Antitrust & Competition Policy Blog

Competition vs. Regulation in Mobile Telecommunications

Posted by D. Daniel Sokol

Thomas Tangerås, Research Institute of Industrial Economics and Johan Stennek, Research Institute of Industrial Economics have an interesting paper on Competition vs. Regulation in Mobile Telecommunications.

ABSTRACT: This paper questions whether competition can replace sector-specific regulation of mobile telecommunications. We show that the monopolistic outcome may prevail independently of market concentration when access prices are determined in bilateral negotiations.

A light-handed regulatory policy can induce effective competition. Call prices are close to the marginal cost if the networks are sufficiently close substitutes. Neither demand nor cost information is required.

A unique and symmetric call price equilibrium exists under symmetric access prices, provided that call demand is sufficiently inelastic. Existence encompasses the case of many networks and high network.

Competition in Coffee - The Starbucks Closure List

Posted by D. Daniel Sokol

Though not about competition policy, I do want to focus on what competition does in the marketplace-- the market punishes companies that over-expand. 

Here is the link to the 600 Starbucks sites that will be closing with a map by state.

HT: Legal Profession Blog

Should Price Squeeze Be a Recognized Form of Anticompetitive Conduct?

Posted by D. Daniel Sokol

Dennis Carlton of the University of Chicago Graduate School of Business asks Should Price Squeeze Be a Recognized Form of Anticompetitive Conduct?

ABSTRACT: Should a price squeeze constitute anticompetitive conduct requiring investigation under the antitrust laws? A price squeeze occurs when a vertically integrated firm supplies an input to its downstream competitors at a price that generates a profit margin so low that the competitors exit the downstream market. I ask whether it is sensible to try to use antitrust laws to prevent such conduct or whether such an attempt would create more harm than benefit. The current case, linkLine Communications, Inc. v. SBC California, Inc., raises this exact question.

Competing for Managerial Talent: What Antitrust Can Tell Us About Antitakeover Statutes

Posted by D. Daniel Sokol

Valeriya Mikhno (University of Alberta) asks about Competing for Managerial Talent: What Antitrust Can Tell Us About Antitakeover Statutes. 

ABSTRACT: This paper looks at the antitrust implications of state antitakeover statutes. After a wave of hostile takeovers in the 1980s, many state legislatures, lobbied by the managerial interests, enacted laws that made it more difficult for outsiders to take over target corporations. This, in turn, has led to inefficient entrenchment of management and adverse consequences for shareholders. This paper argues that such inefficiencies are inconsistent with the aims and purposes of antitrust laws. Hence, in so far as antitakeover statutes conflict with the goals of antitrust, the latter should trump the former.

The paper examines the controversy surrounding antitakeover legislation. The paper will discuss both the theories supporting strong managerial protection and the elimination of hostile takeovers and the theories supporting the claim that takeovers are a productive method of improving the control and management of assets.

The analysis of various antitakeover statutes and its effects on the market for corporate control is provided along with the discussion of whether antitakeover legislation decreases the shareholder value and unjustifiably entrenches targets' management. State legislatures, competing for corporate charters, have enacted stricter antitakeover legislation, giving the management rights that shareholders were not willing to give. Antitakeover defenses are numerous and extensive and allow managers to just say no without breaching their fiduciary duties.

Such legislation deprives shareholders of a substantial premium, protects inefficient management, and has negative effects on the national economy as a whole. This is contrary to the goals of efficiency that lay at the foundation of antitrust laws.

The European Microsoft Case at the Crossroads of Competition Policy and Innovation

Posted by D. Daniel Sokol

Pierre Larouche, Tilburg University and the College of Europe provides his assessment of The European Microsoft Case at the Crossroads of Competition Policy and Innovation. 

ABSTRACT: This article puts the judgment of the EC Court of First Instance (CFI) in Microsoft in perspective and links it with the ongoing discussion on competition policy and innovation. It also replies to some claims made by Ahlborn and Evans in their piece on the same judgment (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115867). The first section takes a general look at the judgment, and in particular at how the CFI issued a judgment from which it would be difficult to appeal. It also addresses the allegedly excessive deference of the CFI towards the Commission decision (1). Afterwards, the paper goes into more specific issues concerning the first part on interoperability information (2) and the second part on tying (3). Finally, the judgment is placed in a broader forward-looking perspective (4).

The Neoclassical Crisis In U.S. Competition Policy, 1890-1955

Posted by D. Daniel Sokol

In one of the most interesting papers of the year, Herb Hovenkamp (University of Iowa College of Law) has written  The Neoclassical Crisis In U.S. Competition Policy, 1890-1955.

ABSTRACT:  The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition theory. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem, and as a result many economists were hostile toward the antitrust laws in the early decades of the twentieth century. The ruinous competition debate came to an abrupt end in the early 1930's, when Joan Robinson and particularly Edward Chamberlin developed models that took product differentiation into account. The emergent theory of monopolistic competition came with its own problems, however - namely, "excessive" product variety and advertising, chronic excess capacity, and prices above short-run marginal cost. In sharp contrast to the ruinous competition model, the monopolistic competition model called for aggressive antitrust enforcement. This change of model largely explains the Roosevelt administration's abrupt shift in antitrust policy between the First and Second New Deals. Only with John Maurice Clark's theory of workable competition in 1940 and the Mason-Bain structure-conduct-performance paradigm developed in the 1950s did neoclassical competition theory begin to reach a new equilibrium which attempted to calibrate the amount and kind of competition policy necessary to produce satisfactory results in diverse markets. The subsequent debate between Harvard structuralism and the emergent Chicago School occurred largely within this paradigm.

FTC Guide to Antitrust Laws

Posted by D. Daniel Sokol

The FTC has posted a wonderful new online resource- a guide to the US Antitrust Laws.

Domestic Code Sharing, Alliances, and Airfares in the U.S. Airline Industry

Posted by D. Daniel Sokol

Harumi Ito (NBER) and Darin Lee (LECG) analyze Domestic Code Sharing, Alliances, and Airfares in the U.S. Airline Industry. 

ABSTRACT: This paper examines the impact of domestic codesharing alliances on airfares. Our analysis yields two novel and somewhat surprising findings that have yet to be documented in the literature. First, unlike international codesharing, we find that the overwhelming majority of domestic codeshare itineraries involve a single operating carrier, a phenomenon that we refer to as “virtual” codesharing. Second, we find that these virtual codesharing itineraries are priced lower than itineraries operated and marketed by a single carrier in the same market. We suggest that carriers may be using virtual codesharing—in large part—as a “generic” product to compete for the most price sensitive passengers.

Malaysia and Competition Law: EC as Comparator

Posted by D. Daniel Sokol

Wan Liza MD Amin Fahmy writes on Malaysia and Competition Law: EC as Comparator.

ABSTRACT:  In advent of the 'New Economy' towards globalization and liberalization, Malaysia has placed much importance on creating a competitive environment for the economy. In line with the concept that competition creates efficiency and allows for the reflection of true prices in the market, Malaysia has initiated substantial competition building measures since the mid-1980's. Some of the steps taken towards deregulation and liberalization included encouragement of foreign investors, privatization of existing and new sectors such as fixed-lined and cellular telecommunications, public utilities and infrastructure; and in promoting high technology trade, especially e-commerce. In addition, Malaysia has also allowed for the increased in foreign equity participation and the diversification of the types and scope of services offered, for example in transportation and Information Technology (I.T.).

The implementation of the said law is exercised in a piece meal as stated above. Merger and takeover also adopt competition policy in its code known as Malaysian Code on takeovers and mergers. However, the code does not address measures of control for merger abuses particularly in corporate merger. This aim of this paper is to discuss whether EC may be use as comparator to Malaysia. This paper will base its discussion on background, history legal system, social, culture and relevant institutions of both countries.

The Google-Yahoo Agreement and the Future of Internet Advertising

Posted by D. Daniel Sokol

The testimony before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights is available here.

Three Alternative (?) Stories on the Late 20th-Century Rise of Game Theory

Posted by D. Daniel Sokol

Nicola Giocoli of the Department of Economics, University of Pisa has an interesting working paper on Three Alternative (?) Stories on the Late 20th-Century Rise of Game Theory.

ABSTRACT:  The paper presents three different reconstructions of the 1980s boom of game theory and its rise to the present status of indispensable tool-box for modern economics. The first story focuses on the Nash refinements literature and on the development of Bayesian games. The second emphasizes the role of antitrust case law, and in particular of the rehabilitation, via game theory, of some traditional antitrust prohibitions and limitations which had been challenged by the Chicago approach. The third story centers on the wealth of issues classifiable under the general headline of "mechanism design" and on the game theoretical tools and methods which have been applied to tackle them. The bottom lines are, first, that the three stories need not be viewed as conflicting, but rather as complementary, and, second, that in all stories a central role has been played by John Harsanyi and Bayesian decision theory.

Intel To Face New EU Competition Trouble

Posted by D. Daniel Sokol

Today's WSJ reports that Intel will face new abuse of dominance charges in the EU.

Chicago Reigns Supreme: The Chicago School, Transaction Cost Economics and the Roberts Court's Antitrust Jurisprudence

Posted by D. Daniel Sokol

Josh Wright of George Mason Law School (also the only law school professor to have been the former roommate of Boston Celtics star Paul Pierce at basketball camp) has added another piece in his Chicago School analysis of antitrust in The Chicago School, Transaction Cost Economics and the Roberts Court's Antitrust Jurisprudence.

ABSTRACT: The Roberts Court's reign at the United States Supreme Court is only in its nascent stages. Already, however, its antitrust activity level has far exceeded the Court's single case average prior to the 2003-04 Term by a significant margin. The recent flurry of antitrust activity and the likely significance the Roberts Court will have on the development of antitrust jurisprudence warrants some reflection and analysis. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis, Transaction Cost Economics, and insights from comparative institutional analysis gleaned from New Institutional Economics. Despite the rise of Post-Chicago Economics in economics departments and elite journals, the substance of the Roberts Court's antitrust jurisprudence suggests a significant amount of skepticism is appropriate concerning any prediction of the demise of the Chicago School or Transaction Cost Economics in antitrust in the coming years.

Are Merger Regulations Diluting Parliamentary Intent?

Posted by D. Daniel Sokol

Manish Agarwal (University of South Australia) and Aditya Bhattacharjea University of Delhi - Delhi School of Economics ask Are Merger Regulations Diluting Parliamentary Intent? in the Indian context.

ABSTRACT: India's Competition Act (2002) was amended in 2007, modifying inter alia the Act's thresholds for merger review, and requiring mandatory rather than voluntary notification of mergers above the revised thresholds. This created considerable opposition in international business and legal circles. Draft merger regulations proposed by the Competition Commission of India (CCI) in early 2008 have responded by categorizing mergers which do not fulfill a two-firm local nexus requirement as those unlikely to cause an appreciable adverse effect on competition in India. We critically evaluate this claim and argue on the basis of international and Indian experience that the regulations will result in the CCI turning a blind eye to cross-border mergers designed to pre-empt potential competition or competition from small "maverick" firms. The regulations dilute parliamentary intent in requiring mandatory notification.

Who Should Appoint Regulators: Governments or Parliaments?

Posted by D. Daniel Sokol

Pedro Barros of New University of Lisbon - Faculdade de Economia asks Who Should Appoint Regulators: Governments or Parliaments?

ABSTRACT: The last two decades were characterized, in several countries, by the creation of several sectoral regulators and of competition authorities. An important issue in their statutes is to whom regulators are accountable: the Government or the Parliament. There are several legal arguments in favor of one or the other solution. We focus here in a different line of argument: because who appoints the regulator may determine its objective function, Government or Parliament appointment will lead to different outcomes. We identify under which conditions each possibility dominates. Several factors contribute for the relative welfare assessment: whether the regulator acts as a perfect agent of the nominating institution, or not; whether majorities are strong, or not; whether parties are industry-friendly or consumer-friendly; and whether there is a dominating party, or not.

The Law and Economics of Predatory Pricing

Posted by D. Daniel Sokol

Bruce H. Kobayashi, George Mason University - School of Law, provides an excellent literature review in his work The Law and Economics of Predatory Pricing.

ABSTRACT: This chapter reviews the law and economics of predatory pricing. Areeda and Hovenkamp (2006, 323) noted that other areas of the law of monopolization are "in much the same position as the theory of predatory pricing was in the 1970s: no shortage of theories, but a frightening inability of courts to assess them." In the past two decades, scholarship on the economics of predatory pricing has evolved from the relatively settled consensus in which predatory pricing was thought to be irrational, rarely tried, and even more rarely successful, to a point where much less is settled. Recent theoretical work emphasizing strategic theory has shown that predation can be rational, and empirical studies have presented evidence consistent with successful predation. In this sense, the economics of predatory pricing has moved closer to other areas of monopolization.

However, the legal response to predatory pricing, a relatively administrable and permissive rule based in part on the assumption that successful predation was rare, has remained relatively intact. While the recent economic literature may have eroded this basis for the adoption of permissive standards for predatory pricing, other reasons for adopting such a rule, based on the benefits of bright line rules that would be administrable by courts, still remain. Thus, even considering the recent advances in economic theory, it is unwise to minimize or ignore this underlying purpose of the Brooke Group rule.

Intel's Alleged Schemes Affected U.S. Consumers

Posted by D. Daniel Sokol

Robert H. Lande of the University of Baltimore Law School argues Intel's Alleged Schemes Affected U.S. Consumers.

ABSTRACT: This short piece explains how the first unit discounts or rebates allegedly given by Intel on their X86 chips could harm competition, innovation, and PC purchasers in this crucial $33 billion/year market. For these reasons, their discounts or rebates could violate European Competition law and U.S. Antitrust law.

Recent Developments In Monopoly And Competition Policy

Posted by D. Daniel Sokol

George Norman (Cummings Professor of Entrepreneurship and Business Economics, Tufts University) has a new edited volume out titled Recent Developments In Monopoly And Competition Policy.

TABLE OF CONTENTS:
Acknowledgements

Introduction George Norman

PART I SETTING THE SCENE: THE CASE FOR ANTITRUST POLICY
1. Jonathan B. Baker (2003), ‘The Case for Antitrust Enforcement’
2. John Vickers (2005), ‘Abuse of Market Power’

PART II THEORY OF PRICE FIXING   
3. Barbara McCutcheon (1997), ‘Do Meetings in Smoke-Filled Rooms Facilitate Collusion?’
4. David Genesove and Wallace P. Mullen (2001), ‘Rules, Communication, and Collusion: Narrative Evidence from the Sugar Institute Case’
5. Susan Athey and Kyle Bagwell (2001), ‘Optimal Collusion with Private Information’
6. Joseph E. Harrington, Jr. (2005), ‘Optimal Cartel Pricing in the Presence of an Antitrust Authority’

PART III THE IMPACT OF PRICE FIXING    
7. Robert H. Porter and J. Douglas Zona (1999), ‘Ohio School Milk Markets: An Analysis of Bidding’
8. John E. Kwoka, Jr. (1997), ‘The Price Effects of Bidding Conspiracies: Evidence from Real Estate Auction “Knockouts”’
9. John M. Connor (2001), ‘“Our Customers Are Our Enemies”: The Lysine Cartel of 1992–1995’
10. Lawrence J. White (2001), ‘Lysine and Price Fixing: How Long? How Severe?’

PART IV CARTELS   
11. George Symeonidis (2002), ‘Cartel Stability with Multiproduct Firms’
12. Margaret C. Levenstein and Valerie Y. Suslow (2006), ‘What Determines Cartel Success?’
13. Massimo Motta and Michele Polo (2003), ‘Leniency Programs and Cartel Prosecution’

PART V HORIZONTAL MERGERS   
14. Joseph Farrell and Carl Shapiro (1990), ‘Horizontal Mergers: An Equilibrium Analysis’
15. David Spector (2003), ‘Horizontal Mergers, Entry, and Efficiency Defences’
16. Orley Ashenfelter, David Ashmore, Jonathan B. Baker, Suzanne Gleason and Daniel S. Hosken (2006), ‘Empirical Methods in Merger Analysis: Econometric Analysis of Pricing in FTC v. Staples’
17. Dario Focarelli and Fabio Panetta (2003), ‘Are Mergers Beneficial to Consumers? Evidence from the Market for Bank Deposits’

PART VI VERTICAL MERGERS AND FORECLOSURE 
18. Janusz A. Ordover, Garth Saloner and Steven C. Salop (1990), ‘Equilibrium Vertical Foreclosure’
19. Yongmin Chen (2001), ‘On Vertical Mergers and Their Competitive Effects’
20. Margaret E. Slade (1998), ‘Beer and the Tie: Did Divestiture of Brewer-Owned Public Houses Lead to Higher Beer Prices?’

PART VII VERTICAL RESTAINTS   
21. B. Douglas Bernheim and Michael D. Whinston (1998), ‘Exclusive Dealing’
22. Michael D. Whinston (2001), ‘Exclusivity and Tying in U.S. v. Microsoft: What We Know, and Don’t Know’
23. Tim R. Sass (2005), ‘The Competitive Effects of Exclusive Dealing: Evidence from the U.S. Beer Industry’

PART VIII OTHER ABUSIVE PRACTICES   
24. Kenneth G. Elzinga and David E. Mills (2001), ‘Predatory Pricing and Strategic Theory’
25. Barry Nalebuff (2004), ‘Bundling as an Entry Barrier’
26. Dennis W. Carlton and Michael Waldman (2002), ‘The Strategic Use of Tying to Preserve and Create Market Power in Evolving Industries’
27. Leemore S. Dafny (2005), ‘Games Hospitals Play: Entry Deterrence in Hospital Procedure Markets’

Composite Ranking of Best US Antitrust Lawyers

Posted by D. Daniel Sokol

Below is the overlap of lawyers who appear in both the Global Competition Review's Best Antitrust Lawyers and the Chambers & Partners rankings of Best Antitrust Lawyers.  I included only the DC rankings of each.  Are these the elite of the elite antitrust practitioners?  You decide.

Michael Antalics - O'Melveny & Myers LLP

Jarrett Arp - Gibson Dunn & Crutcher LLP

William J Baer - Arnold & Porter LLP

Robert E Bloch - Mayer Brown LLP

Sean FX Boland - Howrey LLP

George S Cary - Cleary Gottlieb Steen & Hamilton LLP

Susan Creighton - Wilson Sonsini Goodrich & Rosati

Michael L Denger - Gibson Dunn & Crutcher LLP

Paul T Denis - Dechert LLP

Richard J Favretto - Mayer Brown LLP

Deborah Feinstein- Arnold & Porter LLP

Kathryn M Fenton - Jones Day

Kenneth Gallo- Paul Weiss Rifkind Wharton & Garrison LLP

David I Gelfand - Cleary Gottlieb Steen & Hamilton LLP

J Mark Gidley - White & Case LLP

Jim Griffin - King & Spalding LLP

Neil W Imus - Vinson & Elkins LLP

Raymond Jacobsen - McDermott Will & Emery LLP

Joseph Kattan - Gibson Dunn & Crutcher LLP

Donald C Klawiter - Mayer Brown LLP

William J Kolasky - Wilmer Cutler Pickering Hale and Dorr LLP

Mark L Kovner - Kirkland & Ellis LLP

Joseph Krauss - Hogan & Hartson LLP

Mark Leddy - Cleary Gottlieb Steen & Hamilton LLP

Abbott B 'Tad' Lipsky - Latham & Watkins LLP

Ann Malester - Weil Gotshal & Manges LLP

Janet L McDavid - Hogan & Hartson LLP

A Douglas Melamed - Wilmer Cutler Pickering Hale and Dorr LLP

W Todd Miller - Baker & Miller PLLC

MJ Moltenbrey - Freshfields Bruckhaus Deringer

Thomas Mueller - Wilmer Cutler Pickering Hale and Dorr LLP

Timothy J Muris - O'Melveny & Myers LLP

John M Nannes - Skadden Arps Slate Meagher & Flom LLP

Steven A Newborn - Weil Gotshal & Manges LLP

Richard G Parker - O'Melveny & Myers LLP

R Hewitt Pate - Hunton & Williams LLP

Robert Pitofsky - Arnold & Porter LLP

Mark S Popofsky - Kaye Scholer LLP

Phillip A Proger - Jones Day

James F Rill -Howrey LLP

Richard L Rosen - Arnold & Porter LLP

Charles F ‘Rick’ Rule - Cadwalader Wickersham & Taft LLP

Mark C Schechter - Howrey LLP

Robert Schlossberg - Freshfields Bruckhaus Deringer

Joseph J Simons  - Paul Weiss Rifkind Wharton & Garrison LLP

Joe Sims - Jones Day

Tefft W Smith - Kirkland & Ellis LLP

William Randolph Smith - Crowell & Moring LLP

Michael N Sohn - Arnold & Porter LLP

Kevin R Sullivan - King & Spalding LLP

Steven C Sunshine - Skadden Arps Slate Meagher & Flom LLP

John Taladay - Howrey LLP

Joseph F Winterscheid - McDermott Will & Emery LLP

Alan M Wiseman - Howrey LLP

Paul Yde - Freshfields Bruckhaus Deringer

Margaret M Zwisler -Latham & Watkins LLP

The Modernisation of European Competition Law: First Experiences with Regulation 1/2003 (Report to FIDE Congress 2008)

Posted by D. Daniel Sokol

Eric Gippini-Fournierof the European Commission, Legal Service has written on The Modernisation of European Competition Law: First Experiences with Regulation 1/2003 (Report to FIDE Congress 2008). 

ABSTRACT: This paper is the institutional report written by the author for the Twenty-Third Congress of the FIDE - International Federation for European Law (Fédération Internationale pour le Droit Européen). The biennial FIDE Congresses are widely recognized as the premier forum for discussion of EU law developments. The twenty-third Congress took place in Linz, Austria, 28 to 31 May 2008.

This extensive Report reviews the practical experience acquired with operation of Regulation 1/2003, the Modernisation Regulation. This statute introduced Copernican changes in the enforcement system of EU competition law such as the abandonment of the notification system, and the transformation of Article 81(3) into a legal exception directly applicable by all enforcers and national judges. The Regulation also set out mechanisms for cooperation between the Commission and national authorities and courts, provided for new types of decisions, and expanded the Commission's remedial and investigative powers in competition cases.

The Report:
- outlines the decision-making practice of the Commission in the last four years, and examines the impact of the new procedural arrangements on the Commission's productivity and duration of proceedings;
- describes the experiences made by the Commission in cooperating with national competition authorities and national courts;
- discusses the Commision's new powers of investigation, such as the power to inspect private homes;
- discusses in detail the case law from the European Court of Justice (ECJ) or the Court of First Instance interpreting the new provisions of Regulation 1/2003, including landmark cases such as France Télecom (case allocation) Akzo Nobel (attorney-client privilege), and Alrosa/De Beers (limits of negotiated commitments leading to closure of a case).

Although written by an official of the European Commission, the report reflects personal views not attributable to the institution. In relation to individual, identifiable cases, the report refers exclusively to information publicly available. Developments in substantive competition law are outside the scope of the report, which focuses on the procedural and institutional aspects of the enforcement of Articles 81 and 82 EC.