Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Wednesday, June 23, 2010

Introducing Global Competition Law and Economics Book Series from Stanford University Press

Posted by D. Daniel Sokol

I am very pleased to announce the establishment of the new book series Global Competition Law and Economics from Stanford University Press.  The two series edtiors are Ioannis Lianos (UCL) and D. Daniel Sokol (University of Florida). Ioannis and I are thrilled about the new series.  We expect to publish an edited volume a year.  We are also looking for single author volumes on cutting edge international and comparative competition law and economics.

SERIES ABSTRACT: Competition law and economics (known in the United States as antitrust) is an area of cutting-edge academic work with significant policy implications. Once confined to the United States and a few other countries, antitrust has taken off as an area of study in a relatively short period of time. More than 100 jurisdictions now have competition laws. Increasingly, enforcement activities abroad have far-reaching implications for any antitrust regime. Moreover, developments in economic thinking have helped to reformulate attitudes in both academic and policy circles. This book series will be at the forefront of the development of new ideas and approaches within the field.  

June 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Optimal Antitrust Enforcement, Dynamic Competition, and Changing Economic Conditions

Posted by D. Daniel Sokol

Keith N. Hylton, Boston University and Haizhen Lin, Indiana University explore Optimal Antitrust Enforcement, Dynamic Competition, and Changing Economic Conditions.

ABSTRACT: The recent financial crisis and recession provide an opportunity to reexamine the dynamic versus static efficiency tradeoff in antitrust enforcement policy. We examine implications of the optimal antitrust enforcement model when dynamic efficiency is incorporated. The “dynamic enforcement model” examined here provides a positive theory of Section 2 doctrine, some suggestions for modifying enforcement in light of its dynamic costs, and implies antitrust enforcers should put a greater weight on dynamic efficiency during recessions.

June 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Economic Evidence in Private Damage Claims: What lessons can be learned from the German Cement Cartel case?

Posted by D. Daniel Sokol

Niels Frank (Lademann & Associates and University of Bayreuth) and Rainer Lademann (Lademann & Associates) of summarizes Economic Evidence in Private Damage Claims: What lessons can be learned from the German Cement Cartel case?

ABSTRACT: There is only limited experience as to how judges take up economic evidence in cartel cases in Europe. In particular, econometrics is something that has only rarely been presented in court. The first time econometric evidence was presented in court in Germany was in the cement cartel case in 2009. The main points discussed in court were: How to deal with a price war period in the post-cartel period? What is the right reference period and how does it impact the model's robustness? In principle it is possible to account for these different effects using econometric techniques? However, caution is needed in introducing such changes in the mode of competition into a single estimation model as they may impact the damage estimation significantly. We argue that in order to achieve a good estimate of cartel overcharges, it is incresingly important to use several different methods when more doubts regarding the robustness of the econometric evidence exist, thereby possibly reducing the method-dependency of the results.

June 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 22, 2010

The FTC is a refereee in our economy, not a star player

Posted by D. Daniel Sokol

Tim Muris (George Mason Law) notes in testimony, "The FTC is a refereee in our economy, not a star player." See his testimony before the Senate Commerce Committee, on March 17, 2010, regarding "Financial Services and Products: The Role of the Federal Trade Commission in Protecting Consumers." Download Muris_Senate_Testimony,_FTC_Role_Protecting_Consumers_3-17-10[1]

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

A More Efficient Use of Efficiencies in Merger Authorisation Determinations

Posted by D. Daniel Sokol

Arlen Duke, University of Melbourne - Law School writes on A More Efficient Use of Efficiencies in Merger Authorisation Determinations.

ABSTRACT: This article considers the varying treatment of merger-related efficiencies in overseas jurisdictions and in Australian and New Zealand merger authorisation and clearance determinates. This analysis leads to the conclusion that the inclusion of an efficiency defence in the legislative regime that regulates the competitive effects of mergers tends to cause decision-makers to adopt a less sophisticated approach when assessing the competitive effects of merger activity. It is therefore argued that the Australian Competition Tribunal, the body now responsible for determining authorisation applications, should be alert to the fact that the effects of merger-related efficiencies are relevant to both the assessment of public benefits and public detriments. By considering the competition and resource saving effects of merger-related efficiencies separately, the tribunal will be better placed to assess the merger’s effect on competition and perform a more meaningful trade-off between competition and efficiency as part of its analysis of merger authorisation applications.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Antitrust Enforcement Under Endogenous Fines and Price-Dependent Detection Probabilities

Posted by D. Daniel Sokol

Harold Houba, VU University Amsterdam - Department of Econometrics, Tinbergen Institute, Evgenia Motchenkova, VU University Amsterdam - Department of Economics, TILEC, and Quan Wen, Vanderbilt University - College of Arts and Science - Department of Economics discuss Antitrust Enforcement Under Endogenous Fines and Price-Dependent Detection Probabilities.

ABSTRACT: We analyze the effectiveness of antitrust regulation in a repeated oligopoly model in which both fines and detection probabilities depend on the cartel price. Such fines are closer to actual guidelines than the commonly assumed fixed fines. Under a constant detection probability, we confirm the long-run neutrality result with respect to fixed fines reported in Harrington (2005) and extend his result to the case where fines are directly proportional to illegal gains. In addition, we report that the profit-maximizing cartel price lies below the monopoly price when policy design features non-constant price-dependent detection probability. This offers partial support for current practice.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

European State Aid and Merger Control in the Financial Crisis—From Negative to Positive Integration

Posted by D. Daniel Sokol

Carl Baudenbacher (University of St. Gallen - Law) and Frank Bremer (University of St. Gallen - Law) have written on European State Aid and Merger Control in the Financial Crisis—From Negative to Positive Integration.

ABSTRACT: As a response to the financial crisis, the European Commission has permitted Member States to support financial institutions subject to conditions imposed under EU State aid rules. Through these conditions, which were laid down in a special framework, the Commission is tackling inadequate business models in major banks. This has been a Herculean task, but the Commission deserves credit for not succumbing to pressure from Member States' governments to relax the state aid rules. On the other hand, the control of crisis mergers happens according to the normal merger control regime. The Commission also tends to impose structural remedies in this field. However, most crisis mergers were dealt with by national Competition Authorities since they did not have a Community dimension. In both areas, the remedies imposed by the Commission can be described as steps of positive integration.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Department of Justice and USDA Announce Agenda for June 25 Dairy Workshop

Posted by D. Daniel Sokol

From the DOJ Press release:

DEPARTMENT OF JUSTICE AND USDA ANNOUNCE
AGENDA FOR JUNE 25 DAIRY WORKSHOP

Workshop to be Held at University of Wisconsin - Madison

WASHINGTON — The Department of Justice and the U.S. Department of Agriculture (USDA) announced today the agenda and panelists for the June 25 workshop examining competition in the dairy industry. The joint public workshop will build on the knowledge and experience of industry stakeholders, including farmers, processors, cooperative leaders and academics. This is the third in a series of five workshops intended to promote dialogue among interested parties and foster learning with respect to competition and regulatory issues in agriculture.

The workshop will be held in the Wisconsin Union Theater at the University of Wisconsin - Madison, 800 Langdon Street, Madison, Wis. Attendance is free and open to the public. The general public and media interested in attending the Wisconsin workshop should register at www.surveymonkey.com/s/V3FHXPY.

The workshop will begin with opening remarks and a roundtable discussion including U.S. Attorney General Eric Holder, U.S. Agriculture Secretary Tom Vilsack and Assistant Attorney General for the Justice Department's Antitrust Division Christine Varney. Wisconsin Senators Herb Kohl and Russell Feingold; Representatives Ron Kind, Steve Kagen and Tammy Baldwin; Governor Jim Doyle; and Agriculture Secretary Rod Nilsestuen have all tentatively accepted invitations to join the roundtable discussion.

The workshop will continue with a session entitled, "Farmer Presentation of Issues," as well as panels on "Trends in the Dairy Industry," "Market Consolidation" and "Market Transparency." There will also be two hours dedicated to public testimony, one immediately prior to lunch and the other at the end of the day.

The schedule is as follows:

8:45 a.m. - 9:00 a.m. CDT Opening Remarks

Eric Holder, Attorney General, U.S. Department of Justice
Tom Vilsack, Secretary of Agriculture, U.S. Department of Agriculture


9:00 a.m. - 10:15 a.m. CDT Keynote Roundtable Discussion

Eric Holder, Attorney General, U.S. Department of Justice
Tom Vilsack, Secretary of Agriculture, U.S. Department of Agriculture
Christine Varney, Assistant Attorney General, Antitrust Division, U.S. Department of Justice

Tentative:
Herb Kohl, Senator, U.S. Senate
Russell Feingold, Senator, U.S. Senate
Tammy Baldwin, Congresswoman, U.S. House of Representatives
Ron Kind, Congressman, U.S. House of Representatives
Steve Kagen, Congressman, U.S. House of Representatives
Jim Doyle, Governor, state of Wisconsin
Rod Nilsestuen, Secretary of Agriculture, state of Wisconsin


10:15 a.m. - 11:15 a.m. CDT Farmer Presentation of Issues

This panel will be an opportunity to hear first-hand from dairy farmers as they share their experiences and perspectives on the industry.


Moderators:

Eric Holder, Attorney General, U.S. Department of Justice
Tom Vilsack, Secretary of Agriculture, U.S. Department of Agriculture
Christine Varney, Assistant Attorney General, Antitrust Division, U.S.             Department of Justice


Jamie Bledsoe, Riverdale, Calif.
Joaquin Contente, Hanford, Calif.
Joel Greeno, Kendall, Wis.
Frances Horton, Hatch, N.M.
Ed King, Schuylerville, N.Y.
Bill Rowell, Sheldon, Vt.
Christine Sukalski, Leroy, Minn.
Darin Von Ruden, Westby, Wis.


11:15 a.m. - 11:45 a.m. CDT Coffee Break

11:45 a.m. - 12:45 p.m. CDT Public Testimony

12:45 p.m. - 1:15 p.m. CDT Lunch

1:15 p.m. - 2:30 p.m. CDT Panel I - Trends in the Dairy Industry

This panel will examine changes in the industry, the responses of industry stakeholders and the potential implications for regulation and enforcement.


Moderators: Josh Soven, Chief, Litigation I Section, Antitrust Division, U.S. Department of
     Justice

Peter Carstensen, Professor of Law, University of Wisconsin
Ron Cotterill, Professor of Agricultural and Resource Economics, University of Connecticut
Bob Cropp, Emeritus Professor of Agricultural and Applied Economics, University of Wisconsin
Jim Goodman, organic dairy farmer, Wonewoc, Wis.
Jerrel Heatwole, dairy farmer, Greenwood, Del.
Peter Kappelman, chairman of the board of directors, Land O' Lakes Cooperative
Marcus Peperzak, chief executive officer, Aurora Organic Dairy


2:30 p.m. - 3:45 p.m. CDT Panel II - Market Consolidation

This panel will explore how changes in firm size are affecting both farmers and consumers.


Moderators: James MacDonald, Chief, Agricultural Structure and Productivity Branch,
      Economic Research Service

Calvin Covington, retired dairy industry executive, King, N.C.
Brian Gould, Associate Professor, Department of Agricultural and Applied Economics,
             University of Wisconsin - Madison
Louise Hemstead, chief operating officer, Organic Valley Cooperative
Daniel Smith, Esq., former administrator, Northeast Dairy Compact Commission
John Wilson, senior vice president, Dairy Farmers of America


3:45 p.m. - 4:00 p.m. CDT Break

4:00 p.m. - 5:00 p.m. CDT Panel III - Market Transparency

This panel will examine farm prices for milk, contracts and related issues from a public policy perspective.


Moderators: Mark Tobey, Special Counsel for Agriculture and State Relations, Antitrust
        Division, U.S. Department of Justice

Stephen Obie, director of enforcement, Commodity Futures Trading Commission
Andy Pauline, assistant director, Government Accountability Office
Tanya Rushing, dairy farmer, Tylertown, Miss.
Denny Wolff, partner, Versant Strategies, and former Pennsylvania Secretary of Agriculture
Robert Yonkers, vice president and chief economist, International Dairy Foods Association


5:00 p.m. - 6:00 p.m. CDT Public Testimony

6:00 p.m. CDT Concluding Remarks

Additional information, including submitted public comments and transcripts for past workshops can be found at the Antitrust Division's agriculture workshop website at www.justice.gov/atr/public/workshops/ag2010/index.htm. While no streaming webcast will be available, transcripts and video will be available for this workshop at a later date on the Antitrust Division's website. Individuals seeking more information on the workshops should contact agriculturalworkshops@usdoj.gov.


June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

New Chambers USA Rankings Are Out - Illinois Antitrust Elite Edition

The Microsoft Browser case: Why the Commission's decision fails to convince

Posted by D. Daniel Sokol

Jeremy Robinson (Bird & Bird) explains The Microsoft Browser case: Why the Commission's decision fails to convince.

ABSTRACT: The Commission closed the Browsers case with commitments and achieved case victory without a properly-reasoned analysis of economic effects.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Competition and Innovation: Pushing Productivity Up or Down?

Posted by D. Daniel Sokol

Erik Brouwer, Tilburg Law and Economics Center (TILEC) and Henry van der Wiel ask Competition and Innovation: Pushing Productivity Up or Down?

ABSTRACT: This paper examines the relationship between competition, innovation and productivity for the Netherlands. We use industry level data aggregated from micro data as well as moments from firm level data for the period 1996-2006. We match innovation data from Community innovation Survey with accounting data to link innovative activities with performance at the industry level. We find strong evidence for a positive impact of competition on Total Factor Productivity (TFP) at the industry level. Competition directly increases TFP by reducing X-inefficiencies and removing inefficient firms from markets, but also through more innovation. Nonetheless, there exists an inverted U-curve between competition and innovation for the Netherlands, at least for manufacturing industries. Yet, our results indicate that a negative effect of competition on productivity through lower innovation expenditures arises only at very high levels of competition.

June 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 21, 2010

Resale Price Maintenance in the Post-Leegin World: A Comparative Look at Recent Developments in the United States and European Union

Posted by D. Daniel Sokol

Andrew Gavil (Howard University School of Law) offers Resale Price Maintenance in the Post-Leegin World: A Comparative Look at Recent Developments in the United States and European Union.

ABSTRACT: The conventional wisdom today holds that the federal law of vertical restraints in the United States has been "harmonized." Thanks to the U.S. Supreme Court's 2007 decision in Leegin, the nearly century-old per se rule that absolutely banned minimum resale price maintenance ("RPM") has been abandoned. The more economically sound approach of the Court's 1977 decision in Sylvania, which held that non-price intrabrand restraints should be judged under the "rule of reason," has been extended to price restraints, which were largely indistinguishable in effect. As a consequence, vertical intrabrand price and non-restraints will be treated alike-both are presumptively unlikely to significantly harm competition. Suppliers may now freely choose from a full pallet of vertical restraints to accomplish their marketing goals, provided they do not unreasonably restrain trade in some very specific, narrowly defined ways.

The true picture is far less clear. Three years after Leegin, the state of RPM in the United States is surprisingly uncertain, and that uncertainty is a reminder of the complexity of the U.S. competition policy system. Many voices can now be heard in the post-Leegin debate-federal, state, public, and private-and at least three camps have formed. Whereas some would overrule Leegin and restore the per se rule of Dr. Miles, others would work within Leegin, accepting its invitation to develop a structured and tailored approach to applying the rule of reason to RPM. Still others would read Leegin for all it is worth and more, happily depositing concerns over RPM into the trash-bin of antitrust history.

This debate about RPM is not confined to the United States. The confluence of Leegin and the expiration of the E.U.'s decade-old Vertical Restraints Block Exemption Regulation have ignited a more global re-examination of the economic and legal standards for evaluating RPM. Although that re-examination has led to some visible movement by the European Commission in the direction of greater permissiveness, formally, European enforcement authorities remain far more sceptical of the supposed economic benefits of RPM than at least some of their U.S. counterparts. As a consequence, all of the views currently being advocated in the United States differ from that endorsed by the new Block Exemption in the E.U. Some would be more restrictive, whereas others would be more permissive. The middle ground that is most likely to emerge as the dominant view in the United States, however, suggests that at the end of this period of re-examination, the prevailing views in the United States and Europe will have become more closely aligned, although not fully converged. The differences will be reduced to the distance between cautious optimism and cautious pessimism. It is also likely that the positions will continue to converge over the next decade, but the direction of that convergence will depend upon what we learn about RPM-its uses and effects-in the intervening years.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

The Predictability of Global Cartel Fines

Posted by D. Daniel Sokol

Douglas J. Miller, University of Missouri at Columbia - Department of Economics and John M. Connor, Purdue University discuss The Predictability of Global Cartel Fines.

ABSTRACT: Legal opinion is divided on whether predicable sentences are a good thing for the administration of justice. In the case of cartel violations, both the United States and the EU have introduced guidelines for calculating fines that are intended to make fining decisions more transparent and to deter cartel formation. The research summarized in this paper finds that with one exception both jurisdictions follow the principles of optimal deterrence in a highly predictable fashion. However, actual fines on corporations guilty of global price fixing are only about one-third as high as optimal-deterrence theory dictates. We do find rather large differences in temporal patterns between U.S. and EC fines: the former do not increase from 1990 to 2008 whereas the latter increase dramatically. The Kroes commissionership and the second fining guidelines resulted in separate, substantial increases in global cartel fines.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Resale Price Maintenance Under the New Guidelines: A Critique and A Suggestion

Posted by D. Daniel Sokol

Yves Botteman & Kees Jan Kuilwijk (Steptoe & Johnson) discuss Resale Price Maintenance Under the New Guidelines: A Critique and A Suggestion.

ABSTRACT: During its recent revision of rules regarding vertical agreements, which culminated in a revised block exemption for certain such agreements and new Guidelines on Vertical Restraints, European Commission initiated a debate on the treatment of (minimum) resale price maintenance ("RPM") under EU competition rules. From the perspective of the supplier of a product, RPM consists of fixing or imposing a minimum retail price that the distributor must charge to consumers. To some degree, the debate in Europe was spurred by the Leegin decision of the U.S. Supreme Court in 2007 which overturned a long standing precedent, Dr. Miles, that treated minimum RPM as a per se violation of U.S. antitrust rules, in favor of a rule of reason analysis. Some commentators have suggested that, given the fact that defendants often succeed in lower courts when restraints are examined under the rule of reason, Leegin would cause minimum RPM to be treated as, in effect, per se legal in many situations.

In Europe, RPM has long been treated as a "hardcore" restriction of competition falling within the prohibition of Article 101(1) of the Treaty on the Functioning of the European Union ("TFEU") with virtually no scope for meeting the strict conditions for exemption under Article 101(3). The latter provision enables the defendant to put forward an efficiency defense that will be balanced against the detrimental effects of the restraint. Given the fact that this defense was de facto unavailable for RPM, this practice has often been considered as a per se violation of EU competition rules. In practice, this meant that suppliers could not impose RPM on their dealers in the EU.

The draft Guidelines, which were published for consultation in the summer of last year, marked a relative softening of the Commission's policy towards RPM. Under the draft, RPM would still be categorized as a hardcore restriction of competition. However, the use of RPM would not necessarily mean that it would be per se illegal. RPM would continue to be presumed (i) to fall within Article 101(1) and (ii) to be unlikely to fulfill the conditions for exemption under Article 101(3). But the Commission would make the presumption rebuttable, leaving open the possibility for firms to plead an efficiency defense. In cases where the efficiency defense was sufficiently supported, the Commission, national competition authority, or court would then have to assess the likely negative effects on competition prior to ruling on whether RPM fulfills the conditions of Article 101(3). The new Guidelines, adopted by the Commission on 20 April 2010, maintain this rebuttable presumption. They also provide insights into the motives for treating RPM as a hardcore restriction and suggest circumstances in which RPM is likely to generate overriding efficiencies.

In this commentary, we discuss the Commission's new approach toward RPM. We also discuss an alternative approach to the assessment of RPM. Before doing so, it is important to note that, although much has been written since Leegin about RPM by economists and legal practitioners alike, there is relatively little empirical evidence on the actual effect of RPM on consumer welfare. At the same time, there seems to be broad recognition that RPM is generally harmful to consumers where there is either a certain degree of market power or a widespread use of RPM in a given market. Conversely, it is equally recognized that RPM can generate efficiencies overriding the negative price effect when it is used by a single or only a handful of suppliers without market power.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

The Role of Economic Analysis in Competition Law

Posted by D. Daniel Sokol

Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia and Eric M. Fraser, University of Chicago - Law School, University of Chicago - Booth School of Business explain The Role of Economic Analysis in Competition Law.

ABSTRACT: From 1890 into the 1970s competition law in the United States was not economically coherent. As a result, in all but the prosecution of cartels, enforcement was close to random. New business practices were viewed with suspicion, particularly when introduced by large firms, and mergers were interdicted without any understanding of their likely effects for good or ill. Indeed, in 1966 one Justice of the Supreme Court correctly observed, “The sole consistency ... in [merger cases is that] the Government always wins.” Beginning in the 1970s, however, the agencies charged with antitrust enforcement and then later the courts began to use economic analysis in order, respectively, to decide what cases to bring and to review the merits of those cases. Today economic analysis plays a vital role in the enforcement of antitrust laws at all levels. We discuss the evolving role of economists and economic evidence in both the antitrust agencies and the courts. Our account demonstrates how the predictability of economic analysis supports a rule of law regime, but we also recognize the difficulties involved in interpreting and applying increasingly complex economic analyses to the facts in competition cases. Countries with relatively young competition laws and enforcement agencies may be able to draw from the experience of the United States, both to avoid repeating its mistakes and to emulate its successes.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Loyola Institute for Consumer Antitrust Studies: Programs and Publications

Posted by Spencer Waller

Programs and scholarly publications are at the heart of the Institute’s mission since its creation in 1994.  In the first five years, the Institute hosted major conferences on Antitrust and Health Care as well as Antitrust and the New Millennium with selected papers published in the Loyola Consumer Law Reporter (now known as the Loyola Consumer Law Review).  Beginning in 2001, it became my goal to ensure that the Institute continued to host meaningful programs on a more regular basis.  Over the years these included energy deregulation, competition, and consumer protection; the future of private rights of action; and the twentieth anniversary of the Matsushita decision.  All programs became special symposium issues in either the Loyola Consumer Law Review or the Loyola University Chicago Law Journal.

I also began the annual Loyola Antitrust Colloquium which just celebrated its tenth anniversary.   I had hoped that the colloquium would serve as a vehicle for both junior and senior scholars to present cutting edge works in progress which challenge prevailing paradigms in the antitrust and consumer law fields.   Over time, a format evolved where four papers were presented at each colloquium with assigned commentators from both practice and academia for each paper and then vigorous discussion from the full group in attendance.  Since 2001, the colloquium has evolved from a rather small gathering in a classroom in the old room of the law school to an annual group of over one hundred professors, practitioners, policy makers, and members of the judiciary in the gorgeous ceremonial court room in the new law center building.  This past spring, the 10th annual colloquium featured new works in progress on merger litigation, behavioral economics, and an afternoon discussion and preview of the forthcoming book by Andrew Gavil and Harry First, Microsoft and the Globalization of Antitrust Law: Competition Policy for the Twenty-First Century (MIT Press 2010).  The full program are available at http://www.luc.edu/law/academics/special/center/antitrust/events.html.

 The 2009-2010 academic year produced a bumper crop of programs and publications to coincide with the fifteenth anniversary of the Institute.  With the help of fabulous partners, we were able to host or co-sponsor four different conferences around the world and in Chicago in addition to the annual colloquium.   

We began the celebration in April 2009 with Antitrust Marathon III: Antitrust and the Rule of Law.  Our co-sponsors were the Competition Law Forum of the British Institute of International and Comparative Law and the British Consulate of Boston which graciously hosted the roundtable discussion at the consulate and the reception the night before at the home of the British consul-general.  Like all the programs in the Antitrust Marathon series, these roundtable discussions featured leading practitioners and scholars from the US, the UK, the EU, and other jurisdictions to discuss the enduring topics of competition policy from a comparative perspective.  This lively discussion centered on both the substantive and procedural aspects of the rule of law in competition investigations and litigation.  The papers and edited transcript of the discussion were published at 22 Loy. Con. L. Rev. 1 (2010).

In May 2009, we cosponsored a conference on Issues at the Forefront of Monopolization and Abuse of Dominance with (and at) the Faculty of Law at Haifa University.  This conference featured two intensive days of papers and discussions at the beautiful Haifa campus high atop Mount Carmel.  The papers from this conference will be published within the next two weeks in a special symposium issue of the Antitrust Law Journal and will be available through the ABA Antitrust Section web site.

In September 2009 the Institute partnered with the ABA Section of Antitrust Law to present a conference on Designing Better Institutions to Enforce Competition Law.  The program examined the different institutional frameworks for implementing competition law and policy which can be of even greater significance than the substance of the rules themselves. The program sought to remedy the currect situation where the discussion of the institutions of antitrust and competition policy has been far less robust than the discussion of the liability rules and other topics in the competition law field.  This conference approached this critical issue from a comparative perspective, drawing on the wisdom of key enforcers, observers, and participants from the principal competition jurisdictions from around the world including the United States, the European Union, Canada, Japan, and Australia.  Selected papers and comments from the conference were published in 41 Loy. U. Chi. L. J. 411 (2010) which is available on the Institute web site.

Finally we ended the formal celebration of our 15th anniversary with Antitrust Marathon IV: With Authority cosponsored by the Irish Competition Authority and (as always) the British Institute of International and Comparative.  Antitrust Marathon IV focused on questions of institutional design and the relationship of competition policy to other regulatory schemes.  The papers and discussion dealt with how to integrate competition and consumer protection; concurrent jurisdiction with sectoral regulators; competition concerns in the current financial crisis; and judicial, administrative, and mixed systems of enforcement.  The full issue papers and edited transcript of the discussion from the October 2009 session are published in 6 Eur. Comp. J. 1 (2010) and available on the Institute web site. 

Electronic copies of the papers and transcripts of all Institute programs are available on the institute web site and limited numbers of hard copy versions are available upon request.   Copies of the papers presented at the annual antitrust colloquia are available from ssrn.com, the authors, and the journals where these papers are eventually published.

Plans are in process for future symposia in both Chicago and abroad that deal with the role of brands in antitrust analysis and we plan to continue and expand the annual Loyola Antitrust Colloquium.  Thanks again to Danny and Shubha for allowing me to get the word out about the Institute.  If they let me back on the blog, I plan to wrap up my guest blogging with some thoughts about my own personal scholarly agenda.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Recapture, Pass-Through, and Market Definition

Posted by D. Daniel Sokol

Joseph Farrell, University of California, Berkeley - Department of Economics and Carl Shapiro, University of California, Berkeley - Economic Analysis & Policy Group have an important new paper on Recapture, Pass-Through, and Market Definition.

ABSTRACT: We describe how the hypothetical monopolist test used to define relevant markets in horizontal merger cases can be implemented using the fundamental economic concepts of opportunity cost and pass-through. Unlike critical loss analysis, our approach analyzes the behavior of a profit-maximizing hypothetical monopolist, as called for in the 1992 Horizontal Merger Guidelines. This approach also can provide a consistency check between relevant markets defined using the hypothetical monopolist test and claims regarding the pass-through of merger-specific efficiencies.

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

New Chambers USA Rankings Are Out - Georgia Antitrust Elite Edition

An Institutional Analysis of the Enforcement Problems in Merger Control

Posted by D. Daniel Sokol

Oliver Budzinski, University of Southern Denmark - Department of Environmental and Business Economics provides An Institutional Analysis of the Enforcement Problems in Merger Control.

ABSTRACT: The literature identifies a significant drop in merger control enforcement activity on both sides of the Atlantic during the last decade. Furthermore, this drop in enforcement activity is convincingly connected to enforcement problems on the sides of the competition agencies. This paper goes beyond the identification of under-enforcement and proceeds to the analysis of causes for the enforcement problems and the discussion of possible solutions. It argues that modern institutional economics suggest that a lack of ‘fit’ between the ‘new’ economic approach to merger control and the ‘old’ institutional environment of the legal enforcement procedures explains the drop of enforcement effectiveness on both sides of the Atlantic by implicitly raising the standard of proof, leading to unattainable standards, virtually eroding merger control enforcement power. As a consequence, the effects-based approach to merger control fails due to its failure to acknowledge its institutional implications. Reconciling industrial and institutional economics – promoting a comprehensive competition economics approach – however offers avenues towards an effective use of sophisticated industrial economic theories and methods. Firstly, incorporating economics into enforceable rules like strong rebuttable presumptions would adjust substantive merger control policy to the procedural institutional environment. Secondly, a reform of the standards of proof provisions would adjust the procedural framework to the characteristics of modern economic evidence and concepts. In summary, the enforcement problems in merger control require even more economic thinking, complementing industrial economic thought with institutional economic thought.


 

June 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 20, 2010

Health Insurance Oversight in the Post-Reform World

Posted by D. Daniel Sokol

Please join the Center for American Progress for a special presentation:

Health Insurance Oversight in the Post-Reform World

June 25, 2010, 12:00pm – 1:30pm

Admission is free.

RSVP to attend this event

Featured Speakers:
Steve Larsen, Deputy Director for Oversight, Office of Consumer Information and Insurance Oversight, Department of Health and Human Services
Sharis Arnold Pozen, Chief of Staff of the Antitrust Division, Department of Justice
Joel Ario, Insurance Commissioner, Pennsylvania
Diane Holder, President and Chief Executive Officer, UPMC Health Plan

Moderated by:
David Balto, Senior Fellow, Center for American Progress

Health insurance reform is critical to making healthcare markets work for consumers. This event focuses on two key reforms: review of rate increases and the creation of exchanges, and how those reforms seek to spur competition and control costs. We will bring together both state and federal regulators, including key enforcers form the Justice Department and Health and Human Services, and explore how they will work together in the years to come to make health insurance reforms effective.

June 25, 2010, 12:00pm – 1:30pm

Space is extremely limited. RSVP required.
Seating is on a first-come, first-served basis and not guaranteed.

A light lunch will be served at 11:30 a.m.

Center for American Progress
1333 H St. NW , 10th Floor
Washington , DC 20005
 

Nearest Metro: Blue/Orange Line to McPherson Square or Red Line to Metro Center

RSVP to attend this event

For more information, call 202-682-1611.

June 20, 2010 | Permalink | Comments (1) | TrackBack (0)