Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Category Archives: Media and Technology

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Antitrust Enforcers Need Merger Presumptions to Reduce Market Power?

Under the Clayton Act (15 U.S.  Code § 18), certain business acquisitions are prohibited where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Long-standing jurisprudence has established that merger challenges require, at the outset, a prima facie showing of the likelihood of a substantial lessoning … Continue Reading

Competition and Data Protection in Digital Markets: UK’s CMA-ICO Joint Statement on Competition and Data Protection Law

On May 19, 2021, the United Kingdom’s Competition and Markets Authority (“CMA”) and the Information Commissioner’s Office (“ICO”) published a joint statement setting out their shared views on the relationship between competition and data protection in the digital economy. Both authorities recognize that the digital economy has the potential to have a hugely positive impact … Continue Reading

Antitrust Enforcers Preview Incoming Spotlight on Blockchain

The tide of regulation of cryptocurrency and blockchain could be turning in the United States. Following comments by newly-confirmed Treasury Secretary (and former Federal Reserve Chair) Janet Yellen describing Bitcoin as “inefficient” and “extremely volatile,” the price of the coin dropped 10% in 24 hours. During her confirmation hearings, Yellen described cryptocurrencies as a “particular … Continue Reading

Zillow Change to Its Platform Poses New Antitrust Questions

A major technology innovator finds itself on the defensive this week after a start-up company filed an antitrust lawsuit for alleged deceptive business practices. A tech-based online broker named Rex alleged that the National Association of Realtors (“NAR”) and Multiple Listing Services (“MLS”) operate as a cartel to control access to real estate markets, and … Continue Reading

Regulators Ready, Gladiators Ready – Digital Markets to Face Greater International Scrutiny

Across the globe, an increasing number of international regulators have opened inquiries or adopted new rules and regulations to address competition law concerns about digital platforms and digital markets.  Whilst the spotlight is likely to initially fall on the conduct and business practices of large online platforms – the so-called gatekeepers – we expect international … Continue Reading

The House Judiciary Committee Takes on Big Tech

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, … Continue Reading

CLERA or Murkier: Proposed Antitrust Legislation Raises Questions

The Sherman Act was passed in 1890. The Clayton Act in 1914. And they have hardly changed since. Last month, Senator Amy Klobuchar, the new chair of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, proposed an overhaul of the antitrust laws: CLERA, the Competition and Antitrust Law Enforcement Reform Act.  … Continue Reading

A Timely Reason to Review Procedures for Risk Assessments and Vendor Contracts in Light of the SolarWinds Attack

As reported last week, a state-sponsored hacker may have breached multiple U.S. government networks through a widely-used software product offered by SolarWinds. The compromised product helps organizations manage their networks, servers and networked devices. The product is not only used by government agencies, but is widely used in both the public and private sectors. Whether or … Continue Reading

To the Victor Go the Spoliation Sanctions: Eastern District of Louisiana Exercises Inherent Power to Issue Sanctions for Spoliation

Parties should think twice before posting potential evidence on social media, as the Plaintiff in Guarisco v. Boh Brothers Construction learned recently. The Eastern District of Louisiana imposed sanctions on Plaintiff for deliberately producing an altered photo, which Plaintiff had previously posted on social media in its unaltered form. Rather than relying on Rule 37(e), … Continue Reading

Ninth Circuit “Scraps” Old Construction of CFAA in Closely Watched LinkedIn Data Scraping Case

This past month, professional networking site LinkedIn Corp., was given more time to file a petition for certiorari challenging a Ninth Circuit finding that hiQ Labs Inc. (“hiQ”), a workforce data analytics startup, did not violate federal hacking laws by “scraping” LinkedIn member profiles without LinkedIn’s permission. Data scraping, or web scraping, is a method … Continue Reading

The Lynyrd Skynyrd Texting Case: Spoliation and Non-Party Texts

It was a tragedy. The 1977 plane crash that killed Ronnie Van Zant and Steven Gaines almost ended the band Lynyrd Skynyrd forever. In the wake of the crash, the survivors swore an oath never again to perform as “Lynyrd Skynyrd.” That oath made its way to court where it would be memorialized in a … Continue Reading

Billable Bitcoins: Lawyers Accepting Cryptocurrency

With bitcoin and other cryptocurrencies reaching shocking new prices seemingly every day, some people have finally started putting the new payment systems to real use – paying lawyers. Earlier this fall Nebraska became the first state to hand down a formal ethics ruling on the propriety of lawyers charging their clients using bitcoin and other … Continue Reading

Location, Location, Location: Microsoft Debate Over Government’s Access to Overseas Data Heads to the Supreme Court

On October 16, 2017, the Supreme Court agreed to review the Second Circuit’s decision in United States v. Microsoft Corp., a case that highlights the current tension between law enforcement needs and privacy concerns in a rapidly changing digital landscape.… Continue Reading

It’s Not an Illusion! DISH Not Required to Give Credit When Channels Go Dark

Expanded Basic. Choice. Choice Plus. Cable and satellite TV customers pay monthly fees for bundled channel packages of different sizes. The packages are becoming “skinnier,” allowing you to customize your service from a set of modules (i.e., the Family package, the Sports package, various language packages, etc.). But each module is still a pre-set bundle … Continue Reading

Second Circuit Blazes New Trail in Set-Top Box Cases: Cable Service and Boxes are Not Separate Products

Since 2008, cable customers have been suing cable operators across the country claiming operators violate the antitrust laws by forcing customers to lease set-top boxes from the operator to access “premium” cable services. Plaintiffs claim that the operators have “tied” one product (the service) to another product (the box) and that the arrangement is a … Continue Reading

Of “Lunch Stands and Merry-Go-Rounds”: Ninth Circuit Rejects FTC Authority Over Broadband Providers

In late August 2016, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that a core source of FTC authority (Section 5 of the FTC Act) does not apply to any “common … Continue Reading

FCC Media Bureau Clarifies Broadcasters’ Negotiation Remedies

Negotiations between television channels/networks and pay TV operators are a breed apart. The stakes are high and the consequence of failure – a “dark” screen – is all too public. But the critical factor that sets these negotiations apart is the actual regulation of the negotiations under three main categories of rules. Broadcasters may invoke “Must … Continue Reading
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