DELINEATING DIGITAL MARKETS IN ANTITRUST CONTEXTS

A Note by Lindsey Robin

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As digitization and technology increasingly affect all aspects of life, law makers and academics alike continue to consider how antitrust law can be applied to digital markets. Concerns over big data, data security, monopolization, privacy, and unfair competition practices have garnered much attention across the globe in the last decade.[1] How and whether antitrust law should effectively address these concerns remains a hotly debated topic in the antitrust community.

[1] See generally, Benjamin M. Fischer, The Rise of the Data-Opoly: Consumer Harm in the Digital Economy, 99 Wash. U. L. Rev. 729 (2021); Mason Marks, Biosupremacy: Big Data, Antitrust, and Monopolistic Power over Human Behavior, 55 U.C. Davis L. Rev. 513 (2021); Joshua P. Zoffer, Short-Termism and Antitrust’s Innovation Paradox, 71 Stan. L. Rev. Online 308 (2019)… Read the rest

PROTECTING THE EXERCISE BY WORKERS OF FULL FREEDOM OF ASSOCIATION: GIVING THE NLRB THE TOOLS IT NEEDS TO UPHOLD THE NLRA

A Note by Sam Smith

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On April 9, 2021, Amazon defeated a unionization effort to unionize at their fulfillment center in Bessemer, Alabama after a hotly contested election featuring significant campaigning by both the company and the Union.[1] The Union immediately petitioned the National Labor Relations Board (“NLRB” or the “Board”) alleging several violations of the National Labor Relations Act (“NLRA” or the “Act”) by Amazon,[2] which resulted in the NLRB setting aside the original vote and ordering a new election. [3] The NLRB also reached a settlement with Amazon over its general anti-labor practices in December 2021, forcing the company to issue communications to its over 1.5 million employees informing them of their rights under the NLRA.[4]

[1] See Alina Selyukh, Amazon Warehouse Workers get to Re-do Their Union Vote in Alabama, Nat’l Pub. Radio (Nov. 29, 2021), https://www.npr.org/2021/11/29/1022384731/amazon-warehouse-workers-get-to-re-do-their-union-vote-in-alabama.… Read the rest

BUY NOW, BUT PAY FOR IT LATER: HOW BNPLS ALLOW UNSECURED CONSUMER DEBT TO ACCUMULATE WITHOUT REGULATION

A Note by Alec Klimowicz

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Buy Now, Pay Later (“BNPL”) has taken consumer shopping by storm. Businesses have emerged with the BNPL model as its primary operation, offering repayment plans, typically in four equal payments across six weeks, at no interest.[1] A financial movement that ostensibly began only a couple of years ago is now playing a role in over 200 billion dollars’ worth of transactions.[2] Consumers have accelerated BNPL’s use during the pandemic; BNPL’s usage increased by 230% in 2020 and 400% during the same year’s Black Friday holiday.[3] These businesses, however, have grown at such an exponential rate that regulators are now playing catch up.[4] The balancing act for regulators is to permit wide-usage of the service without taking away its redeeming qualities.

[1] Eversheds Sutherland, Focus on Fintech: The CFPB is Scrutinizing Buy Now Pay Later Products Read the rest

ANOTHER GOLD RUSH: THE PROMISE OF CYRPTO AND THE WEALTH GAP

A Note by Amanda Holme

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At the Aspen Security Forum, Gary Gensler, chair of the SEC, compared the state of cryptocurrency regulation to the “Wild West,” noting its lack of investor protection.[1]  Gensler has continued to repeat the “Wild West” metaphor when discussing the challenges and lack of cryptocurrency regulation, which leave individual investors and financial markets vulnerable to fraud.[2] Although the Internal Revenue Service (“IRS”), Financial Crimes Enforcement Network (“FinCEN”), Commodity Futures Trading Commission (“CFTC”), and U.S. Securities and Exchange Commission (“SEC”) have used existing laws to regulate cryptocurrencies, Congress has not enacted legislation specifically targeting them.[3]  Currently, no single U.S. regulatory authority governs private cryptocurrency exchanges.[4] Since the majority of cryptocurrency activity occurs beyond the boundaries of government regulation, Gensler worries about the continued potential for crime, financial instability, and threats to national security.[5]

[1] Paul Kiernan,… Read the rest

ROBOTS DON’T TAKE BATHROOM BREAKS: ANALYZING THE APPLICABILITY OF CALIFORNIA’S A.B. 701 LEGISLATION IN ILLINOIS

A Note by Kevin Estes

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On September 22, 2021, California Governor Gavin Newsom signed into law A.B. 701[1] intending to further protect the health and safety of warehouse workers in the state of California.[2] Authored by California Assemblywoman Lorena Gonzalez, A.B. 701“strengthen[s] warehouse workers’ rights against arbitrary and abusive work quota systems by requiring companies to disclose work quotas to employees and state agencies, and establish statewide standards to minimize on-the-job injuries for employees working under strict quotas.”[3] Although the bill places restrictions on all single warehouse distribution center with 100 or more employees or 1,000 or more employees at one or more warehouse distribution centers in the state,[4] the bill specifically targets Amazon Inc. and their “extreme high-churn model, continually replacing workers in order to sustain dangerous and grueling work pace demands.”[5] To achieve its purpose, A.B. 701 … Read the rest

I THINK YOU ARE MUTED, YOUR HONOR: THE RISE OF REMOTE LEGAL PROCEEDINGS AND WHAT IS IN STORE

A Note by Austin Bull

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On October 28, 2021, Mark Zuckerberg announced Facebook’s new focus on the “metaverse.”[1] Facebook and its counterparts now belong to Meta Platforms, Inc. and will emphasize and move toward a virtual reality future.[2] This novel endeavor came about a year and a half after the COVID-19 pandemic forced the world to adapt to new, remote mediums.[3] Digital landscapes became an immediate necessity rather than a distant, futuristic concept.[4] Many industries were affected; the legal sector was no exception.[5]

In an unprecedented fashion, law firms and courtrooms alike moved entirely remote.[6] For the first time, depositions, hearings, and even entire trials were conducted by video conference from participants’ homes.[7] Attorneys and their clients no longer commuted to an office but instead conducted their business through programs such as Zoom or Microsoft Teams.[8]Read the rest

MARKET MANIPULATION OR JUST DUMB MONEY? The GameStop Stock Spike and What Happens Next

A Note by Samuel Barder

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On December 9, 2019, GameStop Corp. revealed a troubling third quarter earnings report.[1] Net sales had dropped 30% compared to the same time in 2019, and the company was operating at a $63 million loss for the quarter.[2] The next day GameStop shares (“GME”) tumbled by 20% to close at $13.66 per share.[3] On January 27, 2021, the stock closed at $347.51 per share, a 1,735% increase from since the beginning of the year.[4] Two days before GME peaked at $483.00 per share during morning trading.[5] How did this happen?

The rapid rise in GME shares pitted pros against joes as institutional players, hedge funds, and investment professionals lined up on one side and retail investors, online traders and small brokerages, on the other.[6] One prominent investor said the retail investors, often labeled “dumb money” … Read the rest

DO NOT PASS GO, DO NOT COLLECT $200: Exploring the NCAA’s Monopoly on Athlete Compensation Behind the ‘Pay the Players’ Debate

A Note by SY Yaw

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On February 2, 2021, EA Sports made an announcement that excited college sports fans everywhere––the NCAA football game that many had grown to love before its discontinuation in 2014 would be returning in 2023.[1] Along with this excitement came a reignited debate about whether student-athletes should be paid for the use of their name, image, and likeness (“NIL”); an issue that contributed to the game’s discontinuation.[2] Despite the profit made by the video game franchise, the National Collegiate Athletic Association’s (“NCAA”) longstanding prohibition on student-athletes receiving any compensation beyond their athletic scholarships precluded featured players from receiving compensation.

This Note will explore the intricacies of the debate about whether college athletes should be compensated for their services, primarily using revenue generating sports as a point of examination. Part II will introduce the backdrop of the debate, discussing the “players” … Read the rest

REPLACING WHAT WORKS WITH WHAT SOUNDS GOOD: The Elusive Search for Workable Section 230 Reform

A Note by Kyler Baier

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Section 230 of the Communications Decency Act of 1996 was a tiny and overlooked fragment of a behemoth bill Congress passed to crack down on the pervasiveness of obscene and indecent communications online.[1] Yet, in the quarter-century since it was passed Section 230 has proven to be the only lasting piece of the Communications Decency Act and, indeed, the most important piece of legislation ever passed with respect to the internet.[2]

By emancipating interactive service providers (ISPs) from the whip hand of publisher’s liability, Section 230 became the liberating force that jolted the massive and sustained growth of the internet marketplace and the free and robust exchange of ideas online.[3] Since Section 230’s conception at law, critics of the legislation have been chipping away at its free market and free speech protections as slowly and surely as water … Read the rest

PROPOSITION 22 AND WORKERS’ RIGHT TO CHOOSE: Learning from California’s Efforts to Classify Independent Contractors

A Note by Kaelin Sanders

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In the 2020 general election, California voters approved Proposition 22, a statewide ballot initiative that classifies app-based drivers (Uber or Lyft drivers, for example) as independent contractors rather than as employees.[1] The culmination of over $200 million in political spending––largely by ride-share companies Uber, Lyft, Postmates, Doordash, and Instacart––the initiative was approved by 58% of voters.[2] Since its passage, the initiative has been met with regular criticism.[3] Many observers first say that classifying app-based drivers (“drivers”) as independent contractors was fundamentally wrong from a worker’s rights perspective, especially in light of state court decisions and legislation that preceded the initiative and established a new standard for making this very decision.[4] Further, there are reports that businesses are now firing their employee-status delivery drivers and hiring cheaper app-based drivers in their stead; that drivers are earning considerably less … Read the rest