Antitrust & Competition Policy Blog

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

Saturday, November 17, 2007

Comments on the Merger Control Provisions of the Amendment's to India's Competition Act

Posted by D. Daniel Sokol

The ABA International and Antitrust sections have submitted comments on the merger control provisions of the September 2007 amendments to India's Competition Act of 2002.
Download abaindia_comments__5bindian5d_competition_amendment_act_2007issued.pdf

November 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, November 16, 2007

Governance and Vertical Integration in Team Sports

Posted by D. Daniel Sokol

Do vertical restraints matter in the sporting world? Stefan Szymanski (Imperial College, University of London Business School) and Steve Ross (Penn State Dickenson School of Law) think that this is an unexplored area and write about it in their article Governance and Vertical Integration in Team Sports.

ABSTRACT: Antitrust law distinguishes vertical and horizontal restraints. A horizontal restraint is one which exists between competing firms supplying rival products in a market, and a vertical restraint is one which exists between firms that jointly contribute to supplying a particular product in a market. Horizontal agreements receive much closer antitrust scrutiny because they often enable firms to limit competition at the expense of consumers, while vertical restraints may be legal or illegal depending on whether they tend to enhance or reduce competition or the exploitation of market power. This paper argues that there are important vertical restraints that operate in sports leagues which have been mostly neglected in the literature but have a significant impact. We focus on intraleague restraints, where member clubs of a league agree to control the organization of league competition, and interleague restraints, where horizontal agreement such as the Reserve Clause relies on agreements not to compete for players competing in senior or junior leagues.

November 16, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2007

Symposium on the Future of Private Antitrust Enforcement

Posted by D. Daniel Sokol

AAI presents a symposium on the Future of Private Antitrust Enforcement.

Date: December 10, 2007
National Press Club, Holeman Lounge
Address: 529 14th St. NW, 13th Floor Washington, DC 20045

9:00 a.m.
Welcome and Introduction
Bert Foer, President, American Antitrust Institute

9:10 a.m.
The Benefits of Private Enforcement Moderator: Bert Foer, President, American Antitrust Institute
• Robert Lande, Venable Professor of Law, University of Baltimore; AAI Director
• Joshua P. Davis, Professor and Director, Center for Law and Ethics, University of San Francisco School of Law
• Joseph Bauer, Professor of Law, University of Notre Dame Law School
• John E. Schmidtlein, Partner, Williams & Connolly LLP

10:30 a.m.
Break: 15 minutes

10:45 a.m.
The Future of Direct and Indirect Purchaser Actions Debate: Is the AMC's Proposal for Altering Antitrust Direct and Indirect Purchaser Standing Rules Radically Necessary or Radically Destructive?
Moderator: Robert A. Skitol, Partner, Drinker Biddle & Reath LLP; AAI Director
• Jonathan Jacobson, Partner, Wilson Sonsini Goodrich & Rosati
• Eric L. Cramer, Berger & Montague, P.C.

11:45 a.m.
Break: 10 minutes

11:55 a.m.
The Future of Treble Damages, Joint & Several Liability, Contribution, Claims Reduction, and Prejudgment Interest
Moderator: Daniel A. Small, Partner, Cohen Milstein Hausfeld & Toll PLLC
• Joshua P. Davis, Professor and Director, Center for Law and Ethics, University of San Francisco School of Law
• Joseph R. Saveri, Partner, Lieff Cabraser Heimann & Bernstein, LLP
• George G Gordon, Partner, Dechert LLP

1:00 p.m.
Luncheon Speaker: Maxwell M. Blecher, Partner, Blecher & Collins

2:10 p.m. Elevated Standards of Proof and Pleading: Implications of Twombley and Daubert
Moderator: Stephen Ross, Professor, Penn State University Dickinson School of Law
• Beth Farmer, Professor, Penn State Dickinson School of Law
• James Langenfeld, Director, LECG
• Linda P. Nussbaum, Partner, Kaplan Fox & Kilsheimer LLP
• John E. Schmidtlein, Partner, Williams & Connolly LLP

3:45 p.m.
Break: 15 minutes

4:00 p.m.
Facilitated Discussion: Where Do We Go From Here? Moderator: Bert Foer, President, American Antitrust Institute

5:00 p.m. Adjourn

November 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Technological Innovation and Monopolization

Posted by D. Daniel Sokol

F.M. Scherer of Harvard's Kennedy School of Government provides an excellent overview of the core antitrust-innovation cases of the US antitrust cannon in Technological Innovation and Monopolization.

ABSTRACT: This paper, written for an American Bar Association compendium on competition policy, reviews seven of the most important U.S. antitrust cases charging firms in high-technology industries with violations of Sherman Act Section II -- i.e., with monopolization. The principal target firms were Standard Oil of New Jersey, General Electric (in lamps), AT&T, du Pont (for cellophane), Xerox, IBM, and Microsoft (both in the United States and Europe). From an analysis of the historical records, it is clear that in most instances, the legal system took far too long to deal with the contested issues. In the interim, firms that had achieved dominant positions through innovation often embraced new technologies slowly, sometimes pursuing an explicit "fast second" strategy -- that is, waiting to innovate until their positions were threatened by outsiders. The stimulating effect of outside challenges suggests that entry should be kept open, among other things by combating the extension over time of blocking patent positions. Procedural reforms for accelerating the adjudication of complaints are proposed.

November 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 14, 2007

Amicus Brief for American Antitrust Institute in Quanta Case

Posted by Shubha Ghosh

Linked here is an amicus brief filed by the American Antitrust Institute in the Quanta v LG Electronics case, in which the Court is reviewing the conditional sale doctrine created by the Federal Circuit as a limitation on the first sale doctrine (aka patent exhaustion).  The brief makes the point that the first sale doctrine promotes competition, and the conditional sale doctrine limits the first sale doctrine in a way that expands the rights of the patent owner in an anti-competitive way.  As a matter of disclosure, I was one of the co-authors of the brief.  Here it is:  Download 06937tsacamericanantitrustinstitute.pdf   

November 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Private Rights of Action in the EU- A Potential Disaster?

Posted by D. Daniel Sokol

Kent S. Bernard of Pfizer provided an in-house analysis of U.S. inspired private antitrust actions to the EU in his article Private Damages Actions: A U.S. Perspective on Importing U.S. Damages Actions to the EU

ABSTRACT: On December 19, 2005 the European Commission published for public consultation a Green Paper on Damages Actions for Breach of EC Antitrust Rules (“the Green Paper”). The stated aim was to design a more efficient system for bringing private damages actions for infringement of EC antitrust law. The source of many of the suggested changes was United States antitrust litigation practice.

In the debate that has followed, a key point seems to have been overlooked—U.S. antitrust litigation goes together with U.S. substantive antitrust law. Regardless of what one thinks of the U.S. litigation system in the context of U.S. substantive law, to graft that system onto the very different approach embodied in EC competition law raises a whole host of potential problems. This may well not be a hybrid that the EC wants to create.

November 14, 2007 | Permalink | Comments (0) | TrackBack (0)

The Gambia Passes Competition Bill

Posted by D. Daniel Sokol

The Gambia is about to join the 100+ countries of the world with a competition law.  See here for details.

HT to CUTS for providing details to the story.

November 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 13, 2007

The Antimonopoly Law in China: Where Do We Stand?

Posted by D. Daniel Sokol

The Chinese Anti-Monopoly Law (AML) is perhaps the most interesting international antitrust development of recent years in terms of its potential impact.  Xinzhu Zhang (Economics Department of the School of International Business Administration, Shanghai University of Finance and Economics) and Vanessa Yanhua Zhang (LECG) discuss the AML in their recent article The Antimonopoly Law in China: Where Do We Stand?

ABSTRACT: The recent development of China’s Antimonopoly Law has caught the attention of governments, academia, and businesses. Although China has laws that address anticompetitive conduct and institutions to enforce them, they are disparate and do not constitute a comprehensive competition regime. Recent antitrust cases in China have stressed the need for a competition law that can be applied consistently across sectors. In this paper, the authors explain China’s legislative process, the relationships among its relevant institutions, and explore the problems and challenges facing lawmakers. Although the 2007 passage of the Antimonopoly Law was an important step towards a comprehensive competition regime, it remains to be seen how it will operate in practice when it goes into effect on August 1, 2008. The authors argue that two key issues remain unresolved: 1) how the Antimonopoly Law will be backed by an effective enforcement process; and 2) how the Antimonopoly Law will effectively deal with administrative monopolies.

November 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Antitrust and Positional Arms Races

Posted by D. Daniel Sokol

Michael Sabin a grad student at the Harvard University - John M. Olin Center for Law, Economics, and Business has written recently on Antitrust and Positional Arms Races.

ABSTRACT: The idea of ?winner take all? markets, or harmful ?positional races? as the phenomenon is sometimes called, directly clashes with the philosophy of antitrust regulation. Antitrust advocates competition as the means of achieving its ultimate goal of maximizing welfare. ?Positional? competition, however, produces suboptimal results. Should antitrust law apply to ?winner take all? markets, or should this field be left to other governmental regulation?

This paper addresses the relevance of antitrust regulation to winner-take-all markets and proceeds as follows: Part I describes the phenomenon of suboptimal winner-take-all markets, sometimes called ?arms races? because they spur participants to race each other for supremacy. Part I draws the basic lines of relevant antitrust law and considers ?arms control agreements? as a tool for mitigating this kind of market failure. Part II is dedicated to a short, positive analysis of such agreements under Section 1 of the Sherman Act. In Part III, some thoughts on normative and institutional reasons underlying the analysis in Part IV are presented. Finally, Part V outlines the conclusions.

November 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2007

How Airline Markets Work...Or Do They? Regulatory Reform in the Airline Industry

Posted by D. Daniel Sokol

Severin Borenstein (Berkeley Haas School of Business) and Nancy L. Rose (MIT Economics Department) write on How Airline Markets Work...Or Do They? Regulatory Reform in the  Airline Industry.

ABSTRACT: Following a brief review of the U.S. domestic airline industry under regulation (1938-1978), we study the changes that have occurred in pricing, service, and competition in the 28 years since deregulation. We then examine some of the major public policy issues facing the industry: (a) the sustainability of competition and volatility of airline profits, (b) possible market power of dominant airlines, and (c) congestion and investment shortfall in the airport and air traffic infrastructure.

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

You Have to be a Genius to Read This Blog

Posted by D. Daniel Sokol

I knew that antitrust lawyers and economists were smart.  Until this morning, I just did not know how smart.  According to this site, the level of intelligence required to read this blog is "genius."  In comparison, according to Dan Solove over at Concurring Opinions, you need to be a genius to read the Becker-Posner blog, college (undergrad) educated to read the Conglomerate Blog and only high school level to read the WSJ blog or the Washington Post.

November 12, 2007 | Permalink | Comments (1) | TrackBack (0)

Sunday, November 11, 2007

The Chicago School Triumphant After All

Posted by D. Daniel Sokol

Wright A while ago, I linked to Einer Elhauge's article on the dominance of the Harvard School over that of the Chicago School in terms of recent Supreme Court antitrust decisions.  Josh Wright of George Mason Law School takes the contrary view that the Chicago School reigns supreme in his article The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond.

ABSTRACT:  The U.S Supreme Court issued four antitrust decisions this term (the most it has issued since the 1989-1990 term) and seven cases over the past two years. The antitrust activity level of the Roberts Court thus far has exceeded the single case average of the Court prior to the 2003-2004 term by a significant margin. What can be said of the Roberts Court's antitrust jurisprudence? This article examines the quartet of Supreme Court decisions issued during the 2006-2007 term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis and predict that the antitrust jurisprudence of this Court will increasingly reflect this influence.

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

New Merger Review in Spain

Posted by D. Daniel Sokol

Spanish competition law has gone through a number of transformations.  Although merger review has existed since 1989 (in a mandatory form since 1999), the new Spanish Antitrust act includes several changes in the substance and procedure of merger review.  The main goal of the reforms are to make merger control decisions more rapid and independent.  Spanish academics Francisco Marcos and Albert Sánchez Graells of Instituto de Empresa discuss these changes in their article  El sistema de  control de concentraciones empresariales en la nueva Ley de Defensa de la Competencia.

Download francisco_marcos.pdf

ABSTRACT: La aprobación de la Ley 15/2007, de 3 de julio, de Defensa de la Competencia ha introducido modificaciones muy significativas en este ámbito normativo, de especial relevancia para la actividad empresarial. En el presente estudio se analiza el nuevo sistema de control de concentraciones empresariales, destacando las principales modificaciones de este sistema de autorización administrativa de operaciones corporativas.

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