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Tuesday, March 18, 2008

Remedies for Dominant Firm Misconduct

Posted by D. Daniel Sokol

Chris Sprigman of UVA Law School is helping the ABA Antitrust Section put together what looks to be a great program on Remedies for Dominant Firm Misconduct on June 5, 2008 at UVA.

Download aba_remedies_schedule.doc Download aba_remedies.doc

The Antitrust Section is assembling a first-rate group of antitrust academics, current and former agency officials, and practitioners in the hope of sparking a deeper and more heterodox discussion of monopolization remedies and sanctions. Formulation of appropriate and effective remedies is critical to a well-crafted antitrust enforcement policy. In the monopolization context, enforcement requires both proving that the conduct of a dominant firm has had an anticompetitive effect, and that a court may order a timely, balanced, and administrable remedy that will restore competition and prevent future violations. To date, however, the discussion about monopolization remedies has not been nearly as vibrant as that about monopolization liability standards. That is unfortunate, not least because a better understanding of the subtleties of monopolization remedies would almost certainly affect our appreciation of the likely outcomes of the various proposed liability formulations.

We see this conference as the beginning of a new focus on monopolization remedies. The conference will be organized as a series of panels, tentatively scheduled as follows:

  1. Principles and Purposes of Remedies. This first panel will discuss the purposes of antitrust remedies and outline the types of remedies available in unilateral conduct cases. Questions to be addressed include: What priority should be given to structural vs. behavioral regimes? What is the proper role for fines, disgorgement, and private damages actions? Are certain remedies categorically unreliable? What considerations are most relevant to ensuring that a remedy is not likely to chill procompetitive conduct?
  2. Choosing Among Remedy Regimes. There is disagreement about the comparative efficacy of behavioral, structural, and monetary remedies, and each approach raises difficult questions. Is a behavioral remedy likely to be sufficient if it merely terminates specific anticompetitive conduct without also ending the dominant firm’s market power? Does enforcement of a behavioral remedy require intrusive oversight by agencies and courts? Does a structural remedy, such as divestiture or break-up, create unacceptable uncertainty regarding the new entities’ market fates? Can structural remedies be drawn in ways that reduce this uncertainty? Finally, how should courts and agencies calculate monetary sanctions to properly deter future anticompetitive conduct? Must monetary sanctions be accompanied by other remedies, or can they stand alone?
  3. Antitrust Consent Decrees in Monopolization Cases—Is Less Really More? We in the U.S. have a long history of consent decrees in monopolization cases. This panel will debate the effectiveness of these decrees, and ask whether the lessons from the past can be applied to our post-industrial economy.
  4. Remedies and IP. This panel will examine a set of particularly challenging remedy issues related to dominant firms’ use of their IP. In remedying a refusal to deal, how should agencies and courts approach the task of setting terms for “forced sharing”? In remedying monopolization in technology markets, how may a remedy be crafted to allow for the possibility of fast-moving and disruptive innovation?

    We also plan a keynote speech by Prof. Einer Elhauge, as well as a luncheon speech by Prof. Spencer Waller on the history of monopolization remedies in the U.S.

    Each of these panels will be focused on papers presented by their authors. The other panel participants will offer comments on those papers as well as their own insights. The entire conference will be structured as a roundtable event, with ample opportunity for the participants to interact and share ideas. We expect to start the conference by 4 pm on June 4. We will open that session with a keynote, a post-keynote discussion, and a conference dinner. We then plan a full day on the 5th.

    Conference papers will be published in a special issue of the Antitrust Law Journal to be published in the fall/winter of 2008.

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