Antitrust & Competition Policy Blog

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

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Friday, May 31, 2013

The Consensus Among Economists on Multisided Platforms and its Implications for Excluding Evidence that Ignores It

Posted by D. Daniel Sokol

David S. Evans, University of Chicago Law School; University College London; Global Economics Group, describes The Consensus Among Economists on Multisided Platforms and its Implications for Excluding Evidence that Ignores It.

ABSTRACT: There is now a professional consensus among economists that multisided platforms are the main form of business organization in many industries; that these platforms face interdependent demand from multiple groups of customers; and that profit-maximization in the face of this interdependent demand can in theory, and often does in practice, result in their charging a price to one group of customers that is less than marginal cost including zero or less than zero. Traditional economic models that do not consider interdependent demand do not yield reliable results for platform businesses. Many of the economic tools used in antitrust, including the various back-of-the-envelope tools such as critical loss analysis, are not reliable when applied to multisided platforms. In conducting reliable economic analysis of multisided platforms economists must either explicitly consider interdependent demand in their models or assess biases resulting from traditional tools to verify that they do not alter conclusions.

May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Public Interest Mergers

Posted by D. Daniel Sokol

Cosmo Graham, University of Leicester analyzes Public Interest Mergers.

ABSTRACT: This paper examines mergers in the UK which fall outside of the normal merger control system because they raise public interest considerations. It sets out the legal framework and focuses mainly on two controversial cases: the takeover of HBOS by Lloyds TSB in 2008 and the proposed acquisition by NewsCorp of the shares that it did not own in BSkyB between 2010-2011. It suggests that, as far and transparency and accountability are concerned, the record is mixed.

May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

The Court of Justice's Judgment in Allianz Hungária is Wrong and Needs Correcting

Posted by D. Daniel Sokol

Patrick Harrison (Sidley Austin) explains The Court of Justice's Judgment in Allianz Hungária is Wrong and Needs Correcting.

ABSTRACT: The Court of Justice's March 2013 judgment in Allianz Hungária may constitute the single most significant development in EU competition law since the 2004 Modernization reforms. It blows apart the age-old distinction between, on the one hand, restrictions of competition "by object" (where effects on competition do not need to be proved) and, on the other hand, restrictions of competition by "effect" (where effects on competition do need to be proved). As a result of the judgment, it will be much easier for the European Commission (and national competition authorities in the EU's Member States) to classify conduct as restrictive of competition for purposes of Article 101(1) TFEU. The judgment also raises particularly serious issues for companies operating in highly regulated sectors, such as life sciences and financial services, since it finds that a breach of a law unrelated to competition can render conduct more likely to constitute a restriction of competition by object.

The key paragraphs of the judgment on the critical objects/effects distinction, and on the relevance of breaches of laws unrelated to competition, contain no-or deeply flawed-references to prior case law. In short, the judgment is wrong and, unless corrected in subsequent cases, will be of serious concern to many companies doing business in the European Union.

May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Telecom Regulatory Authority of India & Competition Commission of India: Jurisdictional Conflicts

Posted by D. Daniel Sokol

Hemant Singh, National Law University, Jodhpur and Radha Naruka, National Law University, Jodhpur Telecom address Regulatory Authority of India & Competition Commission of India: Jurisdictional Conflicts.

ABSTRACT: The interface between sector-specific regulation and competition law in India is unique. In the immediate past, the Indian economy has witnessed a massive growth spurt. While the fast-paced development has lifted millions of people up from poverty levels, it has also led to concomitant challenges. India has seen several economic scandals and other crises during the period of economic boom. A significant feature of the Indian economic and legal regime during this period has been a mushrooming of innumerable regulatory authorities. With several regulatory authorities cropping up simultaneously, it is natural that they might end up having overlapping jurisdictions. Therefore, it is critical to appreciate the genesis of the Indian strand of regulatory jurisprudence. The recent controversy regarding the conflict of jurisdiction between Competition Commission of India (CCI) and other sectoral regulators like Reserve Bank of India (RBI) and Telecom Regulatory Authority of India (TRAI) has generated a lot of interest in public. It has been reported that Government is considering ‘clipping the wings’ of CCI. In this work an attempt is made to provide the overview of two regulators of telecom industry which are TRAI and CCI and discussion is done about the conflicting issues between both these regulators. It is also discussed whether telecom industry need both the regulators simultaneously and finally conclude the work with some suggestions.

May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Antitrust Law and Economic Theory: Finding a Balance

Posted by D. Daniel Sokol

Ned Cavanagh, St. John's University - School of Law discusses Antitrust Law and Economic Theory: Finding a Balance.

ABSTRACT: Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided into antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate and less predictable.

This article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases but rather that courts have become too reliant on economic theory in deciding antitrust issues. Just as courts of an earlier generation became too enamored of per se rules in antitrust cases, some courts today have become too enamored of economic theory in addressing and resolving antitrust issues. Some courts have lost sight of basic antitrust goals and have gotten bogged down in arcane economic tests - relevant market and proof of common impact in class action cases are two examples - which have become obstacles to, instead of tools for, resolution of antitrust disputes. Antitrust is a body of law enacted by Congress and construed by the courts; antitrust is not a compendium of the latest thinking in economic theory. The role of the courts is not to decree economic policy but rather to implement antitrust policies enacted by Congress. Antitrust has always been a fact-specific enterprise, and courts need to restore the proper balance between fact finding and economic theory by confining economic theory to those areas where it assists antitrust analysis and discarding theory where it gets in the way. In short, we need a return to simple, predictable and administrable - but informed - antitrust rules.

May 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 30, 2013

Do Consumer Tastes Evolve with Competition? The Case of the Slovenian Beer Market

Posted by D. Daniel Sokol

Janez Sustersic, International School for Social and Business Studies and Snezana Sustersic ask Do Consumer Tastes Evolve with Competition? The Case of the Slovenian Beer Market.

ABSTRACT: We use the natural experiment of EU entry to test the hypothesis that the lack of consumer tastes for diversity in beer may be responsible for slow development of small breweries in a highly concentrated beer market. Our contribution is to propose that lagged imports diversity, which increased after joining the common market, may be used as a proxy for consumer tastes development. Our reasoning is that after the EU entry, when imports soared, consumers became increasingly exposed to a much wider variety of beer styles. This might have led at least some of them to develop a taste for diversity in beer. In turn, this increased appreciation of diversity may have led them also to appreciate more the products of domestic microbreweries. Using monthly sales data, we are able to find some empirical confirmation that variety of imports indeed helps domestic small producers to cope with increasing competition. This suggest that the »taste for beer diversity« may develop as consumers are faced by a larger variety of beers. However, higher significance of domestic supply diversity compared to imported diversity may indicate that apart from actual beer tasting, there are additional channels of “taste development”, such as the general international fad for microbreweries which is developing in recent years.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

The Competitive Consequences of Most-Favored-Nation Provisions

Posted by D. Daniel Sokol

Jonathan B. Baker, American University - Washington College of Law and Judith A. Chevalier, Yale School of Management explain The Competitive Consequences of Most-Favored-Nation Provisions.

ABSTRACT: "Most Favored Nation" contractual provisions have come under scrutiny in recent years by antitrust authorities in both the US and EU. MFNs are a type of vertical agreement between suppliers and buyers. The literature has recognized that there may be efficiency rationales for these arrangements but the literature has also recognized that these arrangements have anticompetitive potential. In this paper, we distill the economics literature on MFNs to explore both possibilities.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Kirkwood, Connor, and Lande Named 2013 Winners of Jerry S. Cohen Award for Antitrust Scholarship

Posted by D. Daniel Sokol

I am pleased to announce the winners of the AAI Jerry Cohen Award.  From the AAI press release:

John B Kirkwood, John M. Connor, and Robert H. Lande have been selected as the recipients of the 11th annual Jerry S. Cohen Award for the best antitrust scholarship of 2012.

The award was created through a trust established in honor of the late Jerry S. Cohen, an outstanding trial lawyer and antitrust writer.  It is  administered by the law firm he founded, Cohen Milstein Sellers & Toll.  The award is given each year to the best antitrust writing during the prior year that is consistent with the following standards established by the Board of Trustees of the Jerry S. Cohen Memorial Fund: 

To be considered eligible and selected for the Award, submissions should reflect a concern for principles of economic justice, the dispersal of economic power, the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Submissions should reflect an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society--values and concerns Jerry S. Cohen dedicated his life and work to fostering.  Submissions may address substantive, procedural or evidentiary matters that reflect these values and concerns.

The award selection committee this year consisted of Warren Grimes, Roger Noll, Ann Yahner, Charles Goodwin, and Daniel Small.

Kirkwood, Connor, and Lande will receive their awards during the gala luncheon at the American Antitrust Institute’s Annual Conference on June 12 at the National Press Club in Washington.  Held at the National Press Club in Washington D.C., the annual conference is attended by leaders of the antitrust community including academics, lawyers, economists and agency and Capitol Hill staff.  Visit www.antitrustinstitute.org/2013conference  to view the agenda and to register.

Kirkwood's October 2012 article "Powerful Buyers and Merger Enforcement" (92 B.U.L. Rev. 1485) provides a comprehensive analysis of the role of buyer power in merger enforcement.  It discusses the traditional approach to buyer mergers, suggesting modifications to better reflect the true dynamics of buyer power. Most important, it recommends that courts and enforcement agencies halt mergers that enhance anticompetitive countervailing power. Because many buyer combinations that increase such power are beneficial, the Article identifies ten situations in which a merger that augments countervailing power would reduce competition and diminish the welfare of consumers, suppliers, or society.

Connor and Lande penned "Cartels as Rational Business Strategy: Crime Pays" (34 Cardozo L. Rev. 427) because, until now, no one has ever seriously attempted to analyze whether cartel sanctions are at the optimal level. The article demonstrates that the combined level of U.S. cartel sanctions (including private and government enforcement) has been only 9% to 21% as large as it should be to protect potential victims of cartelization optimally.  It concludes, "Cartels are a crime that, on average, pays....In fact, it pays very well."

The committee selected two outstanding articles as Honorable Mentions:

  • “Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement” by D. Daniel Sokol (78 Antitrust L. J. 201)
  • “Solving the Patent Settlement Puzzle” by Einer Elhauge and Alex Krueger (91 Tex. L. Rev. 283)

Past winners of the award are available here.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

A Framework for Dynamic Oligopoly in Concentrated Industries

Posted by D. Daniel Sokol

Vivek Farias (MIT), Bar Ifrach (Columbia Business School) and Gabriel Weintraub (Columbia University) provide A Framework for Dynamic Oligopoly in Concentrated Industries.

ABSTRACT: We consider dynamic oligopoly models in the spirit of Ericson and Pakes (1995). We introduce a new computationally tractable model for industries with a few dominant firms and many fringe firms. This is a prevalent market structure in consumer and industrial goods. In our model, firms keep track of the detailed state of dominant firms and of few moments of the distribution that describes the states of fringe firms. Based on this idea we introduce a new equilibrium concept that we call moment-based Markov equilibrium (MME). MME is behaviorally appealing and computationally tractable. However, MME can suffer from an important pitfall. Because moments may not summarize all payoff relevant information, MME strategies may not be optimal. We propose different approaches to overcome this difficulty with varying degrees of restrictions on the model primitives and strategies. Our first approach introduces models for which moments! summarize all payoff relevant history and therefore for which MME strategies are optimal. The second approach restrict fringe firm strategies so that again moments become sufficient statistics. The third approach does not impose such restrictions, but introduces a computational error bound to asses the degree of sub-optimality of MME strategies. This bound allows to evaluate whether a finer state aggregation is necessary, for example by adding more moments. We provide computational experiments to show that our algorithms and error bound work well in practice for important classes of models. We also show that, cumulatively, fringe firms discipline dominant firms to behave more competitively, and that ignoring fringe firms in counterfactual analysis may lead to incorrect conclusions. Our model significantly extends the class of dynamic oligopoly models that can be studied computationally. In addition, our methods can also be used to improve approximations in other contexts s! uch as dynamic industry models with an infinite number of heterogeneou s firms and an aggregate shock; stochastic growth models in the spirit of Krusell and Smith (1998); and dynamic models with forward-looking consumers.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

A new data set on competition in national banking markets

Posted by D. Daniel Sokol

Sofronis Clerides, Manthos D. Delis and Sotirios Kokas (University of Cyprus) provide A new data set on competition in national banking markets.

ABSTRACT: We estimate the degree of competition in the banking sectors of 148 countries worldwide over the period 1997-2010. We employ three methods, namely those of Lerner (1934), Koetter, Kolari and Spierdijk (2012) and Boone (2008a). For the estimation of marginal cost required under all methods, we use the semi-parametric methodology of Delis (2012) that allows increasing the flexibility of the functional form imposed on the cost function. All three indices show that the competitive conditions in banking have deteriorated on average during the period 1997-2006. This trend reverses until 2008, while in 2009 and 2010 market power again increases. Thus, we provide evidence that the competitive conditions are correlated with financial stability. The empirical results also highlight important differences between regional and income groups of countries. On average, the banking systems of Sub-Saharan Africa and subsequently of East A! sia and Pacific are the least competitive, while the banking systems of Europe and Central Asia and South Asia seem to be the most competitive ones. Further, the non-OECD countries characterized by either high- or low-income levels have less competitive banking sectors, while middle-income countries have more competitive banking sectors. For the OECD countries the results of the Lerner-type indices and the method by Boone (2008a) give conflicting results.

May 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 29, 2013

Theory of Collusion in the Labor Market

Posted by D. Daniel Sokol

Pedro Gonzaga (Faculdade de Economia da Universidade do Porto), Antonio Brandao (Faculdade de Economia da Universidade do Porto) and Helder Vasconcelos (Faculdade de Economia da Universidade do Porto) offer Theory of Collusion in the Labor Market.

ABSTRACT: Despite the major concern of the competition authority to forbid and prosecute formal cartels who cooperatively fix prices, limit production or divide markets, there seems to be little regulation and investigation of collusive practices in the labor market. For that reason, this article analyzes the economic effects of cooperative wage fixing in industries that use one type of labor as the only input, while the other assumptions are kept as general as possible. Under the one input assumption it was found that collusion in the labor market and collusion in the product market have exactly the same results, which include the rise in prices and the fall in output, employment and wages. The higher prices and lower wages in cartelized industries are not only associated with the elimination of the well known business stealing effect, but also with the elimination of the labor force stealing effect. The conclusions in this paper! can be generalized to industries that use more than one input, as long as the cartel is able to fix the prices of all the inputs.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Private vs Public Antitrust Enforcement: Evidence from Chile

Posted by D. Daniel Sokol

Aldo Gonzalez (University of Chile - Economics) and Alejandro Micco examine Private vs Public Antitrust Enforcement: Evidence from Chile.

ABSTRACT: This article measures the impact of the agency responsible for enforcing competition law, in the outcome of antitrust trials in Chile. Using statistics on lawsuits since the inception of the new Competition Tribunal in 2004, we find that the involvement of the public agency increases the probability of obtaining a guilty verdict in an antitrust lawsuit by 40 percentage points. Conditional to the issuance of a verdict, the participation of the prosecutor raises the likelihood of a conviction by 38 percentage points. The results are robust to possible selection bias by the public agency. The prosecutor is inclined to takes part in cases involving sensitive markets and in accusations of collusion. The State-related character of the accused entity, in addition to its size, does not affect the probability of intervention by the prosecutor in a lawsuit.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Intercontinental airport competition

Posted by D. Daniel Sokol

Wim Benoot (CES-KULeuven), Jan K. Brueckner (UC Irvine) and Stef Proost (CES-KULeuven) discuss Intercontinental airport competition.

ABSTRACT: This paper analyzes strategic interaction between intercontinental airports, each of which levies airport charges paid by airlines and chooses its own capacity under conditions of congestion. Congestion from intercontinental flights is common across the airports since departure and arrival airports are linked one to one, while purely domestic traffic also uses each airport. The paper focuses on five questions. First, if both continents can strategically set separate airport charges for domestic and intercontinental flights, how will the outcome differ from the first-best solution? Second, how is the impact of strategic airport behavior affected by the extent of market power of the airlines serving the intercontinental market? Third, what happens if one continent has several competing intercontinental airports, each with its own regulator, while the other has a single airport and regulator? Fourth, how effective is a non- discrimination clause for airport charges, which prevents independent strategic use of the intercontinental charge? Fifth, what is the effect of higher airport operating costs on one continent (a result of security or immigration procedures) on the strategic outcome? The questions are addressed with an algebraic model and results are illustrated numerically.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

A Bananas Judgment: Denying a Parent Company Access to a Related Company’s Reply to the Statement of Objections

Posted by D. Daniel Sokol

Laura Atlee (Steptoe & Johnson LLP) explains A Bananas Judgment: Denying a Parent Company Access to a Related Company’s Reply to the Statement of Objections.

ABSTRACT: Back in 2007 the European Commission ("EC") initiated proceedings against a number of companies involved in the banana market alleging that they had been involved in a cartel. The proceedings took the normal course: Statement of Objections ("SO") decision, then appeal to the General Court. With the whole process taking approximately eight years, it is anyone's guess whether Dole, Del Monte, and Weichert will appeal the General Court's judgments of March 14, 2013 (Case T-588/08 and Case T-587/08). Maybe the old saying applies, "In for a penny, in for a pound...of bananas."

The Court has outdone itself with both judgments-each one is at least 150 pages. In Dole's case (T-588/08), the Court failed to side with the applicant on any point. While the judgment provides a number of reminders on certain points of EU competition law, in most regards it is relatively unremarkable. Most of the judgment in Del Monte's case (T-587/08), in which Weichert intervened, is also fairly unremarkable (except for one very important point) although the Court did reduce the fine for which Del Monte and Weichert were jointly and severally liable. At the time of the infringement, Weichert was a distributor of Del Monte bananas. The EC found the two companies to be part of the same undertaking, a point that we will discuss further below.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Simple Markov-Perfect Industry Dynamics

Posted by D. Daniel Sokol

Nan Yang (Tilburg University), Jeffrey Campbell (Federal Reserve Bank of Chicago) and Jaap Abbring (Tilburg University) describe Simple Markov-Perfect Industry Dynamics.

ABSTRACT: This paper develops a tractable model for the computational and empirical analysis of infinite-horizon oligopoly dynamics. It features aggregate demand uncertainty, sunk entry costs, stochastic idiosyncratic technological progress, and irreversible exit. We develop an algorithm for computing a symmetric Markov-perfect equilibrium quickly by finding the fixed points to a finite sequence of low-dimensional contraction mappings. If at most two heterogenous firms serve the industry, the resuilt is the unique "natural" equilibrium in which a high protability firm never exits leaving behind a low protability competitor. With more than two firms, the algorithm always finds a natural equilibrium. We present a simple rule for checking ex post whether the calculated equilibrium is unique, and we illustrate the model's application by assessing the robustness of Fershtman and Pakes' (2000) finding that collusive pricing can increase consumer surplus by stimulating product development. The hundreds of equilibrium calculations this requires take only a few minutes on an off-the-shelf laptop computer. We also present a feasible algorithm for the model's estimation using the generalized method of moments.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Lateral Move: Damien Geradin to George Mason

Posted by D. Daniel Sokol

Damien Geradin, the most cited European competition law professor (as measured by the Westlaw JLR database) and most downloaded European competition law scholar (as measured by SSRN) is moving from the University of Michigan part time to George Mason part time. Damien retains his affiliations with Tilburg Law part time and law firm Covington full time. This is the second major antitrust addition to the George Mason faculty. Earlier this year Judge Douglas Ginsburg made a full time lateral move from NYU Law to George Mason.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Monopolistic Competition and Optimum Product Selection: Why and how heterogeneity matters

Posted by D. D. Daniel Sokol

Antonella Nocco, Universita del Salento (Lecce) Dipartimento di Scienze Economiche e Matematico-Statistiche. Gianmarco I.P. Ottaviano. Bocconi University - Department of Economics and Paolo Baffi Centre on Central Banking and Financial Regulation and Matteo Salto, Directorate-General COMP, exlpore European Commission Monopolistic Competition and Optimum Product Selection: Why and how heterogeneity matters.

ABSTRACT: After some decades of relative oblivion, the interest in the optimality properties of monopolistic competition has recently re-emerged due to the availability of an appropriate and parsimonious framework to deal with firm heterogeneity. Within this framework we show that non-separable utility, variable demand elasticity and endogenous firm heterogeneity cause the market equilibrium to err in many ways, concerning the number of products, the size and the choice of producers, the overall size of the monopolistically competitive sector. More crucially with respect to the existing literature, we also show that the extent of the errors depends on the degree of firm heterogeneity. In particular, the inefficiency of the market equilibrium seems to be largest when selection among heterogenous firms is needed most, that is, when there are relatively many firms with low productivity and relatively few firms with high productivity.

May 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 28, 2013

Switching costs in competitive health insurance markets

Posted by D. Daniel Sokol

Karine Lamiraud (ESSEC Business School) explores Switching costs in competitive health insurance markets.

ABSTRACT: In this paper we investigate the possible presence of switching costs when consumers are offered the opportunity to change their basic health insurance provider. We focus on the specific case of Switzerland which implemented a pure form of competition in basic health insurance markets. We identify several barriers to switching, namely choice overload, status quo bias, the possession of supplementary contracts for enrollees in bad health, firm’s pricing strategies based on providing low price supplementary products, poor regulation of reserves and the limitations of the previous risk-equalization mechanism which left room for risk selection practices.

May 28, 2013 | Permalink | Comments (0) | TrackBack (0)

The Consensus Among Economists on Multisided Platforms and its Implications for Excluding Evidence that Ignores It

Posted by D. Daniel Sokol

David S. Evans, University of Chicago Law School; University College London; Global Economics Group discusses The Consensus Among Economists on Multisided Platforms and its Implications for Excluding Evidence that Ignores It.

ABSTRACT: There is now a professional consensus among economists that multisided platforms are the main form of business organization in many industries; that these platforms face interdependent demand from multiple groups of customers; and that profit-maximization in the face of this interdependent demand can in theory, and often does in practice, result in their charging a price to one group of customers that is less than marginal cost including zero or less than zero. Traditional economic models that do not consider interdependent demand do not yield reliable results for platform businesses. Many of the economic tools used in antitrust, including the various back-of-the-envelope tools such as critical loss analysis, are not reliable when applied to multisided platforms. In conducting reliable economic analysis of multisided platforms economists must either explicitly consider interdependent demand in their models or assess biases resulting from traditional tools to verify that they do not alter conclusions.

May 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Chambers USA Rankings Are Out - How Does Your Antitrust Practice Measure Up?