Antitrust & Competition Policy Blog

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

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Saturday, May 12, 2007

The Latest on Monopolization

Posted by D. Daniel Sokol

The American Antitrust Institute's annual conference is just around the corner.   This year's topic is  “The Future of Monopoly and Monopolization.”  You can register hereThe conference will be held on June 21, 2007 at the National Press Club in Washington, D.C.  The conference includes a gala luncheon, at which the Jerry S.  Cohen Award for Antitrust Scholarship and the AAI Antitrust Achievement Award are presented. A special presentation will be made to career civil servants.

The Future of Monopoly and Monopolization

8:30 a.m.
Welcome and Introduction
Robert Lande, Venable Professor of Law, University of Baltimore

8:45 a.m.
An Overview of Section 2 Enforcement and Developments
Bonny Sweeney, Partner. Lerach Coughlin Stoia Geller Rudman & Robbins LLP

9:15 a.m.
The Conservative Case for Anti-Monopoly Policy
Irwin Stelzer, Director of Economic Policy Studies, The Hudson Institute

9:35 a.m.
The Meaning of a Global Market for Monopoly
Hector Ruiz, CEO, Advanced Micro Devices, Inc.

10:00 a.m.
Reflections on the Abuse of Dominance in the Context of Developing Countries
Philippe Brusick, Former Head of Competition and Consumer Policies, United Nations Conference on Trade and Development

10:30 a.m.-11:50 p.m.
Morning Breakout Sessions for Facilitated Discussion

Buyer Power
Facilitator: Peter Carstensen, Professor, University of Wisconsin Law School
Paul Dobson, Professor, Loughborough University Business School
John Kirkwood, Professor, Seattle University Law School

Section 2 in the Political Arena
Facilitator: William S. Comanor, Economist, UCLA and UC Santa Barbara
Jonathan Cuneo, Partner, Cuneo, Waldman, Gilbert & LaDuca, LLP
Seth Bloom, Senior Counsel, U.S. Senate Antitrust Subcommittee
Robert Hubbard, Director of Litigation, Antitrust Bureau of New York, and Chair of the NAAG Multistate Antitrust Task Force

International Perspectives on Dominance
Facilitator: Philippe Brusick, Former Head of Competition and Consumer Policies, UNCTAD
Randolph Tritell, Director, Office of International Affairs, Federal Trade Commission and Co-Chair ICN Unilateral Conduct Working Group
Hector Ruiz, CEO, Advanced Micro Devices, Inc.

12:00 p.m.
Luncheon

Welcome and Report on AAI
Albert A. Foer, President, American Antitrust Institute 

Presentation of the Fifth Annual Jerry S. Cohen Memorial Award for Antitrust Scholarship
Herbert Milstein, Partner, Cohen, Milstein, Hausfeld & Toll 

Presentation of Career Civil Service Award
William Kovacic, Commissioner, Federal Trade Commission 
Presentation of AAI Antitrust Achievement Award to Maxwell Blecher
Jonathan Cuneo, Partner, Cuneo, Waldman, Gilbert & LaDuca, LLP
Warren Grimes, Professor, Southwestern Law School

2:00 p.m.
Afternoon Breakout Sessions for Facilitated Discussion

Essential Facilities and Leveraging Doctrines
Facilitator: Diana Moss, Director and Senior Fellow, AAI
Spencer Waller, Professor, Loyola University Chicago School of Law
Warren Grimes, Professor, Southwestern Law School

Bundling Issues
Facilitator: Eric Cramer, Partner, Berger & Montague
Jonathan Rubin, Partner, Patton & Boggs
Thomas M. Susman, Partner, Ropes and Gray; Counsel, Association of Research Libraries 

Aftermarkets
Facilitator: Gregory Gundlach, Professor, University of North Florida
Norman Hawker, Professor, Western Michigan University, Haworth College of Business Lorenzo Coppi, Vice President, CRA International

3:00 p.m.
Report on the Joint Hearings on Single-Firm ConductThomas O. Barnett, Assistant Attorney General, U.S. Department of Justice

3:30 p.m.
Is There an Emerging “ Washington Consensus” on Single-Firm Conduct?
William S. Comanor Economist, UCLA and UC Santa Barbara

4:00 p.m.
Closing Remarks

May 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, May 11, 2007

Competition in the Real Estate Industry

Posted by D. Daniel Sokol

The FTC and DOJ released a report this week entitled Competition in the Real Estate Brokerage Industry:  A Report by the Federal Trade Commission and the U.S. Department of Justice.  According to the press release, recommendations of the report include:

  • The FTC and the Department should continue to monitor the cooperative conduct of private associations of real estate brokers and bring enforcement actions in appropriate circumstances. While cooperation among brokers through a multiple listing service can provide consumers with important efficiencies, cooperation used to adopt rules that hinder rivals can be anticompetitive and, as recent agency actions indicate, may violate the antitrust laws.
  • The FTC and the Department should continue to provide state legislators and industry regulators with information concerning the competitive consequences of state legislation and regulations that threaten to or already do restrict competition and consumer choice in the real estate brokerage industry, and take enforcement action in appropriate circumstances.
  • State legislators and industry regulators should consider repealing existing laws, rules and regulations, such as minimum-service and anti-rebate provisions, that limit choice and reduce the ability of new brokerage models (e.g., fee-for-service brokers, discount full-service brokers, virtual office Web site brokers, and broker referral networks) to compete and that do not appear to provide any consumer benefits that would justify such restrictions. They should also avoid enacting such laws, rules and regulations in the future.
  • The FTC, Department, and industry regulators should promote consumer understanding of marketplace options. Some consumers may not be aware of the range of alternatives available to them when hiring a real estate broker, including the types of business models available and the negotiability of fees, for both home buyers and sellers, or may not understand the duties owed by their broker. Competition in the real estate brokerage industry would likely be enhanced if consumers had better access to such information.
  • The FTC, Department, and industry regulators should assess the feasibility of an empirical study of the real estate brokerage industry. Transaction-level data on commission rates and fees are not publicly available, but broad national aggregate data suggest that commission rates and fees move in tandem with housing prices. Just as a 1983 FTC study provided valuable information about how real estate brokers competed in the late 1970s and early 1980s, a new study examining how transaction-level commission rates and fees vary based on such factors as market conditions, housing prices, and regulation would provide a better understanding of the current state of competition in the real estate brokerage industry.

May 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Private Rights of Action in the UK

Posted by D. Daniel Sokol

Antitrust plaintiff's firm Cohen Milstein made news this week when it opened a London office.  This signals a big chance in the possibility for increased UK private rights of action in competition policy.  The most recent issue of Competition Policy International has three articles that analyze the potential changes in the UK. 

Elizabeth Morony and Luke Tolaini offer an assessment of the recent OFT discussion paper on private rights of action, Diana Good identifies a number of troubling elements to the OFT discussion paper and Emanuela Lecchi focuses her analysis on mitigating costs for claimants and how private and public antitrust would interact.   

May 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2007

New Antitrust Books

Posted by D. Daniel Sokol

The ABA Antitrust Section has just published six new antitrust books, all of which cover important policy issues and provide the latest analysis and understanding of the state of US antitrust law.

Intellectual Property and Antitrust Handbook
The Intellectual Property and Antitrust Handbook examines the nature and interface of the intellectual property and antitrust laws, and the different types of intellectual property. Anyone involved in intellectual property will find this a useful reference tool.

Indirect Purchaser Litigation Handbook
This Handbook seeks to explain both the framework for indirect purchaser claims and the issues that commonly arise in indirect purchaser litigation. The book is intended as a guide for practitioners and courts, working in the world as it is today. The book also describes the individual states’ reactions over the past two decades to the US Supreme Court’s Illinois Brick decision.

FTC Practice and Procedure Manual
The FTC Practice and Procedure Manual is intended to provide a “how-to” guide for lawyers and parties involved in both competition and consumer protection matters before the Federal Trade Commission, it will make Federal Trade Commission (FTC) practice accessible to attorneys who may not come before the FTC regularly, and also provide enough detail to be useful to those who deal with the FTC often. 

Federal Statutory Exemptions from Antitrust Law
Currently more than twenty statutory antitrust exemptions exist, scattered throughout the U.S. Code, which touch upon widely differing aspects of commerce. Now, for the first time, this monograph comprehensively surveys the diverse array of statutes currently in force that modify or limit federal antitrust law, and critically analyzes their costs and benefits.

Antitrust Law Developments, Sixth Edition
Antitrust Law Developments (Sixth) is the seminal comprehensive review of federal antitrust law, with reports on current case law and administrative and legislative developments current through 2006. This 2-volume set updates you on key decisions in the courts, and at the enforcement agencies, keeping you current in every area of antitrust practice.

Premerger Notification Practice Manual, Fourth Edition 
This updated fourth edition of Premerger Notification Practice Manual remains the best and most comprehensive published source for guidance in complying with federal agency rules governing notification of a planned merger. An extensive index enables you to locate relevant summaries quickly and easily. The appendix contains the text of all 17 of the FTC's HSR Formal Interpretations.

May 10, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 9, 2007

Call for Papers: Latin American Competition Policy Conference in Sao Paolo

Posted by D. Daniel Sokol

CALL FOR PAPERS
  Latin American Competition Policy Conference
  Fundação Getulio Vargas
  São Paolo Brazil
  March 21, 2008

We invite the submission of theoretical, empirical, and policy-oriented papers from academics in law and economics on topics related to one of the two conference themes: (i) cartels, and (ii) competition advocacy in Latin America. The primary focus of the conference is on academic research that is country specific or region-wide. Additionally, we intend to organize a reaction session of competition agency officials on these issues.

Authors of accepted papers will receive reimbursement for travel related expenses (hotel, airfare, incidentals). Proceedings of the conference will be published in a book with a major academic publisher. To be eligible for submission, a paper cannot be previously published or accepted for publication. Papers may be submitted in any of the three conference languages: English, Portuguese or Spanish. Final publication of papers will be in English.

The initial deadline for abstracts and papers is September 5, 2007. At this initial date, authors may submit either an abstract or a paper and an abstract. Abstracts should be no more than 1,500 words. An author may submit more than one paper. However, any one person may present only one paper. All submissions will be refereed. Authors of accepted abstracts must submit a paper by February 1, 2008.

We expect to notify authors about acceptances by October 15, 2007.   

The number of accepted papers and the panel subjects will depend on the number, quality, and subject areas of the submitted papers.

Paper and abstract submissions should be sent to UMCLawAntitrust@missouri.edu.  The conference website is available at http://law.missouri.edu/latin-am-antitrust/.

May 9, 2007 | Permalink | Comments (0) | TrackBack (0)

Behavioral Economics and Mergers

Posted by D. Daniel Sokol

Maurice Stucke of DOJ/Antitrust has a new article on the use of behavioral economics and mergers entitled Behavioral Economists at the Gate: Antitrust in the 21st Century.

Abstract: Although tossed against the rocks elsewhere, the Law and Economics' rational choice theories, within the quiet waters of antitrust, stand largely unchallenged. Antitrust's economic theories, premised on “rational” profit maximizing behavior, enjoy the deep slumber of a decided opinion. Although Post-Chicago School antitrust theories have developed, the Chicago School's rational choice theories still dominate. This article explores some possible paradoxes and anomalies with respect to antitrust's merger theories. It appears anecdotally that some corporate behavior is (or is not) occurring which is not readily explainable under the Chicago School's theories. It is an empirical question as to the degree the federal antitrust agencies, relying upon their Horizontal Merger Guidelines, are indeed accurately forecasting the likely competitive effects of mergers today. This article concludes with recommendations for specific legislation to improve the current state of antitrust policy.

Today, the federal agencies devote considerable resources investigating ex ante the merger. But the agencies examine only half the picture, namely the state of competition in the few years leading up to the merger. Now it is time for the agencies to systematically review what actually happens post-merger. Close-call mergers would be revisited to determine if the agencies got it right. Empirically testing these Chicago School theories may reduce the likelihood of false negatives and positives in merger review, lead to more effective antitrust enforcement, increase transparency of the merger review process, make the agencies and their officials more accountable for their decisions, and perhaps temper the claims of partisanship in antitrust enforcement, which have increased over the past quarter century.

May 9, 2007 | Permalink | Comments (0) | TrackBack (1)

Tuesday, May 8, 2007

Wall Street Journal on Alcoa/Alcan Proposed Merger

Posted by D. Daniel Sokol

It is rare that the website of a major international newspaper pays attention to an email exchange between two Antitrust professors.  However, the Wall Street Journal's Law Blog has done just that on an exchange between Harry First of NYU Law School and John Flynn of the University of Utah Law School regarding the Alcoa/Alcan proposed merger.

On John Flynn, I am also very happy to announce that the University of Utah Law Review issue dedicated to him entitled Recurring Issues in Antitrust Enforcement that Darren Bush of the University of Houston Law School organized is now available on Westlaw. 

May 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Thoughts on the Chicago Legacy in U.S. Antitrust

Posted by D. Daniel Sokol

Last month Robert Pitofsky hosted the conference the Kirkpatrick Antitrust Conference on the Conservative Economic Influence on U.S. Antitrust Policy.   Richard Schmalensee, John C Head III Dean and Professor of Economics and Management at the MIT Sloan School of Management presented the insightful paper Thoughts on the Chicago Legacy in U.S. Antitrust.  One excerpt from the presentation provides a good synopsis of the piece:

I think it is now widely – though surely not universally – accepted that the Chicago legacy in antitrust has on balance been strongly positive. In this essay I will take a look back at some decisions and issues that were in the antitrust mainstream around 1970 through the lens of The Antitrust Pardox, with occasional use of Richard Posner’s roughly contemporaneous Antitrust Law. My goal is to review some of the aspects of U.S. antitrust policy that outraged Chicago School lawyers and economists in the 1970s and some of Chicago’s subsequent victories that are now generally accepted as positive changes. I will also argue that some of Chicago’s lost battles also constitute positive aspects of its legacy.

May 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, May 7, 2007

Antitrust and Nonprofit Hospital Mergers

Posted by D. Daniel Sokol

Barak Richman has a new working paper on hospital mergers entitled Antitrust and Nonprofit Hospital Mergers: A Return to Basics. During the Muris FTC era, this was an area of significant focus by antitrust authorities.

ABSTRACT: Courts reviewing proposed mergers of nonprofit hospitals have been abandoning the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition - maximizing allocative efficiency and total surplus. This article suggests that courts' inability to recognize antitrust concerns in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have denied challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protect nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the bedrock principles of antitrust law - preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency - that have been absent from, if not violated by, the rulings in these merger cases.

May 7, 2007 | Permalink | Comments (0) | TrackBack (0)