law Tutorial, Comparative Analysis of U.S

Antitrust and Competition Law Tutorial, Comparative Analysis of U.S. and E.U. Law Santa Clara University School of Law 2020 Summer Law Program at Oxford University July 3-31 Professor Catherine Sandoval, Santa Clara University (Rhodes Scholar, M.Litt. Oxford) Syllabus, Summer 2020 for Three Credit Tutorial SCU Law Oxford Summer Law Program Information is Available at: https://international.scu.edu/index.cfm?FuseAction=Programs.ViewProgramAngular&id =10015

Textbooks Required:

COMPETITION LAW AND POLICY IN THE EU AND UK, Barry Rodger and Angus MacCulloch (5th Edition 2014) ANTITRUST LAW AND POLICY, Sullivan, Hovenkamp, Shelanski & Leslie (8th Edition 2019) Other Materials as listed in the tutorial syllabus are available at the Bodleian Library. Designated materials will be sent as a PDF to enrolled students by Professor Sandoval.

Instructor: Professor Catherine Sandoval has taught Antitrust Law since 2004 and published articles on Antitrust Law Market Definition, the Federal Trade Commission Act, and Antitrust and Intellectual Property issues including analysis of agreements between Pharmaceutical Patent Holders and Generic Drug Markers Regarding Generic Market Entry. As a Commissioner of the California Public Utilities Commission (CPUC) from Jan. 2011-Jan. 2017, she led the CPUC’s investigation into several license transfer applications in the context of mergers including the applications to transfer T-Mobile’s California licenses to AT&T, and the application to transfer Verizon’s landline licenses and assets to Frontier. She was retained by the California Attorney General’s Office as an expert in the Sprint-T-Mobile merger litigation brought in 2019 by the Attorneys General of 13 states and the District of Colombia. As Vice-President and General Counsel of Z-Spanish Media Corporation, she led the legal and regulatory proceedings at the U.S. Department of Justice and Federal Communications Commission that approved the merger of Z-Spanish Media and Entravision Communications Corporation. Professor Sandoval holds a B.A. from Yale University, an M.Litt from Oxford University, and a J.D. from Stanford Law School. She hails from a trailer park in East Los Angeles, was the first in her family to earn a B.A., the first Latina to win a Rhodes Scholarship, and the first Latinx CPUC Commissioner.

Professor Sandoval can be reached at: [email protected]. To communicate with Professor Sandoval regarding the Antitrust Law Tutorial at SCU Law’s Oxford University Summer Law Program please label the heading: Oxford Antitrust Tutorial. These steps will help Professor Sandoval give priority to your questions or submissions. Page numbers refer to the textbooks above. Case names are highlighted in italics.

Tutorial Overview

1. Introductory Meeting, July 3, Goals of Competition and Antitrust Law 2. Tutorial One, July 7, Antitrust Market Definition, Platforms, and Multi-sided Markets 3. Tutorial Two, July 14, Abuse of Dominance, Abuse of Monopoly Power 4. Tutorial Three, July 20, Antitrust Analysis of Mergers and Joint Ventures 5. Tutorial Four, July 24, Collusion, Conspiracies, Price Fixing, and Information Exchange, Antitrust in the Algorithm Age 6. Tutorial Five, July 29, Antitrust and Intellectual Property

I. Tutorial Introductory Meeting July 3:

Antitrust and Competition Law Theory COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 2-29. ANTITRUST ENFORCEMENT IN THE E.U., 32-71 This tutorial will discuss an overview of Antitrust and Competition Law Theory in the United States, U.K. and European Union (EU). No paper is assigned for this meeting. Students should be prepared to discuss the reading materials.

See, https://ec.europa.eu/competition/antitrust/overview_en.html Directorate-General Competition, (DG Comp), https://ec.europa.eu/dgs/competition/index_en.htm

II. July 7, Tutorial One, First Paper Due July 6 by 9:00 p.m. via email to Professor Sandoval

Antitrust Market Definition COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 2-29. COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 74-89.

ANTITRUST LAW AND POLICY, pp. 677-705; 714-730; 736-747 [emphasis on American Can (677); Alcoa (691); DuPont (723) Grinnell (741)]

Platforms and Multi-sided Markets ANTITRUST LAW AND POLICY, pp. 571-598, (emphasis on American Express (571))

ANTITRUST ANALYSIS OF PLATFORM MARKETS: WHY THE SUPREME COURT GOT IT RIGHT IN AMERICAN EXPRESS, David Evans, Richard Schmalensee (2019) (available at Bodleian Library); pp. 9-49

2 E.U. Analysis of Facebook Acquisition of Whats App, Market Definition and Network Effects, https://ec.europa.eu/commission/presscorner/detail/en/IP_14_1088. https://ec.europa.eu/competition/mergers/cases/decisions/m7217_20141003_20310_3962 132_EN.pdf.

E.U. Fines Facebook €110 million ($122.7 million) for Providing Regulators Incorrect or Misleading Information for the EU Commission Analysis of Facebook’s Acquisition of Whats App, https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1369

Essay topic: Analyze theories of product and geographic market definition, contrasting consumer-centric theories that focus on product substitutability and innovation-based theories that focus on dynamic market change. Discuss the challenges of platform and multi-sided markets to market definition and conceptualizations of behavior that should be subject to antitrust inquiry and enforcement.

III. July 14, Tutorial Two, Second Paper Due July 13 by 9:00 p.m. via email to Professor Sandoval

Abuse of Dominance, Abuse of Monopoly Power COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 92-139.

HANDBOOK ON EUROPEAN COMPETITION LAW: SUBSTANTIVE ASPECTS, Ioannis Lianos, Damien Geradin, Ch. 10, pp. 423-473, Abuse of Dominance, Exclusionary Pricing Abuses, Alison Jones and Liza Lovdahl Gormsen; Ch. 11, pp. 473-515, Abuse of Dominance, Exclusionary Non-Pricing Abuses, Renato Nazzini (2013) (@ Bodleian Library)

ANTITRUST LAW AND POLICY, pp. 191-205 [emphasis on Chicago Bd. Trade (194), Appalachian Coals (202)], pp. 205-215 [emphasis on Socony Vacuum (p.206)].

Antitrust Procedures in Abuse of Dominance, European Union Analysis, https://ec.europa.eu/competition/antitrust/procedures_102_en.html

Digital Platforms and Firms, Antitrust Analysis: Remarks at panel discussion “Antitrust and digital platforms around the world,” 2019, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Progr am/Antitrust%20Tutorial/Syllabus/Johannes%20Laitenberger%20DG%20Comp %20EU%20Digital%20Economy%20Competition%20Analysis%20March%20201 9.pdf

Antitrust Law in the Digital Age:

Developments in EU competition control in the global and digital age, Johannes Laitenberger Director-General for Competition, European Commission, Fordham

3 Antitrust Law and Policy Conference – New York, 6 September 2018, https://ec.europa.eu/competition/speeches/text/sp2018_12_en.pdf

European Commission, DG Comp, Google Android Decision, Abuse of Dominance, 2018, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/EU%20Google%20Android%20Decision%202018.pdf

European Commission, DG Comp, Google Android Decision and €4.34 Fine, Abuse of Dominance, 2018, https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4581

European Commission fines Google €2.42 billion for abusing its market dominance as a search engine by giving an illegal advantage to another Google product, its comparison shopping service, https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1784

European Commission, Google Search (Shopping) Abuse of Dominance Decision, 2014, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/EU%20Google%20Search%20Shopping%20Decision%202 017.pdf

Attorneys General of Several States Investigate Facebook for Allegations of Abuse of Monopoly Power, Sept. 2019, https://ag.ny.gov/press-release/2019/ag-james- investigating-facebook-possible-antitrust-violations; https://ag.ny.gov/press-release/2019/attorney-general-james-gives-update-facebook- antitrust-investigation

Attorneys General of Several States Investigate Google to Determine if Google Violated U.S. Antitrust Laws to Gain or Maintain Monopoly Power, Sept. 2019, https://ag.ny.gov/press-release/2019/attorney-general-james-announces-antitrust- investigation-google

Deceptive Conduct, Misrepresentation and the Federal Trade Commission Act, FTC Fines Facebook $5 billion for Misrepresentation and Deceptive Conduct Regarding Privacy Settings Relevant to Cambridge Analytica Investigations, https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty- sweeping-new-privacy-restrictions

FTC v. Facebook, Complaint, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/FTC%20v%20Facebook%20Complaint.pdf

U.S. DOJ Launches “Big Tech” Antitrust Investigations, https://www.cnbc.com/2019/07/23/doj-reportedly-to-open-broad-antitrust-review-of-big- tech-tech-stocks-dip.html

4 Apple Considering Allowing 3rd Party Apps, User Changes of Default Apps during “Big Tech” Antitrust Probes, Feb. 2020, https://mspoweruser.com/following-major-ftc-probe-apple-planning-to-allow-3rd-party- apps-as-default-on-ios/

Essay topic: Contrast theories of monopoly power and abuse of dominance in U.S., U.K. and E.U. Antitrust jurisprudence. Analyze themes and major issues in the antitrust and competition policy investigations into leading Internet and digital firms including Facebook and Google, contrasting theories of abuse of monopoly power as compared to abuse of dominance. Explore the limits of antitrust abuse of monopoly power theories as applied to investigations of Facebook and Google in the United States, distinguishing between “building a better mousetrap” as compared to practices that violate U.S. antitrust laws.

IV. July 20, Tutorial Three, Third Paper Due July 19 by 9:00 p.m. via email to Professor Sandoval

Mergers and the Horizontal Merger Guidelines COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 242-289.

ANTITRUST LAW AND POLICY, pp. 963-982, emphasis on Brown Shoe (964), Phil. Bank (971), Gen. Dynamics (977)], pp. 985-1013 [emphasis on Staples (999)]

Background and Notes on Mergers, pp. 965-972 Revised Merger Guidelines Press Release http://ftc.gov/opa/2010/08/hmg.shtm U.S. DOJ and FTC Horizontal Merger Guidelines, 2010 http://ftc.gov/os/2010/08/100819hmg.pdf

Hammond, Sandoval, Baynes, COMMUNICATIONS LAW IN THE PUBLIC INTEREST, Introduction to Merger and Federal Communications Commission License Transfer Analysis, (publication forthcoming 2021), PDF sent by Professor Sandoval

Professor Sandoval, Merger Analysis Power Points, PDF from Professor Sandoval

FTC Investigating Big Tech Mergers with Companies for Deals Below the Hart-Scott- Rodino Antitrust Review Threshold, Feb. 2020, https://www.forbes.com/sites/kennethcorbin/2020/02/11/ftc-opens-probe-into-small- acquisitions-made-by-amazon-apple-facebook-google-microsoft/#6158e480c6d5.

UK Exit From The European Union, Guidance on the Functions of the Competition Market Authority Under the Withdrawal Agreement, Merger Control, pp. 11-19, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/864371/EU_Exit_guidance_CMA_web_version_final_---2.pdf.

5 European Union, Merger Control, Kyriakos Fountoukakos, Dafni Katrana and Samuel Hall, July 2019, https://globalcompetitionreview.com/insight/europe-middle-east-and-africa- antitrust-review-2020/1195105/european-union-merger-control

European Commission, Prohibition of Merger of Tata Steel and ThyssenKrupp, June 2019, https://ec.europa.eu/commission/presscorner/detail/en/IP_19_2948 European Commission, Prohibition of Siemens/Alstom Merger, Feb. 2019 https://ec.europa.eu/commission/presscorner/detail/en/IP_19_881

Johannes Laitenberger Director-General for Competition, European Commission, Recent developments and issues in EU antitrust law: Comments on the European Commission’s merger decisions Wieland/Aurubis and Siemens/Alstom, Feb. 2019, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/Johannes%20Laitenberger%20Director- General%20for%20Competition,%20European%20Commission%20EU%20Merger%20I ssues%20Feb.%202019.pdf

Justice Department Settles with T-Mobile and Sprint in Their Proposed Merger by Requiring a Package of Divestitures to Dish, US DOJ, July 2019, https://www.justice.gov/opa/pr/justice-department-settles-t-mobile-and-sprint-their- proposed-merger-requiring-package

T-Mobile/Sprint Merger Proposal, COMPETITIVE IMPACT STATEMENT, US DOJ, July 2019, https://www.justice.gov/opa/pr/justice-department-settles-t-mobile-and-sprint- their-proposed-merger-requiring-package

T-Mobile/Sprint Merger Decision and Order, New York District Court, Feb. 2020, See PDF from Professor Sandoval

Peter C. Carstensen, Robert H. Lande, The Merger Incipiency Doctrine and The Importance Of “Redundant” Competitors, 2018 WIS. L. REV. 781 (2018), See PDF from Professor Sandoval

Essay topic: Contrast merger analysis theories in the U.S. and E.U., examining theories of static as compared to dynamic market competition and its effect on merger analysis. Analyze theories supporting or counseling against behavioral remedies to mitigate anticompetitive harms arising from mergers, as opposed to structural remedies such as divestitures or prohibiting mergers. Are merger conditions designed to foster new competitors consistent with antitrust principles to stem harm to competition in its incipiency?

6 V. July 24, Tutorial Four Fourth Paper Due July 23 by 9:00 p.m. via email to Professor Sandoval

Market Investigations in the U.K. CONTROL OF ANTICOMPETITIVE AGREEMENTS COMPETITION LAW AND POLICY IN THE EU AND UK, pp. 142-157, 160-209, 212-239.

COLLUSION, CONSPIRACIES, PRICE FIXING, AND INFORMATION EXCHANGE ANTITRUST LAW AND POLICY, pp. 206-252 [emphasis on Socony Vacuum (p.206); Maple Flooring (217); Gypsum (229); BMI (243); pp. 308-324, Apple (308)]

HANDBOOK ON EUROPEAN COMPETITION LAW: SUBSTANTIVE ASPECTS, Ioannis Lianos, Damien Geradin, Ch. 6, Hub and Spoke Collusion, Okeoghene Odude (2013) (@ Bodleian Library), pp. 242-258

Algorithms; Collusion and Price Fixing, Hub and Spoke Conspiracy Facilitation Analysis:

Ai Deng, What Do We Know About Algorithmic Tacit Collusion?, ANTITRUST, Fall 2018, See PDF from Professor Sandoval

Alex Potter, Laura Collins, Martin Dickson, Antitrust.com: Navigating European Enforcement Priorities in Online Distribution, ANTITRUST, Spring 2019, See PDF from Professor Sandoval

Maurice Stucke, Pricing Algorithms & Collusion, 20 Transactions: Tenn. J. Bus. L. 1113(2019), See PDF from Professor Sandoval

Ai Deng, Smart Contracts and Blockchains: Steroid for Collusion? (2018) 28 COMPETITION: J. ANTI., UCL & PRIVACY SEC. CAL. L. ASSOC. 101

Ariel Ezrachi & Maurice E. Stucke, VIRTUAL COMPETITION: THE PROMISE AND PERILS OF THE ALGORITHM-DRIVEN ECONOMY, Pp. 1-71, Pt. 1, Setting the Scene, Pt. 2, Collusion Scenarios, Pt. 3, Behavioral Discrimination, pp. 83-134 (2016) (@ Bodleian Library).

Wentong Zheng, A Knowledge Theory of Tacit Agreement, 9 HARV. BUS. L. REV. 399, 401 (2019), See PDF from Professor Sandoval

Hub-and-spoke arrangements – Note by the European Union, Organization for Economic Development and Cooperation, Dec. 2019, file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/Hub%20and%20Spoke%20Arrangements,%20European%2 0Union,%20Dec.%202019.pdf

7 Hub-and-spoke arrangements – Note by the United Kingdom, Organization for Economic Development and Cooperation, Dec. 2019, https://one.oecd.org/document/DAF/COMP/WD(2019)106/en/pdf

Investigations into Tech Antitrust Practices:

FTC Turns Up Heat With Justice Department in Dueling Tech Probes, Ben Brody and David McLaughlin, Feb. 13, 2020, https://www.bloomberg.com/news/articles/2020-02-13/ftc- turns-up-heat-with-justice-department-in-dueling-tech-probes

Essay topic: Discuss the role of algorithms, artificial intelligence (AI), machine learning (ML) and blockchain in antitrust analysis. Does the potential for coordinating firm behavior including price-fixing through algorithms, AI, ML, or blockchain fit within existing antitrust paradigms in the U.S. and E.U.? Do these mechanisms require new legislation or jurisprudential theories to achieve the goals of antitrust and competition law? Compare algorithm price-fixing and collusion analysis to hub and spoke and other collusion analysis such as the 2015 Apple case.

VI. July 29, Tutorial Five, Final Tutorial Fifth Paper Due July 28 by 9:00 p.m. via email to Professor Sandoval

ANTITRUST LAW AND POLICY, pp. 264-282 [emphasis on NCAA (264) and O’Bannon (277)]; pp. 474-491; 524-527 [emphasis on Activis (474); Colgate (524)]; pp. 592-621; Jefferson Parish (607)]; 621-644; 644-656 [emphasis on Eastman Kodak (621); Microsoft (644); Illinois Tool (648)]; pp. 765-799; [emphasis on Microsoft (765); Indep. Service (792)]; 1150-1156 [emphasis on Allied Tube (1150)].

O’Bannon v. NCAA, YOUTUBE, v.https://www.bing.com/videos/search?q=antitrust+and+intellectual+property&view=det ail&mid=DF489F0158CA1F9E0C09DF489F0158CA1F9E0C09&FORM=VIRE

HANDBOOK ON EUROPEAN COMPETITION LAW: SUBSTANTIVE ASPECTS, Ioannis Lianos, Damien Geradin, Ch. 13, pp. 561-587, Innovation, IPRs, and EU Competition Law, Steven Anderman (2013) (@ Bodleian Library)

Antitrust Issues in the Pharmaceutical Industry:

EU 8th Report on Monitoring Patent Settlements: file:///C:/Users/Owner/Documents/Oxford%202020%20Summer%20Law%20Program/A ntitrust%20Tutorial/Syllabus/EU%20Report%20Monitoring%20Patent%20Settlements% 20March%202018.pdf

Then, now, and down the road: Trends in pharmaceutical patent settlements after FTC v. Actavis, Jamie Towey and Brad Albert, Bureau of Competition, May 28, 2019, FTC, https://www.ftc.gov/news-events/blogs/competition-matters/2019/05/then-now-down- road-trends-pharmaceutical-patent

8 Former Generic Pharmaceutical Executive Pleads Guilty for Role in Criminal Antitrust Conspiracy, Feb. 2020, U.S. Dept. of Justice, Antitrust Division, https://www.justice.gov/opa/pr/former-generic-pharmaceutical-executive-pleads-guilty- role-criminal-antitrust-conspiracy

Michael A. Carrier & Carl J. Minniti III, Biologics: The New Antitrust Frontier, 2018 U. Ill. L. Rev. 1 (2018)

Patent Leveraging and Restrictive Agreements

FTC v. Qualcomm, FTC Brief on Appeal to the Ninth Circuit, Nov. 2019, https://www.ftc.gov/system/files/documents/cases/144_2019_11_22_ftc_answering_brief .pdf.

Antitrust Aftermarket Monopolization Claims:

Queen City Pizza v. Domino’s Pizza, 124 F.3d 430 (3rd Cir. 1997), See PDF from Professor Sandoval

Antitrust Treatment of Aftermarkets in the United States, Andrew J. Heimert, FTC, Sept. 2016, https://www.ftc.gov/system/files/attachments/key-speeches-presentations/heimert_- _aftermarkets_scf_9-8-16.pdf.

Competition/Antitrust Challenges in Technology Aftermarkets, Robert Bell, Jacob Kramer, BRYAN CAVE, March 4, 2015, https://eu- competitionlaw.com/competitionantitrust-challenges-in-technology-aftermarkets/

The Fight for Aftermarkets: IP and Antitrust Issues, Corporate Counsel, Jacob A. Kramer and S. Cagle Juhan, Aug. 10, 2015, https://www.bclplaw.com/images/content/7/3/v2/73352/The-Fight-for-Aftermarkets.pdf

Competition Issues in Aftermarkets - Summaries of Contributions, Organization for Economic Development and Cooperation, Dec. 2019, June 2017, https://one.oecd.org/document/DAF/COMP/WD(2017)1/en/pdf

An analysis of the IBM Commitment Decision concerning the aftermarket for IBM mainframe maintenance, Fabio Domanico, Michela Angeli, https://ec.europa.eu/competition/publications/cpn/2012_1_1_en.pdf

Essay Topic: Discuss and contrast the legal limits placed by U.S. antitrust law and E.U. competition law on use of intellectual property rights (IPR) and agreements between IPR holders and potential competitors after Activis and Qualcomm. Analyze the concept of antitrust aftermarkets in the context of IPRs, competition, innovation, and consumer protection. Do EU conceptions of market dominance influence antitrust aftermarket analysis, and if so how? Discuss the jurisprudential balance in antitrust law between protecting competition and consumers and promoting innovation.

9 Two Credit Research Paper:

Paper Topic Identification: April-June, 2020. Please email Professor Sandoval to identify potential paper topics in advance of the residential portion of the SCU Law Oxford Summer Law Program Paper Topic Meeting: Please sign up for a paper topic meeting between July 7-9 with Professor Sandoval Paper Topic Abstract and Outline, Due to Professor Sandoval: July 15 Paper Professional-level Draft Due, 20-page Research Paper, Professional-Level Draft with full Bluebook Citations Due August 7, 2020. Early Submission of Drafts encouraged by July 31, 2020. Final Paper Professional-level Paper Due, 20-page Final Professional-Level Research Paper Due to Professor Sandoval with full Bluebook Citations, August 21, 2020.