Antitrust & Competition Policy Blog

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

Friday, March 19, 2010

Should Antitrust Condemn Tying Arrangements That Increase Price Without Restraining Competition?: A Response to Einer Elhauge's 'Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory'

Posted by D. Daniel Sokol

Steven Semeraro, Thomas Jefferson School of Law asks Should Antitrust Condemn Tying Arrangements That Increase Price Without Restraining Competition?: A Response to Einer Elhauge's 'Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory'.

ABSTRACT: Early in the development of the antitrust laws, the U.S. Supreme Court declared that conditioning the sale of one product on the customer's agreement to purchase another ("tying" or "tie-in sales") was inherently anticompetitive and lacked any redeeming virtue. During the Chicago School's ascendancy, article after article appeared challenging that notion and explaining how tying could benefit consumers. Einer Elhauge's article, "Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory," 123 Harv. L. Rev. 397 (2009), finally turns the tables, purporting to show that tying, in many of its forms, is bad for consumers after all. In the process, Elhauge takes on not just the old Chicago School, but also the current mainstream commentators who oppose existing law's tough approach to tying.

Valuable as all this is, Elhauge makes one less than convincing claim: that antitrust law should condemn tying by firms with market power even when the practice does not restrain competition in the tied product market. He systematically seeks to show that tying enables a firm with market power to charge higher prices than it could if it simply charged the profit-maximizing price on the tying product alone. But he shortchanges the most compelling counter argument: namely, that granting firms with market power broad leeway to exploit that power actually benefits consumers over time so long as competing firms are not restrained. Despite the short-run harm from temporarily higher prices, the opportunity to charge them encourages rival firms to invest in innovative activities that are essential to a vibrant economy.

This Response first articulates the case for permitting firms that do not restrain competition to exploit market power through tying. The Response criticizes Elhauge's counter-points, and concludes that irrespective of who wins the economic debate, Elhauge's approach necessarily conflicts at a deep level with the theory of competition policy that underlies antitrust law. As a result, one who accepts his argument with respect to tying would be compelled to re-examine antitrust doctrine all the way down to its core.

March 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Simulation and Prosecution of a Cartel with Endogenous Cartel Formation

Posted by D. Daniel Sokol

Johannes Paha (Justus-Liebig-University Gießen) describes Simulation and Prosecution of a Cartel with Endogenous Cartel Formation.

ABSTRACT: In many cases, collusive agreements are formed by asymmetric firms and include only a subset of the firms active in the cartelized industry. This paper endogenizes the process of cartel formation in a numeric simulation model where firms differ in marginal costs and production technologies. The paper models the incentive to collude in a differentiated products Bertrand-oligopoly. Cartels are the outcomes of a dynamic formation game in mixed strategies. I find that the Nash-equilibrium of this complex game can be obtained efficiently by a Differential Evolution stochastic optimization algorithm. It turns out that large firms have a higher probability to collude than small firms. Since firms' characteristics evolve over time, the simulation is used to generate data of costs, prices, output-quantities, and profits. This data forms the basis for an evaluation of empirical methods used in the detection of cartels.

March 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Competition in complementary goods: Airport handling markets and Council Directive 96/67/EC

Posted by D. Daniel Sokol

Maria Cristina Barbot (CEF.UP, Faculdade de Economia, Universidade do Porto) explains Competition in complementary goods: Airport handling markets and Council Directive 96/67/EC.

ABSTRACT: This paper addresses the case of complementary services with vertical relations. Using the example of airport handling activities, we develop a model to investigate the effects on welfare and competitiveness of four different handling market situations. We find out that the usual Cournot result on welfare when firms compete in complementary goods is verified unless there are efficiency gaps between the firms, or if vertically related firms also compete on the same market. We also find that the presence of a horizontally integrated firm may lead to market foreclosure. Moreover, we add a few remarks on regulatory issues, where we show that regulation may be pointless or even anti-competitive. In particular, we show that Council Directive 96/67/EC, while intending to increase competition, may lead to anti-competitive situations and consumers surplus decreases.

March 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 18, 2010

Vertical Integration, Exclusivity and Game Sales Performance in the U.S. Video Game Industry

Posted by D. Daniel Sokol

I do not have a Wii or Sony Playstation.  Nevertheless, I did read the interesting paper Vertical Integration, Exclusivity and Game Sales Performance in the U.S. Video Game Industry by Ricard Gil (UC Santa Cruz - Econ)and Frederic Warzynski (Aarhus School of Business).

ABSTRACT: This paper empirically investigates the relation between vertical integration and video game performance in the U.S. video game industry. For this purpose, we use a widely used data set from NPD on video game montly sales from October 2000 to October 2007. We complement these data with handly collected information on video game developers for all games in the sample and the timing of all mergers and acquisitions during that period. By doing this, we are able to separate vertically integrated games from those that are just exclusive to a platform First, we show that vertically integrated games produce higher revenues, sell more units and sell at higher prices than independent games. Second, we explore the causal effect of vertical integration and find that, for the average integrated game, most of the difference in performance comes from better release period and marketing strategies that soften competition. By default, v! ertical integration does not seem to have an effect on the quality of video game production. We also find that exclusivity is associated with lower demand.

March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Discriminatory fees, coordination and investment in shared ATM networks

Posted by D. Daniel Sokol

Stijn Ferrari (National Bank of Belgium, Financial Stability Department) explores Discriminatory fees, coordination and investment in shared ATM networks.

ABSTRACT: This paper empirically examines the effects of discriminatory fees on ATM investment and welfare, and considers the role of coordination in ATM investment between banks. Our main findings are that foreign fees tend to reduce ATM availability and (consumer) welfare, whereas surcharges positively affect ATM availability and the different welfare components when the consumers' price elasticity is not too large. Second, an organization of the ATM market that contains some degree of coordination between the banks may be desirable from a welfare perspective. Finally, ATM availability is always higher when a social planner decides on discriminatory fees and ATM investment to maximize total welfare. This implies that there is underinvestment in ATMs, even in the presence of discriminatory fees.

March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

SSRN TOP 10 Papers for Journal of Antitrust: Antitrust Law & Policy January 17, 2010 to March 18, 2010

Posted by D. Daniel Sokol

Rank Downloads Paper Title
1 261 The FTC's Anticompetitive Pricing Case Against Intel
Herbert J. Hovenkamp,
University of Iowa - College of Law,
Date posted to database: February 2, 2010
Last Revised: February 2, 2010
2 159 Misplaced Fears in the Legislative Battle Over Affordable Biotech Drugs
David E. Adelman, Christopher M. Holman,
University of Texas School of Law, University of Missouri - Kansas City School of Law,
Date posted to database: January 15, 2010
Last Revised: January 15, 2010
3 156 Post-Sale Restraints and Competitive Harm
Herbert J. Hovenkamp,
University of Iowa - College of Law,
Date posted to database: January 25, 2010
Last Revised: February 24, 2010
4 147 The Antitrust Consumer Welfare Paradox
Barak Y. Orbach,
University of Arizona,
Date posted to database: February 15, 2010
Last Revised: February 18, 2010
5 144 Competition Policy and Comparative Corporate Governance of State-Owned Enterprises
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: February 12, 2010
Last Revised: February 12, 2010
6 142 Brands, Competition and the Law
Deven R. Desai, Spencer Weber Waller,
Thomas Jefferson School of Law, Loyola University of Chicago - School of Law - Faculty,
Date posted to database: February 1, 2010
Last Revised: February 22, 2010
7 125 Robust Exclusion Through Loyalty Discounts
Einer Elhauge, Abraham L. Wickelgren,
Harvard University - Harvard Law School, University of Texas at Austin - School of Law,
Date posted to database: January 30, 2010
Last Revised: February 17, 2010
8 121 Iqbal, Twombly, and the Expected Cost of False Positive Errors
Max Huffman, Mark Anderson,
Indiana University School of Law -- Indianapolis, University of Idaho - College of Law,
Date posted to database: February 6, 2010
Last Revised: February 12, 2010
9 111 The Failed Resurrection of the Single Monopoly Profit Theory
Einer Elhauge,
Harvard University - Harvard Law School,
Date posted to database: February 15, 2010
Last Revised: February 15, 2010
10 107 Coordinated Effects
Janusz A. Ordover,
NYU - Economics, Compass Lexecon,
Date posted to database: December 24, 2009
Last Revised: December 31, 2009

March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Unique Equilibrium in Two-Part Tariff Competition between Two-Sided Platforms

Posted by D. Daniel Sokol

Markus Reisinger (Department of Economics, University of Munich) analyzes Unique Equilibrium in Two-Part Tariff Competition between Two-Sided Platforms.

ABSTRACT: Two-sided market models in which platforms compete via two-part tariffs, i.e. a subscription and a per-transaction fee, are often plagued by a continuum of equilibria. This paper augments existing models by allowing for heterogeneous trading behavior of agents on both sides. We show that this simple method yields a unique equilibrium even in the limit as the heterogeneity vanishes. In case of competitive bottlenecks we find that in this equilibrium platforms benefit from the possibility to price discriminate if per-transaction costs are relatively large. This is the case because two-part tariffs allow platforms to better distribute these costs among the two sides. Under two-sided single-homing price discrimination hurts platforms if per-transaction fees can be negative.

March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Complementary Patents and Market Structure

Posted by D. Daniel Sokol

Klaus Schmidt (University of Munich) addresses Complementary Patents and Market Structure.

ABSTRACT: Many high technology goods are based on standards that require several essential patents owned by different IP holders. This gives rise to a complements and a double mark-up problem. We compare the welfare effects of two different business strategies dealing with these problems. Vertical integration of an IP holder and a downstream producer solves the double mark-up problem between these firms. Nevertheless, it may raise royalty rates and reduce output as compared to non-integration. Horizontal integration of IP holders solves the complements problem but not the double mark-up problem. Vertical integration discourages entry and reduces innovation incentives, while horizontal integration always benefits from entry and innovation.

March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 17, 2010

The Optimal Marketing Mix of Posted Prices, Discounts and Bargaining

Posted by D. Daniel Sokol

David Gill (University of Southampton) and John Thanassoulis (Oxford) discuss The Optimal Marketing Mix of Posted Prices, Discounts and Bargaining.

ABSTRACT: In many markets firms set posted prices which are potentially negotiable. We analyze the optimal marketing mix of pricing and bargaining when price takers buy at posted prices but bargainers attempt to negotiate discounts. The optimal bargaining strategy involves the firms offering bargainers randomly-sized discounts. Competing firms keep posted prices high to weaken the bargainers’ outside option, thus forgoing the chance to increase profits from price takers by undercutting their rival. A range of posted price equilibria are possible, and the higher price in the range inrceases when the proportion of bargainers goes up or the bargainers become less skilled. We consider how firms and competition authorities might encourage more consumers to bargain and determine the conditions under which each would choose to do so. Finally, we study the firms’ strategic decision about how much bargaining discretion sales staff shou! ld be allowed. Both firms allowing full bargaining flexibility is always an equilibrium - but not always the most profitable one. If there are enough bargainers, both firms committing to only matching the rival’s posted price is also an equilibrium: price matching moderates competition, thus raising profits.

March 17, 2010 | Permalink | Comments (0) | TrackBack (0)

The United States and the Future Development of Global Competition and Consumer Protection Policy

Posted by D. Daniel Sokol

March 18, 2010  4:30 p.m. - 5:30 p.m.

Dean Lindsey Cowen Business Law Lecture
presented by the Center for Business Law & Regulation
"The U.S. & the Future Development of Global Competition & Consumer Protection Policy"

Speaker: William E. Kovacic
U.S. Federal Trade Commission

View live webcast Mar 18, 2010 >>

March 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Optimal market design

Posted by D. Daniel Sokol

Jan Boone (Department of Economics, University of Tilburg) and Jacob K. Goeree (Institute for Empirical Research in Economics, University of Zurich) outline Optimal market design.

ABSTRACT: This paper introduces three methodological advances to study the optimal design of static and dynamic markets. First, we apply a mechanism design approach to characterize all incentive-compatible market equilibria. Second, we conduct a normative analysis, i.e. we evaluate alternative competition and innovation policies from a welfare perspective. Third, we introduce a reliable way to measure competition in dynamic markets with non- linear pricing. We illustrate the usefulness of our approach in several ways. We reproduce the empirical finding that innovation levels are higher in markets with lower price-cost margins, yet such markets are not necessarily more competitive. Indeed, we prove the Schumpeterian conjecture that more dynamic markets characterized by higher levels of innovation should be less competitive. Furthermore, we demonstrate how our approach can be used to determine the optimal combination of market regul! ation and innovation policies such as R&D subsidies or a weakening of the patent system. Finally, we show that optimal markets are characterized by strictly positive price-cost margins.

March 17, 2010 | Permalink | Comments (1) | TrackBack (0)

Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws

Posted by D. Daniel Sokol

Josh Davis (USF Law) and Bob Lande (Baltimore Law) have an interesting new article Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws.

ABSTRACT: This article shows that private enforcement of the U. S. antitrust laws-which usually is derided as essentially worthless-serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division of the U.S. Department of Justice.

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts. Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. Our article's conclusion that the amounts of payouts in private cases are actually staggeringly high-so high that they deter anticompetitive conduct more effectively than the criminal fines and prison sentences resulting from Department of Justice cases-is thus the opposite of the consensus within the antitrust community. Indeed, we hope this article causes many in both the United Sates and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.

March 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Not So Fast: The Competition System Created by the PRC Anti-Monopoly Law and Recent Developments in its Implemetation

Posted by D. Daniel Sokol

Nicholas H. Cramer, Tsinghua University - School of Law has written on Not So Fast: The Competition System Created by the PRC Anti-Monopoly Law and Recent Developments in its Implementation.

ABSTRACT: Culminating a two-decade long process, the Standing Committee of the National People's Congress adopted the PRC Anti-Monopoly Law on August 30, 2007 and the law entered into effect on August 1, 2008. The result was imperfect, overly general legislation which still potentially offers an improvement over the disparate set of rules and regulation that preceded it, if only by locating all of the confusion in one place. The 2008 Anti-Monopoly Law borrows important elements from American antitrust law as well as European Union and German competition law, but maintains unmistakably Chinese characteristics.

The note below will attempt to show how the influences of foreign competition schemes and domestic policy agendas combined to create an Anti-Monopoly Law that, while improving on the previous framework, will require a series of implementing measures and structural and procedural reforms to be effectively enforced.

March 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

The Enhanced UPP Screen: Merging Markets into the UPP Methodology

Posted by D. Daniel Sokol

Malcom Coate (FTC) describes The Enhanced UPP Screen: Merging Markets into the UPP Methodology.

ABSTRACT: Farrell and Shapiro’s Upward Pressure on Price (UPP) structure is advanced as technique to screen mergers in differentiated product markets. Lacking an ability to link their analysis with experiences from relevant markets, Farrell and Shapiro propose to assume substantial efficiencies, and conclude that any positive upward pressure on price is sufficient to trigger potential concerns. This structure creates problems: the refusal to tolerate any positive UPP leads the screen to find concerns with a broad collection of mergers and an assumption of high efficiencies means the screen is unable to identify concerns for certain mergers in low price-cost margin businesses. If minor changes are made in the UPP formula and the UPP effect is adjusted for market share, it is possible to define revised UPP-based models. One of the models can be shown to be compatible with historical FTC experience, given a toleration of 2-3 percent upward pressure on price. Further research could improve the parameterization of an UPP-related screen and generate an even more reliable index. In some form, UPP analysis may succeed at defining the structural index for unilateral effects mergers.

March 16, 2010 | Permalink | Comments (0) | TrackBack (0)

House for Rent in DC

Posted by D. Daniel Sokol

Professor Maurice Stucke (Tennessee Law) is looking to rent his DC home- $3500 / 3br - 3+br, 4 levels Sun-filled Colonial (Chevy Chase, DC) .

If you tell him that you heard about the house from me, he promised to bake me a batch of chocolate chip cookies.

Updated side-hall colonial with a big porch, peaceful garden and great neighbors. In between the Connecticut shops and Rock Creek Park, this sun-filled house with lots of details has four levels of living space.

The main level features (i) a living room with built in bookshelves, crown molding and wood-burning fireplace, (ii) a separate sunny dining room with a bay window looking out to a cottage garden, (iii) powder room, and (iv) an updated kitchen with black granite counter tops. The second floor has three bedrooms and two full baths. Stairs lead to a finished third floor loft that can be used for an office, playroom or another bedroom. The loft features a window seat, hardwood floors, and plenty of storage The lower level features a half bath, a finished carpeted room that can be used as a rec room or guest bedroom and a utility room with a door leading to the cottage garden and detached garage.

Walk to Lafayette Elementary, the Saturday Farmers' Market, The Broad Branch Market, Politics and Prose, Marvelous Market, the Connecticut shops, Friendship Heights metro and buses. Close to Rock Creek Park. This is a great street to live on with an annual Block Party and truly friendly neighbors.

For more information and to schedule a time to view please call 202-386-1306. Available to show this weekend with advanced notice.

5440 30th Place, NW
Washington, DC 20015

30th Place, NW (google map) (yahoo map)

  • cats are OK - purrr
  • dogs are OK - wooof
  • Location: Chevy Chase, DC
  • it's NOT ok to contact this poster with services or other commercial interests
image 1643851490-0 image 1643851490-1
image 1643851490-2

March 16, 2010 | Permalink | Comments (1) | TrackBack (0)

Collective dominance and refusal to supply: Closing the gap in article 82?

Posted by D. Daniel Sokol

Paolo Siciliani (OFT) asks Collective dominance and refusal to supply: Closing the gap in article 82?  The article is posted with the permission of The Antitrust Bulletin (the copyright holder) and it appears in volume 54 and issue 3, fall 2009.

Download ATB Vol 54 #3-Fall 2009

March 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Resale Price Maintenance: The Internet Phenomenon and 'Free Rider' Issues

Posted by D. Daniel Sokol

Marina Lao, Seton Hall School of Law explores Resale Price Maintenance: The Internet Phenomenon and 'Free Rider' Issues.

ABSTRACT: Leegin and the literature on resale price maintenance (RPM) have largely overlooked the Internet phenomenon despite the fact that it has substantially changed the way many consumers shop. This paper looks at the characteristics of Internet retailing and explores how they may affect the free rider justification often asserted for RPM. I argue that the case for RPM as a means to control free rider problems is not strengthened by the advent of Internet retailers. While the ease of Internet searches may increase the occurrence of free-riding for sensory-sensitive products, the wealth of information available online likely reduces the need for in-person retailer services and, hence, free riding on brick-and-mortar store services for other products. In fact, recent marketing studies suggest that, contrary to popular assumptions, free riding occurs more often in the opposite direction - customers browsing Internet retailers’ websites but buying from brick-and-mortar stores - yet Internet retailers are opponents, not supporters, of RPM. Recent research also suggests that free riding between brick-and-mortar and Internet retailers can be synergistic, benefiting both types of retailers. These new insights call into question the general assumptions that Internet retailers are frequent free riders and that free-riding must be discouraged.

Even if we view free-riding from a conventional perspective, RPM may not be the most effective and efficient way to induce retailer services for reasons explored in the paper. In view of the many benefits of Internet retailing, antitrust law should disfavor a trade restraint which inhibits its growth by prohibiting discounting (such as RPM) if there are alternative means of promoting retailer services that do not present similar risks. Promotional allowances could be such an alternative. I conclude by explaining why a full rule of reason analysis is unworkable and suggest a rebuttable presumption of illegality as an alternative approach.

March 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Is the Guidance Paper on the Commission’s Enforcement Priorities in Applying Article 102 TFEU to Abusive Exclusionary Conduct Useful?

Posted by D. Daniel Sokol

Damien Geradin (Howrey, Tilburg, Michigan) asks Is the Guidance Paper on the Commission’s Enforcement Priorities in Applying Article 102 TFEU to Abusive Exclusionary Conduct Useful?

ABSTRACT: In December 2008, the European Commission (hereafter, the “Commission”) published a guidance paper on its enforcement priorities in applying Article 82 of the EC Treaty (now Article 102 TFEU) to abusive exclusionary conduct by dominant undertakings (hereafter, the “Guidance Paper”). This document is of a sui generis nature as it “sets out the enforcement priorities that will guide the Commission’s action in applying Article [102] to exclusionary conduct by dominant undertakings.” The Commission does not therefore state or restate the way in which Article 102 should be interpreted, a task which falls within the exclusive remit of the European Court of Justice (hereafter, the ECJ”), but explains the circumstances in which a given dominant firm’s conduct is likely to be subject to enforcement action by the Commission.

Against this background, this paper seeks to answer the following question: Is the Guidance Paper useful? Considering that the Guidance Paper has generally been well received by commentators, one could be tempted to respond to this question positively, but a careful review of the document suggests that the answer may be less straightforward than would appear at first blush. To respond to the question posed above, this paper is divided into five parts. Part I explains the context leading to the adoption of the Guidance Paper. Part II briefly describes the content of the Guidance Paper, focusing on the general principles that will guide the Commission’s assessment of foreclosure rather than on its review of the various types of conduct that are likely to fall within the purview of Article 102. Part III addresses the question of whether the Guidance Paper provides sufficient guidance to dominant firms and their advisors as to whether certain conduct they may wish to pursue is compatible with Article 102. Part IV discusses whether the Commission is likely to comply with the effects-based approach promoted in its Guidance Paper or is likely to revert to a form-based approach when this better suits its enforcement objectives. Finally, Part V concludes that while the Guidance Paper gives encouraging signs that the Commission will adopt a modern, effects-based approach when defining its enforcement priorities questions remain as to the practical impact of this document for dominant firms. First, the principles contained in the Guidance Paper are subject to significant exceptions and caveats and provide no safe harbors, hence reducing the overall level of guidance provided for in this document. Second, the approach taken by the Commission in the Intel case suggests that the Commission may still be tempted to rely on the formalistic case-law of the ECJ in order to ensure that its decision does not become subject to a successful appeal.

March 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

Pricing to market when quality matters

Posted by D. Daniel Sokol

Roberto Basile (ISAE - Institute for Studies and Economic Analyses), Sergio de Nardis (ISAE - Institute for Studies and Economic Analyses), and Alessandro Girardi (ISAE - Institute for Studies and Economic Analyses) explain Pricing to market when quality matters.

ABSTRACT: We build a model of price differentiation with firm heterogeneity, which allows for imperfect competition and market segmentation in the presence of flexible exchange rates as well as horizontal and vertical differentiation and different tastes of consumers in destination markets. We empirically assess the main predictions of our theoretical framework by using firm-level data surveyed by ISAE. We document that export-domestic price margins are significantly affected by price and quality competitiveness even controlling for foreign demand conditions, size, export intensity, destination markets and unobservables. Finally, we provide evidence of a strong heterogeneity across firms in their reaction to price and quality competitiveness.

March 15, 2010 | Permalink | Comments (0) | TrackBack (0)

A Summary and Wrap Up of the Iowa Ag Competition Hearings

Posted by Peter Carstensen

The DOJ-USDA Session on Agricultural Competition–March 12, Ankeny, Iowa

Farmers were instrumental in forcing the adoption of the Sherman Act and they remain one of the most interested and commitment constituencies for antitrust. The turnout at the session was substantial with estimates of the audience ranging from over 650 to more than 800. As one speaker put in, “I have never seen so many people interested in antitrust law except lawyers getting CLE credits.” Another sign of interest is that interested parties have filed more than 15,000 comments related to these workshops (available at the DOJ web site).

Attorney General Holder and Secretary of Agriculture Vilsack each emphasized a commitment to competition and to addressing competitive issues in markets involving agriculture. This is the first real cooperation between the agencies each of which has significant actual or potential authority to affect competition. Also present was a representation of the CFTC who signaled that agency’s commitment. Conspicuously absent was the FTC which has authority over retail grocery issues as well as all processed food production except meat and dairy products. When, after several comments about competitive issues resulting from retailer and general grocery manufacturer buyers power, the question of FTC absence was addressed the organizers said the FTC would be “invited” to the final meeting in DC in December. Informal conversation suggested to me that the FTC has signaled disinterest in these proceedings. I hope that is not true as it would mean a major gap in enforcement.

The initial presentation from high ranking enforcers served to stress an intent to act whenever there was cause as well as an implicit recognition that there are serious competitive issues in agriculture. The subsequent panels focused on issues in the seed market, in the sale of hogs and cattle, and general problems in enforcing the laws affecting these markets. The final hour plus was taken up with individual comments from the audience. A deputy assistant attorney general and a senior official of the USDA were there to hear the views of individual farms. The substantive panels included farmers, and academic experts as well as a Monsanto representative on the seed panel.

In the case of seeds a few farmers indicated acceptance of the current system and enthusiasm for the genetically modified seed available to them. Monsanto’s representative similarly stressed the number and variety of genetic modifications that exist without acknowledging Monsanto’s current hold on the market for genetics. A major focus of discussion and general concern was the state of the world after the current Monsanto glyphosate tolerant gene comes off patent. To continue to produce crops with that gene requires continued registration with various countries. Monsanto is only committed to providing that service for 3 years after the end of the patent. Moreover, it is infringement to experiment with various staked genetics that include that patented gene prior to expiration. I did not hear the kind of commitment to facilitating market access that needs to occur if the patent based Monsanto monopoly is to be dissipated. However, it is notable that both enforcers and the agricultural community are quite aware of the issues and looking for prompt solutions.

The second focal point of discussion was on the use of advance contracts to sell livestock, especially hogs, in contrast to the use of the spot market. One recurring theme was the need for better price discovery. Currently between 5 and 10% of all hogs are actually sold on the spot market but those prices set the price for over 50% of all hogs. Moreover, the price system is subject to a variety of manipulations as it is currently constituted. This topic will be the focus of the session in Colorado in August. The challenge for the USDA is to find regulations (it has very substantial market facilitating regulatory authority under the Packers and Stockyards Act) that police the contract terms and provide sufficient disclosure and insulation of contract prices from market prices in the short run to allow the market to continue to serve its price making function. This is not a simple assignment.

Little was said about dairy (the subject of a session in Wisconsin in June), poultry contracts (subject of a session in Alabama in May) or the status of Capper-Volstead. One farmer during the open mike period defended DFA as a source of price stability in dairy, but another demanded to know what was going on in the long standing DOJ investigation of DFA’s exclusionary conduct. Yet another farmer was very critical of the large cooperatives in the rice industry.

Finally, for the first time in an agricultural competition forum, I was not the only law conventional professor present. Neil Hamilton of Drake, an expert on agricultural contracting, was present as he often is because his work focuses in this area. More interestingly, both George Priest and Geoff Manne were there. Both came for the IP debate, but may, if their conversation is any guide, have left with a broader interest in the competition and market issues presented by agricultural markets.

The entire proceedings were video taped and the DOJ will soon post them on its web site. In addition a transcript will eventually be available as I understand it.

March 15, 2010 | Permalink | Comments (2) | TrackBack (0)