A Changing Industry


Near the top of the list of changes in antitrust law is the internationalization of the proceedings . When I started practicing, antitrust law was American law. It seems so quaint today to think of it that way. Today, in my area of specialty monopolization , you often find yourself in a U.S. and a European investigation. That can occur when adversaries, having failed to convince the U.S. authorities, will complain to the European authorities. Some disputes will arise for the first time overseas. Suddenly the client is much more subject to foreign laws, which are different from ours in material ways. This internationalization of antitrust law has evolved during the last ten years .

Clearly, a long- term trend has been the increasing role of economic analysis in antitrust law. That trend spans my career. I started practicing in 1980, and much of the debate that antitrust law needed to involve more economic analysis took place in the late 1970s, so I witnessed the whole evolution. It has reached a point where today the economic side of the antitrust analysis is in many parts of the law the primary analysis. Merger law is the main example; it is much more driven by economics than by case law. In fact, it is almost pointless to talk about case law in a merger case, because economics is what is truly driving the decision.

For the most part, antitrust laws and cases follow economic developments. High tech became the industry to watch and companies like Microsoft, Intel and biotech companies became the objects of antitrust scrutiny because of their importance to the economy. Meanwhile, the steel companies and the other companies that were targets of many years ago are now struggling and seem like less important objects of inquiry. The natural human tendency is to look to what is currently successful in the economy at large and follow the path there. I have joked that from the standpoint of avoiding government scrutiny, you are better off being involved in a dull industry. On the other hand, I represent a client that is in a joint venture to distribute motion pictures over the Internet. I told them they will always have antitrust issues, because they are simply too interesting.

Technology has affected the practice of antitrust for better and worse . On the plus side, the Internet has greatly changed the way antitrust lawyers gather information for our cases, especially for anything having to do with market power. It is astonishing how much faster we can gather market information. It was hard, in the early ˜80s, to find good industry information in a hurry. We had to ask for documents and reports. There were lags between when you requested information and when you had any information that you could start to analyze. It is amazing how quickly today that you can get everyones views, everyones product information or annual reports .

The other great technological change has been the rise of e-mail. So much of e-mail is essentially a conversation. Now, when people converse , there is a permanent record. The amount of evidence of what people were thinking and what their purposes were is vastly greater than it used to be. It has made the process of crafting or defending against intent arguments quite different than it used to be. Now you can piece together through e-mail the evolution of the activity at issue. That was very evident in the Microsoft case, where they were hurt by their e-mail correspondence. Often people forget the potential future importance of e-mail and create terrible evidence. If they were writing a memo, they would never say these things. It has been an eye-opening experience to see the emergence of e-mail. Unfortunately, when it hurts your client's position, it can be difficult to explain e- mails away at trial, even though a lot of it was flip and not well thought through.




Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
Inside the Minds Stuff - Inside the Minds. Winning Antitrust Strategies
ISBN: N/A
EAN: N/A
Year: 2004
Pages: 102

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