Faculty News
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Law360 Quotes Professor Cotter on Predatory Pricing
July 25, 2019Professor Tom Cotter was quoted in Law360 article titled “EU’s 1st Fine In 16 Years Shows Predatory Pricing Challenges.” The article discusses the European Commissions’ recent decison to fine Qualcomm €242 million ($272 million) for allegedly engaging in a predatory pricing scheme to drive a potential competitor from the chipset market. Cotter noted that internal documentation is usually needed to substantiate a claim that below-cost pricing was intended to exclude a rival, but that E.U. law makes it slightly easier for the complaining party to prevail in these types of antitrust claims by creating a presumption of anticompetitive harm for pricing below average variable cost.
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Prof. Turoski Presents Research on the Internet of Things
July 24, 2019Prof. Turoski presented his research on the patent landscape of the Internet of Things at the National Association of Patent Practitioners (NAPP) Annual Meeting and Conference.
NAPP is a nonprofit organization dedicated to supporting patent practitioners and those working in the field of patent law in matters relating to patent prosecution and its practice. The NAPP mission is to provide networking, education, collegial exchange, benefits, and a collective voice in the larger IP community on patent law and prosecution practice, so that patent practitioners can flourish and achieve the highest levels of competence and professionalism in their practice.
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FTC Watch Quotes Professor Cotter on the FTC's Authority to Regulate Prices
July 23, 2019Professor Tom Cotter was quoted in the newsletter FTC Watch in an artcle titled “In tackling high drug prices, FTC shows partisan split.” The article discusses a recent Federal Trade Commission report in which the three Republican commissioners and the two Democratic commissioners disagreed on the Commission’s authority to invoke section 5 of the FTC Act to combat excessive drug prices. Cotter states that he would have been “surprised to see the FTC start using its Section 5 authority to regulate drug prices ” Cotter also said that, while “section 5 arguably does reach some practices that otherwise would not violate the Sherman or Clayton Acts, as the report states, for quite some time that reach has been interpreted pretty narrowly. Further, the conventional wisdom has long been that U.S. antitrust law doesn’t regulate prices.” Nevertheless, “the fact that two commissioners are open to the idea, at least with regard to drug prices, is interesting.”
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Prof. Vaaler Quoted in Star Tribune on Correlation Between Conspicuous Consumption Theory, CEO Pay
July 21, 2019In a piece highlighting the economic thought of Minnesota native Thorstein Veblen, an economist in the late 19th and early 20th century who developed the theory of conspicuous consumerism, Prof. Paul Vaaler is quoted on the subject of Veblen’s economic ideas and their potential relevance to today’s burgeoning pay of CEOs.
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Law360 Quotes Prof. Cotter on Justice Stevens’s Contributions to IP Law
July 18, 2019A Law360 story titled “Justice Stevens Sought Careful Limits on Reach of IP Law” quotes Professor Tom Cotter on the late Justice’s contributions to IP case law. Cotter stated that Justice Stevens’s copyright and patent opinions “were consistent with an overall view that we should construe the IP statutes somewhat narrowly, and that there are significant risks of monopolization.” Cotter also stated that “[w]hether you ultimately agreed with his views or not, you knew that it would be [a] scholarly, well-thought-out, well-reasoned opinion. … That was the sort of lawyer and justice that he was.” Cotter shared some further observations on his blog earlier this week, after hearing of the Justice’s death.
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Law360 Quotes Prof. Cotter on the DOJ’s Statement of Interest in FTC v. Qualcomm
July 18, 2019Professor Tom Cotter was quoted in a Law360 story titled, “FTC Facing Qualcomm Alone as Trump Admin. Turns on Case.” The article discusses the recent filing of a Statement of Interest on behalf of the Departments of Justice, Defense, and Energy in support of a stay pending appeal in Federal Trade Commission v. Qualcomm, an antitrust case. (The FTC—an independent federal agency—won at trial, Qualcomm is now appealing, and the Antitrust Division of the Department of Justice is arguing that the decision was wrongly decided.) The article quotes Professor Cotter as stating that “it’s really, really unusual to have the two federal [antitrust] enforcers at odds with each other in such a public way.”
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Prof. Hickman’s Amicus Brief in Tax Case Published, Reported by Tax Notes
July 17, 2019An amicus brief filed by Prof. Kristin Hickman in support of rehearing en banc in CIC Services LLC v. Internal Revenue Service, 925 F.3d 247 (6th Cir. 2019), was published and commentary on the brief was reported by Tax Notes (subscription required). The case concerns whether the tax code’s Anti-Injunction Act precludes pre-enforcement judicial review of Administrative Procedure Act challenges to tax regulatory actions. A three-judge panel of the Sixth Circuit divided over that issue, with both the majority and dissenting opinions citing and addressing arguments raised by Prof. Hickman and Gerald Kerska ’17 in Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683 (2017). Prof. Hickman drew extensively from the article in encouraging the court to order rehearing en banc.
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Prof. Kitrosser Discusses Census Case on The Rick Ungar Show
July 10, 2019Professor Kitrosser spoke to Rick Ungar of the nationally syndicated radio program, “The Rick Ungar Show,” about the ongoing census litigation. In the broadcasted conversation, Professor Kitrosser weighed in on various matters including the reasoning in the U.S. Supreme Court’s June 2019 opinion in the case, possible Justice Department legal theories on remand, and the Justice Department’s recent request to switch attorneys in the litigation. Professor Kitrosser’s segment begins at the 19 minute mark.
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Law360 Quotes Prof. Cotter on EU Mastercard Antitrust Case
July 8, 2019Professor Thomas Cotter was quoted by Law360 on the European Commission’s decision earlier this year to fine MasterCard €570 million for its practice, since discontinued, of forbidding merchants in EU member states from shopping for lower rates offered by banks in other EU states outside their home country. Cotter stated that the case provides “insight into how the commission sets penalties” and into how it “understands what sort of conditions will have an anti-competitive impact.”
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Prof. Hickman Cited In U.S. Supreme Court Opinion
June 26, 2019Prof. Kristin Hickman’s essay, The Chevronization of Auer, 103 Minn. L. Rev. Headnotes 103 (2019), co-authored with Mark Thomson ’12, was cited by Justice Gorsuch in his concurring opinion in Kisor v. Wilkie, No. 18-15 (June 26, 2019). The Kisor case concerned whether the Supreme Court should overturn the Auer doctrine, which calls upon courts to defer to federal government agency interpretations of their own regulations. Commenting on the case in their essay, Hickman and Thomson noted that common practical justifications for the Auer doctrine assumed that it simplified the judicial task and fostered consistency and predictability in the administrative process. But, they observed, various qualifications and exceptions that the Court has more recently added to the Auer doctrine have made its application substantially more complex and have undermined those practical rationales. Despite concurring in the Court’s decision to retain the Auer doctrine, Justice Gorsuch was sharply critical of the Court’s Auer jurisprudence, and cited Hickman and Thomson as supporting his contention that “Auer has also become ‘a doctrine of uncertain scope and application’ … [that] has resulted in ‘widespread confusion’ about when and how to apply Auer deference.”