Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, March 22, 2008

EC Competition Law: An Analytical Guide to the Leading Cases

Posted by D. Daniel Sokol

New from Hart Publishing is EC Competition Law: An Analytical Guide to the Leading Cases by Ariel Ezrachi (Oxford Faculty of Law).

BOOK SUMMARY: This book is a concise, highly practical guide to the leading cases of European competition law. It focuses on Article 81 EC, Article 82 EC, the European Commission's enforcement powers and the private enforcement of competition law in national courts.

The book is designed as a working tool for the study and practice of European competition law. An introduction at the beginning of each chapter lays down the relevant laws, regulations and guidelines for each of the topics and sets the analytical framework for the case summaries that follow. The case summaries are then provided, each followed by analysis and commentary that add further context.

March 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2008

Mergers and Acquisitions: Understanding the Antitrust Issues

Posted by D. Daniel Sokol

The ABA Antitrust Section has just released Mergers and Acquisitions: Understanding the Antitrust Issues, Third Edition.

SUMMARY: Since the publication of the first edition of Mergers and Acquisitions, the federal agencies and state attorneys general have continued an active merger agenda and have refined merger analyses through settlements, liquidated cases, and speeches. This third edition has been completely updated to capture the most important developments in this area. 

March 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Teaching Fellowships for Aspiring Law Professors

Posted by D. Daniel Sokol

Paul Caron at Tax Prof Blog has listed various law teaching and research fellowships to help enter the world of legal academics.  These programs have proliferated in recent years and in most cases an advanced degree and/or a teaching fellowship have become necessary to get an academic position in law teaching.

March 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Market Definition, Competition, and Privacy in the Google/DoubleClick Transaction

Posted by D. Daniel Sokol

Mark Seidman (Federal Trade Commission) & Christine Naglieri (Federal Trade Commission) discuss two of the key issues: market definition in the online advertising industry; and the interplay of competition and privacy concerns in their article Market Definition, Competition, and Privacy in the Google/DoubleClick Transaction.

ABSTRACT: On December 21, 2007, the U.S. Federal Trade Commission (FTC) closed its investigation of Google Inc.’s proposed acquisition of DoubleClick Inc. The merger and the Commission’s investigation attracted a great deal of public interest, and the matter presented several novel issues for antitrust practitioners and commentators. This article discusses two of the issues that generated much public discussion: 1. market definition in the nascent, dynamic online advertising industry; and 2. the interplay of competition and privacy concerns surrounding the accumulation of consumer data.

March 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2008

The Use of Customer Surveys For Market Definition and the Competitive Assessment of Horizontal Mergers

Posted by D. Daniel Sokol

Graeme Reynolds (Economic Adviser, U.K. Competition Commission) and Chris Walters (Assistant Director, Mergers, Office of Fair Trading) have written on The Use of Customer Surveys For Market Definition and the Competitive Assessment of Horizontal Mergers in a forthcoming issue of the Journal of Competition Law and Economics.

ABSTRACT: In this paper, we discuss the U.K. Competition Commission's (CC) extensive use of customer surveys in merger control. We point out how the U.K.'s "phase two" merger regime compels the CC to decide upon, design, and commission a customer survey almost as soon as its merger investigation begins. We highlight the effect that this has on two areas of the CC's merger control process that use customer surveys—definition of the relevant market, and assessment of the competitive effects of a merger in the relevant market. We illustrate how to avoid seven consequential pitfalls in using customer surveys with case-study examples from two recent CC horizontal merger inquiries. We suggest that customer surveys, carefully done, have provided useful insights for the CC, but the complications of doing them have meant that they always have been considered in the context of other evidence.

March 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Managing Economic Analysis in Competition Law

Posted by D. Daniel Sokol

The European School of Management and Technology will be holding a conference on Managing Economic Analysis in Competition Law on April 11-12, 2008.

Modern EU competition law focuses on an effects-based analysis. The handling of empirical evidence and economic arguments and the incorporation of these into the legal assessment becomes more important. In order to achieve the best outcome for their clients, senior legal advisors and counsel need to integrate economic analysis in a case and make best use of it. This requires an understanding of what modern economic analysis can deliver and how to interpret its results.

This one-and-a-half day practice-oriented program is designed for senior EC competition lawyers working in private practice, in-house, or for a competition authority. Rather than trying to turn experienced lawyers into economists, the program aims at improving their use and understanding of economics. Surrounded by peers, participants will be able to share their experience with regard to economic analysis. Senior European economic experts who have shaped the effects-based approach and advised competition lawyers in numerous cases will offer an interactive course meant to strengthen your profile as a competition lawyer.

Learn more about the seminar program.

Target Audience

You are a senior lawyer working on EC competition cases in private practice, for a competition authority, or in-house. Using your extensive understanding of European competition law, you would like to improve your management and understanding of economic analysis in competition cases.

Key Topics

  • Overview: economic analysis and its role in modern EC competition cases
  • Empirical analysis in low and rich data environments: surveys, observed behavior, low- and high-tech techniques
  • Trade-off between economic analysis of competitive effects and/or efficiencies
  • Use and abuse of conceptual arguments: unilateral vs. coordinated effects, trade-offs, contradictions and commonalities
  • Counterfactual analysis in various fields of competition policy
  • Scrutinizing economic analysis: Examples of good and bad types of economic analysis in competition policy

Take-Home Value

This program will provide you with an understanding of economic tools in competition cases. It will enable you to understand what economic analysis can deliver regarding competitive cases and allow you to use economists and economic analysis as a proactive instrument when advising clients and making relevant decisions. By identifying the elements of robust economic analysis, it will help you to distinguish good economic advice from bad. The program will also help you to develop expert knowledge regarding the type of economics that can make a difference in EC competition cases.

Meet the Faculty

Dr. Rainer Nitsche (Program Director)
Full biography

Rainer Nitsche is an expert in providing economic advice in merger and state aid control as well as in competition and litigation cases before the European Commission and national competition authorities. Prior to joining ESMT Competition Analysis, Rainer Nitsche was Vice President in the Competition Practice and Director of the Brussels office of CRA. Before his five years in Brussels he was an economic consultant at Price Waterhouse and Arthur Andersen in London and Berlin.

Dr. Hans Friederiszick
Full biography

Hans W. Friederiszick was appointed managing director of ESMT Competition Analysis in October 2006 and a full-time member of the faculty in July 2007. From 2003 to 2006 he was part of the Chief Economist Team of DG COMP. Besides his involvement in merger and antitrust cases, during his stay at the Commission he was one of the main contributors to the development of what is called the refined economic approach in the field of state aid. From 2001 to 2003 he was partner of an economic consultancy. In 2000 Hans was awarded his doctorate within the PhD program “Applied Microeconomics,” offered jointly by the Free University and the Humboldt University Berlin.

Prof. Lars-Hendrik Röller
Full biography

Lars-Hendrik Röller took over as President of ESMT on September 1, 2006. Before joining ESMT, he was the first Chief Competition Economist of the European Commission. Lars-Hendrik Röller was a professor at INSEAD from 1987 to 1999. In 1994 he became the Director of the research unit “Competitiveness and Industrial Change” at the Wissenschaftszentrum Berlin (WZB), Europe’s largest social science research center. In 1995 he was appointed Professor for Industrial Economics at Humboldt-Universität zu Berlin. His areas of expertise include competition, strategy and regulation.

March 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Call For Papers - Antitrust Economics and Competition Policy

Posted by D. Daniel Sokol

     Northwestern University School of Law
     Searle Center on Law, Regulation, and Economic Growth

     CALL FOR PAPERS
     "ANTITRUST ECONOMICS AND COMPETITION POLICY"
    
     September 26th & 27th, 2008
    
    
     The Searle Center on Law, Regulation, and Economic Growth
     is issuing a call for original research papers to be
     presented at a Research Symposium on Antitrust Economics
     and Competition Policy at Northwestern University School of
     Law. The Symposium will run from 9:00 AM on Friday,
     September 26th to 12:30 PM on Saturday, September 27th. 
     The Symposium is co-sponsored by the Center for the Study
     of Industrial Organization at Northwestern University.
    
     The goal of this Research Symposium is to provide a forum
     where leading scholars from across the country can gather
     together with Northwestern's own distinguished faculty to
     present and discuss high quality research relevant to
     antitrust economics and competition policy. Both
     theoretical and empirical submissions are welcome. Papers
     in industrial organization or applied microeconomic theory
     that address issues relevant to antitrust policy are
     welcome even if they do not directly focus on particular
     antitrust policy issues or institutions. We hope to
     involve leading thinkers from the government, non-profit,
     and private sector, as well as leading academics from
     economics departments, business schools, law schools and
     public policy schools. While most of the conference will be
     devoted to presentation and discussion of original academic
     research, we also expect to schedule a small number of
     panels on important current topics or policy issues. If
     you have questions about the appropriateness of your paper
     for the symposium, or suggestions for panel subjects,
     please contact:

     CONTACT:       Professor William Rogerson
                    Research Director
                    Searle Center Research Project on Competition
                    Antitrust and Regulation
     Email:         MAILTO:wrogerson@northwestern.edu
    
     There will be a reception, dinner and program on Friday
     evening.
    
     Presenters will receive an honorarium of $1,000 to cover
     reasonable transportation expenses. The Searle Center will
     make hotel reservations and pay for rooms on Thursday and
     Friday.
    
     Papers prepared for the Research Symposium on "Antitrust
     Economics and Competition Policy" will be permanently
     hosted on the Searle Center website:
    
          http://www.law.northwestern.edu/searlecenter
    
     Authors will be free to publish their work in other venues.
    
    
     SUBMISSION PROCEDURE AND TIMELINE:
    
     All submissions should include an abstract (300 words
     maximum). If a draft of the paper is currently available,
     please send it.
    
     Submission Deadline:  Submissions should be sent to:
    
     Email:       MAILTO:searlecenter@law.northwestern.edu
    
     by April 15, 2008. 
    
     Notification Deadline:  Submissions will be reviewed by a
     three-member committee. Authors will be notified of the
     committee's decisions by May 15, 2008.
    
     Discussion Draft Deadline:  Papers suitable for
     distribution to discussants and other conference
     participants must be received by September 1, 2008.
    
     Revision Deadline:  November 1, 2008. Upon revision in
     response to comments received at the symposium, papers will
     be permanently hosted on the Searle Center website.
    
     Potential discussants or panel members should send a
     message indicating their interest to:
    
     Email:       MAILTO:searlecenter@law.northwestern.edu
    
     by April 15, 2008.
    
     The Searle Center on Law, Regulation, and Economic Growth
     at Northwestern University School of Law was established in
     2006 to research how government regulation and
     interpretation of laws and regulations by the courts affect
     business and economic growth. Information on the Searle
     Center's activities may be found at:
    
          http://www.law.northwestern.edu/searlecenter

March 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2008

The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy

Posted by D. Daniel Sokol

Peritz_rudolph2_2Rudolph Peritz of New York Law School provides his analysis of the Roberts Court's antitrust jurisprudence in his paper The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy.

ABSTRACT: The Supreme Court under Chief Justice John Roberts has rendered only one decision, Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) that explicitly addresses the relationship between antitrust and intellectual property rights. But there have been at least five more decisions that bear on the broader topic of competition policy and intellectual property rights. An interesting dynamic emerges from this cluster of opinions: While the antitrust cases apply intellectual property rights to justify restraints on competition, the three patent cases call for limits on their exclusionary logics and effectively seek to open the door to increased competition. Altogether, these six decisions seem to extend rather than alter the Court‘s preceding jurisprudential trajectories in antitrust and intellectual property rights. In this light, they offer some insights into the divergent approaches to competition policies that have developed in these overlapping regimes.

March 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Cy Pres as an Antitrust Remedy

Posted by D. Daniel Sokol

Bert Foer of the American Antitrust Institute discusses Cy Pres as an Antitrust Remedy in his latest working paper.

ABSTRACT: This paper discusses the cy pres doctrine and more specifically the courts‘ authority to use cy pres remedies in antitrust lawsuits. The doctrine allows undistributed or unclaimed residue of a settlement or class action damages to be used to provide indirect, prospective benefit of a class of consumers. This paper argues that in antitrust cases the cy pres doctrine may be used as a remedy to restore competition within a specific market or to maintain competition more generally. However, a cy pres distribution is legitimate only if it is linked, directly or indirectly, to the underlying purposes of the statue that was violated. While some fluid recoveries proposed to courts have adequately reflected this nexus between the scope of the lawsuit and the cy pres distribution, in other cases the nexus was completely absent. Such cases are particularly dangerous because they give the courts unfettered discretion to hand out money to any cause the judge or the lawyers personally favor. Fair and clear selection procedures should be established in order to fulfill the best interests of absent class members and to minimize disputes over the settlement. Consistent with this, the cy pres doctrine can be utilized to assist the goals of antitrust.

March 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Critical Loss Analysis in the Whole Foods Case

Posted by D. Daniel Sokol

ABSTRACT: In the matter of the U.S. Federal Trade Commission (FTC) versus Whole Foods (hereinafter Whole Foods), the economist for Whole Foods, Professor David Scheffman, applied “Critical Loss” (CL) analysis to the issue of market definition in the proposed merger of Whole Foods and Wild Oats.

Our point in this comment is not to criticize the application of critical loss analysis to market definition in that particular case. Rather, we illustrate why the CL analysis used by Whole Foods’ economist is not useful as a general matter. In our view, the type of analysis he presented is so fundamentally flawed that it cannot be used as a tool of market definition.

March 19, 2008 | Permalink | Comments (0) | TrackBack (0)

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.

March 18, 2008 | Permalink | Comments (0) | TrackBack (0)

RPM as an Exclusionary Practice

Posted by D. Daniel Sokol

Ittai Paldor of the University of Toronto Faculty of Law offers a contrarian take on RPM in his piece RPM as an Exclusionary Practice.

ABSTRACT: The existing explanations for resale price maintenance (RPM) are divided along a clear line, separating the pro- and anti- competitive explanations. The anti-competitive explanations suggest that RPM is introduced in furtherance of a cartel either at the retail level or at the manufacturing level. The pro-competitive explanations, by contrast, are all based on the assumption that RPM is designed to benefit a single manufacturer. A key distinction in classifying RPM systems according to the present state of the literature is thus the distinction between single-manufacturer-driven RPM and any other RPM system. This distinction is of major practical importance subsequent to the recent Supreme Court ruling in Leegin v. PSKS, which subjected RPM to scrutiny under the rule of reason rather than the per se illegality rule. In light of the existing explanations for RPM, it would seem logical to create a presumption, perhaps an irrefutable presumption, of pro-competitiveness when RPM is introduced at the genuine-initiative of a single manufacturer. The object of this paper is to challenge the consensus according to which single-manufacturer driven RPM is categorically pro-competitive, and caution against such RPM systems. I show that RPM can be used, and is likely to be used, as an exclusionary measure for the elimination of upstream competition. It thus has significant anti-competitive potential even when it is not introduced in furtherance of a cartel, which has important implications for the application of the rule of reason to the practice.

March 18, 2008 | Permalink | Comments (0) | TrackBack (0)

Elhauge's United States Antitrust Law and Economics

Posted by D. Daniel Sokol

New to the casebook world next month is Einer Elhauge's United States Antitrust Law and Economics.  Einer's recent Global Antitrust Law and Economics (along with Damien Geradin) is a first rate comparative antitrust casebook.

March 18, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2008

The Celtic Tiger and Competition Policy

Posted by D. Daniel Sokol

Ireland has been the economic success story of Europe of the past two decades.  Two weeks ago, the Irish Competition Authority released its 2007 Annual Report.  The report gives a sense of how competition policy plays a role in this success.

March 17, 2008 | Permalink | Comments (0) | TrackBack (0)

Report on Competition Issues in the Norwegian Software Market

Posted by D. Daniel Sokol

New on the Norwegian Competition Authority website is its  report on Norwegian software markets.

  • In 2007 the Norwegian Competition Authority took a closer look at the Norwegian software markets. The software markets differ from traditional markets because of economies of scale and network effects. These features imply that one firm may become dominant in the market and furthermore that software developers compete for the market instead of competing within the market.
  • Read the full English language summary here
  • The report in Norwegian is available here

 

March 17, 2008 | Permalink | Comments (0) | TrackBack (0)

St. Patrick's Day, Ireland and Competition Policy

Posted by D. Daniel Sokol

You could not ask for better timing.  Earlier this year, the Irish Competition Authority undertook some competition advocacy work involving the alcohol sector.  As its news release on the report states, "The Competition Authority has called on the Alcohol Advisory Group not to recommend the re-introduction of a ban on below unit-cost selling of alcohol or minimum prices for alcohol. If the Advisory Group believes the price of alcohol should be raised to curb alcohol consumption, excise duty is a better means of addressing this."

Happy St. Patrick's Day!

March 17, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 16, 2008

The Growing Influence of Economics and Economists on Antitrust: An Extended Discussion

Posted by D. Daniel Sokol

Lawrence White of NYU's Economics Department and Stern School of Business provides some good insights in his latest work The Growing Influence of Economics and Economists on Antitrust: An Extended Discussion.

ABSTRACT:  Over the past two to three decades economics has played an increasingly important role in the development of U.S. antitrust enforcement and policy. This essay first reviews the major facets of U.S. antitrust enforcement and next reviews the ways in which economics - starting from a low base - has grown in importance in antitrust. The essay then highlights three antitrust areas in which the influence of economics has had the greatest influence: merger analysis, vertical relationships, and predatory pricing. The essay concludes with the identification of four antitrust areas where further economics analysis could have high returns.

March 16, 2008 | Permalink | Comments (0) | TrackBack (0)