Herb Hovenkamp

The Fed Cir held in Global Tubing v. Tenaris, 2026 WL 530911 (Feb 26, 2026) that a firm claimed to have a 26% market share could be guilty of attempted monopolization by intentionally withholding material documents in its patent application. Things are changing at the Fed. Cir.

Thibault Schrepel and I have a coming piece in Harv Bus. L. Rev. on collusion through digital management programs. US and EU decisions substantially agree. The most difficult issue is distinguishing innocent information exchanges and unlawful agreement. papers.ssrn.com/sol3/papers....

In a revised Facebook opinion, Dec. 2, 2025 WL 3458822, J. Boasberg removed redactions, concluding FB's market share was “almost certainly below 54%" and falling, in a market without YouTube -- too low for §2. Seems cautious to include YouTube, even though the substitution evidence would include it.

My article on the Google Search Remedies decision, focusing on remedies for digital market dominance, will appear in the Boston University Law Review. papers.ssrn.com/sol3/papers....

ANTICOMPETITIVE DIRECTORS - Columbia Law Review “The practice of interlocking directorates is the root of many evils. It offends laws human and divine.” — Justice Louis Brandeis. Introduction Antitrust law prohibits competing corporations from shar...

Lanes Miles, Mark Lemley, and my new Wharton colleague Rory Van Loo have an interesting new article on interlocking directorates. They are more numerous, and also sometimes sit as senior directors at large institutional investors. "Anticompetitive Directors," columbialawreview.org/content/anti...

I don't disagree, but we also TM bananas (Chiquita and Del Monte). What is that signaling? I'm guessing no product differentiation whatsoever. quality? not unless there are inferior alternatives. And I don't think it's status.

okay, I'm convinced.

but does trademark have much to do with it? isn't it the same as Thorstein Veblen's big front yards of untilled ground? ("conspicuous consumption"). Probably easier to fake a Rolex than a big yard.

I'm not a good predictor, but I have doubts. I don't think that even this SCT wants to extend Trinko to remedies, and the less-restrictive alternative issue seems to be more words than substance.

Google v Epic Cert Petition + Appendix 10-27-25 Final

Google's cert. petition agnst Epic Games (10-27, 9th Cir.) asks whether rule of reason antitrust plaintiff has a burden to prove a less restrictive alternative; and also attacks the notion that Trinko's refusal to deal doctrine does not apply to remedies. www.documentcloud.org/documents/26...

In Academy of Allergy, 2025 WL 2886701 (6thCir. Oct. 10, 2025) the court held that the SCT’s indirect purchaser rule (in this case “indirect supplier”) precluded an antitrust action against a harmful cartel. A concurrence lamented that fact. It’s time to overrule Illinois Brick.

Vols 12, 13, 14 of Antitrust Law, 5th edition came out today—cartels, joint ventures, and Robinson-Patman Acr

Here is my draft of a relatively short but article-length assessment of Judge Mehta’s Google Search remedies decision. Still under revision and comments welcome. papers.ssrn.com/sol3/papers....

My piece on "Finding Monopoly: Antitrust Market Definition" is in the Sep. 2025 CPI Antitrust Chronicle, part of a symposium on market definition in antitrust. No longer paywalled. papers.ssrn.com/sol3/papers....

Self-Preferencing in Retail Digital Marketplaces: Evidence from Transaction Data The authors analyze retail transaction data to explore self-preferencing practices.

Good piece by Antonie, Gonzales & Shao: self-preferencing occurs less on digital markets than in the old economy; consistent with fact that online consumers have lower search costs, and indicates flaws in Biden admin targeting of online markets. www.cornerstone.com/insights/art...

CoStar, 2025 WL 2573045 (9thCir) refused to dismiss a complaint alleging that monopoly power for Sherman Act §2 purposes could be inferred simply from the fact that D persistently charged higher prices than its rivals for years, saying nothing about margins or output restrictions.

Yes, it's a win for Google, but I think a win for U.S. technology and its users as well, as well as appropriate recognition by the court that messing around with market structure in a market as dynamic as this one could spell disaster.

The BrwnShoe factors for antitrust market definition can send judges to insane lengths to twist them. See Harley-Davidson, 2025 WL 2374859 (dissenter would find relevant market by interpreting BShoe's "unique production facilities" factor to mean "American made.").

In Gibson the 9th Cir problematically rejected an antitrust claim that the “hub” in a hub-and-spoke conspiracy provided hoteliers with nonpublic price information and the hoteliers (“spokes”) agreed to “abide by” its pricing algorithm’s recommendations. cdn.ca9.uscourts.gov/datastore/op...

What Do the Epic Games’ Lawsuits Against Apple and Google Say About the DOJ’s Apple Case? - ProMarket Herbert Hovenkamp reviews Epic Games’ lawsuits against Apple and Google for restraining users’ ability to access Epic’s offerings through third-party app stores. A comparison of the two ecosystems she...

Promarket has published my paper on the Epic Games antitrust suits against Apple and Google Play, and their implications for the government’s own pending lawsuit against Apple, including some observations about market definition and remedies. www.promarket.org/2025/08/12/w...

In Papa John's the court provisionally certified a class action of franchise food employees subject to a no-poach agreement; the court assumed that it was unlawful per se. Papa John's Employee and Franchisee Antitrust Litig., 2025 WL 225564 (WDKy. 8-7-2025).

all true and maybe here too. Do you agree that the chances of SCT review on the market definition issue are extremely slim?

In the Google Play case they court rested on the jury's finding of an "Android-only" relevant market. The earlier case challenging the same conduct by Apple found a market for "mobile game transactions" that included both Android and Apple. Can both of them be correct?

Does AI support anticompetitive leveraging strategies? See Erik Hovenkamp's short and accessible paper: "spread of AI is likely to increase the prevalence and complexity of leveraging strategies in digital markets. This poses a challenge to antitrust." papers.ssrn.com/sol3/papers....

EpicGames decision is a good example of a secondary refusal to deal, which should be treated more like tying rather than refusal to deal, where liability is hard to get. The "tie" is not reachable classically, because there is no agreement; instead, it is created by code.

In Brantmeier v. NCAA, 2025 WL 2108638(MDNC July 29, 2025) the court certified an injunction and a damages class [23(b)(2) & (3)] of collegiate tennis players objecting to an NCAA rule limiting their participation (and compensation) in non-NCAA tennis tournaments and activities.

In Quinton v. Amex, 2025 WL 1994848 (EDNY 7-7-2025) the court admitted testimony that Amex's anti-steering rule was unlawful "cross-subsidization" -- a rare case permitting theory that a pure wealth transfer from poorer to wealthier customers could be an antitrust violation.

The U.S. Supreme Court and the Merger Efficiency “Defense” - Network Law Review Firms’ principal motives for merging are not to increase market power, but rather to improve firm outcomes through changes in internal operations or structure. Of the 17000+ mergers that occur annuall...

My new piece in Network L.Rev. A trivial % of mergers are motivated by price. Nearly all are efforts to improve production by scale or uniting complements. So a merger “efficiency defense” is wrongheaded, and the Supreme Court has not embraced it. www.networklawreview.org/hovenkamp-ef...

Christopher Leslie has published a very interesting article on how antitrust can pursue tacit (implicit) collusion more effectively, especially in concentrated markets. Leslie, Antitrust's Interdependence Paradox, 111 Va. L. Rev. 787 (2025), virginialawreview.org/articles/ant...

An interesting cert. petition in the SAP vs Teradata case asks the Supreme Court to get rid of the per se rule for tying arrangements -- well timed given the status of some big tech cases. SAP SE v. Teradata, 2025 WL 1810683 (2025). The lower court: 124 F.4th 555 (9th Cir 2025)