Competition Corner by Alden Abbott - Welcoming Dr. Gregory Werden to Mercatus
Issue #11
Originally Posted November 30, 2022
In taking time to reflect after the Thanksgiving holiday, there are many things that I am thankful for and many opportunities for improvement in the new year. On the positive side, the DOJ abandoned a particularly disastrous SEP licensing policy statement and former Commissioner Phillips penned numerous carefully reasoned dissents prior to his departure from the FTC. The FTC’s recent Section 5 policy statement, however, is an example of unprincipled enforcement overreach by the Commission, which is unlikely to find favor with the judiciary. I highlight the serious problems with the statement and suggest an alternative path forward for the FTC, in a commentary highlighted below.
Dr. Gregory Werden, an esteemed former DOJ economist and key architect of portions of the modern merger guidelines, has joined the Project on Competition as a visiting fellow. In these uncertain times, we expect new, and possibly radical, merger guidelines from the DOJ and FTC., When they are released, Dr. Werden will be the perfect person to provide thoughtful analysis on their implications.
This past month I have also been busy with speaking engagements. I was a member of a panel on Big Tech M&A for the Bipartisan Policy Center, rulemaking and competition enforcement for Competition Policy International, and I moderated a panel on the intersection of standard essential patents and antitrust for IPWatchdog.
Finally, please remember to sign up for the Mercatus Center’s 2nd Annual Antitrust Forum on January 26, 2022. A link is available at the bottom of the newsletter, and I am looking forward to seeing everyone in person this year!
The Mercatus Center At George Mason University Hires DOJ Economist
I am incredibly pleased to announce that Dr. Gregory Werden, former economist at the DOJ’s antitrust division, has joined the Project on Competition as a visiting fellow. See his excellent first commentary for Bloomberg Law below.
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The DOJ Should Not Use Section 2 for Antitrust Criminal Cases | Bloomberg Law
In his first commentary since joining Mercatus, Dr. Werden explains how an antitrust case against a Montana small businessman shows why the Justice Department should not use Section 2 of the Sherman Act for criminal prosecutions.
What IP Stakeholders are Giving Thanks for in 2022 | IP Watchdog
As we conclude celebrating another Thanksgiving holiday in the United States, it’s time once again to reflect on the year so far and to look beyond the many challenges facing intellectual property (IP) owners, and give thanks for some favorable policy developments in 2022.
Letter to AAG Kanter Defending the 2020 Avanci Business Review Letter
I recently cosigned a letter to AAG Kanter, along with a number of prominent legal academics, economists, former government officials and judges who are experts in antitrust and intellectual property law, to voice support for the 2020 DOJ Avanci business review letter and opposition to a recent letter calling for a review of the standard essential patent policies put forth by the department. Through the business review letter process, the Justice Department Antitrust Division has provided guidance to entrepreneurs who sought to facilitate the deployment of technology through pooling arrangements that dramatically lower licensing costs, while taking the necessary precautions to preempt potential antitrust risks. Changing this DOJ guidance could increase market uncertainty and reduce future patent-led innovation.
The New FTC Section 5 Policy Statement: Full of Sound and Fury, Signifying Nothing? | Truth on the Market
The Federal Trade Commission’s Section 5 Policy Statement has faced substantial criticism in the weeks since its announcement. In this commentary for Truth on the Market, I examine why the FTC should quickly abandon this policy statement; replacing it with an entirely new statement based on consumer welfare and sound economic evidence would be better for the institutional credibility of the agency.
Noah Phillips’ Major Contribution to IP-Antitrust Law: The 1-800 Contacts Case | Truth on the Market
Recently departed Federal Trade Commission (FTC) Commissioner Noah Phillips has been rightly praised as “a powerful voice during his four-year tenure at the FTC, advocating for rational antitrust enforcement and against populist antitrust that derails the fair yet disruptive process of competition.” The FTC will miss his trenchant analysis and collegiality, now that he has left for the greener pastures of private practice. In this commentary for Truth on the Market, I take a moment to highlight his particularly masterful dissent from the FTC’s majority opinion in the 1-800 Contacts case.
Upcoming Events
Mercatus Center’s 2nd Annual Antitrust Forum: Policy in Transition | Mercatus Center
During the past year, antitrust policy has been in a state of tension. Enforcers on both sides of the Atlantic are moving toward a more expansive regime filled with rules, regulations, and interventions. Courts, however, are holding firm to an antitrust policy centered on consumer welfare enhancement that has, by and large, held sway over the last four decades. On January 26, 2023, the Mercatus Center will host its 2nd annual antitrust forum at George Mason University. Sign up today to reserve your spot at the antitrust event you won’t want to miss.