Distribution, Competition, and Antitrust / IP Law

Archives for June 2014

“Taking the Law Out of Harvard Law School”

Harvard Law School Langdell Library in Cambrid...

Harvard Law School Langdell Library in Cambridge, Mass. (Photo credit: Wikipedia)

The absurd disconnect between legal education and practice has often been noted, but Max Kennerly has a superbly-articulated critique of the continuing state of affairs at HLS and other law schools.

(No, I don’t agree with everything else on Max’s blog.)

Blog “Hop” — Why I Write

My fellow blogger Brian Rogers recently asked me to participate in a “blog hop.” This particular blog hop got rolling (hopping?) with a post by Bill Ellis. What’s a blog hop, you may ask? Well, I didn’t know either before this post, but the idea is that it’s a way to connect readers to other complementary blogs they might not otherwise discover on their own. At the end of this post, I’ll introduce you to some other bloggers who are going to continue hopping (as it were) and also provide some information on Brian, who wrote his hop post last week.

The topic of this blog hop is “Why I write.”

What am I working on?

In addition to monitoring recent cases for developments that may warrant a mention, I’m also planning to do some more in-depth, multi-part pieces (similar to a set last year that I did on patent licensing issues). Possible ideas include a treatment of various vertical restraints (exclusive dealing, resale price maintenance), California competition law issues, and issues involving the extraterritorial application of antitrust/competition law.

How does my writing differ from others of its genre?

I’ve tried hard to keep blog posts to a few hundred words or fewer. I’ve also tried to keep them pithy and interesting but also sufficiently informative. The biggest danger in legal blogging – and in particular, I think, with blogging about complex areas such as competition law – is TMI (too much information). I review statistics on what people read here, and they confirm that posts that are short, succinct, and have practical value are the ones that are most widely read (and presumably the most useful). I may not always live up to this standard . . . but it is what I try to do.

Why do I write what I write?

I started writing this blog for my own use – as a resource. But I’ve discovered that it’s a great way to tell people about competition law issues – which really are often fascinating. It’s also allowed me to “meet” (at least on the Internet) lots of folks who have a similar interest. Nowadays, I’m writing with an eye towards growing the blog’s readership further and to encourage debate and discussion both on the comments here and elsewhere.  (I’m pleased to say that the blog readership — both on this webpage and in several other syndicated channels– typically is 5,000 to 10,000 a month.)

How does my process work?

Antitrust law is very active these days – particularly in California. There’s simply too much of it to cover everything, and I don’t try (there are better resources out there for instantaneous and comprehensive coverage). Instead, I try to look for one significant development each week that’s worth writing about. Some weeks, I’ll do a more substantive piece instead, or will do part of a multi-part posting on some issue that warrants even deeper explanation. Occasionally I’ll do a book or article review, or post something tangentially (but perhaps humorously) related to antitrust issues.

Please visit my blogging colleagues’ blogs

Finally, let me introduce you to some blogging colleagues and encourage you to visit their blogs, which are highly readable and make accessible even complicated topics. They’re also all on Twitter.

Brian Rogers

brian-rogersBrian (@_thecontractsguy) writes a blog at The Contracts Guy that discusses issues involving the legal aspects of contracts and the process of contracting. He’s also the founder of Blue Maven Law LLC, a new(ish) firm dedicated to bringing a new and innovative legal services approach to building businesses. Brian is of counsel at the St. Louis-based law firm Evans & Dixon, LLC.

Katie Lane

KatieLaneKatie (@_katie_lane) writes a blog at Work Made for Hire. She used to work as in-house counsel for a company but is now a freelance attorney. She writes for an audience of freelancers and focuses on contracts and negotiation.


Jennifer Romig

JenniferRomigJennifer (@JenniferMRomig) writes the Listen Like a Lawyer blog. She’s a legal writing consultant in Georgia. In her blog Jennifer explores the theory and practice of effective listening. She’s also a fan of checklists.


Adrian Walters

Adrian (@walters_adrian) writes The Walters WaAdrianWaltersy blog. He’s a law professor at Chicago-Kent College of Law in Chicago. His blog is a resource for law students and he tries to use it to connect students in a practical way to the law of contracts, bankruptcy, and business organizations.


Basketball, Surreptitious Recordings, and Antitrust

Donald Sterling — yes, that Donald Sterling — filed an antitrust lawsuit a few days ago against the National Basketball Association.  You can download a copy here: Sterling Antitrust Complaint.

It’s not clear if the complaint has now been mooted — Mr. Sterling apparently filed it after reaching an agreement to sell the Los Angeles Clippers to Steve Ballmer only because the NBA allegedly refused to confirm that it was cancelling the June 3, 2014 owners’ meeting(*) regarding a forced sale of the franchise.

The complaint asserts causes of action for breach of contract and the like.  The gist of the single antitrust claim is that there is a market for ownership of NBA franchises and that a collective decision to force a sale of the Los Angeles Clippers would injure not only Mr. Sterling but also competition in the market.  It would “mak[e] the relevant market unresponsive to consumer preference and to the operation of the free market.”

The complaint seeks at least $1 billion in damages.

The issue raised is an interesting one: can a sports league collectively control its membership?  If the answer is “no,” how far does the principle extend?  Is there a “market” for golf club memberships which cannot be constrained by collective action to vote out a club member for boorish behavior?  What about membership in non-profit associations generally?  If you think these latter restraints are OK, is the limiting principle found in the relevant market definition (i.e., being banned from one golf club out of dozens or hundreds in a metropolitan area isn’t competitively significant)– or somewhere else?

(*) Technically, a meeting of the NBA Board of Governors.

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