These two papers look at recent decisions and controversies surrounding the counterfactual test under s 36 of the New Zealand Commerce Act 1986, and s46 of the Australian Competition and Consumer Act 2010 respectively. In 2010 the New Zealand Supreme Court in 0867 affirmed the counterfactual as...

Based on an analysis of cartel prosecutions since 2007, this article assesses the way the European Commission has built up its fines in practice. The fines are compared with those imposed by the European Commission over the period from 1999 to 2006. The main findings are that, while fines have...

The certifications of the first two opt-out collective (class) actions - Gibson v. Pride Mobility Scooter and Merricks v MasterCard - were dismissed by the Competition Appeal Tribunal (CAT) under the new UK competition law ‘class action' regime. Here a critical assessment of the CAT's two...

The English courts in Sainsbury's v. MasterCard and Morrisons v. MasterCard came to opposite conclusions on the illegality of MasterCard's multilateral interchange fees (MIFs). While both courts posited bilateral counterfactuals, the Competition Appeal Tribunal (CAT) in Sainsbury's held that...

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating “procompetitive” effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their...

Sainsbury's v. MasterCard establishes the pass-on “defence” in English/UK law. The Competition Appeal Tribunal set out a two-part test which it erroneously distinguished from the economists' notion of pass-on. It then went on the develop key elements of legal test for pass-on in price fixing...

Antitrust law enforcement against vertical restraints has made great progress since the 1970s, building on the advances in economic thinking. Challenges to vertical mergers are rare and most vertical restraints are not prohibited without an analysis of their anticompetitive effects. Most...

I analyze cliff discounts when an incumbent monopolist faces competition from a competitor that can compete for a portion (but not all) of the market, and compare them with both simple pricing and pricing formulas in which the incumbent can cut prices just in the competitive portion of the...

As technology and interconnectivity have continued to flourish, so too has an important and complex form of enterprise: the platform. Services like Uber, Google Search, Hulu, and American Express cater to distinct but deeply-interdependent “sides” of customers that derive value or revenues...

This article is an allegory. The year is 2030, with the Supreme Court taking up an all-too familiar present-day antitrust problem of a dominant firm on one side and a cartel on the other. Using precedent from present day, the future Supreme Court deftly rules that Goliath beats David and his...