Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Tuesday, July 24, 2012

Entrepreneurial Commercialization Choices and the Interaction between IPR and Competition Policy

Posted by D. Daniel Sokol

Lars Persson, Research Institute of Industrial Economics (IFN), Centre for Economic Policy Research (CEPR) and Joshua S. Gans, Rotman School of Management address Entrepreneurial Commercialization Choices and the Interaction between IPR and Competition Policy.

ABSTRACT: This paper examines the interaction between intellectual property protection and competition policy on the choice of entrepreneurs with respect to commercialization as well as the rate of innovation. We find that stronger intellectual property protection makes it more likely that entrepreneurs will commercialize by cooperating with incumbents rather than competing with them. Consequently, we demonstrate that competition policy has a clearer role in promoting a higher rate of innovation in that event. Hence, we identify one reason why the strength of the two policies may be complements from the perspective of increasing the rate of entrepreneurial innovation.

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Hong Kong’s First Economy-Wide Competition Law: A Review of the Law and the Challenges Ahead

Posted by D. Daniel Sokol

Margaret Wang (Freshfields) has written on Hong Kong’s First Economy-Wide Competition Law: A Review of the Law and the Challenges Ahead.

ABSTRACT: INTRODUCTIONTraditionally seen as averse to regulation, perhaps best exemplified by the maxim “small government, big market,” Hong Kong has finally joined the growing ranks of Asian jurisdictions that formally regulate competition across all sectors of the economy. After two rounds of heated public consultations and a long legislative passage, Hong Kong’s first economy-wide competition law, the Competition Bill (“the Bill”), was formally signed into law, on June 22, 2012.

The Competition Ordinance (“the Ordinance”) imposes behavioral competition law provisions and prohibits anti-competitive conduct by multiple undertakings and unilateral anti-competitive conduct by a single undertaking. The merger control regime will remain confined to transactions involving telecommunications carrier licensees for now, although it is anticipated that the merger control regime may be extended in a few years. A Competition Commission (“the Commission”) equipped with investigatory powers will shortly be established, while adjudicatory powers will be vested in a specialist Competition Tribunal (“the Tribunal”). The Ordinance is expected to come into effect in one to two years’ time, while the Commission and the Tribunal will be constituted well before then to begin the substantial amount of preparatory work necessary to enforce the Ordinance.

This article will examine the key provisions of the Ordinance, the extent to which aspects of its implementation are unclear, and consider the challenges with enforcing the law.

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

International Antitrust Enforcement and Multimarket Contact

Posted by D. Daniel Sokol

Jay Pil Choi, Michigan State and Heiko A. Gerlach, University of Queensland - School of Economics discuss International Antitrust Enforcement and Multimarket Contact.

ABSTRACT: This article analyzes cartel formation and international antitrust enforcement when multinational firms operate in several jurisdictions with local antitrust authorities. We are concerned with how the sustainability of collusion in one local market is affected by the existence of collusion in other markets when they are linked by a negative demand relationship. The interdependence of cartel stability across markets leads to potential externalities in antitrust enforcement across jurisdictions. Local antitrust enforcement equilibrium enforcement may exhibit a nonmonotonicity in the degree of market integration. We compare it with globally optimal antitrust enforcement policy and discuss the role of international antitrust coordination.

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Polish Centre for Antitrust and Regulatory Studies

Posted by Tadeusz Skoczny

Polish Centre for Antitrust and Regulatory Studies

We would like to present you the activities of the Centre for Antitrust and Regulatory Studies, CARS, which is part of the Faculty of Management of the University of Warsaw (www.cars.wz.uw.edu.pl/gb/).

CARS conducts cross- and inter-disciplinary academic R&D and law implementation projects concerning competition protection and sector-specific regulation in the market economy. It published a range of one-off books and periodicals, organizes or joins in the organization of conferences, seminars, workshops and training courses. CARS acts also as a patron of post-graduate studies.

CARS’s research activities cover two key areas: competition and sector-specific regulation. Within the first area the research focuses on economic and legal aspects of cartels, monopolies, market dominance, mergers and acquisitions and state aid. To illustrate, one of CARS’s recent research projects was commissioned by Polish Competition Authority and dealt with block exemptions from the prohibition of competition-restrictive agreements in the EU and Poland. The activities of CARS centre around the various practical problems associated with the enforcement of competition law in Poland and the EU. CARS’s research in the area of sector-specific regulation focuses on the market behavior of large Polish enterprises that are subject to regulatory supervision as well as on the respective activities of public regulators in: telecoms, postal services, energy, transport (mainly railway and air transport) and audiovisual media. A good example of CARS sector-specific research can be found in the 2009 and 2011 project commissioned by the Polish Airports State Enterprise concerning antitrust and regulatory conditions for the provision of airport services in the EU and Poland.

In its publishing capacity, CARS has recently presented a book by Ewelina D. Sage entitled European Audiovisual Sector: Where business meets society’s needs (in English) and a book by Maciej Bernatt entitled Procedural fairness in the proceedings before the competition authority (in Polish). Additionally, CARS started in April 2012 to publish a new Polish-language periodical – the ‘internet Quarterly on Antitrust and Regulation’, iKAR, (www.ikar.wz.uw.edu.pl), a legal and economic, open-source journal dedicated to competition protection and sector-specific regulation.

Without a doubt among CARS’s most influential ventures, especially from the point of view of foreign scholars, lay its English-language journal the ‘Yearbook of Antitrust and Regulatory Studies’, YARS (see www.yars.wz.uw.edu.pl). Published since 2008, YARS is a double peer-reviewed scientific periodical, focusing on legal and economic issues of antitrust and regulation. It is intended to:

• present the most important and current issues surrounding competition protection, primarily restrictive practices and mergers but also state aid, and as well as pro-competitive sector-specific regulation, mainly in the telecommunications, postal services, energy and transport sectors;

• focus on the underlying assumptions, experiences and achievements of competition protection and sector-specific regulation in Poland as well as in other countries of Central and Eastern Europe (CEE), taking into consideration the consequences of CEE's membership in the European Union, OECD and WTO;

• contain papers written primarily by CEE authors: academics, legal practitioners and consultants, judges and civil servants (including staff of EU institutions), mostly lawyers and economists;

• introduce Central and Eastern Europe's antitrust and regulation field to foreign readers: academics, legal practitioners, consultants as well as the staff of public authorities and courts dealing with antitrust and regulatory cases in other countries.

YARS is primarily published in a printed form. It is, however, also available at www.yars.wz.uw.edu.pl as well as on open-source data basis such as SSRN which greatly increases its reach. The most recent volume of YARS (Vol. 2012, 5(6)) is dedicated to the protection of entrepreneurs’ rights in antitrust proceedings. YARS was originally intended to focus on Polish experiences in antitrust and sector–specific regulation only. Its perspective has been broadened since 2012 to include Central and Eastern Europe’s legislation and jurisprudence in these fields. Experiences of the so-called ‘emerging markets’ in introducing and protecting competition, as well as their efforts to meet competition-related standards upheld by international organizations such as the EU, are certainly worthy of being presented to foreign readers. As a result, YARS is now also open to authors wishing to present important antitrust and regulatory problems from the perspective of Central and Eastern European countries. The call for papers is open to both academics and practitioners.

Detailed information in English on the activities of CARS can be found on its website: www.cars.wz.uw.edu.pl/gb/

We would like to encourage foreign scholars specializing in the field of antitrust and sectorial regulation to contact us as we are always interested in cooperative initiatives both as far as publications in YARS are concerned as well as joint scientific projects.

July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other

Posted by D. Daniel Sokol

Josh Wright (George Mason) has posted The Antitrust/Consumer Protection Paradox: Two Policies at War with Each Other.

ABSTRACT: The potential complementarities between antitrust and consumer protection law — collectively, “consumer law”— are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law that threatens the consumer-welfare oriented development of both bodies of law. This Feature describes the emerging paradox that rift has created: a body of consumer law at war with itself. The CFPB’s behavioral approach to consumer protection rejects revealed preference — the core economic link between consumer choice and economic welfare and the fundamental building block of the rational choice approach underlying antitrust law. This Feature analyzes the economic, legal, and political institutions underlying the potential rise of an incoherent consumer law and concludes that, unfortunately, there are several reasons to believe the intellectual rift shaping the development of antitrust and consumer protection will continue for some time.

July 24, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, July 23, 2012

Introduction: Benefits of Private Enforcement: Empirical Background

Posted by D. Daniel Sokol

Bob Lande (Baltimore) has posted Introduction: Benefits of Private Enforcement: Empirical Background.

ABSTRACT: This short piece takes a first step toward providing the empirical bases for an assessment of the benefits of private enforcement. It presents evidence showing that private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. Private enforcement helps compensate victimized consumers, and it also helps deter anticompetitive conduct. This piece demonstrates this by briefly summarizing a more detailed analysis of forty of the largest recent successful private antitrust cases.

To analyze these cases' compensation effects this presents, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). The $21.9 to $23.9 billion (in 2010 dollars) returned to victims helped compensate many victims of illegal behavior.

To analyze their deterrence effects, the article also briefly compares the amounts awarded in these 40 cases to the deterrence effects of every DOJ cartel case from the same period (including the deterrence effects of criminal fines and incarceration). This article shows that private enforcement of the U. S. antitrust laws - which usually is derided as essentially worthless - probably serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division.

The debate over the value of private antitrust enforcement long has been heavy with self-serving but unproven assertions by powerful economic interests. This article should cause many in both the United States and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.

July 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Citizen Petitions: An Empirical Study

Posted by D. Daniel Sokol

Michael Carrier (Rutgers - Camden) and Daryl Wander have an interesting new paper on Citizen Petitions: An Empirical Study.

ABSTRACT: In recent years, brand-name drug companies have engaged in an array of conduct that has delayed generic competition. While some of the activity – such as settlements between brand and generic firms and “product hopping” from one drug version to another – has received attention, the activity of “citizen petitions” (requests for the U.S. Food and Drug Administration (FDA) to take an action such as evaluating a drug’s safety or effectiveness) has not been examined in significant detail.

This Article offers the first empirical study of citizen petitions, reviewing every petition filed with the FDA between 2001 and 2010. It finds that petitions have increased in the past decade and that 68% of petitions are filed by brand companies, with more than 3/4 of brand petitions targeting generic drugs.

The study concludes that the FDA has granted 19% of citizen petitions and denied 81%. It finds that generics’ petitions are more successful, with 28% granted and 72% denied, as compared to brands’ petitions, of which 19% are granted and 81% denied.

To reduce delays from petitions, Congress enacted legislation in 2007 that required the FDA to rule on certain petitions within 180 days. This study finds that this legislation has not been successful in reducing the number of petitions. After passage of the legislation, the average number of filings per year increased from 27 to 34. Brand petitions against generics increased by 68% (from 9 to 16 per year). And the grant rate for brands’ petitions against generics declined from 20% to 19%.

Building on the empirical study, the Article highlights the incentives brand firms have to file petitions, along with the role petitions play in the toolbox of delaying conduct. It also introduces examples that demonstrate the problem, such as the petitions delaying (1) depression drug Wellbutrin for 133 days at a cost to consumers of $600 million and (2) insomnia drug Ambien for 1225 days at a cost of $3.1 billion.

The landscape in the pharmaceutical industry today is ripe for petitions, with an impending “patent cliff,” declining drug-company profits, and increased use of related conduct such as brand-generic settlements and product hopping. As a tool that is used more frequently and that has evaded attempts to limit its abusive potential, citizen petitions warrant scrutiny.

July 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Financial Mergers and Their Consequences

Posted by D. Daniel Sokol

F.M. Scherer (Harvard) explains Financial Mergers and Their Consequences.

ABSTRACT: This paper, written for a Columbia Law School - American Bar Association conference, analyzes the massive merger wave that has led to substantially increased concentration of banking activity in the United States. One consequence is the rise of banks "too big to fail." The structural changes have also been associated with a striking increase in financial institutions' share of all U.S. corporate profits along with employee compensation out of line with norms for individuals of comparable ability. Data on concentration in well-defined banking markets are quite scarce, but fragmentary evidence suggests appreciable monopoly pricing power potential in some product markets. Mergers that lead to concentration have for decades been the focus of antitrust activity. But a review of the record shows an emphasis on mergers that raise local banking market concentration and nearly total neglect of other important lines, on which data! are lacking. If antitrust actions were to be taken against the concentration of power in those lines, offsetting advantages in the form of realized scale economies would have to be weighed. A review of the most recent evidence suggests that difficult tradeoffs might be confronted.

July 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US

Posted by D. Daniel Sokol

Thorsten Kaseberg (German Economics Ministry) has written a new book Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US.

BOOK ABSTRACT: For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this 'cumulative innovation' is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.

Taking an integrated view of both IP and antitrust rules – in particular on refusals to deal based on IP – the book assesses policy levers under European and US patent, copyright and trade secrecy laws, such as the bar for and scope of protection as well as research exemptions, compulsory licensing regimes and misuse doctrines. It analyses what the allocation of tasks is and should be between these IP levers and antitrust rules, in particular the law on abuse of dominance (Article 102 TFEU) and monopolisation (Section 2 Sherman Act), while particular attention is paid to the essential facilities doctrine, including pricing methodologies for access to IP.

Many recent decisions and judgments are put into a coherent analytical framework, such as IMS Health, AstraZeneca, GlaxoSmithKline (in the EU), Apple (France), Orange Book Standard (Germany), Trinko, Rambus, NYMEX, eBay (US), Microsoft and IBM/T3 (both EU and US). Further topics covered include: IP protection for software, interoperability information and databases; industry-specific tailoring of IP; antitrust innovation market analysis; and the WTO law on the IP/antitrust interface.

Table of Contents

July 23, 2012 | Permalink | Comments (0) | TrackBack (0)

The Changing Health Care Sector: Tough New Challenges for Antitrust Enforcers

Posted by D. Daniel Sokol

Robert F. Leibenluft (Hogan Lovells) addresses The Changing Health Care Sector: Tough New Challenges for Antitrust Enforcers.

ABSTRACT: The past few years have been marked by increased consolidation among health care providers. Hospitals are merging with each other, physician groups are combining to create much larger, often single specialty practices, and hospitals are acquiring or employing an ever -growing number of physicians. Some observers have suggested that the Patient Protection and Affordable Care Accountable Care Act ("PPACA") has encouraged this consolidation, and that the Act will prompt even greater consolidation-with adverse competitive effects-as providers form accountable care organizations ("ACOs"), which under the Act have the potential to share savings with the Medicare program but which also will likely negotiate with commercial health plans on behalf of independent providers. Is this, then, an example of contradictory government policies that ultimately will make it even more difficult to rely on competition to reduce health care costs and improve quality?

The short answer is "not necessarily," but changes in the health care sector will require antitrust enforcers and health care regulators to apply more sophisticated approaches to ensure that our reliance on competitive health care markets is well-placed. Some of the health care sector changes are a result of or will be hastened by PPACA, but others would have occurred in any case, even without the passage of federal health care reform.

July 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 22, 2012

The Perils of Armchair Analysis: Evaluating Merger Enforcement During the Obama Administration

Posted by D. Daniel Sokol

Jon Baker (American) and Carl Shapiro (Berkeley) have responded to Dan Crane with their short work (ie, you should read it because it is short) The Perils of Armchair Analysis: Evaluating Merger Enforcement During the Obama Administration.

ABSTRACT: This brief comment responds to the analysis of Obama administration merger policy in Daniel A. Crane, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, 65 STAN. L. REV. ONLINE 13, 16 (2012).

July 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Health Care Reform, Provider Affiliations, and Antitrust Risks

Posted by D. Daniel Sokol

Lona Fowdur & John Gale (Economists Incorporated) discuss Health Care Reform, Provider Affiliations, and Antitrust Risks.

ABSTRACT: The Accountable Care Act ("ACA") has brought to the fore the concept of Accountable Care Organizations ("ACOs"). These organizations comprise networks of otherwise unaffiliated providers that can obtain approval from the Centers for Medicare & Medicaid Services ("CMS") to become jointly responsible for the coordinated care of an assigned Medicare patient population. Per their agreement with CMS, ACOs are eligible to participate in the Medicare Shared Savings Program ("MSSP"). The program entitles participants to share in the Medicare savings they generate if they are able to lower the cost of care for their assigned Medicare patient population, and if they are able to perform adequately along a range of pre-determined quality metrics. Such ACOs would also be permitted to negotiate collectively with private providers and thereby extend the potential savings from care-coordination to commercially insured patients.

As such, it would seem that in passing the ACA, legislators took note of the potential efficiencies that could be realized through affiliations between provider groups. Providers, on the other hand, have sought such efficiencies, even prior to the enactment of the ACA, both through negotiations with managed care plans-for example under pay-for-performance systems-and through formal consolidations in the form of mergers and acquisitions.

Antitrust regulatory agencies at the U.S. Department of Justice and the Federal Trade Commission ("the Agencies") remain concerned, however, that affiliations between provider groups may lead to market power and price increases. Such concerns could be warranted if affiliations between provider groups lead to an increase in the providers' negotiating power vis-à-vis managed care plans. For example, if there were no equivalent alternative to a group of providers and a managed care plan were unable to offer a product without the group, it is possible that the group could extract higher payments for their services than they otherwise could. The Agencies aim to safeguard against such outcomes, but they also recognize the need for integration in order to achieve efficiencies. Consequently they have provided some guidance to provider groups as to how they will evaluate affiliations.

Provider groups need to recognize the Agencies' stance on antitrust regulation as they consider affiliations with other groups, whether under the banner of an ACO, in joint-negotiations with commercial payers, or in the context of formal integrations through mergers and acquisitions. In this article we provide an overview of ACO formation to date, survey similar payment systems outside of CMS's MSSP initiatives, and briefly review the Agencies' policies in regards to ACO formation and recent merger activity.

July 22, 2012 | Permalink | Comments (0) | TrackBack (0)