Antitrust & Competition Policy Blog

TOP 10 Downloaded SSRN Papers for Journal of Antitrust: Antitrust Law & Policy eJournal (for all papers posted February 15, 2011 to April 16, 2011)

Posted by D. Daniel Sokol

TOP 10 Downloaded SSRN Papers for Journal of Antitrust: Antitrust Law & Policy eJournal (for all papers posted February 15, 2011 to April 16, 2011)

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1. 390 EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights

Wouter P. J. Wils, European Commission

2. 244 Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement
Wouter P. J. Wils, European Commission

3. 177 Refusal to Supply and Margin Squeeze: A Discussion of Why the 'Telefonica Exceptions' are Wrong
Damien Geradin, Tilburg University - Tilburg Law and Economics Center (TILEC)

4. 166 Antitrust Merger Efficiencies in the Shadow of the Law
D. Daniel Sokol, University of Florida - Levin College of Law & James A. Fishkin Dechert LLP

5. 154 Corporate Takeovers: Modern Empirical Developments
B. Espen Eckbo, Dartmouth College - Tuck School of Business

6. 145 In Search of a Competition Law Fit for Developing Countries
Eleanor M. Fox, New York University School of Law

7. 114 Appropriate Liability Rules for Tying and Bundled Discounting: A Response to Professor Elhauge
Thomas A. Lambert, University of Missouri - School of Law

8. 106 A Neo-Chicago Approach to Concerted Action
William H. Page, University of Florida - Fredric G. Levin College of Law

9. 104 Driving Innovation: A Case for Targeted Competition Policy in Dynamic Markets
Jonathan Galloway, Newcastle Law School

10. 100 Avoidance Techniques: State Related Defences in International Antitrust Cases
Marek Martyniszyn, University College Dublin- School of Law

Why are some prices stickier than others? Firm-data evidence on price adjustment lags

Posted by D. Daniel Sokol

Daniel A. Dias (Department of Economics, University of Illinois), Carlos Robalo Marques (Banco de Portugal, Research Department), Fernando Martins (Banco de Portugal, Research Department, ISEG (Technical University of Lisbon) and Universidade Lusíada de Lisboa) and Joao M.C. Santos Silva (Department of Economics, University of Essex and CEMAPRE) ask Why are some prices stickier than others? Firm-data evidence on price adjustment lags.

ABSTRACT: Infrequent price changes at the firm level are now well documented in the literature. However, a number of issues remain partly unaddressed. This paper contributes to the literature on price stickiness by investigating the lags of price adjustments to different types of shocks. We find that adjustment lags to cost and demand shocks vary with firm characteristics, namely the firm’s cost structure, the type of pricing policy, and the type of good. We also document that firms react asymmetrically to demand and cost shocks, as well as to positive and negative shocks, and that the degree and direction of the asymmetry varies across firms.

Price Theory and Merger Guidelines

Posted by D. Daniel Sokol

Sonia Jaffe & E. Glen Weyl (Harvard University) discuss Price Theory and Merger Guidelines.

ABSTRACT: The innovations of the new U.K. and U.S. merger guidelines released last year have excited many economists. On the one hand, they apply in nearly as broad a range of merger contexts as traditional market definition and HHI-based approaches do. On the other hand, they incorporate the explicit economic grounding in the logic of differentiated products competition enjoyed by merger simulation. Furthermore, the core intuition behind the guidelines, as clearly exposited by Farrell and Shapiro, is simple and transparent. It can be explained as follows: If Crest merges with Colgate, Crest must consider that every time it sells a tube of toothpaste there is a partial tube of Colgate that will go unsold as a result of an additional sale of Crest. Thus, post-merger the mark-up that would have been earned on the unsold partial tube is a new opportunity cost of selling Crest. This will encourage Crest to raise its price(s). This logic indicates that in reviewing a hypothetical merger both the diversion ratios between the products (e.g., the fraction of a tube of Colgate lost when an extra tube of Crest is sold) and the firms' mark-ups over marginal cost are important. The product of the diversion ratio and the mark-up is referred to as the "Upward Pricing Pressure" (UPP). Despite the clear intuition behind UPP, a number of objections have been raised against its use in merger analysis. First, Coate and Simons argued that, unlike market definition, traditional UPP-based approaches rely on the assumptions that firms have constant marginal costs and take other firms' prices as given in a static Nash-in-prices (differentiated Bertrand) equilibrium. Second, Schmalensee, Hausman et al., and Carlton have argued that the UPP approach can predict only the direction, rather than the magnitude, of price changes, and that even directional predictions require assumptions about "default efficiencies" to avoid flagging every horizontal merger as anticompetitive. Finally, Carlton pointed out that even if quantitative predictions could be obtained, the aggregation of these predictions into a single welfare number may be difficult, especially when not all effects on consumer welfare come directly from changes in prices. While some of these concerns apply to nearly all alternative approaches, they still offer opportunities for improvement.

Use and Misuse of Empirical Methods in the Economics of Antitrust

Posted by D. Daniel Sokol

Dennis Carlton (Chicago - Booth School of Business) explores the Use and Misuse of Empirical Methods in the Economics of Antitrust.

ABSTRACT: The application of economics to issues involving competition policy has always required a mixture of economic theory and empirical analysis. As any good lawyer knows, an economic analysis typically must rely on the facts of the industry under study to be credible. As a result, empirical analysis is often a crucial component of any economic analysis of competition issues. Of course, any empirical analysis has to be grounded in some theoretical structure. Over the last decades, there have been tremendous advances in both economic theory and empirical applications related to antitrust analysis. The law, although initially quite divorced from economics, has come to rely heavily on such analysis. In this paper, I discuss some of the theoretical and empirical strengths and weaknesses of the approaches to antitrust analysis, including a critique of some of the recent methods. Section II discusses two of the most basic concepts in antitrust analysis, market definition and price cost margins, and highlights some relatively unrecognized subtleties that lead to common and serious errors. Section III discusses some insights that alter how we think about competition and emphasizes limitations of traditional analysis when competition involves something other than price. Section IV discusses some of the most recent advances in empirical economics including the estimation of demand systems. The main use of these advances has been in the area of mergers, especially in the use of merger simulation and the recent discussions in the United States about the use of an analysis called "upward pricing pressure" ("UPP"). The bottom line is that these new techniques can be helpful but should not displace some others without more research. Finally in Section V, I conclude with a discussion of how one could study the effectiveness of various methods of empirical analysis related to antitrust, but such a study would likely require the cooperation of competition authorities around the world.

Antitrust Agency Infighting Continues - Varney Responds to FTC Criticism by Suggesting All Antitrust Enforcement Be Moved to DOJ A Possibility

Posted by D. Daniel Sokol

We are down to Defcon 2 in the antitrust inter-agency fighting.  Christine Varney gave an interview to Bloomberg in which she stated, "“I think what business does need is clarity, certainty and understanding of the legal framework within which their deals will be evaluated[.]”  I agree.  Both because of differences between agencies (independent agency versus executive agency) and differences in legal standards for a PI, we have a problem.  Bloomberg did not pull any juicy quotes from her akin to the Kovacic and Rosch comments from earlier this week.  However, I did note the following passage:

Having the FTC handle consumer protection while the Justice Department addresses competition and monopoly is “certainly one option,” said Varney, a former FTC commissioner.

How much of this is a mere statement of fact (it is after all a possibility) and how much is posturing, I don't know.  The US agencies are not the only ones that confront fundamental institutional change.  The UK is going through serious change at the moment too.

Margin of Error: The Flawed Paradigm in the New Merger Guidelines

Posted by D. Daniel Sokol

Michael G. Baumann (Economists Inc.) & Paul Godek (Compass Lexecon) discuss Margin of Error: The Flawed Paradigm in the New Merger Guidelines.

ABSTRACT: The U.S. Department of Justice ("DOJ") and the Federal Trade Commission ("FTC"), the two federal agencies that review mergers, recently issued new Horizontal Merger Guidelines, ("Guidelines"). The Guidelines, first issued in 1984 and revised in 1992 and 1997, comprise a formal statement of the agencies' approach to merger analysis, an approach that has generally reflected the economic concepts of markets and market power. The effort to explain merger policy, and to have that policy reflect economic principles, is laudable regardless of what one thinks of the final product. But the new version of the Guidelines offers a distinct break from the past and a new paradigm for merger analysis. The analytical core of the new Guidelines, however, relies on an assumption that was long ago shown to be invalid. Here we revisit that history and demonstrate that the paradigm in the new Guidelines is not consistent with basic economic principles.

Merger Simulation in an Administrative Context

Posted by D. Daniel Sokol

Jon Baker (AU Law) has posted Merger Simulation in an Administrative Context.

ABSTRACT: This article addresses the application of the economic literature on merger simulation to the practical context of antitrust enforcement. It highlights the value of simple simulations as a basis for creating screens and presumptions – particularly the gross upward pricing pressure index for the preliminary review of unilateral effects among sellers of branded consumer products and a presumption based on identifying mavericks for the analysis of coordinated effects – in order to provide guidance to merging firms and judges, who may not have specialized competition policy expertise. The article explains why antitrust agencies should rely on these approaches to identify mergers for in-depth review, and why courts should be encouraged to accept them as the basis for presumptions of anticompetitive effect. The proposed role for simple simulations is consistent with the direction in which the U.S. horizontal merger guidelines are evolving.

The New Hungarian Rules on Damages Caused by Horizontal Hardcore Cartels: Presumed Price Increase and Limited Protection for Whistleblowers – An Analytical Introduction

Posted by D. Daniel Sokol

Csongor István Nagy, University of Szeged, Faculty of Law, Budapest University of Technology and Economics explains The New Hungarian Rules on Damages Caused by Horizontal Hardcore Cartels: Presumed Price Increase and Limited Protection for Whistleblowers – An Analytical Introduction.

ABSTRACT: The paper analyzes and evaluates the recently adopted Hungarian rules on damage liability in competition matters, which introduced a presumption that horizontal hardcore cartels lead to a 10% price increase and try to reconcile the ends of actions for damages and the leniency policy.

 

 

Safe Harbours in Merger Guidelines: What Should They Be?

Posted by D. Daniel Sokol

Qing Gong Yang, New Zealand Institute of Economic Research and Michael Pickford ask Safe Harbours in Merger Guidelines: What Should They Be?

ABSTRACT: Safe harbours in merger guidelines define post-merger market concentration or concentration change thresholds below which proposed mergers are unlikely to be anti-competitive; anti-competitiveness is usually measured as a substantial lessening of competition. Yet competition agencies have different safe harbours. We used merger models to run many simulations involving a wide range of market structures and merger-induced aggregations. The post-merger unilateral price increases in these scenarios were used to gauge what the safe harbours should be to keep price increases below a specified threshold. The safe harbour thresholds commonly used were found typically to be too restrictive, in that they failed to screen out mergers that were almost certainly competitively benign.

Tying Noncompetitive Goods

Posted by D. Daniel Sokol

Herb Hovenkamp (Iowa Law) has posted Tying Noncompetitive Goods.

ABSTRACT: Many of the classic tying cases involved tied products that were common staples such as button fasteners, canned ink, dry ice, or salt. These products were sold in competitive markets, presumably at prices very close to cost. For most of them the most likely explanations for the tie were quality control or price discrimination, both with competitively benign results in the great majority of situations. When the tied good is sold in a noncompetitive market, however, an additional consumer welfare enhancing result is likely to obtain – namely, the elimination of double marginalization, which occurs when separate sellers of complementary products each has market power. The double marginalization result occurs only when both products are sold at prices above the competitive level. It can apply in both the vertical context, such as when a monopoly manufacturer must distribute through a retailer market that is subject to monopoly, oligopoly or collusion, but it also occurs in situations involving complements, such as printers and ink cartridges, hospitals and physicians, or many medical devices that include both durable and reusable components. Indeed, the problem is generally more serious in the complementary situations, because often firms offering complementary products are not in a good position to negotiate with one another for a joint-maximizing output increase, while the participants in a vertical chain of distribution bargain with each other all the time. In cases where both tying and tied products are subject to some market power, the profit maximizing price of a seller who offers both products in a bundle is typically lower than the individual profit-maximizing prices of two sellers, each of which sells only one of the products. Outside of the franchise context, which often involves commodity tying, most ties today involve manufactured tied products subject to at least some product differentiation, and typically nontrivial fixed costs. In all such cases the double marginalization argument presumptively applies and suggest another reason why ties should not be condemned except after a full rule of reason analysis. The typical result of eliminating double marginalization is that output of both the tying and the tied good increase and consumers pay lower prices. The result is a welfare improvement under both the total welfare and consumer welfare tests for competitive harm.

Investigating Transatlantic Merger Policy Convergence

Posted by D. Daniel Sokol

Florian Szücs, Vienna University of Economics and Business Administration is Investigating Transatlantic Merger Policy Convergence.

ABSTRACT: Based on a sample of 493 merger cases scrutinized by the American FTC or the European Commission during the period from 1999 to 2007, we propose a framework to examine tendencies of convergence in the jurisdictional patterns of the two agencies. Logit models of the probability of intervening in a merger are calibrated for both jurisdictions and used to predict the decisions of the respectively other agency. The results point to an increasing harmonization of merger policies and corroborate the theoretical appraisal, that the 2004 reform of EU merger law constituted a step towards the US system.

Prevention of Competition by Competition Law: Evidence from Unbundling Regulation on Fiber-Optic Networks in Japan

Posted by D. Daniel Sokol

Naoaki Minamihashi, Boston University explores Prevention of Competition by Competition Law: Evidence from Unbundling Regulation on Fiber-Optic Networks in Japan.

ABSTRACT: This paper finds that a regulation that promotes competition in one market may decrease competition in other related markets. Policy makers in the telecommunication industry currently are facing an important decision about whether to continue unbundling regulations on new optical-fiber lines. I find that unbundling regulation prevents new providers from building optical-fiber networks, by estimating a dynamic entry game with a dataset of fiber-optic network constructions in Japan from 2005 to 2009. In particular, when a new technology is introduced, unbundling regulation has an oligopolization effect on the regulated firms. This finding in the Japanese telecommunications industry suggests that unbundling regulation during periods of new technology diffusion may reduce the price of service but also decrease competition in the infrastructure market.

How do Incumbents Fare in the Face of Increased Service Competition?

Posted by D. Daniel Sokol

Ryan W. Buell, Harvard Business School, Dennis Campbell, Harvard Business School, and Frances X. Frei, Harvard Business School ask How do Incumbents Fare in the Face of Increased Service Competition?

ABSTRACT: We explore the conditions under which service competition leads to customer defection from an incumbent and which customers are most vulnerable to its effects. We find that customers defect at a higher rate from the incumbent following increased service competition only when the incumbent offers high quality service relative to existing competitors in a local market. We provide evidence that this result is due to a sorting effect whereby the incumbent attracts service (price) sensitive customers in markets where it has supplied relatively high (low) levels of service quality in the past. Furthermore, we show that it is the high quality incumbent’s most valuable customers, those with the longest tenure, most products, and highest balances, who are the most vulnerable to superior service alternatives. Along the way, we also show that firms trade-off price and service quality and that when the incumbent offers relatively low service quality in a local market, it is susceptible to the entry or expansion of inferior service (price) competitors. Our results appear to have long run implications whereby sustaining a high level of service relative to local competitors leads the incumbent to attract and retain higher value customers over time.

Claeys & Casteels First Annual EU Competition Law & Policy Conference, 7 & 8 June 2011 in Brussels

Posted by D. Daniel Sokol

Compliance with EU competition law remains a high priority for companies operating in Europe. Keeping up with the volume of new legislation and decisions is a taxing enterprise even for those specialized in this field. To illustrate this point, the European Commission has adopted more than 30 cartel decisions in the last four years, while the Commission’s approach to many issues seems to raise more questions than are being answered.

This is why Claeys & Casteels - already well-known for leading publications and conferences on both
EU Energy Law and EU Competition Law - has set up the EU Competition Law & Policy Conference: to meet the need of companies, legal representatives, national competition authorities and academics to keep fully informed of these developments and to promote debate on discussion on the future direction of EU competition policy.

We are very grateful to the conference’s steering committee, consisting of Frank Fine (Director, EC Competition Law Advocates, Brussels), Michael Esser (partner, Freshfields, Brussels), Bernard Amory (partner, Jones Day, Brussels), Lars Kjolbye (partner, Covington Brussels) and John Boyce (partner, Slaughter and May, Brussels) for their time and effort to help create an excellent programme and lead the sessions.

With an outstanding faculty of speakers, this two day event will provide an in-depth coverage and discussion of all key elements of Competition Law enforcement in the EU.

Topics include:

-
Recent Developments in EU Cartel Law
- Follow-on National Litigation
-
Potentially ‘Benign’ Horizontal Arrangements
- Vertical Agreements
-
Rountable of European Enforcers
- Abuse of Dominance
- Mergers &
Alliances
- Managing Global Investigation Risks
- State
Aid

Confirmed speakers include:

Pierre Bos
- Partner,
Barents Krans, Den Haag
Damian Collins
- Partner McCann FitzGerald,
Brussels
Catriona Hatton
- Partner, Hogan Lovells, Brussels
Julian
Joshua
- Partner, Steptoe & Johnson, Brussels
Ali Nikpay
- Senior
Director of Policy, Fair Trading UK
Konrad Ost
- Head of the General
Policy Division, Bundeskartellamt
Mario Siragusa
- Partner, Cleary
Gottlieb, Brussels & Rome
Dirk Van Erps
- Head of Unit, Cartels II, DG
COMP, EC
Johan Ysewyn
- Partner, Linklaters, Brussels
Fabien Zivy
-
President, Competition Authority France


… and many others.

Also, this first annual EU Competition Law & Policy Conference will coincide with the publication of the newly revised editions of the highly acclaimed Drauz/Jones volume on Mergers & Acquisitions and the Siragusa/Rizza volume on Cartel Law.

For programme details, speaker info and registrations, please check the event website:
www.claeys-casteels.com/competitionlaw

The Way of Offering Vertically Differentiated Airline Services

Posted by D. Daniel Sokol Tomohiko Kawamori, Faculty of Economics, Osaka University of Economics and Ming Hsin Lin, Faculty of Economics, Osaka University of Economics discuss The Way of Offering Vertically Differentiated Airline Services. ABSTRACT: This paper investigates should an airline offer vertically differentiated services, which are substitutes of its own services. The airline operates a certain number of direct flights to offer various types of services including nonstop, one-stop, or multiple-stop services. Homogenous passengers care about the fare and the flight(s) schedule when using a service. Under this general setting, we show that it is optimal for the airline to offer only one type of service in any particular city-pair market. This result supports a number of previous works that primarily argue network efficiency under the condition that only one type of service is offered in a particular market. This result also provides a theoretical explanation for the empirical finding that airlines that offer one-stop service through a hub are less likely to enter that same market with nonstop service than those that do not. This paper also presents an example of that if passengers horizontally differentiate among the type of services by other factors, the airline may offer multiple types of substitutive services in a market on its network.

Avoidance Techniques: State Related Defences in International Antitrust Cases

Posted by D. Daniel Sokol

Marek Martyniszyn, University College Dublin- School of Law discusses Avoidance Techniques: State Related Defences in International Antitrust Cases.

ABSTRACT: Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges. This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises.

Chinese Competition: Do We Need a New Competition Policy Regime?

Posted by D. Daniel Sokol

Peter A.G. van Bergeijk, Institute of Social Studies (ISS), CERES, Research School for Resource Studies for Development and P.B. Gaasbeek, ask Chinese Competition: Do We Need a New Competition Policy Regime?

ABSTRACT: This paper discusses changes in the Chinese competition policy regime and analyses the key drivers of this process against the background of the Chinese choice for gradual and pragmatic structural reform. In Section 1 we discuss the reasons behind the Chinese model and argue that these drivers will remain valid in the foreseeable future. In particular we believe that China’s national interest rather than a specific ideology will be the key determinant of its future actions. Section 2 then discusses the evolution and features of the Chinese competition policy and its instruments providing details both of developments since 1993 and the present (March 2011) status. We contrast these aspects with the characteristics of the competition policy framework(s) in Europe. In the final section we speculate about the potential impact of the new role and influence of China on (global) competition rules and enforcement and offer a recipe to meet the Chinese competition.

Are the DOJ and FTC at War?

Posted by D. Daniel Sokol

Today's front page Wall Street Journal article titled This Takeover Battle Pits Bureaucrat vs. Bureaucrat suggests that relations are not good between the two agencies.  Among the juicy parts:

Mr. Kovacic said his agency had a better working relationship with the European Union than it did with the Justice Department, just two blocks away.

Tom Rosch unloaded even further:

Mr. Rosch also suggested the head of the Justice Department's Antitrust division, Christine Varney, was inclined to take a lenient view because of her prior job as a lawyer representing the American Hospital Association, which he said was "a clear apparent conflict of interest—if not a real conflict of interest."

There are deep institutional issues at play between the two agencies.  See for example work by me, Dan Crane, and Bill Kovacic on the topic.

I want to focus on the merger issues.  Kovacic is quoted as saying:

"The fact and appearance of a contest are bad for the coherence," says Mr. Kovacic. "If you develop a perception that you're going to get different outcomes depending on where [a deal] goes, your system suffers."

On mergers, my paper (17 Geo. Mason L. Rev. 1055 (2010)) that had both quantitative and qualitative interviews with merger practitioners suggested the following:

One problem that a number of respondents mentioned is clearance. Clearance is not an issue in many mergers. However, most practitioners believed that when a clearance battle emerges, it raises a potentially significant problem. As one practitioner recounted, “It is not a problem except when it is and when it is, it is a big problem.” Clearance battles between the two agencies, over which agency will review the merger, add to increasing costs for mergers by creating deal delays for the merging parties. [FN483] Clearance battles create additional business uncertainty for clients and do not give clients the thirty-day comfort that they want. [FN484] On the margins, a number of practitioners mentioned that this creates problems for financing some deals.

 

 

Indian Competition Law Update - Merger Control and the Case of Regulatory Overreach

Posted by D. Daniel Sokol

Pallavi S Shroff & Arshad (Paku) Khan (both Amarchand) have a recent newspaper piece on The Case of Regulatory Overreach.

Intellectual Property and Competition Law

Posted by D. Daniel Sokol

Steven Anderman (Essex) and Ariel Ezrachi (Oxford) have edited Intellectual Property and Competition Law.

BOOK ABSTRACT: This book looks at how the leveraging strategies of Microsoft, the patent enhancement strategies of Astra Zeneca and Rambus have all attracted competition intervention.