OVER-PRESCRIPTION IS BAD MEDICINE: THE CASE AGAINST A KNEE-JERK REVISION OF ANTITRUST INJURY
By Beatriz Mejia, Dee Bansal, Alexander J. Kasner1
The California Law Revision Commission seeks to evaluate whether California’s laws should be revised to include a statutory analog akin to Section 2 of the Sherman Act.2 They should not. More regulation is unnecessary and even counterproductive, introducing uncertainty into California competition law. There are plenty of tools under California law already available to police potentially bad behavior by monopolists. For example, California’s Unfair Competition Law provides a remedy for consumers to seek redress for acts unlawful under Section 2 of the Sherman Act. Indeed, the California Supreme Court has made clear that the "unfair" act or practice prong of the UCL covers "conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws business its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition."3 Adding an additional provision to California’s law to cover what is already actionable creates unnecessary confusion, duplicate liability, and the potential for gamesmanship.
But should California revise its law to add such a provision, it should be careful to both guard against a myopic understanding of antitrust injury and creating liability that only applies to one industry or type of business. Specifically, it should decline to revise the law to create a different "analysis of antitrust injury" in the context of "technology companies" that explicitly credits "competitive benefits such as innovation" and the "personal freedom of individuals to start their own businesses."4