The Legality of Legacy Business Practices in Antitrust

There is void in the literature at intersection of antitrust law and legacy business practices. This issue has come to forefront with Epic Games’ suit against Apple for its App Store policies, which have been place ever since online marketplace opened 2008. The same issues are center current v. Pepper litigation regulatory proposals alter Apple’s practices both state federal levels. Legacy conduct also played a role Supreme Court’s controversial Ohio American Express decision Ninth Circuit’s FTC Qualcomm decision. This raises question as how should treat long-standing practices—practices that this Article labels “legacy conduct”—that initially were benign or even procompetitive, but under heavy scrutiny once firm employing it obtains considerable market power. fundamental raised here whether fact product become highly successful turns previously legitimate practice into one objectionable. This contends three considerations govern proper assessment cases involving rule reason analysis. Further, advances policy recommendation instituted long before achieves substantial power (particularly time entry) common across competitors who do not themselves possess power, be considered probative evidence procompetitive. When these conditions satisfied, defendants afforded substantially reduced burden proving restraint procompetitive analysis commensurate strength evidence.