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Antitrust Magazine

Volume 38, Issue 1 | Fall 2023

Editor's Note - Monopolization and the Grassroots Mind

Michael A. Lindsay

Editor's Note - Monopolization and the Grassroots Mind
Maica via Getty Images

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Almost a half-century ago, historian (and my uncle) Conal Furay wrote about the grassroots mind in America. He argued that the grassroots mind is oriented “not toward ideas but toward concrete realities and ways to deal with them.” It was not that “ideas . . . are of no importance” to the grassroots mind, but that “such abstractions bump against the priorities of concrete life and fixed principle” and “are most often fended off.” This thesis seemed particularly relevant as I reviewed the articles published in this issue of Antitrust. Some of our articles deal with the intellectual content and doctrinal integrity of antitrust law (and specifically monopolization), but as you will see, some also deal more with what is important to the grassroots mind.

This issue’s theme is monopolization. One important issue today is the concept of a monopolist’s ability to engage in “self-preferencing”—giving preference to the monopolist’s own products over those of the monopolist’s rivals. Professor Herbert Hovenkamp reviews the case law and concludes that current law restricts a firm’s self-preferencing only when the firm has market power in the dominant good and competitive harm results from the refusal to give equal treatment. Mere harm to a competing seller is insufficient. Professor Hovenkamp then explores legislative efforts to address self-preferencing–proposed in the U.S. and adopted in Europe.

Jonathan Jacobson and Ada Wang continue the discussion of self-preferencing, examining it through the lens of antitrust injury. They posit that preferencing one’s own products is the very essence of competition, and they see the current assaults on self-preferencing as a trend of preferring competitors instead of preferring the process of competition. After examining recent U.S. and European case law, they conclude that competitive harm can be addressed through existing categories (including tying, exclusive dealing, and refusals to deal). Self-preferencing, in their view, should be presumptively legal.

Next, editorial board member Ian Simmons leads a panel discussion on best practices in trying a Section 2 case. Doug Melamed, Bonny Sweeney, Professor Christopher Yoo, and John Roberti discuss why we are seeing more monopolization enforcement and whether there are more sectors of the economy where firms have significant market power. On the practical aspects of trying a monopolization case, Sweeney, Yoo and Roberti emphasize the need for good storytelling, including the role of the villain. Melamed stresses the importance of an expert economist who can explain things clearly. In other words, doctrine is important to us as judges and lawyers, but the grassroots mind needs the concrete, the particular, the story.

Wyatt Fore explores an alternative U.S. competition regime—the Federal Maritime Commission’s administration of the Shipping Act. He notes some substantive differences (more common-carrier law and less emphasis on market definition, for example). He also identifies some lessons that antitrust enforcers might draw from the Shipping Act regime, such as swifter time from complaint to decision, and a stronger role for the administrative law judge.

Janet Hui, Wei Huang, and Vanessa Yanhua Zhang take us across the Pacific for a review of Anti-Monopoly enforcement in China. They note an annual increase in the number of merger filings that the State Administration for Market Regulation (SAMR) received since 2020, as well as a lengthening of the time that reviews require. They find significant SAMR investigations in the semiconductor and platform industries—a focus that they expect to continue. Interestingly, they also note SAMR investigations in transactions that fall below the filing thresholds, which is similar to an interest that the U.S. antitrust agencies periodically take as well. They also note the increasing importance of economic analysis in SAMR merger investigations.

This issue includes several valuable articles on non-­monopolization matters as well. One particularly important article is a roundtable discussion of the history and status of the Antitrust Division’s Leniency Program. Editorial board member Kellie Lerner leads a panel with Anna Pletcher, Jane Norberg, Anne Riley, and Richard Powers—an excellent mix of government-enforcement, private firm, and in-house experience. They first discuss the mechanics of how the program works and how its requirements can be satisfied. They then discuss some of the practice challenges of the program, such as the leniency applicant’s balancing the requirement of prompt reporting with the need to conduct a sufficient investigation. They also consider whether there has been a drop in cartel detection and what role the leniency program might be playing in that phenomenon. Next they explore the relationship between the Antitrust Division’s program and the Securities & Exchange Commission’s whistleblower program—and the lessons that each might learn from the other.

Hugh Hollman, Charles Pommiès, and Nicholas Putz describe some lessons of the trans-Atlantic challenge in the Illumina/GRAIL transaction. They observe that the Federal Trade Commission was able to challenge the transaction through the FTC’s own administrative process without seeking an injunction in district court, because the European Commission had suspended the transaction through its own administrative process. The authors describe how the inter-jurisdictional process unfolded and the role that Article 22 of the EU Merger Regulation played. Overall, they stress the need for appropriate checks and balances to protect the legitimacy of administrative processes while still preventing potential administrative overreach.

Michal Halperin offers another take on multinational merger enforcement. After examining three recent multijurisdictional mergers (Illumina-Grail, Sabre-Farelogix, and Microsoft-Activision), she proposes three lessons: that American courts are reluctant to broaden the causes or grounds for blocking mergers; that the EU, UK, and U.S. antitrust agencies are more willing to adopt a less conventional approach and take more risks; and that merger filing thresholds, as they are currently designed, do not capture the most crucial mergers in the technological sector (and thus may lead to under-enforcement in that sector).

Alex Sweatman takes us into the world of private equity and interlocking directorates. The basic idea behind Clayton Act Section 8’s prohibition on interlocks is that if an agreement between two companies would be illegal, the companies should not be able to reach the same result simply by having the same personnel making decision for both companies. Sweatman explores the extent to which Section 8 applies to private equity funds that are not structured as “corporations,” the legal status of the “deputization” theory, and the standards that a private plaintiff invoking Section 8 must satisfy.

Michael Hamburger and Daniel Grossbaum take us back to merger reviews and particularly the “efficiencies” defense. Indeed, they posit that the primary reason for permitting competitors to merge is the potential to generate efficiencies. They argue that courts and competition agencies focus only on possible harms from a merger and either do not fairly consider, or at least place an inappropriate evidentiary burden on, proof of efficiencies. They emphasize that the potentially serious error may well have deprived consumers of lower costs and improved products by preventing procompetitive mergers.

Finally, Jonathan Edelman and Meegan Hollywood discuss the issue of personal jurisdiction in antitrust class actions. The U.S. Supreme Court’s Bristol-Myers decision had held that a state could not assert personal jurisdiction over claims brought by non-residents in a mass action where the defendant was not subject to general jurisdiction in the state. Edelman and Hollywood find that courts have largely applied the Bristol-Myers principle to named plaintiffs, but the results for absent plaintiffs are more mixed: some have applied it, some have not, and others have sidestepped the issue. The authors’ main point is that counsel (whether plaintiff or defense) need to make sure they consider the implications of Bristol-Myers for their case.

With this issue we say farewell to our executive editor Kim Van Winkle. Kim has proven to be a tremendous asset to this publication, and we are very grateful for all her efforts. We wish her the best as she joins the Market Analysis division of the Public Utility Commission of Texas. We are sad to lose her, but we welcome her back to the ranks of Antitrust Section volunteers.

All of us at one time or another are called upon to explain our area of law to people not as immersed as we. As you read the issues in this magazine, I encourage you to think about our work and how we explain it to those who are oriented “toward concrete realities and ways to deal with them.”