Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Friday, July 19, 2013

Ex-Post Merger Evaluation in the UK Retail Market for Books

Posted by D. Daniel Sokol

Luca Aguzzoni, Lear - Laboratory of Economics, Antitrust, Regulation, Elena Argentesi, University of Bologna - Department of Economics, Lorenzo Ciari Sr., European University Institute, Tomaso Duso, German Institute for Economic Research (DIW Berlin); Duesseldorf Institute for Competition Economics (DICE), and Massimo Tognoni UK Competition Commission analyze Ex-Post Merger Evaluation in the UK Retail Market for Books.

ABSTRACT: This paper empirically evaluates the price effects of the merger of two major book retail chains in the UK: Waterstone’s and Ottakar’s. We employ differences-in-differences techniques and use a rich dataset containing monthly scanner data information on a sample of 200 books sold in 60 stores in 50 different local markets for a period of four years around the merger. Since retail mergers may have either local or national effects (or both) according to the level at which retail chains set prices, we undertake an ex-post assessment of the impact of the merger at both levels. At the local level, we compare the changes in the average price charged before and after the merger in the shops located in overlap areas – i.e. areas where both chains were present before the merger – and in non-overlap areas – i.e. areas where only one chain was present before the merger. At the national level, we employ two distinct control groups to evaluate the merger, namely the competitors and the top-selling titles. We find that the merger did not result in an increase in prices either at the local or at the national level. We also perform heterogeneous treatment effects estimations in order to assess whether the effect of the merger differs along various dimensions of heterogeneity that are present in our data.

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Inconvenient Truths and Constructive Suggestions on Merger Retrospective Studies

Posted by D. Daniel Sokol

Greg Werden (DOJ) has written on Inconvenient Truths and Constructive Suggestions on Merger Retrospective Studies.

ABSTRACT: A merger retrospectives research agenda should be pursued. It should stress careful evaluation of agency assessments of the competitive effects of mergers in the hope of improving the accuracy of the enforcement process. But several inconvenient truths may prevent much from being learned, and “a little learning is a dangerous thing.”

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Evaluating Unilateral Effects at the Federal Trade Commission: Do Markets Matter?

Posted by D. Daniel Sokol

Malcolm B. Coate, U.S. Federal Trade Commission (FTC) and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) ask Evaluating Unilateral Effects at the Federal Trade Commission: Do Markets Matter?

ABSTRACT: The 2010 Merger Guidelines highlight unilateral effects analysis as the most prominent theory of concern in differentiated markets. Building on the discussion in the FTC/DOJ Merger Commentaries, the Guidelines tend to marginalize definition of a relevant market. This study evaluates the FTC’s historical record to determine if market-based variables appear to affect policy. Our results, detailed in Tables 3, 4, and 7 highlight the importance of both market-agnostic and market-based explanatory variables. Moreover, competitive effects’ evidence and a focus on price-based competition tends to increase the probability of a unilateral effects finding.

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Cunning as a Fox - Dutch Competition Authority Clears Long-Term Acquisition of Dutch Football Broadcasting Rights

Posted by D. Daniel Sokol

Ben Van Rompuy, T.M.C. Asser Instituut; Free University of Brussels (VUB) is Cunning as a Fox - Dutch Competition Authority Clears Long-Term Acquisition of Dutch Football Broadcasting Rights.

ABSTRACT: On August 8, 2012, Eredivisie Media & Marketing C.V. (EMM), the media and commercial arm of the Premier football league (Eredivisie) in the Netherlands, announced a long-term partnership with Fox International Channels Inc (Fox). On November 29, 2012, the Netherlands Competition Authority (NMa) approved the broadcasting deal, which is the largest of its kind in the history of Dutch football.The NMa adopted a formal decision, clearing the acquisition of EMM by Fox, and an informal opinion on the proposed modes of exploitation of the Eredivisie broadcasting rights. This article scrutinizes these decisions and reveals a worrying sign of competition law enforcement fatigue in the area of sports media rights.

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Issues for Two-Sided Platforms in Canadian Competition Law

Posted by D. Daniel Sokol

Grant Bishop University of Toronto - Faculty of Law discusses Issues for Two-Sided Platforms in Canadian Competition Law.

ABSTRACT: This paper proposes a framework for the analysis of anti-competitive conduct in the context of two-sided platforms under Canadian competition law. Applying this framework, the paper analyzes two recent reviewable conduct applications by the Competition Commissioner – against Visa and Mastercard, and against the Toronto Real Estate Board – that implicate the economics of two-sided platforms and are currently under consideration by the Competition Tribunal. In general, two-sided platforms intermediate interactions between two distinct sets of users, such that demand from one side of the platform depends on the extent of demand from the other side (e.g. operating systems, security exchanges, video game consoles). This paper argues that restrictions on a platform’s users should be permitted to the extent that these maintain incentives for efficient conduct within the platform and neither constrain nor distort the ability of participants to transact on alternative platforms nor facilitate cartels. Conduct that limits users’ ability to transact on alternative platforms, removing a competitive constraint through exclusivity, or that facilitates cartel behaviour should be regarded as anti-competitive.

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Quantifying the Coordinated Effects of Partial Horizontal Acquisitions

Posted by D. Daniel Sokol

Duarte Brito, New University of Lisbon, Ricardo Ribeiro, Universidade do Porto - Faculdade de Economia (FEP) and Helder Vasconcelos Universidade do Porto - Faculdade de Economia (FEP) are Quantifying the Coordinated Effects of Partial Horizontal Acquisitions.

ABSTRACT: The growth of private-equity investment strategies in which firms often hold partial ownership interests in competing firms has led competition agencies to take an increased interest in assessing the competitive effects of partial horizontal acquisitions. We propose a methodology to evaluate the coordinated effects of such acquisitions on differentiated products industries. The acquisitions may be direct and indirect, and may or not correspond to control. The methodology, that nests full mergers, evaluates the impact on the range of discount factors for which coordination can be sustained. We provide an empirical application to several acquisitions in the wet shaving industry.

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

The Impact of Competition Policy: What are the Known Unknowns?

Posted by D. Daniel Sokol

S. W. Davies, University of East Anglia (UEA) and Peter L. Ormosi, University of East Anglia (UEA) - Centre for Competition Policy; Norwich Business School ask The Impact of Competition Policy: What are the Known Unknowns?

ABSTRACT: Abstract: Evaluations of competition policy are increasingly common and typically establish that consumer bene…ts from detected cases easily outweigh the costs of competition authorities (CA). However, such assessments are often driven by data availability and only capture a small part of the total impact because they sidestep the difficult issue of how to evaluate deterrence. Similarly, they ignore the fact that policy does not root out all anti-competitive cases. This paper suggests a broader framework for evaluation which encompasses these unobserved impacts. Calibration is difficult precisely because we cannot rely on empirical observations on cases which have been observed to make deductions about cases which have not (because they are deterred or undetected). It thereby confronts the classic sample selection problem which is endemic in all studies based on data from CA decisions. Drawing on insights from economic theory, it argues that selection bias is likely to be substantial because the unobserved cases could well be those which are most harmful. If so, the deterrence of anti-competitive mergers may have a much greater positive impact, but the effects of non-detected cartels may be more serious than is usually supposed.

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

What’s to be Done with Rating Agencies? Understanding the Problem to Find a Solution

Posted by D. Daniel Sokol

Rosa M. Abrantes-Metz, Global Economics Group, LLC; New York University - Leonard N. Stern School of Business - Department of Economics and Kristiyana T. Teodosieva, New York University (NYU) - Leonard N. Stern School of Business ask What’s to be Done with Rating Agencies? Understanding the Problem to Find a Solution.

ABSTRACT: Credit Rating Agencies (CRA’s) were at the center of the recent financial crisis. Some have gone so far as to hold them responsible for it. A common argument is that the CRA’s, either due to avarice or incompetence, inflated the ratings of securities related to residential mortgages and in so doing abetted lower and lower underwriting standards in the origination of mortgages. They lulled market participants, including large and sophisticated banks, into a false sense of security, and when house prices fell and people began to default on their mortgages, those securities which had been deemed “AAA” safe began to take losses. Banks were not adequately capitalized against their tremendous exposures to such securities, and they quickly found themselves exposed to large, unanticipated losses. The rest, as they say, is history. This article identifies the antitrust problem in the structured finance ratings market and explains why most of the policy proposals put forward would not address the problem to be solved.

July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Legal Professional Privilege in Europe: a Missed Policy Opportunity

Posted by D. Daniel Sokol

Julia Holtz, Google laments Legal Professional Privilege in Europe: a Missed Policy Opportunity.

ABSTRACT: In Europe, the legal professional privilege is reserved to outside counsel. This creates a multitude of issues, from daily (im)practicalities to questions of fundamental rights.

July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

The Revision of the Commission Explanatory Note on European Commission Surprise Inspections

Posted by D. Daniel Sokol

Lorenzo Piazza, Directorate-General for Competition, has written on The Revision of the Commission Explanatory Note on European Commission Surprise Inspections.

ABSTRACT: On March 2013, the Explanatory Note of the European Commission on its surprise inspections (dawn raids) was revised to describe the procedure for searching the IT environment and storage media.

July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Market Definition Analysis in Latin America with Applications to Internet-Based Industries

Posted by D. Daniel Sokol

David S. Evans University of Chicago Law School; University College London; Global Economics Group and Elisa V. Mariscal CIDE; CPI; ITAM have posted Market Definition Analysis in Latin America with Applications to Internet-Based Industries.

ABSTRACT: There has been a surge of recent antitrust cases involving Internet-based industries around the world, including in Latin America. These types of industries present special challenges for authorities, as their analysis requires an understanding of the fast-paced, innovative, and multi-sided nature of these businesses. In this paper we present methods and techniques for market definition and power analysis which emphasize the need to focus on competitive constraints rather than structural or functional characteristics of products and services — a particularly relevant issue in Internet-based industries. We next explore whether the legal frameworks of Argentina, Brazil and Mexico can accommodate this type of analyses. Our focus then shifts to how competition takes place in Internet-based industries; we describe how firms vie for consumer attention and provide this attention to advertisers and developers using the concept of “attention rivalry”. Taking this theoretical back-ground into account we pose the question of whether the three largest Latin American economies have the tools, legal ability and expertise to undertake these types of complex analyses. We use cases to illustrate where they have done so, and review the most relevant work they have undertaken in Internet-based industries since 2000. In our view, nothing prevents competition agencies in these countries from conducting the correct economic analyses.

July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

Judicial review of anticompetitive state action: two models in comparative perspective

Posted by D. Daniel Sokol

Daniel Crane (Michigan law) has published Judicial review of anticompetitive state action: two models in comparative perspective.

ABSTRACT: At present, there are two primary models of judicial review of state regulatory decisions that impair competition. A representation reinforcement model, associated with the Midcal approach in the USA, seeks to make state regulators politically accountable when they take decisions impairing competition. A substantive view model, associated with aspects of EU competition law and freedom of movement jurisprudence, has judges substantively review the merits of the regulatory decision. Both models have significant drawbacks. The representation reinforcement model often fails because of cost externalization on non-voters or asymmetries between the concentration of benefits on producers and the diffusion of costs on consumers. The substantive review model can create problems of counter-majoritarianism and judicial legitimacy. The weaknesses of the two dominant models suggest that countries implementing new mechanisms of judicial control over regulatory decisions should consider the creation of alternative models.

July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

The business model of patent assertion entities in IT: unilateral restraints of competition or business as usual?

Posted by D. Daniel Sokol

Paul Gagnon, asks The business model of patent assertion entities in IT: unilateral restraints of competition or business as usual?

ABSTRACT: This article aims to determine whether the business models of patent assertion entities (PAE) can qualify as restraints of competition under European competition law, and under which circumstance. To do so, the article highlights the main characteristics of the PAE business model and articulates a theory of harm compatible with the competition law of the European Union (EU). The article will consider the framework of the Treaty on the Functioning of the European Union, 2008 O.J. C-115/47 (TFEU), particularly Article 102 TFEU as regards unilateral restraints of competition. The framework of Article 101 TFEU on concerted practices remains relevant, but will not be the main focus of this article. In sum, a general theory of harm can be articulated as regards PAE activities. Assertions by PAEs take advantage of the hold-up value of a technology, ie PAEs extract revenues based on the prospect of an infringement suit. By doing so, PAEs hinder dynamic competition by reducing incentives to innovate. They also inhibit static competition by increasing prices and potentially removing products from the market. As such, European competition law is applicable within the framework described in this article.

July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

The Application of Competition Law in the Communications and Media Sectors: A Survey of 2012 Cases

Posted by D. Daniel Sokol

Antonio Bavasso, University College London - Faculty of Laws and Dominic Long, Allen & Overy describe The Application of Competition Law in the Communications and Media Sectors: A Survey of 2012 Cases.

ABSTRACT: There have been a number of high profile cases in the communications and media sectors throughout 2012, many of which have seen the boundaries of competition law and sectoral regulation tested in the context of fundamental changes in the underlying technology used to deliver services to customers. The acquisition by H3G Austria of Orange Austria has been seen as an important test of the Commission's approach to mergers in the telecommunications sector as operators transition to next generation networks. At the Member State level, the outcome of Sky's appeal of Ofcom's consultation on the UK pay-TV sector has tested the boundaries of national licensing provisions and the application of the principles behind Article 102 TFEU. Most favoured nation' agreements appear to be moving rapidly up the European Commission's behavioural enforcement priority list.

July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

The Cost of Lost Privacy: Search, Antitrust and the Economics of the Control of User Data

Posted by D. Daniel Sokol

Nathan Newman, Information Law Institute- New York University analyzes The Cost of Lost Privacy: Search, Antitrust and the Economics of the Control of User Data.

ABSTRACT: This article is a case for reorienting many antitrust investigations — and more generally regulatory approaches — to focus on how control of personal data by corporations can entrench monopoly power and harm consumer welfare in an economy shaped increasingly by the power of "big data." With firms knowing far more about consumers than those consumers know about their options in the marketplace, rising information asymmetry in markets is translating into rising overall economic inequality in the economy as well.

The core source of value being delivered to advertisers by a company like Google (as with many "new media" companies) is by all accounts how well it knows its users because of its vast databases of user personal data. As section II of this article will argue, what is largely missed in analyses defending Google from antitrust action is how that ever expanding control of user personal data and its critical value to online advertisers creates an insurmountable barrier to entry for new competition. And, contra the idea that Google just inherited that business advantage through its innovation in search engine technology, section III of this article will detail how Google has aggressively expanded its control of user data through expanding into new product sectors to collect additional user data with the intent to use its presence in those other markets to reinforce its core search advertising monopoly. Beyond the general expansion into tied markets for user data, Google’s "bad acts" have included multiple violations of the law through invading user privacy in pursuit of control of user data.

Section IV emphasizes the broad consumer harm from the extraction of personal user data deployed by Google for the benefit of its advertisers. The lack of competition means users of Google do not receive the full economic value of the personal data they provide Google. Without viable alternatives to Google, you therefore end up with a stunted "market" for valuing user privacy, so Google feels less and less compunction about violating personal privacy to benefit its advertising customers. More broadly, the deeper harm to consumers from Google’s power in the market — and one that is at the heart of the increasing economic equality in our society — is the way profiling by Google of its users for advertisers allows the kind of price discrimination and predatory marketing we saw in the subprime housing bubble globally and in a range of other sectors.

In section V, the article proposes remedies that can address Google’s dominance in three major ways, separately and in combination: (1) reduce Google’s control of overall user data, (2) create a real market for user data by empowering users, and (3) impose public interest obligations on Google to restrain damage to consumer welfare.

In section VI, the article concludes by noting how issues raised by the article present some fundamental challenges to the Chicago School approach, including highlighting how the lock-in of monopoly in online markets calls for earlier intervention in technology markets and a much broader recognition of how expanding information asymmetry due to data mining undermines the hope that the market itself will curb monopoly abuses in the economy.

July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Refusal to Deal, Intellectual Property Rights, and Antitrust

Posted by D. Daniel Sokol

Yongmin Chen, University of Colorado has a paper on Refusal to Deal, Intellectual Property Rights, and Antitrust.

ABSTRACT: A vertically integrated firm, having acquired the intellectual property (IP) through innovation to become an input monopolist, can extract surplus by supplying efficient downstream competitors. That the monopolist would refuse to do so is puzzling and has led to numerous debates in antitrust. In this article, I clarify the economic logic of refusal to deal and identify conditions under which prohibiting such conduct would raise or lower consumer and social welfare. I further show how IP protection (as determined by IP laws) and restrictions on IP holders’ conduct (as determined by antitrust laws) may interact to affect innovation incentive and post-innovation market performance.

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Market Definition Alchemy

Posted by D. Daniel Sokol

Louis Kaplow (Harvard Law) has posted Market Definition Alchemy.

ABSTRACT: In a recent series of articles, I argue that the market definition/market share paradigm should be abandoned entirely. Among my central claims are that: (1) as a matter of economic logic, there exists no valid way to infer market power from the market shares in redefined (non-homogeneous-goods) markets — short of entirely reversing the market redefinition; and (2) choosing a best market requires already having in hand one’s best estimate of market power, rendering the exercise pointless — actually worse, since the market power inference from the chosen market is inferior to the estimate with which one began. Not surprisingly, criticisms advanced in this Symposium and elsewhere do not succeed in repealing the laws of logic, any more than medieval alchemists were able to overturn the laws of nature.

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

2014 Vault Law Firm Top Antitrust Practices

Posted by D. Daniel Sokol

Vault has released its annual ranking of the Top 100 Law Firms.  The rankings are based on prestige of the practices as voted on by associates (see the methodology here). The top Antitrust practices are:

2014 Rank2013 RankChangeCompany% VoteLocation
1 1 Cleary Gottlieb Steen & Hamilton LLP 36.82 New York, NY
2 2 Arnold & Porter LLP 35.00 Washington, DC
3 5 Skadden,  Arps, Slate, Meagher & Flom LLP and Affiliates 22.27 New York, NY
4 4 Jones Day 18.64 Washington, DC
5 7 Covington & Burling LLP 16.36 Washington, DC
6 3 Freshfields Bruckhaus Deringer LLP (US) 15.91 New York, NY
6 8 Latham & Watkins LLP 15.91 New York, NY
7 6 Gibson Dunn & Crutcher LLP 15.45 Los Angeles, CA
8 15 WilmerHale 9.55 Washington, DC
9 13 Axinn, Veltrop & Harkrider LLP 9.09 New York, NY
10 11 Boies, Schiller & Flexner LLP 8.64 New York, NY
11 NR Cravath, Swaine & Moore LLP 8.18 New York, NY
11 10 Kirkland & Ellis LLP 8.18 Chicago, IL
12 14 Simpson Thacher & Bartlett LLP 6.82 New York, NY
13 NR Linklaters LLP (US) 6.36 New York, NY
14 9 Hogan Lovells US LLP 5.91 Washington, DC
14 NR Wachtell, Lipton, Rosen & Katz 5.91 New York, NY
15 12 O'Melveny & Myers LLP 5.45 Los Angeles, CA
15 14 Wilson Sonsini Goodrich & Rosati 5.45 Palo Alto, CA

 

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Book Review: The Global Limits of Competition Law (Global Competition Law and Economics Series, Stanford University Press)

Posted by D. Daniel Sokol

Jarod M. Bona, DLA Piper has penned a book review of Book Review: The Global Limits of Competition Law (Global Competition Law and Economics Series, Stanford University Press).

ABSTRACT: This European Competition Law Journal article reviews "The Global Limits of Competition Law," edited by Ioannis Lianos and D. Daniel Sokol. It is the first book in the Stanford University Press Series, Global Competition Law and Economics, and is inspired by Judge Frank H. Easterbrook's seminal 1984 article, "The Limits of Antitrust." The book, a compilation of 15 separate articles, has a global cast of authors writing from varied perspectives and jurisdictions. That approach is a strength, and the book collectively celebrates both the limits and potential of competition law. I recommend it.

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Proactive vs Reactive Anti-Cartel Policy: The Role of Empirical Screens

Posted by D. Daniel Sokol

Rosa M. Abrantes-Metz Global Economics Group, LLC; New York University - Leonard N. Stern School of Business - Department of Economics has written on Proactive vs Reactive Anti-Cartel Policy: The Role of Empirical Screens.

ABSTRACT: Despite the successes of the last twenty years in cartel detection, there are many who believe that competition authorities have just started to scratch the surface. The focus of this paper is to make the case that proactive detection and deterrence policies need to be put in place worldwide, led by the use of empirical screens. Combining screens with more aggressive corporate compliance programs, whistleblower programs, general business community education and guidelines on collaborations which are likely to be anticompetitive, leniency programs will be supplemented and enhanced and anti-cartel policy will become more effective around the world. Screens can play a critical role in cartel detection and also in deterring cartel formation. Their recent significant successes such as the flagging of the LIBOR conspiracy and manipulation can attest to their power and potential as proactive anti-cartel detection tools around the world. There have always been those who are naturally skeptical that simple empirical analyses can be brought to bear in complex markets. Hopefully, the LIBOR scandal will settle the question of whether screens should be more vigorously applied and move the discussion to how that needs to happen.

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)