Tel Aviv-Berkeley LL.M. Program 2017
Technology Antitrust
Hanno Kaiser. University of California, Berkeley, School of Law, Room 100; Time: 9-11:45 am
Class 1: Technology Antitrust: A Framework and a Baseline Case
July 31, 2017 (Monday)
Topics for discussion
- A roadmap for this course
- The goal(s) of antitrust
- First draft of the “antitrust superstructure”
- Three market power levels (low, medium, high)
- Two levels of conduct regulation: Baseline prohibitions and special obligations
- Three basic anticompetitive strategies (Collusion, exclusion, leveraging)
- Two modes of analysis: rule of reason and per se
- Distributed antitrust enforcement in the U.S. (Private plaintiffs; DOJ & FTC; State Attorneys General)
- The legal framework: §1 of the Sherman Act; §2 of the Sherman Act; §7 of the Clayton Act; §5 of the FTC Act; Hart-Scott-Rodino (“HSR”) Act
- A look at an uncontroversial baseline: Criminal cartel conduct
- Price fixing, market allocation, bid rigging
- How cartels work: Creating artificial scarcity to get a bigger slice of a smaller (and more expensive) pie
- The impact of the current administration on the rule of law in general and antitrust enforcement in particular
Reading Materials
Optional
Class 2: Disruptive Business Models or Illegal Cartels?
August 1, 2016 (Tuesday)
Topics for discussion
- The rule of reason
- The ancillary restraints doctrine
- Apple: The U.S. v. Apple “eBooks” case (2015)
- Disruption via de novo entry as per se illegal conduct?
- Uber: The Meyer v. Kalanick case (ongoing)
Reading Materials
- United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015). Excerpts
- Meyer v. Kalanick, 174 F. Supp.3d 817 (S.D.N.Y. 2016). Excerpts
Optional
- Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1 (1979). Excerpts
Class 3: Platform Wars and the Modern Law of Monopolization
August 2, 2017 (Wednesday)
Topics for discussion
- Monopolization and abuse of dominance cases in the high tech sector
- U.S. v. Microsoft (2001)
- EC v. Google/Search (2017)
- German Federal Cartel office investigation of Facebook (ongoing)
- Network effects and market power (Operating systems and applications; mobile operating systems and services; internet search; social networks; messaging applications, etc.)
- Exclusionary strategies (exclusion, leveraging)
- Exploitative strategies (e.g., in the EC)
- Antitrust and privacy regulation
Reading Materials
Optional
Class 4: Technology M&A in the Real World
August 3, 2017 (Thursday)
Topics for discussion
- Is your deal HSR notifiable?
- The U.S. regulatory process (e.g., pull and refile, second request, timing agreements, consent order settlements, litigation)
- Three questions that capture 90% of all M&A antitrust issues
- The three categories of evidence that the agencies are looking for
- Gun jumping, integration planning
- Recent technology transactions
- Facebook/WhatsApp (2014)
- Microsoft/Linkedin (2016)
Reading Materials
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