Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Friday, March 24, 2017

Upstream Monopoly and Downstream Information Sharing

Pio Baake, German Institute for Economic Research (DIW Berlin) and Andreas Harasser, German Institute for Economic Research (DIW Berlin) analyze Upstream Monopoly and Downstream Information Sharing.

ABSTRACT: We analyze a vertical structure with an upstream monopoly and two downstream retailers. Demand is uncertain but each retailer receives an informative private signal about the state of the demand. We construct an incentive compatible and ex ante balanced mechanism which induces the retailers to share their information truthfully. Information sharing can be profitable for the retailers but is likely to be detrimental for social welfare.

March 24, 2017 | Permalink | Comments (0)

Vertical Integration and Product Availability in the Movie Theater Industry

In Kyung Kim, Nazarbayev University and Vladyslav Nora, Nazarbayev University examine Vertical Integration and Product Availability in the Movie Theater Industry.

ABSTRACT: We examine the effects of integration between distribution and exhibition on product mix and availability in the movie theater industry. Our model predicts that integrated theaters engage in foreclosure, but also have higher incentives to acquire demand information. We estimate that integrated theaters allocate more seats to their own titles, mostly at the expense of small independent movies. However, we find that despite this foreclosure effect integrated theaters match demand better turning away significantly fewer consumers and achieving higher consumer welfare than independent theaters. Our results suggest that the efficiency gains of vertical integration dominate the losses from foreclosure.

March 24, 2017 | Permalink | Comments (0)

Sokol's Guide to the ABA Section of Antitrust Law Spring Meeting

Next week is the ABA Antitrust Law 2017 Spring Meeting.  It is an amazing event and kudos to the ABA leadership and staff for putting together such a wonderful set of programs.  The ability to manage such a large conference is quite amazing and I cannot begin to fully describe how much planning goes into successfully pulling it off.

I have some general thoughts about the Spring Meeting worth sharing and very few of them go to the substantive program:

  1. You really don't need to pay to eat or drink for the entire week as so many different law firms and economic consulting firms have receptions and parties.
  2. There is way too much food so don't eat too much. Stay away from: anything fried, any dips (too salty and/or too fatty), too much bread (white bread equals empty carbs which equals the need to get a larger pant size).  Drink more water and eat more vegetables.  
  3. Stay away from sauces because invariably you are going to spill something on yourself.  The additional warning is that you should pack an extra shirt as accidents happen.
  4. Try to exercise.  DC is a great city for runners and in case the weather is not great, do not forget to hit the hotel gym.
  5. Most people have no clue how to exude confidence. If you do nothing else, watch this Ted Talk by Harvard Business School Professor Amy Cuddy - Your body language shapes who you are.  It will transform your life.
  6. How best to moderate alcohol consumption - I find too many junior lawyers travel in packs and end up doing shots together.  If you want to drink, fine.  However, do not do shots at the event.  You are less likely to moderate your drinking and your current and potential future employers are also at these events.  Nobody likes a sloppy drunk.
  7. Show some style.  Most men dress far too conservatively at the Spring Meeting.  This is not a mid level manager meeting at IBM circa 1982.  I am amazed by how so many men who make over $1 million a year dress so badly and with such ill fitting suits.  Maybe this means most law firm partners need to lead a less sedentary life.
  8. Show some style part 2.  Some women have extraordinary style in terms of clothes and shoes. Cristina Caffarra of CRA, an amazing economist, is also unparalleled in terms of her style.  My advice to women more generally -  women tend to dress a little better than the men but after a while, there really must be more to life than black suit pants and either a white or french blue blouse. I want to see some color! I also notice that many women try to dress up with 3 in or higher heels to try to stand out but that very few know how to walk well with such shoes.
  9. Moisturizer. After the long flight from Asia or Europe, your skin is as dry as the Sahara and your eyes are puffy from the lack of sleep.  Please spend time properly moisturizing for your face and hands and using lip balm.
  10. Coffee is your friend.  There are an increasing number of studies that show the health benefits of coffee.
  11. At events, do your best to stay interested in what people are saying. Do not constantly look around to see who else you know. 
  12. Many of the best panels leave time for questions. If you are going to ask one in a room of 250 people, make sure it is a good one that shows insight and that leads to additional commentary.
  13. Some of the best discussion at the Spring Meeting happens in the hallways rather than the panel discussions. 
  14. This is an endurance conference.  If you are staying at the conference hotel, consider taking a 20 minute power nap in the afternoon.
  15. Have fun and meet new people. 
  16. Lots of people come from outside the United States for the conference.  Do your best to try to interact with them.
  17. Be nice.
  18. One year someone in my row clipped their fingernails during a presentation.  This is not only gross but it is noisy.
  19. Do not wear excessive perfume or cologne.  I do not want to smell you from 200 ft away and in today's world, there are also people with lots of allergies. 
  20. You are special, so be you.

 

March 24, 2017 | Permalink | Comments (0)

Why Incentives for 'Patent Holdout' Threaten to Dismantle FRAND, and Why it Matters

Richard A Epstein, New York University School of Law and Kayvan B Noroozi, Noroozi PC argue Why Incentives for 'Patent Holdout' Threaten to Dismantle FRAND, and Why it Matters.

ABSTRACT: An increasing number of judges, legislators and scholars wrongly believe that the FRAND commitment was principally created to advance the interests of technology implementers, and should be interpreted by giving a presumptive preference toward those interests. That premise has led courts to take a categorically hostile view toward awarding injunctions against implementers under all circumstances. Some courts have even allowed implementers to sue innovators for making an opening licensing offer that is “too high,” without making any counteroffer. An implementer-centric view of FRAND has also caused courts to conclude that innovators are not entitled to any share of the commercial benefits arising from the standardization of their technologies.

We demonstrate that an implementer-centric view of FRAND’s origins and purposes is false. FRAND is a contractual agreement that reflects a voluntary reciprocal exchange of benefits and obligations driven by the need to solve significant coordination problems in the face of otherwise prohibitive transaction costs. As part of that bargain, innovators agree to disclose their latest, confidential discoveries to standard-development organizations, and to waive their injunction rights as to eventual patents on those discoveries, in exchange for contractual protection against patent holdout by implementers who in turn are permitted to use standard-essential patents only on their willingness to pay fair and adequate royalties for that use.

Accordingly, we stress that implementers owe a significant duty to negotiate FRAND licenses in good faith, which courts have largely overlooked and under-enforced. We demonstrate that implementers’ good faith obligations are a critical component of basic FRAND architecture that is strictly necessary to the development of innovation-driven standards. We further observe that the FRAND bargain gives implementers access to otherwise confidential discoveries — inventions too recent to be disclosed in patents or published applications. In this way, FRAND supplies a solution to an iteration of Kenneth Arrow’s paradox of information, enabling the standards development effort to yield commercial benefits that would not exist absent innovators’ voluntary participation. We show both theoretically and empirically that courts’ failure to appreciate these aspects of the FRAND bargain, combined with their over-reliance on liability rules, i.e., damages over injunctions, incentivizes the very patent holdout problem FRAND was intended to avoid. That outcome, in turn, has motivated innovators to reduce their participation in FRAND bargains, threatening to unravel a massive innovation-commercialization marketplace, and its innumerable positive externalities to all parties.

To reverse these harms, we recommend that courts automatically issue an injunction where an implementer is found to infringe FRAND-committed patents that it did not attempt to license in good faith. We also recommend that a proper FRAND licensing rate should include some portion of the benefits achieved through standardization of the innovation(s) in question.

More broadly, we suggest that courts, policymakers, and academic commentators have wrongly favored implementation over innovation — “things” over ideas — unwisely frustrating the emergence of an “ideas economy” that correctly assigns profits to upstream innovators, and not to the low-margin firms that specialize in developing their commercial embodiments.

March 24, 2017 | Permalink | Comments (0)

Thursday, March 23, 2017

The Patent Damages Gap: An Economist's Review of U.S. Patent Damages Apportionment Rules

Anne Layne-Farrar explains The Patent Damages Gap: An Economist's Review of U.S. Patent Damages Apportionment Rules.

ABSTRACT: As an economist, I find the current state of the law regarding damages for patent infringement – most particularly that relating to apportionment – frustrating at best and woefully incomplete at worst. Namely, damages case law for utility patent infringement provides two very different, but insufficient, guidance frameworks for calculating damages: the entire market value rule (EMVR) versus the smallest salable patent practicing unit (SSPPU) principle. The modern pair of EMVR and SSPPU options is far narrower than the approaches afforded by the original 1884 Supreme Court ruling establishing apportionment for damages, Garretson. In this paper, I present the economic case for expanding the allowable damages frameworks beyond EMVR or SSPPU, to fill in the gap in reasonable damages approaches created by an EMVR and SSPPU dichotomy.

March 23, 2017 | Permalink | Comments (0)

Toward a Coherent Policy on Cartel Damages

Jens-Uwe Franck, University of Mannheim and Martin Peitz, University of Mannheim - Department of Economics move us Toward a Coherent Policy on Cartel Damages.

ABSTRACT: The focus of cartel damages law is on the recovery of the cartel overcharge. Parties other than purchasers are often neglected, not only as a matter of judicial practice, but also due to legal restrictions. We argue that a narrow concept of standing—which excludes parties that supply either the cartel or the firms that purchase from the cartel with complementary product components—falls short of achieving effective antitrust enforcement and corrective justice in the best possible way. We provide a framework with two complementary products and show that under neither competition nor cartelization do the allocation and the distribution of surpluses depend on the market organization in place. Thus, we argue that prima facie producers of complements should be treated alike, regardless of whether they purchase from the cartel or supply the cartel or the cartel’s customers. Moreover, based on various factors that determine the enforcement effect of antitrust damage claims and their role as an instrument to achieve corrective justice, we show that a broad concept of standing is, indeed, the preferable legal solution. While its implementation required a change of the position by the U.S. federal courts, we submit that it would amount to a consistent completion of the legal framework within the EU.

March 23, 2017 | Permalink | Comments (0)

The Intersection of Antitrust and Market Manipulation Law

Shaun D. Ledgerwood, The Brattle Group and Jeremy A. Verlinda, The Brattle Group discuss The Intersection of Antitrust and Market Manipulation Law.

Abstract The antitrust laws are increasingly used to prosecute alleged acts of market manipulation, particularly against firms in the banking and energy industries. Both industries are now regulated subject to fraud-based market manipulation rules, but antitrust remains a vehicle on which private claims are based. If anti-manipulation enforcement wanes (or its legal foundation is eroded) with political change, private antitrust actions might fill the void — if such claims are substitutable. As economists practicing in these fields, we address in this paper whether manipulation claims brought under the antitrust laws are substitutable for those actionable under the manipulation rules.

March 23, 2017 | Permalink | Comments (0)

Evaluating Measures of Hospital Quality

Joseph J. Doyle, Jr., John A. Graves, and Jonathan Gruber are Evaluating Measures of Hospital Quality.

ABSTRACT: In response to unsustainable growth in health care spending, there is enormous interest in reforming the payment system to "pay for quality instead of quantity." While quality measures are crucial to such reforms, they face major criticisms largely over the potential failure of risk adjustment to overcome endogeneity concerns. In this paper we implement a methodology for estimating the causal relationship between hospital quality measures and patient outcomes. To compare similar patients across hospitals in the same market, we xploit ambulance company preferences as an instrument for patient assignment. We find that a variety of measures used by insurers to measure provider quality are successful: assignment to a higher-scoring hospital results in better patient outcomes. We estimate that a two-standard deviation improvement in a composite quality measure based on existing data collected by CMS is causally associated with reductions in readmissions and mortality of roughly 15%.

March 23, 2017 | Permalink | Comments (0)

Wednesday, March 22, 2017

Antitrust Analysis of Hub-and-Spoke Conspiracies

Ben Klein, UCLA offers an Antitrust Analysis of Hub-and-Spoke Conspiracies.

ABSTRACT: This paper clarifies the relation between per se hub-and-spoke and vertical rule of reason antitrust analysis, the tension between which is illustrated with a detailed examination of the Apple e-books case.

 

March 22, 2017 | Permalink | Comments (0)

Do vertical relations matter to fund flows under oligopolistic market structures?

Kang Baek (Hanbat National University) asks Do vertical relations matter to fund flows under oligopolistic market structures?

ABSTRACT: Uninformed investors preferentially select distribution companies to purchase funds that suit their investment objectives, because they cannot evaluate each product themselves. Thus, the investment decision depends significantly on their chosen fund distributor's recommendation. It may lead to conflicts of interest between fund distributors and their customers because distribution professionals and their affiliated financial companies have an incentive to prioritize their profits over investors under oligopolistic market structures. This study demonstrates that money flows into a fund, fund management company and fund distributor have significantly different patterns according to distribution channels, and this distinction is affected by vertical relations among financial companies. Money flows from affiliated distribution channels are less sensitive to the determinants of investment decision compared with non-affiliated ones. This result contributes by providing the insight that changes in the incentive structure of distribution channels result in different outcomes in terms of investor protection and market competition under oligopolistic distribution structures.

March 22, 2017 | Permalink | Comments (0)

Consumer preferences and implicit prices of smartphone characteristics

José A. Montenegro (Department of Computer Science, University of Málaga) and José L. Torres (Department of Economics, University of Málaga) think about Consumer preferences and implicit prices of smartphone characteristics.

ABSTRACT: This paper applies the hedonic pricing approach to study the implicit prices of smartphone characteristics and consumer preferences. Currently, mobile phones are the most widespread technological product worldwide and their performance and technical characteristics have changed dramatically over a short period. The development of smartphones has been a revolution in itself in the mobile telecommunication industry, expanding the capabilities of handsets beyond those of a simple mobile phone. Competition between smartphone producers is erce and knowledge concerning consumers' preferences regarding smartphone features is vital to survival in this fast-changing market. This paper uses a hedonic pricing model to estimate the implicit prices of smartphone characteristics. A large set of characteristics are analysed including design, communication, connectivity, camera, display, hardware, multimedia, and power. The characteristics most valued by consumers are the screen, followed by memory, battery capacity, and weight. Consumers are willing to pay up to a 95% premium for an Apple smartphone.

March 22, 2017 | Permalink | Comments (0)

Analysis on lock-in effects by estimating for the switching costs in telecommunications bundles

Hyungjin Kim (Sungkyunkwan University) and Hyunchul Kim (Sungkyunkwan University) provide an Analysis on lock-in effects by estimating for the switching costs in telecommunications bundles.

ABSTRACT: As digital convergence is spreading more than ever, the lock-in effects of bundled services in the broadcasting and telecommunication market are receiving considerable attention. Antitrust authorities have questioned whether lock-in effects impede competition in telecommunications markets. However, the answer to this question remains indecisive because few studies have attempted to quantify the switching costs in bundles. We use novel consumer level data to examine switching costs of bundled products. We use the mixed logit model to estimate the demand for bundled packages, which include mobile, Internet, and paid-TV services. We measure switching cost by the decrease in utility when consumers change their service providers from period t-1 to period t. The results show that consumers experience additional costs when they switch from bundles. Our estimates indicate that consumers pay 3,238 KRW (about 3 USD) per month for changing from Double Play Service (paid TV with Internet) to other services and 3,510 KRW for Triple Play Service. The estimates of switching costs are smaller for the bundles without any commitment period requirement. This implies that stipulated service period and penalty intensify the lock-in effects. In the counterfactuals where we remove the penalty for switching from bundles, we find that consumer surplus increases by 3,714 KRW per month. We proposed policies which reduce penalties for cancellations or shorter stipulated service periods in order to reduce switching costs.

March 22, 2017 | Permalink | Comments (0)

Tuesday, March 21, 2017

Product Variety, Across-Market Demand Heterogeneity, and the Value of Online Retail

Thomas W. Quan (University of Georgia) and Kevin R. Williams (Cowles Foundation, Yale University) examine Product Variety, Across-Market Demand Heterogeneity, and the Value of Online Retail.

ABSTRACT: Online retail gives consumers access to an astonishing variety of products. However, the additional value created by this variety depends on the extent to which local retailers already satisfy local demand. To quantify the gains and account for local demand, we use detailed data from an online retailer and propose methodology to address a common issue in such data - sparsity of local sales due to sampling and a significant number of local zeros. Our estimates indicate products face substantial demand heterogeneity across markets; as a result, we find gains from online variety that are 30% lower than previous studies.

March 21, 2017 | Permalink | Comments (0)

Sustainability of Product Market Collusion Under Credit Market Imperfections

Sugata Marjit, Centre for Studies in Social Sciences, Calcutta; City University of Hong Kong (CityUHK) - Department of Economics & Finance, Arijit Mukherjee, University of Nottingham - School of Economics, and Lei Yang , Hong Kong Polytechnic University examine Sustainability of Product Market Collusion Under Credit Market Imperfections.

ABSTRACT: We study the implications of credit constraints for the sustainability of product market collusion in a bank-financed oligopoly in which firms face an imperfect credit market. We consider two situations, without and with credit rationing, i.e., with a binding credit limit. When there is credit rationing, a moderately higher cost of external financing may affect the degree of collusion, but a substantial increase keeps it unaffected relative to the no-constraint case. A permanent adverse demand shock in this setup does not affect the possibility of collusion, but may aggravate financing constraints and eventually lead to collusion. We consider both Cournot and Bertrand models, and the results are qualitatively the same.

March 21, 2017 | Permalink | Comments (0)

Distorted monopolistic competition

Behrens, Kristian ; Mion, Giordano ; Murata, Yasusada ; Suedekum, Jens characterize Distorted monopolistic competition.

ABSTRACT: We characterize the equilibrium and optimal resource allocations in a general equilibrium model of monopolistic competition with multiple asymmetric sectors and heterogeneous firms. We first derive general results for additively separable preferences and general productivity distributions, and then analyze specific examples that allow for closed-form solutions and a simple quantification procedure. Using data for France and the United Kingdom, we find that the aggregate welfare distortion due to inefficient labor allocation and firm entry between sectors and inefficient selection and output within sectors is equivalent to the contribution of 68% of the total labor input.

March 21, 2017 | Permalink | Comments (0)

Just Markets Distributional Effects of Competition Policy & Economic Regulation 15 - 16 June 2017

REGISTRATION OPEN | CCP 13th Annual Conference: Just Markets

 


CCP 13th ANNUAL CONFERENCE

Just Markets

Distributional Effects of Competition Policy
& Economic Regulation

15 - 16 June 2017
The Enterprise Centre, University of East Anglia, Norwich NR4 7TJ

REGISTRATION NOW OPEN | Early bird rates available until 1 May 2017

 

Traditional analysis of markets has focused on the total (efficiency) gains available from improving markets, with particular emphasis on making markets work well for consumers. This has raised many questions such as:

  • Should the focus be on average or vulnerable consumers?
  • If the playing field is to be leveled should the focus be on access to markets or market outcomes?
  • How should distributional considerations influence the design of remedies?
  • How do the designs of institutions affect how benefits are distributed?
  • What is the empirical evidence that market opening and agency interventions have benefited different groups?
  • How may disruptive technologies change the distribution of benefits and what interventions are appropriate?

This conference will explore all these issues by bringing together legal, political science and economic perspectives on how these principles and evidence should inform competition and regulatory policy. The programme will include contributions by leading academics, policymakers, suppliers, consultancies and regulators such as Ofgem and Ofwat, as well as the first presentation of results from the CCP project on Equity and Justice in Energy Markets funded by the UK Energy Research Centre (UKERC). 

Confirmed academic speakers include Severin Borenstein, Haas Businsess School, University of California; Michael Trebilcock, Faculty of Law, University of Toronto; Sean Ennis, Organisation for Economic Co-operation and Development (OECD); Tembinkosi Bonakele, Competition Commission South Africa; Mattia Guidi, LUISS Guido Carli, Rome; Ruth Hancock, Norwich Medical School, UEA; Eugenio Miravete, University of Texas & Centre for Competition Policy, UEA and also from CCP: Morten Hviid, David Deller, Liz Errington, Noel Longhurst, Stephen Davies & Peter Ormosi.  

March 21, 2017 | Permalink | Comments (0)

Monday, March 20, 2017

Why Mixed Qualities May Not Survive at Equilibrium: The Case of Vertical Product Differentiation

Georgi Burlakov explains Why Mixed Qualities May Not Survive at Equilibrium: The Case of Vertical Product Differentiation.

ABSTRACT: In the classical literature on vertical differentiation, goods are assumed to be single products each offered by a different firm and consumed separately one from another. This paper departs from the standard setup and explores the price competition in a vertically differentiated market where a firm's product is consumed not separately but in fixed one-to-one ratio with another complementary type of good supplied by a different producer. An optimal solution for market setting with two entrants of a type is proposed, to show that there could be an equilibrium at which the so-called "mixed-quality combinations", consisting of one high-quality good and one low-quality good each, remain unsold. For such an equilibrium to exist, it is suffcient the mixed-quality combinations to be at least as di erentiated from the best as from the worst combination which retains its positive market share. Thus, the mixed-quality exclusionary outcome appears as a further form in which the well-known maximum- differentiation principle could be implemented in a multi-market setting. It provides a new explanation of the self-selection bias in consumption observed in some industries for complementary goods.

March 20, 2017 | Permalink | Comments (0)

Market power in the U.S economy today

Jon Baker, American University has written on Market power in the U.S economy today.

ABSTRACT: The U.S. economy has a “market power” problem, notwithstanding our strong and extensive antitrust institutions. The surprising conjunction of the exercise of market power with well-established antitrust norms, precedents, and enforcement institutions is the central paradox of U.S. competition policy today. As this policy brief explains, the harms from the exercise of firms’ market power may extend beyond individual markets affected to include slower overall economic growth and increased economic inequality. The implications for future economic productivity and welfare are troubling, but before detailing these consequences, it is necessary to understand why market power is a major issue despite well-established antitrust enforcement institutions and legal precedents.

March 20, 2017 | Permalink | Comments (0)

The Horizons of Antitrust

Richard Steuer, Mayer Brown explores The Horizons of Antitrust.

ABSTRACT: The goals of antitrust law were the subject of debate in the United States during the 2016 election campaign and thereafter. While consumer welfare and efficiency have become the lodestars of antitrust enforcement, other goals such as fostering jobs, combating inequality, limiting foreign control of domestic assets, containing political power, and preserving small businesses all have attracted renewed interest. This article explores the choices triggered by this debate: Whether and how antitrust enforcement should take these other goals into account; whether the United States should adopt a “net benefits” test in reviewing transactions, similar to the tests already adopted in other countries; which arms of government, such as the antitrust agencies and CFIUS, should have responsibility for implementing these other goals; and how conflicting goals should be prioritized. The article contrasts the law in the United States with approaches taken in other jurisdictions and presents proposals for change.

March 20, 2017 | Permalink | Comments (0)

European Union Competition Law, Intellectual Property Law and Standardization

Damien Geradin, Tilburg and UCL offers European Union Competition Law, Intellectual Property Law and Standardization.

ABSTRACT: This paper provides an overview of the efforts of the European Commission to identify and, when necessary, challenge anticompetitive behaviour with respect to standardization and the licensing of standardized technologies, as well as the case-law of the CJEU on the same subject. It begins by discussing the 1992 Communication on Intellectual Property Rights and Standardization, which was the first important contribution of the Commission on the complex interface between standardization, intellectual property and competition law. It then analyses the first major investigations that the Commission made into the licensing conduct of SEP holders, i.e. the proceedings against Rambus and Qualcomm. Next, it discusses the 2010 Commission Guidelines on horizontal cooperation agreements, which contain a chapter dedicated to the application of EU competition rules to standardization agreements. The paper then examines how the Commission has dealt with mergers involving firms holding large SEP portfolios, such as its Google/MMI and Microsoft/Nokia decisions respectively adopted in 2012 and 2013. The paper also analyses the Commission decisions of 2014 against Motorola and Samsung regarding the use of injunctions by SEP holders to enforce their patents against standard implementers. It also analyses the Huawei v. ZTE judgment adopted by the CJEU in 2015, in which the CJEU was asked to determine the circumstances in which SEP holders could seek injunctions against standard implementers without breaching Article 102 TFEU. The chapter then discusses several forms of licensing or litigation conduct, which can be problematic under EU competition law, but which have not yet been dealt with by the EU courts or the Commission.

March 20, 2017 | Permalink | Comments (0)