The Antitrust Attorney Blog

Takings and the Supreme Court’s Decision in Koontz v. St. Johns River Management District

February 12, 2015 | Bona Law PC

If you read The Antitrust Attorney Blog regularly, you might have noticed that I think that the governments—federal, state, and local—tend to overreach into our business, our pursuits, and our lives. And I have strongly advocated that we apply the federal antitrust laws to counter the bloating influence of governments everywhere into our markets.

You may have also noticed my interest in property and real estate. Part of that is personal—I believe that real-estate investing is a great idea. There are many advantages to it. And my wife and I are real-estate investors. Besides antitrust, my firm offers real-estate litigation (in addition to appeals, business litigation, and challenges to government conduct).

Well, these interests have collided into a massive project that I just completed with Luke A. Wake of the National Federation of Independent (NFIB) Small Business Legal Center. We finished the initial version of a law review article entitled Legislative Exactions After Koontz v. St. Johns River Management District.

Update: We are excited to announce that the Georgetown International Environmental Law Review published our article.

This isn’t the first time that Luke Wake and I have written something together. Last year, we published an antitrust article entitled The Market-Participant Exception to State-Action Immunity. Back when I was with DLA Piper, we also worked on an amicus brief together for the NFIB in the U.S. Supreme Court case of FTC v. Phoebe Putney Health System, Inc. Luke is a rising star in the legal world, so you should remember his name.

Koontz v. St. Johns River Management District

In 2013, the Supreme Court enhanced property rights in the United States when it decided Koontz. It was a sharply split decision that included an expertly written dissent by Justice Elena Kagan, who in my view is coming close to equaling Justice Antonin Scalia as the Supreme Court’s top writer.

As an aside, Justice Kagan (then Professor Kagan) was my Administrative Law professor at Harvard Law School and the wit that you see in her opinions was on full display in class. (She did, by the way, mention one day in class that Justice Scalia was her favorite Justice; I don’t think she meant that from an ideological perspective).

Koontz arose in the context of what is called the unconstitutional conditions doctrine, as applied to Takings law. If you don’t know what a Taking is, you can read this short article distinguishing eminent domain and inverse condemnation (takings).

First, some quick background. In 1987, the Supreme Court held in the case of Nollan v. California Coastal Commission that governments cannot attach conditions to permit requirements unless the condition bears a “nexus” to the impact of the proposed project. In 1994, the Supreme Court in Dolan v. City of Tigard further held that such conditions must also bear a rough proportionality to the harm from the proposed project.

The names of the plaintiffs in these cases conveniently rhyme, so people in the takings arena refer to this doctrine as the Nollan and Dolan requirements.

Here is what happened: Coy Koontz, an entrepreneur in the Orlando, Florida area, sought to develop some property that he held. Sounds reasonable enough. The property was zoned commercial and he sought a permit for its development.

Florida, however, had enacted comprehensive environmental restrictions that required a state agency to review any such applications to determine whether the proposed project will reduce wetlands. So, in this case, Mr. Koontz couldn’t develop his land unless the St. Johns River Management District blessed the project.

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US Supreme Court Allows Appeal of Terminated Individual Case from MDL Proceeding

January 21, 2015 | Bona Law PC

The US Supreme Court just issued its decision in an antitrust case called Ellen Gelboim v. Bank of America Corporation. This case arises out of major multi-district litigation (an MDL) centered on allegations that major banks conspired to manipulate the London InterBank Offered Rate (which you probably know as LIBOR) to lower their interest costs on financial instruments sold to investors.

For purposes of Gelboim, the intricate details of the alleged conspiracy are not relevant, but you should know that it led to over 60 actions filed in federal court against the banks.

That sounds like a lot of cases and you might infer from the large number that the defendants must have done something wrong if so many people are suing them. But that isn’t necessarily true.

What happens is that a government agency announces an investigation (or it leaks) or someone has the idea that there is price-fixing, market-allocation, bid-rigging or some related horizontal per se antitrust violation going on.

There are plaintiff law firms all over the country that specialize in bringing these types of lawsuits and when one appears, you see many more very quickly. They follow each other and an antitrust blizzard ensues. It is, in fact, an extremely competitive market among plaintiff firms. And when a big set of cases develop, the plaintiff lawyers are often fighting each other for bigger pieces of the pie more than they battle defendants’ attorneys.

Fortunately, there is a set of procedures that deal with such a situation—Section 1407. This statute created the Judicial Panel on Multidistrict Litigation (JPML), which may transfer the many related actions “involving one or more common questions of fact” to one district court for coordinated or consolidated pretrial proceedings.

Importantly, as the Supreme Court points out, this does not mean that all of the cases are transferred forever into the one district court. They are just there for pre-trial proceedings. Of course, practically speaking, they rarely leave that court as most of these cases are either dismissed or settled. If not, the statute requires that each individual action “shall be remanded by the panel at or before the conclusion” of the pretrial proceedings to the original district court.

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I Started The Antitrust Attorney Blog One Year Ago Today

December 13, 2014 | Bona Law PC

One year ago, I wrote my first blog post for The Antitrust Attorney Blog. Time flies. A lot has changed since then. When I started this blog, I was with DLA Piper. Now I am with a firm called Bona Law PC. DLA Piper is much bigger, of course. But Bona Law is a much more pleasant place to work. And it has a better name.

So, you might ask whether I have any observations about a year of blogging? Or whether I have learned anything during this time? As a Minnesotan might say, you betcha.

I like blogging. I’ve always enjoyed writing, as you can probably tell from my publications. But what is great about having your own blog is that you can write about whatever you’d like. I can say what I want when I want. I can write long articles or short articles. It is entirely up to me, not some list of editorial standards. My preferred writing style is not formal (or stuffy, as I like to describe formal writing). Luckily, the editorial board at The Antitrust Attorney Blog doesn’t care. One other observation is that I have written less for other publications. That wasn’t purposeful, but when I get an idea, I typically write it here rather than for someone else. I will probably continue to write law-review type articles for other publications, but most of my shorter stuff will end up here.

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Do Real-Estate Brokers Violate the Antitrust Laws By Charging Identical Commissions?

December 7, 2014 | Bona Law PC

I’ve often written about real estate on this blog. There are two reasons for this.

The first and most important reason is because my wife and I invest in real estate and thus talk about real estate, so it is on my mind. In fact, I have my California real-estate license. Bona Law PC also offers real-estate litigation services.

The second reason is that real-estate, in addition to its many advantages, creates many unique competition issues. Real-estate agents often engage in cut-throat competition with each other, sometimes even within the same brokerage firm. Yet, the nature of their job requires them to work together for almost every transaction.

In addition, the markets to sell real-estate are primarily local, even though national brokerage firms may dominate each individual geographic area. Within each locality, there are often a handful of large brokerage firms.

Finally, the market for real-estate services and commissions suggests some supra-competitive pricing in that most firms in a certain area will charge approximately the same commission. And the splits between the buying and selling agents are often equal as well. In the Minneapolis, Minnesota area for example, at least as of a few years ago, selling agents would often receive 3.3% and buying agents 2.7% of the purchase price. In my current market, a small village in North San Diego County, the buying and selling agents typically split the 5% commission.

Suspiciously, while technology and other competition has reduced relative prices for many professionals, commission percentages have held relatively steady for real-estate agents, despite the fact that buyers and sellers (especially buyers) can do much of their own homework online. How many of you have purchased a house without spending a lot of time online yourself looking at listings?

So does that mean that real-estate brokerage firms and agents are violating the antitrust laws all over the country? Should we coordinate a dramatic—made for the movies—event whereby federal agents knock down the doors of real-estate firms all over the country one morning, handcuffing and booking the agents that would do anything to get you in their car to show you some houses?

Probably not yet.

In November of this year, the Sixth Circuit decided a case called Hyland v. Homeservices of America, Inc. that nicely illustrates the line between antitrust violation and what is often called conscious parallelism or oligopolistic price coordination.

In Hyland, a class of people who sold residential real estate in Kentucky and used certain real-estate agents sued several real-estate brokerages as a class action under Section 1 of the Sherman Act. Plaintiffs alleged that defendants participated in a horizontal conspiracy to fix the commissions charged in Kentucky real-estate transactions at an anticompetitive rate.

Like agents in many localities, defendants each charged a typical or standard commission rate of 6%, and mostly resist any attempts to negotiate a lower rate. The buying agent’s commission is typically 3%. These numbers may look familiar to you if you bought or sold real estate recently, as real-estate services for most residential real-estate markets are similarly priced.

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The Antitrust Law Journal, Robert Bork, the European Union, and Google

November 30, 2014 | Bona Law PC

When you are an antitrust lawyer, an exciting day each quarter is the arrival of a fresh issue of the Antitrust Law Journal. I’ve previewed these issues in the past, here and here. Once again, the Antitrust Law Journal has arrived and it looks like a great one.

This issue includes an extensive symposium entitled “Robert Bork and Antitrust Policy.” A superstar collection of authors—including Herbert Hovenkamp, Richard Epstein, William E. Kovacic, Judge Douglas H. Ginsburg and many others—discuss Bork’s contribution to antitrust law. And my fellow summer associate from Gibson Dunn & Crutcher (from more than a few years ago), Adam J. Di Vincenzo, wrote the Editor’s Note.

Outside of the antitrust world, Robert Bork is known primarily for his Senate confirmation hearings after his Supreme Court nomination. For those of you that weren’t paying attention during the 1980s, Bork arrived at the Senate hearings as an exceptionally well-qualified nominee by President Ronald Reagan to the US Supreme Court. But for ideological reasons, they rejected him, beginning the phrase and culture of “Borking” a judicial nominee that, although qualified, may not satisfy political litmus tests. Since that time, of course, judicial nominations have, unfortunately, devolved into ideological warfare.

If you were around during the 1970s, you might also remember that Robert Bork was the acting head of the Department of Justice that fired Special Prosecutor Archibald Cox during the Saturday Night Massacre, arising out of Watergate near end of the Nixon Administration.

But—whatever you think of Robert Bork politically—he is a candidate for the antitrust-law Mount Rushmore. His most famous antitrust contribution is a book called “The Antitrust Paradox: A Policy at War with Itself.” As you can tell from the title, it was written during a time of flux and uncertainty in antitrust (1978).

You can read the outstanding articles in the Antitrust Law Journal for more detail, but in a nutshell, Bork’s major contribution with this book was to help set the goals of antitrust law toward consumer welfare. This more narrow approach contrasted with common temptations to use antitrust law as social policy to, for example, protect certain businesses from large companies. Or to use antitrust law as a means to attack “bigness” for other reasons.

Bork was highly influential in persuading antitrust participants that antitrust is really only concerned with activity that harms competition, which is the premise of the antitrust injury requirement. There is, of course, great debate over what, exactly, is consumer welfare and even whether total welfare is a better goal. And his emphasis on using economics to develop antitrust doctrine is mainstream, but there is plenty of room for debate within that framework.

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Entrenching a Monopolist: the FCC, Net Neutrality, and the Cable-Company Merger

November 15, 2014 | Bona Law PC

An article in the Wall Street Journal caught my eye: “FCC Questions AT&T Over Investment Pause: Company Freezes Plans to Build Ultrafast Internet Service.” The reason for the pause is the FCC’s flirtation with the idea of net neutrality.

A government policy of net neutrality would require internet service providers—like broadband companies—to enable access to all content and applications no matter the source and without additional charges for particular products or websites.

This debate is in the news lately because of the issue of whether cable companies that control broadband should be able to charge extra to content companies like Netflix that make greater use of the broadband, or to offer content companies a faster and better route that isn’t available to other companies (for a price, of course). The FCC has been debating this policy, and the issue is wrapped up in the FCC and DOJ’s review of the Comcast-Time Warner merger. President Obama recently came out in support of net neutrality, which adds pressure on the FCC to adopt the policy.

So where does AT&T fit into this?

They are in the process of gaining approval to purchase the satellite company, Direct TV, which is a competitor to the broadband services from cable companies like Comcast and Time Warner. After President Obama issued a statement supporting net neutrality, AT&T announced that it would freeze plans to build ultrafast Internet service in light of new uncertainty around the government’s net-neutrality policy.

Here is the problem: Net neutrality turns broadband service into a more commoditized business. If you are in the business, you must charge everyone equally—the content providers that is—which means there is substantially less room for innovation.

Right now the cable companies offering broadband have substantial market power because they offer the fastest broadband to customers in each locality. Substantial resources over time have built-up the necessary framework and connections to offer broadband service to customers.

When a business becomes commoditized, there are fewer aspects of competition. That is, the product is substantially the same no matter where you get it, so price becomes the biggest area of competition. Businesses then compete by innovating on how to reduce costs and building economies of scale, which usually reduces costs. They do not, however, innovate on improving the quality of the product because, by definition, the product is the same.

If the FCC were to require a net-neutrality policy, it would remove substantial areas of potential competition between the entrenched monopolist broadband (i.e. cable) companies and potential competitors. So competition would primarily be based on cost reduction, which usually comes down to economies of scale.

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The Antitrust Danger of Trade Associations with Power

November 13, 2014 | Bona Law PC

The trade association necessitates a delicate balancing act between anticompetitive conduct condemned by the antitrust laws and pro-competitive information-sharing and best practices that ultimately help consumers.

Trade associations should have antitrust policies and should consistently consult with an antitrust attorney. Antitrust law reserves its greatest scorn to the horizontal agreements—the deals between and among competitors. And a trade association is, by definition, an entity created to bring these competitors together.

Competition Policy International (CPI) published an Antitrust Chronicle this week about trade associations and industry information sharing and I was fortunate that they invited me to publish an article in this issue. My article is called “’But the Bridge Will Fall’ is Not a Valid Defense to an Antitrust Lawsuit.” I discuss one of my favorite Supreme Court cases of all time: National Society of Professional Engineers v. United States.

There are a couple of ways that trade associations—and, really, any group of industry competitors—harm competition and risk antitrust liability. The first and most obvious concern is that the competitors will conspire against their customers or suppliers (don’t forget that buying conspiracies may be illegal too).

For example, a group of competitors may reach agreements on price, output, geographic or product and service markets, contractual terms, etc. These are per se antitrust violations, condemned with little analysis other than whether there was, indeed, an agreement.

The other conspiratorial harm that trade associations or groups of industry competitors can inflict is on competitors from another industry or profession. In my view, this harm is underrated and under-considered. I discussed this concern in a law review article a couple years ago.

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The US Supreme Court Hears Arguments in North Carolina Board of Dental Examiners v. FTC

October 16, 2014 | Bona Law PC

The US Supreme Court does not review many antitrust cases. So when they do, it is kind of a big deal for antitrust attorneys around the world.

On Tuesday, the Supreme Court heard oral arguments in North Carolina Board of Dental Examiners v. FTC, which addressed the scope of state-action immunity from antitrust liability. More specifically, the Court is reviewing whether a state licensing board must satisfy both prongs of what is known as the Midcal test to avoid antitrust scrutiny.

The first element, which everyone agrees applies, requires the defendant entity to show that the State “clearly articulated and affirmatively expressed” the challenged anticompetitive act as state policy. The Supreme Court is deciding whether state licensing boards are subject to the second element as well: whether the policy is “actively supervised by the State itself.” Municipalities and other local governments have a free pass from this second element, but private people and entities must satisfy the active supervision requirement.

So what is the big deal? If an entity—state or private—can show that state-action immunity doesn’t apply, it can violate the antitrust laws at will. It can grab consumer surplus for itself; it can exclude competition; it can behave under different rules than everyone else. And monopoly is quite profitable.

In NC Board of Dental Examiners v. FTC, a state-sanctioned dental board—composed of six licensed dentists, one licensed dental hygienist, and one public member—engaged in actions to exclude non-dentist teeth-whitening services. As you might recall, Bona Law filed an amicus brief in this case. You can learn about the case and our amicus brief here. Among other points, we argued that the Supreme Court should analyze the case as the Court outlined in American Needle, by reference to whether the units of competition—the independent decision-makers—are private. They are. We also advocated that the Supreme Court apply an active state supervision requirement with some teeth.

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Can You Make Money From an Antitrust Hedge Fund?

October 9, 2014 | Bona Law PC

So here’s an idea. Let me know what you think: A hedge fund or other investment vehicle centered on antitrust analysis.

I’ll explain.

As you might know, I am an antitrust attorney. And I write a blog on antitrust and competition law. So, as you may expect, I follow antitrust developments somewhat obsessively at times. As a result, I have a good sense of the practical antitrust implications of certain cases, investigations, or prospective mergers.

I don’t have a crystal ball or anything. Nor do I have any inside information. And since human beings—judges or agency officials—make the relevant decisions, nobody can actually predict what will happen.

But by now, I can review a complaint or a motion to dismiss or description of facts and have a good sense of the strength and risk of the antitrust issues. I think I also have a decent idea how the major antitrust agencies—the FTC and Department of Justice—focus their priorities and like to resolve investigations, cases, and mergers. Like I said, I can’t predict anything with certainty, but there is a high learning curve for antitrust (probably more than most specialties) and I’ve spent a lot of time and effort climbing that curve.

Enough about me—for now anyway.

Let’s talk about antitrust and company stock performance. The obvious scenario is a merger. Two companies, perhaps competitors, announce a merger or acquisition. It isn’t a dead-on-antitrust-arrival merger between the first and second leading companies in a product and geographic market that is easily defined. Instead, it is the sort of merger where the markets are somewhat complicated, perhaps in flux, and it isn’t entirely clear whether an antitrust agency will challenge it or a court will stop it.

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Monopoly, Antitrust, and Making Money

September 15, 2014 | Bona Law PC

You may have noticed Peter Thiel’s provocatively titled article “Competition is for Losers” in the Review section of last weekend’s Wall Street Journal. Since we extol the virtues of competition here at The Antitrust Attorney Blog, perhaps you are bracing yourself for me to rip into his article?

No way! It is a great article. And his discussion is not only a good antitrust primer—without the jargon—but is also absolutely accurate. Thom Lambert at the excellent blog, Truth on the Market, seems to agree.

Of course, you have to read beyond the headline, which is, like most headlines, meant to grab your attention. Peter Thiel in his book “Zero to One,” makes a lot of great points, from both the macro and micro level. I’ll focus on the micro level here.

Thiel contrasts perfect competition with monopoly. In the typical perfect-competition scenario, many firms will sell the exact same product, like a commodity. The market, at least theoretically, will achieve equilibrium, and there is no market power. The market sets the price. The profits for the sellers are minimal—zero if you are talking about economic profit (which assumes a modest rate of return).

In a typical monopoly market, by contrast, the seller is the primary or only firm that offers the product and can determine its own price and quantity produced (of course, even a monopolist can often reach the edge of its own relevant market by setting a price too high). A monopolist usually has a high-profit margin and very healthy profits.

Of course, perfect competition and monopoly are endpoints on a continuum, with lots of room between.

There is a lot to say about the article, but I am going to limit myself to the micro level—the perspective of the individual business not the overall economy.

Thiel develops the unremarkable proposition that it is much better to go into business as a fancy monopolist than a perfect-competition soldier. Thiel says “If you want to create and capture lasting value, don’t build an undifferentiated commodity business.” That’s right.

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