We round up the most significant appellate decisions relevant to commercial litigation each week.

Welcome to the Commercial Roundup for July 26, 2023. With the U.S Supreme Court and the highest courts of New York and Texas on hiatus, the Supreme Court of Delaware and nine of the 13 U.S. Courts of Appeals supplied the commercial decisions that Roundup has cut into little pieces for you to sample.

  • Antitrust

Two writers who cover antitrust issues asked me to comment on a Northern District of California judge’s July 11th ruling that the Federal Trade Commission hadn’t met its burden of proving grounds for a preliminary injunction against Microsoft’s $69 billion deal to buy Activision Blizzard. The deal promised to catapult Microsoft into second place in

Washington DC. September 20, 1987

Robert Bork said that serving on the U.S. Supreme Court “would be an intellectual feast”.[1]

Abstract, arcane, and avid for tricky math, the technocratic approach Bork advocated in The Antitrust Paradox: A Policy at War with Itself  has all but devoured the faintly-beating populist heart of antitrust law.

As a result, Paradox has for the 45 years since its 1978 debut made antitrust enforcement actions increasingly costly to bring, far harder to win, and challenging for even competition experts to understand. 

In an economy that has grown 1,000 percent since 1978, suffers from far greater concentration of markets, and brims with ever more gigantic firms, antitrust agencies need more resources (in terms of today’s dollars) than they did then.

Yet they have less. That must change.[2]Continue Reading Antitrust enforcers must have more funding

Last month, the American Antitrust Institute and three economists moved to file amicus briefs in favor of an economic model that quantifies what Google describes as “happiness”. AAI and the economists seek to support opinion evidence in antitrust litigation against Google, In re Google Play Store Antitrust Litig., No. 3:21-md-02981-JD (N.D. Cal.), pending before

A golden age of civil antitrust, from the 1960s into the 1980s, enriched the victims of cartels and monopolies but upset corporate America.  The high cost of paying treble damages claims eventually provoked a spare-no-expense approach to defense. That in turn influenced the way plaintiffs prosecuted their Sherman Act claims.

Much the same thing has

We round up the most significant appellate decisions relevant to commercial litigation each week.

The last week brought losses for antitrust enforcers (“Apple’s concerns over app security” and “Laches and Trinko kill”), for a man who sued to get “co-inventor” status (“Adding option to patent”), for distributors invoking franchise-law protections (“State franchise statute didn’t apply”), for plaintiffs wishing to toll limitations under an 1841 statute (“Defendant’s ‘absence from state”), for some contract deadline enforcers (“Time ‘from’ or ‘after’”), and for some avoiders of collateral estoppel (“Ruling on question of issue preclusion”).

Have a terrific week–Commercial Roundup will see you again next Wednesday morning.

Barry BarnettContinue Reading Commercial Roundup – May 3, 2023