I am starting a substack newsletter, “The Monopoly Problem,” substack.com/home/post/p-.... Please sign up for a free subscription and I will try to make it worth your while. I will post as often as my day job permits. Herb Hovenkamp

Is exclusive dealing a legit way to exclude a lower priced generic? In Teva, 2026 WL 1224122 (NDCal 5-5-26) the court sustained most of an exclusive dealing claim that the defendant used it to excluded a generic.

My piece on structure of merger law is coming out in Notre Dame. One Q it asks is why are so many mergers followed by significant gains (lower prices, higher output), and suggests that we underestimate the value of complementarity in horizontal mergers. papers.ssrn.com/sol3/papers....

Hotels won another round on algorithmic price fixing. Segal v. Amadeus Group, 2026 WL 879583, dismissed a complaint against hoteliers who use software to compute "optimal" output and price. See the piece by Thibault Schrepel and myself. papers.ssrn.com/sol3/papers....

Is antitrust law about fairness? @sherman1890.bsky.social’s answer is clear: no, and it never was. In this piece, Prof. Hovenkamp dismantles the growing assumption in competition debates that antitrust should correct inequality or redistribute economic power. www.networklawreview.org/hovenkamp-fa...

Many laws promote fairness or compel redistribution. Antitrust law is not among them. Its concern is limited to preserving market competition. One deviation was the Robinson-Patman Act, which subsidized obsolete business models at consumers' expense. www.networklawreview.org/hovenkamp-fa...

My article on the Google Search remedies decision is now in page proof in the Boston Univ. L. Rev. Lots still going on in this case. here: papers.ssrn.com/sol3/papers....

Lazar Radic has a very good post in TOTM on the war against consumer preferences that has become the EU's Digital Markets Act. A good warning to those in the USA thinking about reviving any movement to pass something similar. truthonthemarket.com/2026/03/19/t...

interesting 3-20-2026 decision by J. Mehta, denying standing in a Google Search case, but also resisting the attempt to find an unlawful "tying arrangement" when a firm includes AI tools in its digital product. Helena World Chron. v. Google, 2026 WL 787882 (DDC).

The Philadelphia Citizen just published an interview with me about an important piece of local antitrust history -- the Philadelphia Bank merger decision. thephiladelphiacitizen.org

The shopping court was invented by Sylvan Goldman, whose Sun chain owned 55 stores by that time and later merged with others to become Piggly-Wiggly -- not as big as Kroger, but a large chain nonetheless.

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....

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'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....

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...

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.

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)

CoStar v Commercial Real Estate Exchange, 2025 WL 1730370 (9c 6-23-2025) sustained a rule of reason claim that the defendant unlawfully made its commercial real estate brokers sign exclusive agreements. Can someone monopolize real estate by monopolizing its brokers?

In a piece in the Regulatory Review this morning Melissa Bredbenner and urge the new administration not to abandon the Biden administration's antitrust concerns about labor. www.theregreview.org/2025/06/23/b...

My “Antitrust and e-Markets” is coming out in Stan. L. & Pol’y Review. Segregating e-commerce, as courts often do, exaggerates digital market power, especially for the many products that are sold both off- and online where e-Markets reduce concentration. papers.ssrn.com/sol3/papers....

In fact, Rehnquist wrote a concurrence in Reiter, predicting the decision would "add a substantial volume of litigation to the already strained dockets of the federal courts, and could be used to exact unfair settlements from retail businesses."

The SCT's first use of "consumer welfare" was in a case (Reiter v. Sonotone, 442US330) that made antitrust damages actions available to consumers. The result was a massive increase in consumer plaintiff jury trials. What this document say makes no sense and, in any event, contains no support.

In case you are in town, I'll be speaking about "Tech Monopolies" in Amsterdam June 3. alti.amsterdam/event/herber...

My piece on the future of Antitrust Populism is out, at 77 Fla. L. Rev. 417 (2025). While neo-Bs took a major hit in the Nov. 2024 election, its future is promising. SSRN version is here: papers.ssrn.com/sol3/papers.....

I’ll be giving a talk on Tech Monopoly in Amsterdam, June 3, 2025. Substantially on how competition law liability standards relate to optimal remedies. alti.amsterdam/event/herber...

But not under U.S. antitrust law; the same opinion found that Apple's existing policies were protected by concerns for product quality and safety and that there were no less restrictive alternatives. Condemnation came from a California non-antitrust provision that did not assess those requirements.