Antitrust & Competition Policy Blog

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

Tuesday, January 3, 2012

Register Now for Free Program: NYU/ABA Next Generation of Antitrust Scholarship Conference at NYU School of Law

Posted by D. Daniel Sokol

Next Generation of Antitrust Scholarship Conference 

Date:  January 20, 2012
Location:  New York University School of Law
Lipton Hall
108 W 3rd St
New York, NY, 10012
United States of America

Presented by:  Section of Antitrust Law

Registration is Free (see here)


Antitrust law scholarship remains an important component to the practice of antitrust law and the creation of effective antitrust policy by the antitrust agencies. Scholarship in this area both shapes and is shaped by the latest economic thinking and developments in the law. Moreover, the quality and sophistication of practitioners, both lawyers and economists, upon the academic antitrust discourse is perhaps unmatched in any other substantive field of law. To take advantage of the potential synergies of practitioners and academics, the ABA Section of Antitrust Law proudly presents the second "Next Generation of Antitrust Scholarship Conference.” The purpose of this day-long conference is to provide an opportunity for antitrust/competition law professors who began their full time professorial career in or after 2002 to present their latest research. Senior antitrust scholars and practitioners in the field will comment on their papers. Attendance for this conference is open to the larger antitrust community.

NYU School of Law and ABA Section of Antitrust Law
108 West 3rd Street, Lipton Hall
JANUARY 20, 2012

08:20 – 08:50 am Registration and Continental Breakfast

08:50 – 09:00 am Introductory Comments from ABA Section of Antitrust Law Chair
Speaker: Richard S. Steuer, Chair, ABA Section of Antitrust Law, Mayer Brown, New York, NY

09:00 – 10:30 am Session 1 - Antitrust and Courts

Session Chair: J. Douglas Richards, Cohen Milstein

Speaker: Hillary Greene, University of Connecticut School of Law
Rules of Reason: The Architecture of Legal Consistency
Discussant: Thomas Sullivan, University of Minnesota Law School

Speaker: Rebecca Haw, Vanderbilt University Law School.
Adversarial Economics in Antitrust Litigation: Losing Academic Consensus in the Battle of the Experts
Discussant: Judge Douglas Ginsburg, NYU Law School

Speaker: Avishalom Tor, Notre Dame Law School
Understanding the Potential and Limits of Behavioral Antitrust
Discussant: Bruce Kobayashi, George Mason Law School

Practitioner Session Discussant:
Stephen D. Houck, Menaker & Herrmann

10:30 – 10:45 am Break

10:45 am – 12:15 pm Session 2 – The Structure of Antitrust

Session Chair: Stacey Mahoney, Gibson Dunn

Speaker: Dan Crane, University of Michigan Law School
Rethinking Merger Efficiencies
Discussant: Janusz Ordover, NYU Stern School of Business

Speaker: Barak Orbach, University of Arizona Rogers College of Law
Refuse to Die: Refusals to Deal and the Essential Facility Doctrine
Discussant: John Asker, NYU Stern School of Business

Speaker: D. Daniel Sokol, University of Florida Levin College of Law
Cartel Remedies and the Case for Corporate Monitors
Discussant: Harry First, NYU Law School

Practitioner Session Discussant: Roxann Henry, Dewey Lebouf

12:15 – 01:00 pm Lunch

01:00 – 02:30 pm Session 3 – Antitrust and Intellectual Property

Session Chair: Elaine Johnston, Allen & Overy

Speaker: Scott Hemphill, Columbia Law School
Parallel Exclusion
Discussant: Larry White, NYU Stern School of Business

Speaker: Ariel Katz, University of Toronto Law School
What Antitrust Law Can (and Cannot) Teach About the First Sale Doctrine
Discussant: Mark Patterson, Fordham Law School

Speaker: Thomas Cheng, University of Hong Kong School of Law
Putting Innovation Incentives Back in the Patent‐Antitrust Interface
Discussant: Marina Lao, Seton Hall Law School

Practitioner Session Discussant: Steven Edwards, Hogan Lovells

02:30 – 02:45 pm Break

02:45 – 04:15 pm Session 4 – Antitrust and Regulation

Session Chair: Christine Varney, Cravath

Speaker: Anu Bradford, University of Chicago Law School
The Law and Politics of Antitrust in an Open Economy
Discussant: William Kovacic, George Washington Law School

Speaker: Damien Gerard, University of Louvain Law A Global Perspective on State Action
Discussant: Eleanor Fox, NYU Law School

Speaker: Christopher Sagers, Cleveland‐Marshall College of Law
Legal Boundaries as Political Economy: The Scope of Antitrust and a General Theory of the Regulation‐Competition Dichotomy
Discussant: Edward Cavanaugh, St. John’s School of Law

Practitioner Session Discussant: Jay Himes, Labaton Sucharow

04:15 – 5:15 pm Cocktail Reception
NYU – Lipton Hall

January 3, 2012 | Permalink | Comments (0) | TrackBack (0)

A Company's 'Inability to Pay' a Cartel Fine Imposed by the European Commission

Posted by D. Daniel Sokol

Carsten Grave, Linklaters and Jenny Nyberg, Linklaters have written on A Company's 'Inability to Pay' a Cartel Fine Imposed by the European Commission.

ABSTRACT: The concurrence of recession and extended length of proceedings has led to a massive increase since 2009 in the number of applications to the European Commission for a reduction of a cartel fine due to an enterprise's "inability to pay." This raises the fundamental question whether the "death penalty" for enterprises should be part of the sanctions foreseen by the competition law system. In order to be successful with an application for reduction of a fine, the enterprise will have to prove in practice (a) that the fine considered by the Commission would result in the enterprise's insolvency and (b) that the enterprise's activities would not be continued by someone else. In addition, without the fine, the exit from the market would be avoided. Further conditions, namely that the enterprise's assets would loose any value in the event of an insolvency and that there would be a particularly significant impact within the firm’s wider social and economic environment have in practice been watered down by the Commission in response to the economic crisis. Under the more permissive test, enterprises have indeed achieved reductions of fines of up to 95%; this said, the majority of applications has been rejected.

January 3, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, January 2, 2012

The Notion of Agreement in a Vertical Context: Pieces of a Sliding Puzzle

Posted by D. Daniel Sokol

Eric Gippini-Fournier, European Commission, Legal Service, Universite de Tours explores The Notion of Agreement in a Vertical Context: Pieces of a Sliding Puzzle.

ABSTRACT: This paper explores the issues involved in finding agreement in vertical cases, from the perspective of the antitrust laws of the EU. In borderline cases, the notion of agreement cannot comfortably be dissociated from the other conditions of application of article 101 of the Treaty on the Functioning of the European Union. With this mutual interaction in sight, the relevant case law (judgments such as Sandoz, Bayer, Volkswagen, Ford, etc.) mostly makes sense as a coherent whole.

January 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Deal or No Deal?

Posted by D. Daniel Sokol

Oliver Budzinski, University of Southern Denmark - Department of Environmental and Business Economics and Bjoern A. Kuchinke, Ilmenau University of Technology ask Deal or No Deal?

ABSTRACT: The competition policy of the European Commission has recently shifted towards including more and more consensual arrangements with business companies. While this tendency is already present for a while in merger policy where the Commission has more and more turned away from prohibiting mergers and towards consensually finding remedies in intensive negotiation rounds with the merging companies, cartel and antitrust policy only very recently has become a field for consensual arrangements in terms of the new settlement policy. This chapter describes the tendency towards more consensual arrangements and analyzes the pros and cons of such a development. In balance, the paper recommends a cautious approach because the disdvantages of such a policy evolution are likely to outweigh its benefits.

January 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Competition and Persistence of R&D

Posted by D. Daniel Sokol

Martin Woerter, ETH Zurich, Swiss Economic Institute (KOF) has written on Competition and Persistence of R&D.

ABSTRACT: This paper investigates the R&D persistence of R&D active firms in different markets with different intensities of competition, based on firm-level panel data for the period 1996-2008. In a dynamic setting of the empirical model it turns out that persistence is strongly related to market competition (measured by the number of principal competitors). Persistence of R&D expenditures is more likely to be observed in markets with few principal competitors (between 6 and 10) and is very unlikely to be observed in polypolistic type of markets (more than 50 competitors). These results call for a stronger coordination between competition policy and innovation promotion policy, since the former basically aims at larger markets with many competitors, while the latter aims at persistence of R&D efforts and thus markets with fewer competitors.

January 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Cross-Border Mergers and Market Segmentation

Posted by D. Daniel Sokol

Ray Chaudhuri (Tilburg University, Center for Economic Research) explores Cross-Border Mergers and Market Segmentation.

ABSTRACT: This paper shows that cross-border mergers are more likely to occur in industries which serve multiple segmented markets rather than a single integrated market, given that cost functions are strictly convex. The product price rises in the market where an acquisition is made but falls in the other, decreasing the acquisition price of other firms (in contrast to the results in the existing merger literature on integrated markets). Although the sum of consumer surplus across the countries may rise in response to a given acquisition, one of the countries gains at the expense of the other.

January 2, 2012 | Permalink | Comments (0) | TrackBack (0)