Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Monday, May 25, 2015

Platform Pricing under Dispersed Information

Bruno Jullien, Toulouse School of Economics and Alessandro Pavan, Northwestern University examine Platform Pricing under Dispersed Information.

ABSTRACT: We study monopoly and duopoly pricing in a two-sided market with dispersed information about users’ preferences. First, we show how the dispersion of information introduces idiosyncratic uncertainty about participation rates and how the latter shapes the elasticity of the demands and thereby the equilibrium prices. We then study informative advertising campaigns affecting the agents’ ability to estimate their own as well as other agents’ valuations, and product design affecting the distribution of valuations on the two sides of the market.

May 25, 2015 | Permalink | Comments (0) | TrackBack (0)

Consumer Search With Chain Stores

Sergey Kuniavsky, Munich Graduate School of Economics, writes on Consumer Search With Chain Stores.

ABSTRACT: The Stahl model is one of the most applied consumer search models, with many applications and an empirical background. The present paper explores an extension where sellers have asymmetries, which is mostly excluded by the literature. Sellers with heterogeneous numbers of stores are introduced, reflecting a typical market structure. As in the original Stahl model, a market consists of several sellers, and consumers, where some face a cost when sequentially searching. The paper shows that no symmetric Nash equilibrium exists in the extension. Additional results suggest that smallest sellers will be the ones offering the lowest prices, in line with several real world examples provided in the paper. However, profits remain in most cases fixed per store, making a larger firm more pro table, yet with lower quantity sold. The findings suggest that on some level price dispersion will still exist, together with some level of price stickiness, both observed in reality.

May 25, 2015 | Permalink | Comments (0) | TrackBack (0)

Sequential Markets, Market Power and Arbitrage

ITO Koichiro, RIETI and Mar REGUANT, Stanford GSB theorize about Sequential Markets, Market Power and Arbitrage.

ABSTRACT: We develop a theoretical framework to characterize strategic behavior in sequential markets under imperfect competition and limited arbitrage. Our theory predicts that these two elements can generate a systematic price premium. We test the model predictions using microdata from the Iberian electricity market. We show that the observed price differences and firm behavior are consistent with the model. Finally, we quantify the welfare effects of arbitrage using a structural model. In our setting, we show that full arbitrage is not necessarily welfare-enhancing in the presence of market power. It reduces consumer costs but decreases productive efficiency.

May 25, 2015 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 24, 2015

Today is the holiday of Shavuot and my kids have linked the giving of the Ten Commandments to Antitrust!

Today is Shavuot (Feast of Weeks or the Pentecost to use the ancient Greek term) - the Jewish holiday to commemorate when God gave the Ten Commandments (and Torah) to the Israelites in the Sinai. The girls asked why the Ten Commandments didn't include something specific on antitrust. I said that one of the Ten Commandments did and asked them to figure out which one it was. My eldest daughter explained that "Thou shall not steal" must include cartel behavior. I have done my job as a parent!

Below is the best ever movie clip on Shavuot, from the Mel Brooks classic History of the World Part I.

 

In terms of penalties for stealing, how about the penalty worse than increased jail terms or increased fines for companies or individuals from Raiders of the Lost Ark?

 

 

 

May 24, 2015 | Permalink | Comments (0) | TrackBack (0)

WalMart looking for in-house consumer protection specialist

WalMart Senior Director International Consumer Protection

Apply Now Apply NowApply Later

Position Type Salary

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Position Description Establishes strategic consumer protection compliance risk mitigation programs, data systems, and services for international business by leading the strategic development of cross-functional, multi-program efforts to implement cost effective strategies, programs, and sustainable services that mitigate risk and ensure compliance with foreign consumer protection laws and regulations; providing strategic direction in the implementation and execution of mitigation programs, data systems, and services; leading partnerships with international subject matter experts on consumer protection compliance; analyzing business objectives and consumer needs to identify cost effective use of third-party compliance service providers; and evaluating and measuring operational program processes in order to close compliance gaps and continually improve programs and services.

Minimum Qualifications Juris Doctor degree and 4 years experience in consumer protection, fair trading, regulatory, or corporate law environment.

Additional Preferred Qualifications 6 years experience in consumer protection, fair trading or related field. Experience with marketing and advertising laws and regulations.

Job Role Senior Director, International Consumer Protection

Location BENTONVILLE

Job ID: 469468BR

Apply Now Apply Now

May 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2015

Search and ripoff externalities

Mark Armstrong, Oxford examines Search and ripoff externalities.

ABSTRACT: This paper surveys models of markets in which only some consumers are "savvy". I discuss when the presence of savvy consumers improves the deals available to all consumers in the market (the case of search externalities), and when the non-savvy fund generous deals for all consumers (ripoff externalities) . I also discuss when the two groups of consumers have aligned or diver! gent views about market interventions. The analysis focusses on two kinds of models: (i) an indivisible product in a market with price dispersion, and (ii) products which involve add-on pricing.

May 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Competition Law in China - Friday 12 June 2015, 10:00 - 17:30

Competition Law in China

Friday 12 June 2015, 10:00 - 17:30

UCL Faculty of Laws

A one-day CPD course introducing Chinese anti-Monopoly Law, organised by UCL’s Centre for Law, Economics & Society

Taught by:

  • Thomas Cheng (Associate Professor, The University of Hong Kong)
  • David Stallibrass (Fingleton Associates)

About this course

This six-hour short course will give students an introduction to the Chinese Anti-monopoly Law.

The course will cover all the basic aspects of substantive competition law, including restrictive agreements, abuse of dominance, merger review, IP-competition interface, and an area of competition law unique to China known as abuse of administrative monopoly.

Students will be introduced to the leading cases with reference to both private litigation in the courts and administrative enforcement by state agencies.

The course will seek to highlight the similarities and difference between the Chinese Anti-Monopoly Law and competition law in other jurisdictions, such as the EU and the US. In addition, it will set the Chinese law within the broader context of Chinese political and economic development.

The course will include a discussion of the unique context in which competition law is enforced in China and a critical evaluation of the cause and effect of divergence between Chinese and international competition law norms.

What you will learn

  • Students will become familiar with the political economy and institutional environment that contextualises competition law enforcement in China.
  • Students will understand the basic aspects of all areas of substantive competition law, including restrictive agreements, abuse of dominance, merger review, IP-competition interface, and an area of competition law unique to China known as abuse of administrative monopoly.
  • Students will be introduced to leading cases with reference to both private litigation in the courts and administrative enforcement by state agencies.
  • Students will acquire a greater appreciation of the development of competition law in China in the context of the global debate about and movement toward convergence.

Course Prerequisites

None, though a good understanding of UK, EU, or US competition law is highly desirable.

Readings

A pack with english translations of core legislation, guidance, and decisions will be provided. Students will be expected to have made themselves familiar with it.

About the teachers

Thomas Cheng is an associate professor at the Faculty of Law of the University of Hong Kong. He received a Bachelor of Arts degree from Yale College, and a Juris Doctor degree from Harvard Law School, and a Bachelor of Civil Law degree in European and Comparative Law from the University of Oxford. His research focuses on competition law and policy issues, especially comparative competition law and competition law in developing countries.

Thomas is a member of the Hong Kong Competition Commission, Administrative Appeals Board, the Energy Advisory Committee, and the Committee on Slots Complaints. He has assisted the Hong Kong government in drafting the city’s first comprehensive competition law. He is also a member of the executive board of the Academic Society for Competition Law (ASCOLA) and is a member of the advisory board of the American Antitrust Institute.

David Stallibrass is a director at Fingleton Associates, a strategic regulatory advice boutique. He was the first economist to testify before both a regional high-court and the Supreme Peoples Court of China in an antitrust dispute in the high profile dispute between Tencent and Qihoo 360. Previously he worked in a number of roles at the UK Office of Fair Trading such as Director responsible for consumer protection and competition enforcement in the health and professional services industries; Assistant Director responsible for the OFT’s investigation into bank charges; Senior Economic Advisor on a wide range of investigations and mergers; and Head of Strategy.

David has degrees from Oxford University and the London School of Economics, is a senior research fellow at Koguan Law School in Shanghai, and has published a number of articles on antitrust and regulation. Currently David is a director at Fingleton Associates, a strategic regulatory advice boutique.

 
 

May 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Reconciling Cournot and Bertrand Outcomes: A Review

Kipyegon Benard Kirui, University of Der es Salam is Reconciling Cournot and Bertrand Outcomes: A Review.

ABSTRACT: This paper reconciles the Cournot and Bertrand Models of oligopolistic competition, highlighting its weaknesses and giving an opinion thereafter. The pertinent question in this paper is why Cournot (1838) ignored the price and Bertrand (1883) ignored the quantity? From the review, the main conclusion of this paper is that oligopoly competition is guided in the long run by production capacity competition, as advocated by Cournot, equilibrated through price competition in the short run, as advocated by Bertrand.

May 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Quantity Competition in the Presence of Strategic Consumers

ANDREI BAZHANOV, YURI LEVIN AND MIKHAIL NEDIAK (Queen's University) explore Quantity Competition in the Presence of Strategic Consumers.

ABSTRACT: Oligopolistic retailers decide on the initial inventories of an undifferentiated limited-lifetime product offered to strategic consumers. A manufacturer sets the first-period (full) price, while the second-period (clearance) price is determined by a market clearing process. The resulting symmetric pure-strategy equilibria may lead to no sales in the first or second period (Cournot outcome versus collusion), and sales in both periods with the clearance price above or at the salvage value. The equilibria possess a comprehensive set of monotonic properties. In particular, increasing strategic behavior can benefit retailers and hurt consumers, increasing competition may harm the local economy, and high levels of strategic behavior may insure against oversupply that leads to clearance sales at the salvage value. The welfare-optimal number of retailers can lead to the above-cost clearance price.

May 22, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2015

Northwestern Law Searle Center Eighth Annual Conference on Innovation Economics

Northwestern Law Searle Center Eighth Annual Conference on Innovation Economics

Thursday, June 18, 2014-Friday, June 19, 2014. Northwestern University School of Law. Wieboldt Hall, 340 E. Superior Street, Chicago, IL, 60611

The Searle Center on Law, Regulation, and Economic Growth presents the Eighth Annual Conference on Innovation Economics to be held at Northwestern University School of Law, Thursday, June 18, 2015-Friday, June 19, 2015. The conference will begin at approximately 10:00 a.m. on Thursday, June 18 and conclude at 3:30 p.m. on Friday, June 19. On Thursday evening there will be a cocktail reception, dinner, and a Keynote Address on Technology Standards and Standard Setting Organizations by Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation.

This conference is organized by Professor Daniel F. Spulber, Research Director of the Searle Center on Law, Regulation, and Economic Growth. Spulber is the Elinor Hobbs Distinguished Professor of International Business, Professor of Management Strategy, Kellogg School of Management, Professor of Law, Northwestern University School of Law (Courtesy). The goal of this conference is to provide a forum where economists and legal scholars can gather together with Northwestern's own distinguished faculty to present and discuss high-quality research relevant to intellectual property (IP) protection, innovation, and entrepreneurship.

This conference is an important component of the Searle Center's expanded focus on innovation economics. Conference participants will explore the connections between IP, innovation, and entrepreneurship through empirical and theoretical economic and legal analysis. This interdisciplinary conference will be composed of presentations by leading researchers in economics and law, and participating authors will have their papers formally discussed by leading thinkers in the field. In addition, the conference will draw audiences of academics in economics, law, and business, as well as legal and business practitioners, government officials, and public policy makers.

PROGRAM:

Thursday, June 18

9:00 a.m. Registration (1st Floor of Wieboldt Hall)

Breakfast (Wieboldt Hall #540)

10:20 Welcome

Introduction to the Conference
Daniel B. Rodriguez, Dean and Harold Washington Professor, Northwestern University School of Law

Matthew L. Spitzer, Howard and Elizabeth Chapman Professor and Director, Searle Center on Law, Regulation, and Economic Growth at Northwestern University School of Law
Daniel F. Spulber, Research Director, Searle Center on Law, Regulation, and Economic Growth, and Kellogg School of Management, Northwestern University

10:30-12:00 Session One - Markets and the Value of Innovation

Session Chair: Pere Arque-Castells, Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law

How Inefficient are Markets for Technology?
Manuel Hermosilla,* Johns Hopkins University, Carey Business School
Yufei Wu, MIT, Economics Department
Discussant: Vincenzo Palermo, Munk School of Global Affairs, University of Toronto

The Strategic Value of Trademarks
Alan C. Marco, U.S. Patent and Trademark Office
Amanda F. Myers,* U.S. Patent and Trademark Office
Discussant: Discussant: Daniel K.N. Johnson, Colorado College, Economics and Business Department

Pharmaceutical Profits and the Social Value of Innovation
David Dranove, Kellogg School of Management, Northwestern University
Craig Garthwaite, Kellogg School of Management, Northwestern University
Manuel Hermosilla, Johns Hopkins University, Carey Business School
Discussant: Melissa F. Wasserman, University of Illinois College of Law

12:00 Lunch (Wieboldt Hall #540)

1:00-3:00 Session Two-Technology Standards and Innovative Cooperation

Session Chair: Kirti Gupta, Qualcomm Inc.

The Effect of Patent Pools on Patenting and Innovation; Evidence from Contemporary Technology Standards
Justus Baron,* Searle Center on Law, Regulation, and Economic Growth at Northwestern University School of Law
Tim Pohlmann, Mines ParisTech and Technische Universitat Berlin
Discussant: Anne Layne-Farrar, Charles River Associates

How Do Open Standards Influence Inventive Activity? Evidence from the IETF
Wen Wen, McCombs School of Business, The University of Texas at Austin
Chris Forman,* Scheller College of Business, Georgia Institute of Technology
Sirkka Jarvenpaa, McCombs School of Business, The University of Texas at Austin
Discussant: Jeff Prince, Kelley School of Business, Indiana University

The Impact of R&D Cooperations on Drug Variety Offered on the Market: Evidence from the Pharmaceutical Industry
Tannista Banerjee,* Auburn University, Department of Economics
Ralph B. Siebert, Purdue University, Department of Economics, Krannert School of Management
Discussant: Daniel K.N. Johnson, Colorado College, Economics and Business Department

Strategic Collaboration in Dynamic R&D Competitions
Andrea Blasco, Institute for Quantitative Social Science, Harvard University
Discussant: Joaquin Poblete, Pontificia Universidad Católica de Chile

3:00-3:30 Break (Wieboldt Hall #150)

3:30-5:30 Session Three-Patent Applications and Examination

Session Chair: Stuart Graham, Scheller College of Business, Georgia Institute of Technology

Patent litigation and USPTO trials: Implications for Patent Examination Quality
Alan C. Marco, U.S. Patent and Trademark Office
Richard D. Miller,* U.S. Patent and Trademark Office
Discussant: Stefan Juranek, NHH Norwegian School of Economics

Is the Time Allocated to Review Patent Applications Inducing Examiners to Grant Invalid: Evidence from Micro-Level Application Data
Michael Frakes,* Northwestern University School of Law
Melissa Wasserman, University of Illinois College of Law
Discussant: Sabrina Di Addario, Bank of Italy, Roma Branch, Economic Research Unit

Ex ante Information Provision and Innovation: Natural Experiment of Herbal Patent Prior Art Adoption at the USPTO and EPO
Prithwiraj (Raj) Choudhury,* Harvard Business School
Tarun Khanna, Harvard Business School
Discussant: Pere Arque-Castells, Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law

A Dynamic Bottleneck Model of Patent Congestion
Alexandra K. Zaby*, University of Tuebingen, School of Business and Economics
Gaetan de Rassenfosse, Ecole polytechnique f'ed'erale de Lausanne, College of Management
Discussant: Francisco Ruiz-Aliseda, Ecole Polytechnique, Department of Economics

5:30-6:30 Cocktail Reception

6:30 Dinner (Wieboldt Hall #540)

7:30 Keynote Address

Technology Standards and Standard Setting Organizations
Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation

Friday, June 19

8:00 a.m. Breakfast (Wieboldt Hall #540)

9:00-11:00 Session Four-Financing and Innovation

Session Chair: Ivan Png, NUS Business School, National University of Singapore

Creditor Rights and Innovation: Evidence from Patent Collateral
William Mann, Anderson School of Management, UCLA
Discussant: Pere Arque-Castells, Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law

Independent Boards and Innovation
Benjamin Balsmeier, University of Paderborn, Dept. of Management, and University of Munster, Institute for Organisational Economics
Lee Fleming, Fung Institute for Engineering Leadership, University of California, Berkeley
Gustavo Manso,* Haas School of Business, University of California, Berkeley
Discussant: Brian Wolfe, School of Management, State University of New York - Buffalo

Corporate Income Taxes, Financial Constraints and Innovation
Julian Atanassov,* Department of Finance, Lundquist College of Business, University of Oregon
Xiaoding Liu, Department of Finance, Lundquist College of Business, University of Oregon
Discussant: Brian Wolfe, School of Management, State University of New York - Buffalo

Venture Capital Influence on Innovation: A Fund-Level Perspective
Supradeep Dutta, SUNY Buffalo - School of Management
Discussant: Rajeev K. Goel, Illinois State University

11:00-11:15 Break (Wieboldt Hall #150)

11:15-12:45 Session Five- Incentives to Innovate

Session Chair: Julie Carlson, Federal Trade Commission, Bureau of Economics

New Ideas in Invention

Mikko Packalen,* University of Waterloo, Department of Economics

Jay Bhattacharya, Stanford University

Discussant: Christian Helmers, Santa Clara University, Leavey School of Business, Economics Department

Individual versus Institutional Ownership of University-Discovered Inventions
Dirk Czarnitzki,* KU Leuven, Dept. of Managerial Economics, Strategy and Innovation and Centre for European Economic Research (ZEW)
Thorsten Doherr, Centre for European Economic Research (ZEW) and University of Luxembourg
Katrin Hussinger, University of Luxembourg, Centre for European Economic Research (ZEW) and KU Leuven, Dept. of Managerial Economics, Strategy and Innovation
Paula Schliessler, KU Leuven, Dept. of Managerial Economics, Strategy and Innovation and Centre for European Economic Research (ZEW)
Andrew A. Toole, Economic Research Service, US Dept. of Agriculture and Centre for European Economic Research (ZEW)
Discussant: Christian Helmers, Santa Clara University, Leavey School of Business, Economics Department

The Value of Entrepreneurial Failures: Task Allocation and Career Concerns
Andrea Canidio,* Department of Economics, Central European University
Patrick LeGros, Universite libre de Bruxelles (ECARES)
Discussant: Andrea Mantovani, Department of Economics, University of Bologna

12:45-1:30 Lunch (Wieboldt Hall #540)

1:30-3:30 Session Six-Effects of Patents on Innovation

Session Chair: Justus Baron, Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law

Causal Effects of Patent Lawsuits on M&A Activity
Tolga Caskurlu, University of Amsterdam Business School
Discussant: Darren Filson, Robert Day School of Economics and Finance, Claremont McKenna College

On the Consequences of Patent Grant Delays for Venture-Backed Firms
Patrick Gaule, CERGE-EI
Discussant: Beatrice Dumont, University Paris XIII Sorbonne Paris Cite & College of Europe

Strategic Secrecy of Pending Patents
Bernhard Ganglmair,* The University of Texas at Dallas, Naveen Jindal School of Management
Jong-Min Oh, The University of Texas at Dallas, Naveen Jindal School of Management
Discussant: Gaston Llanes, School of Business Administration of the Catholic University of Chile (UC)

Intellectual Property Protection and Financial Markets: Patenting vs. Secrecy
Nishant Dass, Scheller College of Business, Georgia Institute of Technology
Vikram Nanday, Rutgers Business School
Steven Chong Xiao, Rutgers Business School
Discussant: Beatrice Dumont, University Paris XIII Sorbonne Paris Cite & College of Europe

3:30 Adjourn

Presenters are indicated with an *

REGISTRATION: There is no registration fee for this conference, but attendance is by invitation only. To request an invitation, please send a message with your name, affiliation, and full contact information to the Searle Center at searlecenter@law.northwestern.edu

ABOUT THE SEARLE CENTER: The Searle Center on Law, Regulation, and Economic Growth at Northwestern University School of Law was established in 2006 to research how government regulation and interpretation of laws and regulations by the courts affect business and economic growth. Information on the Searle Center's activities may be found at: http://www.law.northwestern.edu/searlecenter

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

The Antitrust Division’s Devaluation of Standard-Essential Patents

Greg Sidak, Criterion Economics and Tilburg Law has written on The Antitrust Division’s Devaluation of Standard-Essential Patents.

ABSTRACT: The Institute of Electrical and Electronics Engineers (IEEE) is a standard-setting organization (SSO) whose standards incorporate technologies owned by many different holders of standard-essential patents (SEPs). The IEEE’s patent policy specifies the conditions under which an SEP holder voluntarily commits to license its SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms. In February 2015, the IEEE became the first SSO to regulate the calculation of FRAND royalties. The IEEE made that transformative change with the encouragement and blessing of the Antitrust Division of the U.S. Department of Justice. The amendments purport to mitigate the risk of patent holdup and royalty stacking—theoretically and empirically disputed conjectures, which postulate that SEP holders routinely extract supracompetitive royalties from the implementers of a standard. In fact, the amendments broaden the binding provisions of the IEEE’s FRAND commitment, diminish the SEP holder’s ability to enforce its patent rights, and unambiguously lower the royalties that the SEP holder may charge a licensee. In its business review letter, the Antitrust Division commended the bylaw amendments for addressing the risk of patent holdup and royalty stacking without any analysis of whether those harms actually occur in the implementation of the IEEE’s standards (let alone occur so often as to raise a legitimate policy concern). At the same time, the Antitrust Division ignored the obvious, countervailing concern that the bylaw amendments facilitate collusion among implementers to suppress the royalties they pay for SEPs. The Antitrust Division exists not to orchestrate or cheerlead the coordinated action of buyers in a market to suppress prices. It exists to ensure that firms obey the antitrust laws. That duty required the Division to assess, with skepticism and scrupulous impartiality, the competitive implications of the coordinated action of a subset of members of the IEEE that would benefit from the SSO’s adoption of bylaw amendments having the purpose and effect of suppressing the FRAND royalties that this subset of members would pay to license standard-essential patents. The Division failed to discharge that duty.

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

Recognizing the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies

Thomas A. Lambert, University of Missouri - School of Law and Alden F. Abbott, Heritage are Recognizing the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies.

  As Judge Frank Easterbrook famously explained three decades ago, antitrust is an inherently limited body of law. In crafting and enforcing liability rules to combat market power and encourage competition, courts and regulators may err in two directions: they may wrongly forbid output-enhancing behavior or wrongly fail to condemn output-reducing conduct. The social losses from false convictions and false acquittals, taken together, comprise antitrust’s “error costs.” While it may be possible to reduce error costs by making liability rules more nuanced, added complexity raises the “decision costs” incurred by business planners (ex ante) and adjudicators (ex post). In light of all these costs, Easterbrook advocated an approach that would optimize antitrust’s effectiveness: interpret and enforce the antitrust laws so as to minimize the sum of error and decision costs.

This Article assesses the degree to which the U.S. Supreme Court (under the leadership of Chief Justice John Roberts) and the federal enforcement agencies (the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice) have embraced the optimizing, “limits of antitrust” approach Judge Easterbrook advocated. In its decisions addressing vertical restraints, exclusionary conduct, and antitrust enforcement, the Roberts Court has consistently recognized antitrust’s limits and has adopted rules consistent with an optimizing approach. The enforcement agencies, by contrast, have eschewed a limits of antitrust approach, at least with respect to exclusionary conduct, vertical restraints, intellectual property rights, and merger review.

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

What Does State Law Say About Drug Patent Settlements? The California Supreme Court's Cipro Case

Michael A. Carrier, Rutgers University School of Law - Camden asks What Does State Law Say About Drug Patent Settlements? The California Supreme Court's Cipro Case.

ABSTRACT: In Federal Trade Commission v. Actavis, the U.S. Supreme Court held that a brand-name drug company’s payment to a generic firm to settle patent litigation and delay entering the market could violate the antitrust laws. After the decision, the federal courts and litigants have wrestled with numerous issues. But one issue that has not received sufficient attention is the role that Actavis will play in state courts’ consideration of the issue.

The California Supreme Court is poised to issue a ruling in In re Cipro Cases I & II (Cipro). In a decision that preceded Actavis, the California Court of Appeal had applied a deferential analysis that relied on the “scope of the patent” in upholding a settlement by which the brand paid the generic $398 million to delay its entry until six months before the end of the patent term. The California Supreme Court is considering how such “reverse-payment” settlements should be analyzed. The California Supreme Court’s decision in Cipro will be critical. The decision, obviously, will provide a historic ruling on state law. The Court’s application of a level of scrutiny (either per se illegality or (more likely) a structured Rule of Reason) above Actavis would offer a strong foundation on which future courts could build in developing a justifiable framework for these agreements. But even beyond the effect on state law, the Cipro decision promises to have spillover effects on federal law. District courts confronted with Actavis’s instruction to flesh out the framework have not been clear as to how precisely they should decide questions such as the role of the patent merits, what constitutes payment, how to structure their analysis, and whether there are thresholds plaintiffs must clear even before reaching the Rule of Reason. The Cipro decision can shed light on these determinations. On behalf of 49 professors, I submitted a brief in the case supporting the plaintiff petitioners. This article summarizes the arguments in the brief. It first shows how six pillars of support underlying the California Court of Appeal’s decision were undercut by Actavis. Second, it shows how, after Actavis, California antitrust law must apply a more robust analysis than that articulated in the pre-Actavis California Court of Appeal decision. Third, it shows how federal law does not preempt a state cause of action challenging reverse-payment settlements.

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

What is better at 5:50am than allowing your kids to wake your wife when they have just woken up on their own and are charging loudly to your bedroom?

What is better at 5:50am than allowing your kids to wake your wife when they have just woken up on their own and are charging loudly to your bedroom?  This was not the hypo on my corporate compliance exam but the question that I faced this morning.

You can ask them to: 1. read quietly (ha!), 2. stop fighting (double ha!), or 3. have them watch the latest Taylor Swift video with the promise that if they do, they will get dressed, eat breakfast and get ready for school so that my wife can sleep until 6:30am.

The new Taylor Swift video premiered earlier this week.  In it, she and her friends pretend to be super cool assassins.  For girls in a STEM elementary school, the futuristic science part of the video was more interesting than the martial arts.

 

 

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

America’s top mohels; Circumspection on circumcision - a different kind of SSNIP test

I was chatting with a friend yesterday about circumcision (a family member is about to be born).  I found an interesting story on America’s top mohels; Circumspection on circumcision.  I also discovered that as a young teen, Seth Rogan wrote circumcision jokes for a mohel.  See the interview with Seth Rogan below.

 

 

May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

New CPI Antitrust Chronicle Issue: RPM and MFN Clauses in a Brave New World

How are RPM and MFN clauses affected in the brave new world of eCommerce? We start in Europe looking at the diversity of national approaches using the example of online booking, and then dive more deeply into a French case. We show that diversity also is a problem in the U.S., while India adds the complexity of foreign investments regulation. And we present two intellectual arguments with concrete implications for RPM cases, first arguing that pricing needs to be more than just an indication of competition concern and then evaluating using surrogates vs. rule-of-reason in antitrust inquiries.

RPM and MFN Clauses in a Brave New World
  1. Edurne Navarro Varona, Aarón Hernández Canales, May 15, 2015

    Online Hotel Booking

      The outcome of ongoing national procedures concerning online hotel booking will be extremely important for the development of a European common digital market. Edurne Navarro Varona & Aarón Hernández Canales (Uría Menéndez)

      • Olivier Billard, Pierre Honore, May 15, 2015

        Most Favored Nation Clauses: A French Perspective on the Booking.com Case

          In the present case, while the competition concerns are explained in detail, many questions spring to mind that are not precisely addressed by the decision. Olivier Billard & Pierre Honoré (Bredin Prat)

          • Richard Steuer, May 15, 2015

            Online Price Restraints Under U.S. Antitrust Law

              Restraints on prices in electronic commerce in the United States are just like price restraints in the bricks-and-mortar world—except when they’re not. Richard M. Steuer (Mayer Brown LLP)

            • Samir Gandhi, Rahul Rai, Hemangini Dadwal, May 15, 2015

              Most Favored Customer Clauses in Online Retail: Best Price or Bad Deal?

                However, for online portals, it is possible that to work around the onerous conditions attached to FDI in multi-brand retail and yet benefit from foreign investment. Samir Gandhi, Rahul Rai, & Hemangini Dadwal (AZB & Partners)

                • Roman Inderst, Frank Maier-Rigaud, May 15, 2015

                  Vertical Restraints and the Forgotten Function of Prices in Brand Management

                    Competition law risks overshooting the mark if no account is taken of both the fundamental use of price as a signal of quality and of the important role prices play for manufacturers in their overall “marketing mix” decisions. Roman Inderst (Goethe Univ.) & Frank Maier-Rigaud (NERA & IESEG)

                    • Kevin Caves, Hal Singer, May 15, 2015

                      On the Utility of Surrogates for Rule of Reason Cases

                        Should we prefer surrogates for antitrust violations that permit errors, or should we instead rely on a more nebulous rule-of-reason inquiry? Kevin Caves & Hal Singer (Economists Incorporated)

                      May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

                      The impact of maximum markup regulation on prices

                      Christos Genakos, Athens University of Economics and Business, Pantelis Koutroumpis, Imperial College Business School, and Mario Pagliero, University of Turin analyze The impact of maximum markup regulation on prices.

                      ABSTRACT: We study the repeal of a regulation that imposed maximum wholesale and retail markups for all but five fresh fruits and vegetables. We compare the prices of products affected by regulation before and after the policy change and use the unregulated products as a control group. We find that abolishing regulation led to a significant decrease in both retail and wholesale prices. However, markup regulation affected wholesalers directly and retailers only indirectly. The results are consistent with markup ceilings providing a focal point for collusion among wholesalers.

                      May 21, 2015 | Permalink | Comments (0) | TrackBack (0)

                      Wednesday, May 20, 2015

                      Free event - Latest trends in product hopping, REMS, biologics and reverse payments- June 9, 3:00 p.m. – 4:30 p.m. ET (and free lunch 12:00 p.m. –1:30 p.m. PT)

                      Free Professional Enhancement Program – Register Today!

                      Sponsored by the ABA Section of Intellectual Property Law

                      Antitrust Interface with IP Rights Committee

                      Learn about the latest trends in product hopping, REMS, biologics and reverse payments

                      Date/Time: June 9, 3:00 p.m. – 4:30 p.m. ET

                      (2:00 p.m. – 3:30 p.m. CT; 1:00 p.m. – 2:30 p.m. MT; 12:00 p.m. –1:30 p.m. PT)

                       

                      Location:  Two Embarcadero Center, 20th Floor

                                       San Francisco, CA 94111-392

                       

                      Program Moderator:

                      Maria Salgado, Cornerstone Research

                       

                      Program Panelists:

                      Stuart Senator, Munger, Tolles & Olson

                      Seth Silber, Wilson Sonsini, Goodrich & Rosati

                      Sally Woodhouse, Cornerstone Research

                       

                      To register for the event live or via phone, please contact Rabia Ali at RAli@cornerstone.com 415-229-8115

                      *Lunch will be provided for in-person attendees. *

                      May 20, 2015 | Permalink | Comments (0) | TrackBack (0)

                      Chambers USA 2015 Antitrust Rankings Are Out!

                      Chambers released their USA rankings.  It is always fun to check the antitrust rankings.  My firm, Wilson Sonsini, has a number of ranked people:

                      DC:

                      Susan Creighton - Band 1
                      Scott Sher - Band 2
                      Mark Rosman - Band 5
                      Franklin Rubinstein - Up and Coming

                      NY:

                      Jon Jacobson - Band 1
                      Charles Biggio - Band 5
                      Chul Pak - Band 5

                      Congrats to everyone in the US who made the rankings this year.
                       

                       

                       

                      May 20, 2015 | Permalink | Comments (0) | TrackBack (0)

                      Corporate Compliance, Antitrust and Penalty Mitigation in FOREX - A Shift in DOJ Antitrust's Approach

                      Today, the Department of Justice Antitrust Division announced five guilty pleas for banks (Citicorp, JPMorgan Chase, Barclays, Royal Bank of Scotland) in the Forex investigation.  The most important part of the news related to today's event is that it is the first time that the Antitrust Division has offered credit for a compliance program (for Barclay's).  This is a shift from previous the Antitrust Division position.  In the past I have chastized the Antitrust Division for not creating appropriate incentives for effective compliance - see here and hereMark Rosman (Wilson Sonsini) and I are already working on a paper on what today's development means.

                      May 20, 2015 | Permalink | Comments (0) | TrackBack (0)