Sir Geoffrey Vos, the Master of the Rolls, wants English law to be at the forefront of developments relating to cryptoassets and smart contracts. In his thought-provoking foreword to the government-backed UK Jurisdictional Taskforce’s (UKJT) Legal Statement on Cryptoassets and Smart Contracts, he explained that English law should aim
Website owners who seek to bind visitors to the terms of an arbitration agreement must make those terms “reasonably conspicuous” under the law, and website visitors must “manifest unambiguous assent” to those terms. That means that the smallest of details – the font and color of the text, the color of the page, the location and appearance of the hyperlinks and the “I agree” button – carry tremendous legal significance. Those seemingly small design details could make the difference between a dispute being resolved in arbitration, or in litigation.
Recently, in Google LLC v. Ikongoro Tech. LLC, the Patent Trial and Appeal Board (“the Board” or “PTAB”) instituted inter partes review after it had previously denied the institution of such a review due to the pendency of related district court litigation in the Western District of Texas—a case which was subsequently transferred to the Northern District of California by the Federal Circuit granting mandamus relief. The Board’s decision casts light on the interplay between the PTAB’s discretion to deny institution of inter partes review and the increased focus on transfers out of the Western District of Texas.
After a bit of hiatus on aggressively challenging vertical mergers, regulators both here in the United States and abroad have resumed initiated actions to challenge vertical mergers. Traditionally a difficult lift for the FTC, vertical vergers involve companies above and below each other in the supply chain. Instead of directly competing, an upstream company acquires the company it supplies with critical inputs. Recent announcements of high-profile vertical mergers signal increased FTC and European regulatory scrutiny in the area.
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 of competition that would result from the merger or acquisition. Such prima facie showing typically takes the form of claims and evidence related to market shares above a certain level, but can take other forms.
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 on people’s lives, from improvements to public services to companies driving innovations that can make. However, they have made clear that their collective position is that this can best be achieved where digital markets are competitive, consumer and data protection rights are respected, and citizens are empowered to exercise meaningful control over their own data. In their view, there are strong synergies between the interests of data protection and competition, as demonstrated by the close working relationship which has developed between the CMA and ICO in recent years.
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 concern” and signaled that the Treasury would begin examining blockchain-based financial networks. On the heels of Secretary Yellen’s comments, Congressman Patrick McHenry (R-NC), head of the House Financial Services Committee, and Congressman Stephen F. Lynch (D-MA), Chair of the Financial Technologies Task Force, introduced H.R. 1602, bipartisan legislation which directs the CFTC and the SEC to “jointly establish a digital asset working group” to “provide regulatory clarity” and to “create a critical collaboration [between the two agencies to] create fair and transparent markets.” Notably absent from this proposed collaboration is any mention of antitrust enforcement or involvement of the DOJ antitrust division or the FTC. However, recent comments by outgoing DOJ chair Makan Delrahim provide clues as to how antitrust may play a part in the regulatory framework for blockchain and cryptocurrency.
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 that Zillow joined their efforts and cut Rex out of the market.