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How Epic v. Apple Operationalizes Ohio v. AmexThe Supreme Court’s landmark decision in Ohio v. American Express (Amex) remains central to the enforcement of antitrust laws involving digital markets. The decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform; that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet their burden of production to establish harm to competition. Enter Epic v. Apple (Epic): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to evidence of both the procompetitive and anticompetitive effects, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out- of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.
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Lost-Premium Damages in M&A: Delaware’s New Legal LandscapeIn the event of a buyer’s willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. In the recent Crispo v. Musk decision the Delaware Chancery Court held these provisions to be unenforceable under the anti-penalty doctrine. In this Article we challenge the analysis in Crispo by arguing that lost-premium provisions are doctrinally defensible, economically sensible, and supported by policy considerations. Lost-premium provisions became enforceable in Delaware from August 1, 2024, following amendments to the Delaware General Corporation Law. But the issue may crop up again in other jurisdictions. This Article explains why courts in other states both can and should uphold lost-premium provisions.
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Government Control over Qui Tam Suits and Separation of PowersThe False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years, three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam lawsuit as unconstitutional. The Department of Justice has broad statutory authority to dismiss a qui tam case and veto any settlement or voluntary dismissal by a relator, allowing the Executive to maintain control over qui tam suits. But DOJ rarely exercises these rights, as empirical studies reveal. This Note highlights the disconnect between the importance of executive control over qui tam cases for the FCA’s constitutionality and DOJ’s infrequent oversight in practice. It proposes (1) amending the FCA to further DOJ incentives to dismiss by requiring non-intervened cases proceeding to have merits similar to government-initiated FCA cases and (2) resolving the circuit split in favor of broad government authority to object to a settlement between relator and defendant, weakening separation-of-powers challenges.
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Contractual Control in Dual-Class CorporationsFounders and other corporate insiders go to great lengths to control the companies they take public, and the mechanisms they use to maintain control have been a central theme of corporate law. Dual-class structures, which give insider shareholders voting rights that exceed their economic rights, are a common way for insiders to maintain post-IPO control. Scholars and policymakers have endlessly debated the costs and benefits of these structures, which have surged in popularity over the past 20 years. As one prominent scholar put it, dual-class structures are “[t]he most important issue in corporate governance today.”
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Altering Rules: The New Frontier for Corporate GovernanceCorporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision permitting boards to completely cede their powers to a shareholder by contract. These developments have sparked a polarized debate, with some calling for a return to mandatory rules, while others push for total contractual freedom. We argue, however, that the best approach lies neither in rigid mandatory rules nor unchecked contractual freedom—but in recognizing the potential of corporate law’s altering rules. Altering rules define how parties can opt out of the default rules of governance. Our theory identifies corporate altering rules’ essential features, namely, whose consent is required to change a default (process) and who is bound by that decision (scope). We show that the central role of altering rules in corporate law is not simply to make changing a default more or less difficult, as is widely supposed, but rather to combine process and scope in ways that define distinct bargaining environments, shaping how insiders negotiate over governance. Corporate law can fine-tune these features in ways that both encourage contractual innovation and manage intra-corporate risks. In response to recent cases and legislation, we propose new altering mechanisms that will broaden decision-making to include non-signatory shareholders, protecting them from harmful externalities. Altering rules, as they exist now, represent only a fraction of their potential. Rethinking their design opens the door to a vast, largely unexplored landscape of possibilities that could guide corporate governance in its new era of contractual innovation.
