Antitrust & Competition Policy Blog

Competition and Market Concentration

Posted by D. Daniel Sokol

Nazmi Sari of the University of Saskatchewan - Department of Economics writes on Competition and Market Concentration with a health care bent.

ABSTRACT:  Hospital markets have become highly concentrated due to increasing numbers of mergers and acquisitions. These consolidations in hospital markets may have anticompetitive or procompetitive effects due to increasing market power, economies of scale and scope and quality consequences. In this chapter, market competition and concentration and their antitrust implications in hospital markets are examined. After a brief summary of recent changes in hospital markets, the chapter focuses on the relevant economics literature on price, cost and quality consequences of market concentration, and their implications and connections with the merger guidelines and antitrust policies.

Revised British Merger Guidlines

Posted by D. Daniel Sokol

The UK Competition Commission and Office of Fair Traiding are working on revised joint merger guidelines.  The press release is here.

Appropriate Antitrust Policy Towards Single-Firm Conduct

Posted by D. Daniel Sokol

A must read paper is Appropriate Antitrust Policy Towards Single-Firm Conduct by Dennis W. Carlton (University of Chicago Graduate School of Business) and Ken Heyer (DOJ).

ABSTRACT: In this article we distinguish between two types of single-firm conduct. The first, which we call "extraction," is conduct engaged in by the firm to capture surplus from what the firm has itself created independent of the conduct's effect on rivals. The second, which we call "extension," is single firm conduct that increases the firm's profit by weakening or eliminating the competitive constraints provided by products of rivals. We propose as a fundamental antitrust policy towards single-firm conduct the following: Conduct merely to extract surplus the firm has created independent of the conduct's effect on rivals should be permitted. Conversely, conduct that extends the firm's market power by impairing the competitive constraints imposed by rivals presents a legitimate cause for concern.

We subscribe strongly to the view that an essential element of appropriate antitrust policy is to allow a firm to capture as much of the surplus that, by its own investment, innovation, industry or foresight, the firm has itself brought into existence. We believe that alternative approaches to single-firm conduct, including in particular ones aiming to enhance static efficiency at the possible cost of dynamic efficiency and ones seeking to maximize overall welfare through more targeted intervention on a case-by-case basis (not to mention the use of competition policy to protect competitors rather than consumers) threaten seriously to impede economic growth and welfare over time.

A policy that goes further, and which permits all unilateral conduct regardless of competitive effects (perhaps on grounds that "even more profit will generate even more innovation") is considered below and rejected as overly lenient, inconsistent with widely accepted presumptions in favor of inter-firm competition, and unwise, at least under the current state of economic knowledge. But we note that this conclusion is one based on our current economic knowledge and should remain a topic of ongoing research. It requires an empirical assessment of the gains from motivating more competition ex ante versus the subsequent loss of competition ex post. 

Vertical Restraints in Competition Law Conference

Posted by D. Daniel Sokol

University College London and Collège européen de Paris - Université Paris-II Panthéon Assas co-host Vertical Restraints in Competition Law.

The conference will be held on Friday May 23, 2008.

PROGRAMME

8h30 Registration
9h00 Introduction: Professor Louis Vogel President, University of Paris II
Sandy Shandro Dean, Faculty of Laws, UCL

9h20 First Roundtable: The vertical/horizontal dichotomy and the boundaries of Article 81 EC
Chair: President Daniel Tricot Honorary president of the commercial, financial and economic chamber of the Cour de Cassation
Speakers: Professor Catherine Prieto University of Paul Cezanne Aix-Marseille, CERIC
Dr. Ioannis Lianos Faculty of Laws, University College London, Centre for Law & Governance in Europe
Commentators: Chantal Momège Ashurst, Paris
Luc Gyselen Arnold & Porter, Brussels

11h00 Coffee/Tea Break

11h30 Second Roundtable: Vertical restraints, parallel imports and the objective of market integration
Chair: Professor Robert Kovar University of Strasbourg
Speakers: Professor Patrick Rey IDEI, University of Toulouse
Thierry Dahan French Competition Council
Commentators: Dr. José Luis Buendia Garrigues, Brussels
Dr. Assimakis Komninos White & Case, Brussels

13h00 Lunch

14h00 Third Roundtable: The law and economics of resale price maintenance: a comparative perspective
Chair: Dr. Philippe Nasse Vice-chairman, French Competition Council
Speakers: Professor Eleanor Fox New York University School of Law
Luc Peeperkorn DG Competition, European Commission
Professor Anne Perrot Vice-chairman, French Competition Council
Commentator: Dr. Jérôme Philippe Freshfields, Bruckhaus, Derringer, Paris

15h30 Coffee/Tea Break

16h00 Fourth Roundtable: Anticompetitive foreclosure and the coherence of competition policy towards vertical restraints
Chair: Frederic Jenny, President of the OECD Competition Committee, French Supreme Court
Speakers: Dr. Kay Parplies DG Competition, European Commission
Luc Gyselen Arnold & Porter, Brussels
Commentators: Dr. David Sevy LECG, Paris
Prof. John Kallaugher Faculty of Laws, University College London; Latham & Watkins LLP, London
Dr. Jérôme Philippe Freshfields, Bruckhaus, Derringer, Paris

18h00 Conclusion Prof. Laurence Idot University of Paris II, Concurrences

18h30 Conference End

IPR on Information and Market Power: Comparing the European and American Protections of Databases

Posted by D. Daniel Sokol

Estelle Derclaye  of the University of Nottingham School of Law has a new working paper on IPR on Information and Market Power: Comparing the European and American Protections of Databases.

ABSTRACT:  When the database sui generis right (database right) was enacted in 1996, many voices rose to criticise it vehemently. According to some, it would create an unprecedented intellectual property right on information, the latter being traditionally otherwise free, that would lead to monopolies on raw information and give considerable market power to database producers. The recent report issued by the European Commission 10 years later on the status of the database industry in Europe and the United States apparently confirms this thesis as the American database sector is thriving without a similar intellectual property right whilst the European database sector is receding. This would suggest that the situation in the U.S. is ideal, that is, it adequately protects database producers whilst safeguarding consumers' interests. This paper seeks to discover whether these assertions and the Commission report's conclusions actually reflect the reality. If they do, the database right should be abolished and neither the U.S. nor any country should adopt a similar right.

To determine whether the database right and alternative American protections actually grant market power to database producers, market power must first be defined (Section 1). Then the situation in Europe can be examined. The database right is scrutinised first (Section 2.1). Thereafter, additional protections that can be used to reinforce the protection of the database right are examined (Section 2.2). A conclusion as to the strength of the right, alone and in combination with other protections, can then be drawn. The situation in the U.S. is then contrasted. As there is still no database right or equivalent intellectual property right there, the main other types of protection which can be used to protect databases are reviewed. This includes misappropriation, contracts and technological measures (Section 3.1). Additional protections are then reviewed (Section 3.2.). The section concludes with whether or not the protections, alone and in combination, grant market power to database producers. The paper's conclusion draws lessons from this analysis as to what should be the adequate legal protection of databases and suggests remedies to the current over- and under-protection of databases in Europe and the U.S.   

Call For Papers - Deterrance in Competition Policy

Posted by D. Daniel Sokol

Call For Papers

Wissenschaftszentrum Berlin (WZB)
Reichpietschufer 50
D-10785 Berlin
Germany
Room A300             

Contact:             Jo Seldeslachts
Conference email: ioconf2008@wzb.eu

The WZB will stage its 15th conference on Markets and Politics on October 17-18, 2008, in Berlin. This will be held in conjunction with the 2nd conference of the Research Network on Innovation and Competition Policy (RNIC). During this conference, we intend to provide a forum for international researchers, practitioners and network members to present and discuss work concerning deterrence effects in competition policy. The objective is to organize a small-scale event that promotes interaction and discussion. Participation will mainly be by invitation.

Deterrence is a crucial aspect of competition policy, traditionally in the area of cartels and price fixing, but also in the area of merger policy. Although its main elements – detection and punishment – are well-known, an evaluation of the deterrence impact remains problematic. The major problem is its measurability, as it is difficult to assess how laws, court decisions and authority actions influence anti-competitive behavior by firms. This conference intends to enhance our understanding of deterrence in the area of competition policy, by discussing new methodological approaches for measurement. Furthermore, we also aim to consider both empirically and theoretically how new developments in competition policy may influence deterrence (e.g. the introduction of private litigation). Finally, deterrence, by changing firms’ behavior, then also has an impact on resulting market structures and economic growth; these themes will be dealt with as well. Some of the issues we are interested in include:

• The development of new empirical approaches
• Do mistakes from authorities or uncertain environments influence deterrence?
• Does over deterrence exist The deterrence impact of plea bargaining on cartels
• The deterrence impact of bargaining over remedies on mergers
• Policing actual merger cases versus deterring future mergers Does private litigation increase cartel deterrence?
• Ex ante versus ex post deterrence
• The importance of precedents and court decisions in deterrence
• The deterrence impact on merger behavior and ultimately market structure and growth

The Protection of the Right to Private Life, Home and Correspondence v the Efficient Enforcement of Competition Law: Is a New EC Competition Court the Way Forward?

Posted by D. Daniel Sokol

Michele Messina, University of London - Department of Mathematics, University of Rome- La Sapienza, University of Messina - Institute of Legal Sciences offers an intriguing proposal to change the institutional design of EC competition law in her article The Protection of the Right to Private Life, Home and Correspondence v the Efficient Enforcement of Competition Law: Is a New EC Competition Court the Way Forward?

ABSTRACT: The scope of the present paper is to analyse one possible alternative reason for the desirability, if at all, of an EU Judicial Panel on Competition Law matters, concerning in particular a higher degree of compliance with the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR), while possibly guaranteeing a more efficient EC competition law enforcement system against "hard-core" infringements, such as cartels. Particular attention is focussed on whether the power of inspection, ex Article 20(4) of Regulation 1/2003, is compatible with Article 8 ECHR. The broad power of investigation of the Commission may not allegedly meet the third criterion provided in Article 8(2) ECHR, according to which the interference has to be "necessary in a democratic society". Considering that this criterion has been interpreted by the ECtHR as referring to the existence of adequate and effective safeguards against the abuse of this power, it might not be enough for the Commission to rely on an ex post judicial review of a decision ex Article 20(4) Reg. 1/2003 by the Community Courts, as it is not pre-emptive and has not suspensory effects. Undoubtedly, in an era where the leading idea is constituted by the decentralisation of the application of EC Competition Policy by National Competition Authorities and national courts, the peculiarity of this paper is that its main purpose is to assess whether a centralised system of ex ante control from a Community Court of the Commission‘s decisions regarding the carry out of inspections in business and private premises may be somehow advisable. Far from criticising the present investigative powers of the Commission, whose respect for fundamental rights seems to fairly comply with the ECHR requirements, it cannot be denied that such reform might render the Commission‘s investigations more in line with the Convention and, in particular, with Article 8(2) thereof. Furthermore, and somehow most importantly, it might also be desirable in order to deal more effectively with hard-core cartels, in particular multi-party cartels, which might need simultaneous inspections in different places, thus requiring as many judicial warrants as the jurisdictions involved. To conclude, it is suggested that such an ex ante centralised system of control, somehow beneficial to the enforcement of EC competition law, should be implemented by the CFI, with some internal organisational reforms, rather than by a new EC judicial panel on competition law matters.

Call For Papers - FTC Microeconomics Conference

Posted by D. Daniel Sokol

The Federal Trade Commission's Bureau of Economics will host a two day conference to bring together scholars working in industrial organization, information economics, game theory, quantitative marketing, consumer behavior, and other areas related to the FTC’s antitrust and consumer policy missions.

Examples of potentially relevant topics include online advertising, information disclosure, horizontal and vertical mergers, bundling, loyalty and other discounts, dynamic oligopoly, intellectual property, and behavioral and experimental economics.

Interested participants should send an abstract or completed paper to mailto:BE-IOC@ftc.gov by July 7, 2008. We also welcome suggestions for panel discussions.

The scientific committee for the conference is:

• Susan Athey (Harvard)
• Patrick Bajari (Minnesota)
• John List (Chicago)
• Carl Shapiro (Berkeley)
• Scott Stern (Northwestern-Kellogg)

Organizers: Chris Adams (FTC), Dan O'Brien (FTC)

The conference will be held at the Federal Trade Commission New Jersey Avenue Conference Center, 601 New Jersey Avenue NW, Washington, DC 20001.

Auctions, Exclusive Contracts and Competition for the Market

Posted by D. Daniel Sokol

Alexandra Merrett, Australian Competition & Consumer Commission and University of Melbourne, and Rhonda L. Smith, University of Melbourne - Department of Economics, have a new paper out titled Auctions, Exclusive Contracts and Competition for the Market.

ABSTRACT: In this article, we consider the distinction between competition in the market and competition for the market, with a view to identifying the conditions necessary to ensure that competition for the market does not (depending on the jurisdiction) create or increase dominance or substantially lessen competition. After providing a brief summary of some key cases as a framework for discussion, we examine the necessary pre-requisites if competition for the market is to avoid adverse competition effects: natural monopoly and limited contestability. Consideration then turns to the necessary factors for ensuring an auction process is an effective means of managing competition for the market. Finally, we analyse whether it is possible to structure remedies (in the form of commitments or undertakings) such that a proposed transaction, purportedly justified on the grounds of competition for the market, does not in fact create or increase dominance or substantially lessen competition.

Antitrust Law Faculty Moves 2008

Posted by D. Daniel Sokol

April 24 Version

Below are the list of US permanent antitrust law faculty moves for 2008.

Name                           New School
Shubha Ghosh               University of Wisconsin
Max Huffman                University of Indiana - Indianapolis
Daniel Sokol                  University of Florida
Paul Stancil                   University of Illinois 

Visiting Professors (and the visiting institutions) for next year are as follows:
Dan Crane, Cardozo (Catholic University of Lisbon, University of Chicago)
Josh Wright, George Mason (University of Texas)

The Microsoft Case: The IT Industry and the Future of EC Competition Law

Posted by D. Daniel Sokol

The Microsoft Case: The IT Industry and the Future of EC Competition Law
University of Birmingham

Conference Programme            

15.30 – 16:00 Registration and coffee            

16:00-16:10 Welcome and introduction
Chair: Dr Luca Rubini (IEL, Birmingham Law School)
          Professor Martin Trybus (Director, IEL, Birmingham Law School)            

16:10-18:00 Presentations            

• Mr Nicholas Banasevic (EC Commission, DG Comp, Brussels)
• Mr Mark D. Powell (White & Case, Brussels)
• Mr James Flynn QC (Brick Court Chambers, London)
• Professor Steven Anderman (Department of Law, University of Essex)
• Mr Derek Ridyard (RBB Economics, London)            

18:00-18:30 Questions and discussion            

18:30 – 19:30 Refreshments

Rambus Overturned by DC Circuit

Posted by D. Daniel Sokol

According to the NY Times, the DC Circuit has overturned Rambus.  I am surprised, as I thought that the FTC had a strong case.  The decision itself can be found here.

HT: Paul Jones

Harris to Jones Day

Posted by D. Daniel Sokol

Normally we do not report on practitioner moves but this one is a biggie.  Steve Harris, the leading Asian antitrust practitioner in the United States, has made a lateral move to Jones Day where he joins an already very strong antitrust team.  The Jones Day press release is here.

Compensation Function and Deterrence Effects of Private Actions for Damages: The Case of Antitrust Damage Suits

Posted by D. Daniel Sokol

Francesco Denozza and Luca Toffoletti of the University of Milan Faculty of Jurisprudence discuss Compensation Function and Deterrence Effects of Private Actions for Damages: The Case of Antitrust Damage Suits in their latest paper.

ABSTRACT: In this work we take the case of damages actions brought by victims of antitrust violation, and refer to the current discussion originated by the EC Commission's projected reform (the 2005 Green Paper), to show some of the many failures of damages actions in performing a deterrence function, and their dependence on the specific features of each case. These problems are analysed in a conceptual framework in which three sets of choices are identified, namely those related to: (a) the definition of the illegal conducts; (b) the management of the risk; (c) the management of the consequences. We illustrate how the three groups are relatively independent of each other, and use such independence to address the (supposed) conflict between deterrence and compensation. Three possible goals of a deterrence policy are considered: discouraging all illegal conducts, discouraging only those illegal conducts which are socially inefficient, avoid deterring legal conducts which are similar to illegal ones. For each of them, the possible disparities between optimal levels of deterrence and the effects of antitrust damages actions are shown, to conclude that some consequences of the proposed boost in damages actions (especially those in terms of over-deterrence) seem overlooked in the current discussions. Moreover, we maintain that the design of the reform should not be influenced by a given preference to deterrence or to compensation as the goal to be accorded priority, since they lie theoretically on autonomous grounds. Rather, attention should be paid to the empirical interferences, that may require corrective devices as may be the case with a continuous adjustment of Public Enforcement to restore appropriate levels of deterrence once the deterrence effects of the (reformed) private damages actions are observed.

Cartel Code Attributes and Cartel Performance: An Industry-Level Analysis of the National Industrial Recovery Act

Posted by D. Daniel Sokol

Jason Taylor, an economic historian at Central Michigan University undertakes some nice historical detective work in his article Cartel Code Attributes and Cartel Performance: An Industry-Level Analysis of the National Industrial Recovery Act.

ABSTRACT: This paper uses the cartel-enabling National Industrial Recovery Act (NIRA) of 1933 to gain insight into cartel performance. I employ a monthly panel of 66 industries that passed an NIRA code of fair competition to examine how specific attributes of these cartel codes affected the ability to achieve collusive outcomes. I find that output growth was significantly lower during cartel months, consistent with cartel theory, and that industries with more complex codes were more successful than those with simpler ones. Furthermore, industries with code restrictions on new productive capacity, production quotas, and requirements to file data with a central board were the most successful at reducing output, which suggests that these types of provisions were the most effective in helping firms attain collusive outcomes. Finally, I find that the effectiveness of data-filing provisions was limited to the early months of the NIRA, prior to a wave of cartel breakdown occurring in spring 1934.

Loyalty Discounts and Naked Exclusion

Posted by D. Daniel Sokol

Einer Elhauge of Harvard Law School discusses Loyalty Discounts and Naked Exclusion in his latest working paper and takes a contrary approach to the commonly held views of this subject.

ABSTRACT: Loyalty discounts are agreements to sell at a lower price to buyers who buy all or most of their purchases from the seller. This article proves that loyalty discounts create anticompetitive effects, not only because they can impair rival efficiency, but because loyalty discounts perversely discourage discounting even when they have no effect on rival efficiency. The essential reason, missed in prior work, is that firms using loyalty discounts have less incentive to compete for free buyers, because any price reduction to win sales to free buyers will, given the loyalty discount, also lower prices to loyal buyers. This in turn reduces the incentive of rivals to cut prices, because there will exist an above-cost price that rivals can charge to free buyers without being undercut by the firm using loyalty discounts. These anticompetitive effects occur even if buyers can breach or terminate commitments, and even if the loyalty conditions require no contractual commitments and less than 100% loyalty. Further, I prove that these anticompetitive effects are exacerbated if multiple sellers use loyalty discounts. None of the results depend on switching costs, market differentiation, imperfect competition, or the loyalty discount bundling contestable and incontestable demand. Contrary to commonly held views, I prove these anticompetitive effects exist even when: (1) the price with the loyalty discount is above cost, (2) the rival has higher costs than the firm using loyalty discounts, (3) the rival prices above its own costs, (4) buyers voluntarily agree to the conditions, and (5) the discount and foreclosure levels are low. I derive formulas for calculating the inflated price levels in each situation.

Trends in Retail Competition: Private Labels, Brands and Competition Policy

Posted by D. Daniel Sokol

Fourth Symposium on Trends in Retail Competition: Private Labels, Brands and Competition Policy

Tuesday 20 May 2008 12h30
Venue: St Catherine's College Mary Sunley Room
Organised by Centre for Competition Law & Policy

Private label is a growing force across Europe, present in most categories and providing a range of choice for shoppers from the value to the premium. These private label portfolios contribute to competition between retailers, differentiating one retailer from another and building store loyalty.

At the same time, the growing sophistication of private label is increasing competition with branded goods suppliers, and the rule of thumb that private labels are cheaper than brands is no longer always true.

This symposium, hosted by the Oxford Institute of European and Comparative Law in conjunction with the Centre for Competition Law and Policy and sponsored by the law firm Bristows, will explore the role of private labels in competition between retailers and between suppliers. It will consider the implications for suppliers when an important retail customer is also a major competitor and the issues posed when the retail customer has buyer power.

Programme:

12h30 Buffet lunch

13h30 Session 1
Chair - Professor Ulf Bernitz, Oxford/Stockholm Wallenberg Venture

13h45  Branded and private label product trends in European grocery markets
Patrick Falgas, Information Resources

14h10 The UK Competition Commission’s groceries investigation and the implications for competition between branded and private label products
Bob Young, Europe Economics

14h40 Member States’ approach to the Unfair Commercial Practices Directive and the impact on misleading packaging
Guiseppe Abbamonte, DG Sanco, European Commission

15h00 Coffee break

15h30 Buying alliances: what parameters are set by competition law?
Andres Font Galarza, Mayer Brown

15h50 Competition between branded and private label products: current policy and recent cases
Franco Guariglia, Barilla

16h10 United States competition law policy – the private label experience
Jeff Schmidt, United States Federal Trade Commission BR>

16h40 Roundtable discussion

18h00 Drinks Reception

Programme and Registration Form are available here (Acrobat PDF file)

Ghosh to University of Wisconsin

Posted by D. Daniel Sokol

It is with great pleasure that I announce that co-blogger Shubha Ghosh has accepted a lateral offer at the University of Wisconsin Law School.  This is a wonderful development for Shubha (except for the cold and snowy winters).  As you all know, Shubha has done some interesting recent antitrust writing on the airline industry, comparative vertical  restraints in the US and EU and a book review of Page and Lopatka's The Microsoft Case: Antitrust, High Technology, and Consumer Welfare.  In addition to his antitrust work, Shubha is a prolific IP scholar.  In this context, I also want to note that Shubha will have a management role at the University of Wisconsin's Initiative for Studies in Technology Entrepreneurship (INSITE), which is run out of the business school.  This lateral move is a great fit for Shubha with lots of antitrust and IP-competition people for him to work with across departments including Peter Carstensen (law), Kyle Stiegert (applied economics), Jean Paul Chavas (applied econ), Guanming Shi (applied econ) and Amit Gandhi (economics).  As someone who spent two years at UW as a fellow, I think that this move will be mutually beneficial for UW and Shubha.  Congrats!

Should the Government Prosecute Monopolies?

Posted by D. Daniel Sokol

Maurice Stucke of the University of Tennessee Law School asks perhaps the fundamental policy question of antitrust, Should the Government Prosecute Monopolies?  Given Maurice's post-Chicago leanings, the answer is clear--yes!

ABSTRACT: In the past few years, courts and the Department of Justice have cited approvingly the Court's dicta in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP. This article analyzes why the economic thinking in Trinko is wrong, and how the Court ignores its precedent involving the Sherman Act's concerns of monopolies' political, social and ethical implications. It responds to the Court's claim that cartel behavior is easier to identify and remedy than monopolistic behavior and proposes an improvement to the Court's current rule of reason standard to reduce the risk of false positives, while enabling the antitrust agencies and courts to remedy more quickly certain monopolistic conduct.