Dan Wall

@tommydprimetim1 @BlueDotFlu Man, you are so craving for attention.

@BlueDotFlu @DanWall55 I think Dan’s a little upset because I think he realizes Blue Dot fever is real, and the cause is Live Nation. The cure is breaking the company into as many pieces as possible, splitting it up, and shutting it down.

Dan Wall says the reason not to break up Live Nation and Ticketmaster is because Ticketmaster could become a “scalper” through the secondary market. Dan, fans know you guys are already doing it through dynamic ticketing. Fans are pissed watching Live Nation and Ticketmaster increase prices in real time from the very first ticket sold, where people can sit in the same queue watching a $100 ticket turn into $1,000 before they even get a fair chance to check out. And from Michael Rapino’s own words, Live Nation is already trying to take over the entire secondary market too. Then Dan says insanely high ticket prices are simply “supply and demand.” But if that’s true, why does the secondary market suddenly become the excuse for why Live Nation and Ticketmaster should not be broken up? Then Dan blames DANCERS, giant productions, and bigger stages for the ever-increasing ticket prices. Dan, there were DANCERS decades ago. There were giant productions decades ago. There were unforgettable concerts decades ago too. The difference is “face value” barely even means anything anymore once Ticketmaster can change prices in real time directly from the source. Real fans are getting priced out on the primary market by Live Nation and Ticketmaster because prices can surge before many fans even get a fair shot at buying tickets. Fans know the difference between a great live show and corporate greed. For years they blamed resellers for everything. I joked eventually they’d need somebody new to blame and would probably blame the hot dog guy next. I guess I wasn’t far off, because now apparently it’s not just the resellers anymore now it’s the DANCERS too. @LiveNation @DanWall55 youtu.be/pmEBsd0G4BQ?si…

@Sherman1890 HMT is just a tool, originally developed to make sure markets based on substitution weren’t too narrow. It morphed into a way of defining narrower markets, canceling out consumer behavior. Excluding products consumer behavior says are subs is always questionable.

yes, the HMT clearly looks at substitution rates. BrnShoe is a mixed bag -- "reasonable interchangeability" does; but not "specialized vendors" or "distinct customers"

@johnmarknewman @FTC @Meta Hi, John. I’m surprised by the question since I tend to think a defining characteristic of the movement is to favor the content of pre-1960s caselaw, without regard to whether advances in our understanding of economics continues to support or undermine the cases. Disagree?

@DanWall55 @FTC @Meta I know some have criticized use of, e.g., Brown Shoe (1962), but--love it or hate it!--Brown Shoe based its analysis on an extensive review of the legislative history. Judge Hand rather infamously did not rely on any support at all for this line. (2/2)

Absurd that a throwaway line with zero empirical or legal support from a rambling judicial opinion issued 80 years ago could give us the "canonical" statement on monopoly power -- yet here is Judge Boasberg's opinion in @FTC v. @Meta, saying just that.

@Sherman1890 So if there is no evidence that the firm is making monopoly profits, and it hasn’t reduced output, aren’t we done? Why hypothesize anything?

J. Boasberg's disussion of the HMT cites many more merger cases than sec. 2 cases. But if FB is already a monopolist is the SSNIP question relevant at all? We would assume that FB is already charging its profit-maximizing price and ANY increase would be unprofitable.

@Sherman1890 Boasberg reminds that HMT helps decide whether imperfect substitutes are constraining enough. The utility of that in a retrospective case has always been unclear to me. Not just a Cellophane issue. If there is no evidence of high profits, etc., how does HMT help us infer power?

So Brian, would you rule out all attempts to infer market power directly, without reference to a relevant market, in monopolization cases? Or to say it differently, is the Hypothetical Monopolist Test useful only for merger cases?

@dougmelamed @profthomlambert @Sherman1890 “Common” doesn’t do it justice. It is a practically defining characteristic of the Neo-Bs to claim that anyone who defends the antitrust consensus that existed for decades before they came along is owned by, and a tool of, big corporations. So tiring.

@profthomlambert @Sherman1890 Thom is 100% right. Sadly, the kind of baseless ad hominem attack he is responding to is routine for Trump and his supporters and too common from Progressives.

Herb Hovenkamp (@Sherman1890) spent most of his career at Iowa Law, an excellent but non-elite law school. He could have gone anywhere. He devoted countless hours to stewarding one of the most respected and influential treatises in all of law. He could command huge bucks for his influence, but he does not do so. I’ve often disagreed with Herb, but he has been unfailingly generous despite our disagreements. He is kind to people who revile him on this platform. The idea that he is “bought” is beyond ludicrous.

@geoffmanne @johnmarknewman @ErikHovenkamp @danielahanley @Sherman1890 I agree with that in principle, but no remedy should permit its easy evasion. I wonder if this is the court‘s way of dealing with this problem that if you take Google out of play entirely, there’s not much competition for the default status.

@johnmarknewman @ErikHovenkamp @DanWall55 @danielahanley @Sherman1890 And the one-year term limit. Remember this was a “de facto” exclusivity case. So it would seem appropriate for a remedy to limit their de facto-ness and not prohibit them outright.

do you think that's a bigger gamble than breaking up a highly dynamic firm in a rapidly changing market? particularly given the history of sec. 2 breakups.

@johnmarknewman @ErikHovenkamp Hmmm. From a liability perspective, it makes sense to think that one year exclusive agreements wouldn’t be a problem. But allowing that here? Seems like the opposite of fencing in. I hope that is not what he intends.

@ErikHovenkamp ... an "exclusivity" agreement, so it's allowed, subject only to the 364-day cap on term length. Only way I can make sense of this new opinion, though I'll confess I've been under the weather and a bit foggy.

@johnmarknewman @Sherman1890 John, I am much less optimistic than others about AI lessening Google’s monopoly power. Maybe, but I don’t think so. I am not comfortable with the reliance on that in shaping the remedies package. Hope I’m wrong.

@DanWall55 @Sherman1890 Hi Dan! Hope all's well. I'm not 100% sure this response is responsive--the q. is whether it's optimal to issue a behavioral order that stops short of prohibiting the illegal conduct based on the inclusion of a different behavioral remedy that seeks to kickstart dynamic rivalry.

@danielahanley @johnmarknewman @Sherman1890 I’m definitely not saying that you can’t do more than enjoin the conduct. Clearly you can. I’m saying structural relief is never granted when prohibitory injunctions and fencing-in provisions appear to be reasonable remedies. That is an empirical observation over 40 years.

@johnmarknewman @DanWall55 @Sherman1890 Genuine question to @DanWall55: Do you think/are you saying remedies are conduct-specific under Section 2? B/c no case law that says that. Also, neither equity provision (15 USC 25, 26) distinguishes between conduct. An antitrust violation gives parties access to all remedies.

@johnmarknewman @Sherman1890 There was never any reasonable chance of getting divestiture in a lawsuit over exclusive default contracts. We don’t restructure firms because they engage in bad contracting practices. This sense of failure is because the proposed remedy defined winning in unachievable terms.

@Sherman1890 The wisdom of that tradeoff is doubtful to me. If divestiture and also prohibiting self-preferencing are off the table, then a fulsome prohibition on the illegal conduct becomes increasingly important... yet lacking here.

@GusHurwitz And entirely unsurprising. While Google way overplayed Microsoft, the basic causation requirement is there and makes sense.

Yes, this. I was just telling others that I think this is the key takeaway from the case moving forward.

@Sherman1890 Oh man. Individualized issues re causation are one of the few arguments that work to defeat class cert.

That's not my memory. I used to teach torts and recall a fair number of mass tort cases in which, for example, class certification was denied because causation could not be established by common proof. I am sure shortcuts were permitted, but the causation requirement was there.

@Rock5491 @dougmelamed @DanielDancrane Is populism not ideology? That’s what it is. All of this is an effort to make antitrust play to the crowd that hates big corporations. And I’m sorry, Doug, but there is no way those guidelines play within the proper bounds of the consumer welfare standard.

@dougmelamed @DanielDancrane What’s your definition? How else would you explain attempting to exalt aggressive but discredited or overruled legal precedents over more modern precedents and mainstream economics? If not ideology, only other explanation I can think of is Luddite. Is there another?

Trump Admin kept in place Biden Merger Guidelines but just revoked Biden Executive Order on competition. The merger guidelines only made sense in light of the executive order, so we’ll have to see what’s next for mergers.

@Sherman1890 @TimSweeneyEpic I do. This begs the question of when are you going to look at substitutability? Before or after you choose iOS or android? And are we just going to ignore that Apple and Google are competing for the same customers?

@TimSweeneyEpic I dont think the court was wrong on that issue

The Apple case treated this as a "lock-in" problem: did iPhone buyers knew at the time of their purchase that they could buy only through the Appstore (same for G-Play). If they knew, then a single-brand market is too narrow.

@danielahanley @Sherman1890 I sure hope you will say that when the next Supreme Court decision on mergers comes down. Brown Shoe will be dust. And Anthem? It applied Baker Hughes and only relied on old SCOTUS cases wrt efficiencies.

@DanWall55 @Sherman1890 You are effectively saying damn the Supreme Court. Then-Judge Kavanaugh had a similar thought to the one you are asserting here. His colleagues rightly put him in his place.

By the way, 2023 Merger Guidelines did the same thing -- 15 citations to Brown Shoe and none to Brunswick or Cargill. So is that "guidance" about what the law is, or just a badly written brief?

@Sherman1890 The problem is that in the presence of switching costs, aftermarkets commonly pass HMT no matter how intense the systems competition effect may be. That creates an extremely high risk of false positives.

Under the hypothetical monopolist test both a larger grouping (Apple & Android) and a smaller grouping (Android only) can be relevant markets; thus no collateral estoppel between the two. Further, submarkets have nothing to do with it.