15th Annual Symposium on Antitrust Law – Panel on Search and Online Advertising

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William C. MacLeod, Kelley Drye & Warren LLP


Frank Pasquale, Seton Hall Law School

Daniel Crane, University of Michigan Law School

Scott A. Sher, Wilson Sonsini Goodrich & Rosati

This panel examined the proper antitrust standard of review governing online search under Section 5 of the FTC Act and Section 2 of the Sherman Act.

Frank Pasquale kicked off the program by analyzing some theories concerning how search engine providers’ conduct can impact consumers and competition, and considering whether antitrust law and government regulation are proper tools to address such issues.

Daniel Crane followed by considering whether the principle of search neutrality is a cognizable and practical concept for antitrust enforcement, and by proposing a standard of proof that a plaintiff should be required to meet in order to demonstrate that such conduct is anticompetitive.

Scott Sher presented a practitioner’s perspective concerning the burden of proof that one currently needs to satisfy in order to establish that such conduct violates antitrust law. He contended that competition is alive and well in this market, and that government regulation is a tool ill-suited to address potential concerns in this space.

The panelists disagreed concerning the relationship between government regulation and innovation. Frank Pasquale opined that certain disclosure requirements provide valuable information to consumers without harming the motivation to produce quality products, and he noted that he believes Scott Sher does not share this view. Scott Sher countered that he believes antitrust has its proper place, but that there should be a strong demonstration of anticompetitive effects before the government is entitled to disrupt a highly innovative market in its nascency.

To watch the video recording of the discussion, please click here