Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, April 12, 2008

European and American Leniency Programmes: Two Models Towards Convergence?

Posted by D. Daniel Sokol

Nicolo Zingales
of the European Policy Centre asks about European and American Leniency Programmes: Two Models Towards Convergence?

ABSTRACT:  This paper compares the different approach that United States and Europe have embraced in designing their Leniency programme. The analysis first explains the rationale underlying such programme, sketching the economic principles on which it rests. It follows highlighting those crucial features that call for the utmost care in the design of the programme. Finally, the paper assesses under the perspective of rational consequent behaviour which programme has set better incentives to spur firms' confession.

April 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Fulbright Opportunities for Teaching/Research Abroad

Posted by D. Daniel Sokol

A number of interesting opportunities for research or teaching abroad are available for academic year 2009-2010 via the Fulbright program for US based economics and law faculty.

There are also opportunities for non-US based scholars to visit as a Fulbright professor in the United States.

 

April 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2008

Irish Competition Authority Publishes Study of the Grocery Sector

Posted by D. Daniel Sokol

This week the Irish Competition Authority published a study of its grocery sector.  According to the press release:

  • The first report, A Description of the Structure and Operation of Grocery Retailing and Wholesaling in Ireland: 2001 to 2006 provides a description of the market structure at the wholesale and retail levels of the Irish grocery sector.
  • The second report is entitled Price Trends in the Irish Retail Grocery Sector: A Description of the Evolution of Retail Grocery Prices between 2001 and 2007. In this report, the Competition Authority has considered the impact of the removal of the Groceries Order by examining the evolution of the aggregate retail grocery price trends since 2001.
  • The third report to be published in the current phase of the project will be The Retail Planning System as Applied to the Retail Grocery Sector: 2001 to 2006.

April 11, 2008 | Permalink | Comments (0) | TrackBack (0)

TOP 10 Most Downloaded New Papers on SSRN for Antitrust Law & Policy

Posted by D. Daniel Sokol

For the first time ever, the most downloaded antitrust paper is by a current law student.

TOP 10 Most Downloaded New Papers on SSRN for Antitrust Law & Policy

February 11, 2008 to April 11, 2008

1. Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(B)(6) Motions
Kendall W. Hannon
University of Notre Dame - Law School

2. The Growing Influence of Economics and Economists on Antitrust: An Extended Discussion
Lawrence J. White
New York University - Department of Economics

3. The Antitrust Marathon: A Roundtable Discussion
Spencer Weber Waller, Philip Marsden
Loyola University of Chicago - School of Law, The British Institute of International and Comparative Law

4. Foxes in the Henhouse: FCC Regulation through Merger Review
J. Gregory Sidak, Hal J. Singer
Criterion Economics, LLC, Criterion Economics, LLC

5. Market Concentration in the Antitrust Analysis of Horizontal Mergers
Jonathan B. Baker
American University - Washington College of Law

6. Innovation and the Domain of Competition Policy
Herbert J. Hovenkamp
University of Iowa - College of Law

7.  Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases
Robert H. Lande, Josh Paul Davis
University of Baltimore, University of San Francisco - School of Law

8. The Roberts Court after Two Years: Antitrust, Intellectual Property Rights, and Competition Policy
Rudolph J.R. Peritz
New York Law School 

9. An Empirical Evaluation of Long Term Advisors and Short Term Interventions in Technical Assistance and Capacity Building
D. Daniel Sokol, Kyle W. Stiegert
University of Missouri - School of Law and University of Florida – Levin College of Law, University of Wisconsin

10 Antitrust Policy and Industrial Policy: A View from the U.S.
Lawrence J. White
New York University - Department of Economics

April 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Report on Criminalization of Cartels Blocked by Australian Treasury

Posted by D. Daniel Sokol

We know that when firms collude and operate in secret, they are up to no good.  What I did not expect was the government agencies might agree not to publish a report on cartels.  Yet, this is exactly what has happened in Australia.  An Administrative Appeals Tribunal in the "Land Down Under" has ruled against a freedom of information request to release the Working Party Report on the criminalization of cartels.  The Working Party Report is the only detailed government discussion paper on the criminalization of cartel conduct but has been kept secret.  I hope that Australian academics appeal this.

HT: Brent Fisse

Download fissedot_07_2725_ors_final.doc

April 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2008

Call For Papers: DOJ Workshop on Airline Competition

Posted by D. Daniel Sokol

In October 2008, the Antitrust Division of the U.S. Department of Justice will host a one-day workshop on recent developments in airline antitrust and competition research to mark the 30-year anniversary of airline deregulation in the United States.      

Call for Papers             

Areas of interest: The Antitrust Division invites the submission of working papers focused on airline or airport-related issues. Particular areas of interest include:      

  • Airport capacity constraints, particularly the appropriate use of congestion pricing, the allocation of slots, or the effects of airport constraints on competition.
  • Antitrust market definition issues in the airline industry, particularly issues of competition between nonstop and connecting service, and choice of airport.
  • Models of competition, including issues of market power in the airline industry, domestic alliances, choices of network structure, and the effects of low-fare carriers.
  • Studies of entry and exit.
  • International competition, including the effects of Open Skies Treaties, foreign ownership rules, international code sharing, and antitrust immunities.
  • Safety issues with respect to competition or the practices of discount airlines.      

The Antitrust Division will select papers for presentation at the workshop. The papers selected for presentation will be available on this Web site.      

Expenses: As appropriate, the Antitrust Division will pay reasonable lodging and travel expenses for those invited to present papers at the workshop.      

Deadline: The submission deadline for papers is June 30, 2008.             

Submission guidelines: Papers must be submitted by e-mail to airlines2008@usdoj.gov. Submissions must be one PDF file only, with a maximum size of 4MB. Submissions should include an abstract of the paper of no more than 150 words.      

Privacy and confidentiality of submissions: While DOJ makes certain efforts, in its discretion, to remove home contact and other personally identifying information for individuals from the submissions selected to appear on this Web site, persons making submissions are responsible for ensuring that these do not contain any information that they are unwilling to have disclosed to the public. Information submitted in connection with this workshop will not be maintained as confidential by the Department of Justice.      

Contact: For more information, contact the workshop organizers by e-mail (airlines2008@usdoj.gov).        

April 10, 2008 | Permalink | Comments (0) | TrackBack (0)

IBA International Conference

Posted by D. Daniel Sokol

The IBA International Conference is immidiately after the ICN annual conference and promises to be an excellent recap of the ICN meeting along with further insights by top practitioners, government officials and academics.

Thursday 17 April 2008
Suntory Hall, Ark Hills Complex
Tokyo, Japan

Topics include:
• Cartel enforcement
• Merger control
• Unilateral conduct

April 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Take Two: Stare Decisis in Antitrust - The Per Se Rule Against Horizontal Price-Fixing

Posted by D. Daniel Sokol

PickerRandal Picker of the University of Chicago Law School has posted Take Two: Stare Decisis in Antitrust - The Per Se Rule Against Horizontal Price-Fixing

ABSTRACT: In this essay prepared for the American Bar Association's 56th Antitrust Law Spring Meeting, I consider two issues that pertain to the overall question of what antitrust doctrines are up for retirement. First, we can't consider that without understanding how the Supreme Court approaches stare decisis in antitrust. The Court's 5-4 decision in Leegin identified some of the fault lines on this issue. The Court has suggested that it should approach stare decisis differently in statutory areas from the way it approaches it when it reconsiders constitutional decisions. I think that that is wrong and that the Court should apply its approach to stare decisis in constitutional cases to cases based on statutes, such as the Sherman Act. Second, I focus on the evil of evils: horizontal price-fixing. I don't think that the Court is likely to retire the per se rule against horizontal price-fixing, certainly not directly. We might only realize that it had been overturned after the fact, after the Court had so chipped away at the doctrine that nothing remained. That said, as again Leegin itself suggested, we can't be fully confident that horizontal price-fixing is always pernicious, especially when it might be implemented as part of a larger vertical arrangement.

April 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2008

Federal Trade Commission Reauthorization Act of 2008

Posted by D. Daniel Sokol

In a potentially significant (and for the most part positive) change for the FTC, Daniel K. Inouye (D-Hawaii) and Byron Dorgan (D-N.D.) introduced the Federal Trade Commission Reauthorization Act of 2008.  BNA has a report of the bill.  Some of the highlights included specialized ALJs (ie, people who have an antitrust background), the ability of the the FTC to pursue litigation for civil action independently of the DOJ, expanded civil penalties, and speedier rulemaking.  It would also increase enforcement powers by State AGs.

The FTC has a page devoted to testimony on the proposed Act.  Chairman Kovacic's testimony before the committee is available and as is the Oral Statement of Commissioner Jon Leibowitz.

April 9, 2008 | Permalink | Comments (0) | TrackBack (0)

ICN Annual Meeting in Kyoto

Posted by D. Daniel Sokol

Next week (April 14-16) is the ICN annual meeting of competition agencies in lovely Kyoto, Japan.  I will serve as a rapporteur for the event.  I have included the meeting agenda.  Download draft_agenda.doc

April 9, 2008 | Permalink | Comments (1) | TrackBack (0)

Assessing Excessive Pricing: The Case of Flat Steel in South Africa

Posted by D. Daniel Sokol

Simon Roberts, Chief Economist, Competition Commission of South Africa, and Visiting Professor, University of the Witwatersrand provides an interesting examination of Assessing Excessive Pricing: The Case of Flat Steel in South Africa.

ABSTRACT: South Africa's Competition Tribunal recently ruled in favor of the complainant in the first case of excessive pricing to come before it since the 1998 Competition Act established new institutions in 1999. This article examines the standards that should be adopted in assessing excessive pricing in a small developing country such as South Africa, through a review of the complainee, Mittal Steel South Africa's, pricing practices. It is argued that entrenched dominance is central to a finding of excessive pricing, where that position has not been attained through innovation or product development, and that the excessiveness of the pricing ought to be assessed against a range of indicators of pricing under effectively competitive conditions. It is argued that in a country such as South Africa, the conditions for excessive pricing are much more prevalent than in large industrialized economies.

April 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2008

Is There Consensus of the Antitrust Treatment of Single Firm Conduct

Posted by D. Daniel Sokol

F_comanor_0307William Comanor of UCLA asks Is There Consensus of the Antitrust Treatment of Single Firm Conduct, which is forthcoming in the University of Wisconsin Law Review. Download comanor.doc

ABSTRACT: Enforcement officials and commentators have suggested that there is a growing consensus within the antitrust community on appropriate standards for single-firm conduct. My purpose in this paper is to review that contention and consider its applicability for the antitrust treatment of bundled discounts.

At the start of the recent Department of Justice--Federal Trade Commission hearings on this subject, Chairman Majoras of the FTC stated that, "we start with some substantial consensus about core underlying principles and factors that should underlie any evaluation of unilateral conduct." While acknowledging that there may be differences over details, she was "optimistic" that there was wide agreement on most of the single-firm conduct issues that her agency faced. The extent to which this optimism is well-founded is the subject of this paper.

Single-firm conduct issues are adjudicated under Section II of the Sherman Act which condemns monopolizing conduct. This conduct is invariably evaluated under a Rule of Reason, and current enforcement officials remind us that it is often difficult to distinguish pro-competitive actions from their anti-competitive and exclusionary counterparts. The critical issue is where to draw the line between these two types of conduct.

A major problem that contributes to the ongoing debate over Section II issues is that the presence of monopoly power by itself does not violate the antitrust laws even though actions taken to create, preserve or extend that power are generally considered to violate this provision. The distinction between pre-existing monopoly power and current actions taken on its behalf is another reason why enforcement decisions are particularly difficult.

April 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Technical Advisors Wanted in Pakistan

Posted by D. Daniel Sokol

Pakistan is looking for two technical assistance advisors, to be based in Islamabad for about one year, each for a compensation package of about $200,000 per year. Anyone interested should reply to Chairman Khalid at the competition authority in Pakistan.

Khalid A. Mirza
Chairman
Competition Commission of Pakistan
4-C, Diplomatic Enclave, G-5
Islamabad, Pakistan.
kmirza@cc.gov.pk

Phone: 92-51-9247545

For my view on long term advisors in antitrust/competition policy see my paper here.

April 8, 2008 | Permalink | Comments (0) | TrackBack (0)

EU Private Rights of Action Background Study

Posted by D. Daniel Sokol

For those of you who breezed through the short White Paper Download eu_pvt_rights_of_action_white_paper_408.pdf (11 pages), the background study Download eu_pvt. Rights of Action background study 4-08.pdf (671 pages) should give you something to read this weekend.

April 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2008

Summary of FTC Bureau of Competition Activity FY 2004- FY 2008

Posted by D. Daniel Sokol

One of the key outputs from the ABA Spring Meeting two weeks ago (I did not make it as we were house hunting in Gainesville) was the excellent summary of the FTC's Bureau of Competition Activity FY 2004- FY 2008.  This should be very helpful for scholars and practitioners.

April 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Microsoft: Predator or Prey?

Posted by D. Daniel Sokol

Robert Hahn of AEI's Reg-Markets Center and Peter Passell of the Milken Institute ponder Microsoft: Predator or Prey?

In February, the European Competition Commission fined Microsoft $1.35 billion in what was just the latest in a long line of antitrust cases against the company. Ironically, though, whatever market power Microsoft possessed was already ebbing by the time the company became mired in legal battles with regulators over which software applications could be bundled with operating systems. The real story here is the ever-briefer period in which companies with clear leads in technology and marketing seem able to sustain the advantages. Treating Microsoft, Google, and their successors like the monopolists of yore would be a real loss to advanced industrial economies, which are increasingly dependent on rapid technological change to sustain growth. As a consequence, antitrust policy built around traditional tests of market power are at best a way to keep lawyers well remunerated and, more likely, a significant barrier to productive change.

April 7, 2008 | Permalink | Comments (0) | TrackBack (0)

First Thoughts on the European White Paper on Damages-- Enter the White Paper for Damages Actions: A First Selective Appraisal

Posted by D. Daniel Sokol

Assimakis Komninos (White & Case) has published an analysis of the European Commission's White Paper on damages titled Enter the White Paper for Damages Actions: A First Selective Appraisal.

ABSTRACT: On April 3, 2008, the European Commission published its long-awaited White Paper on Damages actions for breach of the EC antitrust rules (WP).

The WP itself is a rather short document that summarizes the far more developed Staff Working Paper and an impressive 600-page Impact Assessment report. It offers a good first reading of the measures envisaged by the Commission to enhance private actions for damages, but should be read together with the Staff Working Paper (SWP), which is in reality the most important policy instrument.

This article is a first appraisal of some of the most important policy choices of the WP. These have to do with the rule of standing, the passing-on defence, the introduction of collective claims, and the interaction with the leniency program.

April 7, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 6, 2008

International Network of Civil Society Organisations on Competition Formed

Posted by D. Daniel Sokol

The International Network of Civil Society Organisations on Competition has been formed.  According to its mission statement the organization is “to promote and maintain   a healthy competition culture around the world by coalition building among civil   society and other interested organisations” including:

  • To build coalitions of civil society organizations interested in promoting a healthy competition culture;
  • To build capacity of the CSOs on competition policy issues to enable them to engage in competition advocacy at different levels;
  • To catalyse research and networking on competition issues and create better understanding on them; and
  • To liaise with all relevant institutions for sharing of experiences and promoting mutual learning on competition issues.        

April 6, 2008 | Permalink | Comments (0) | TrackBack (0)