Thursday, November 19, 2015
Giacomo Calzolari and Vincenzo Denicolo have an interesting paper on Exclusive Contracts and Market Dominance.
ABSTRACT: We propose a new theory of exclusive dealing. The theory is based on the assumption that a dominant firm has a competitive advantage over its rivals, and that the buyers' willingness to pay for the product is private information. In this setting, the dominant firm can impose contractual restrictions on buyers without necessarily compensating them, implying that exclusive dealing contracts can be both profitable and anticompetitive. We discuss the general implications of the theory for competition policy and illustrate by examples its applicability to antitrust cases.
Wednesday, November 18, 2015
Babette Boliek, Pepperdine University School of Law describes The Potential Reach of O'Bannon.
ABSTRACT: In August 2014 a Stanford University graduate made a remarkable play in college athletics. Although fans may not know her by name, this northern California woman may have profoundly and forever changed the relationship between student-athletes and their respective schools. As the deciding judge in the antitrust-based lawsuit of O’Bannon v. NCAA Judge Claudia Wilken bucked long standing legal precedent to set aside NCAA rules that limited student athlete scholarships and prohibited student-athletes from receiving compensation for the use of their names, images and likenesses. The Ninth Circuit, which decided the O’Bannon appeal, declared the case “momentous.” The narrow issue decided by Judge Wilken was that the NCAA rules restrain price competition in violation of Section 1 of the Sherman Act. But as the Ninth Circuit noted, as great may be the import of the final ruling the mere fact that the court found the NCAA restrictions subject to antitrust review was remarkable. Indeed, for some time courts have struggled with Supreme Court precedent to decide if (i) all NCAA restraints are commercial but some restraints are carved out as almost per se procompetitive or (ii) some NCAA restraints are carved out as noncommercial and are entirely outside of antitrust review. O’Bannon adds to the current Circuit split by determining that antitrust scrutiny is appropriate and can be applied with vigor. Given the importance, and the Ninth Circuit’s affirmation, of the district court’s analyses on the central legal issues of O’Bannon, the question presented in this essay is: what is the potential reach of O’Bannon in the student athlete labor market and to the applicability of antitrust law?
Herb Hovenkamp, Iowa, is Re-Imagining Antitrust: The Revisionist Work of Richard S. Markovits.
ABSTRACT: This review discusses Richard Markovits’ two volume book "Economics and the Interpretation" and "Application of U.S. and E.U. Antitrust Law" (2014), focusing mainly on Markovits’ approaches to antitrust tests of illegality, pricing offenses, market definition and the assessment of market power, and his important work anticipating unilateral effects theory in merger cases. Markovits argues forcefully that the Sherman and Clayton Acts were intended to employ different tests of illegality. As a result, even when they cover the same practices, such as mergers, exclusive dealing, or tying, they address them under different tests. He then shows how he would analyze various practices under the two statutes, discussing virtually every practice that has been the subject of significant antitrust litigation. He also discusses, more briefly, the competition law of the European Union.
Among Markovits’ most influential contributions to antitrust policy is his critique of traditional antitrust approaches to market power and market definition. His work was highly influential in the development of modern "unilateral effects" theories of merger analysis. A provocative question that Markovits’ work invites is whether the unilateral effects approach can or should be extended beyond merger cases. The Supreme Court has insisted that relevant markets be defined in Sherman Act §2 cases, as well as for §1 cases under the rule of reason. No lower court today would be likely to find traditional market definition unnecessary in those areas without new Supreme Court guidance. The same thing is very likely true for tying or exclusive dealing cases requiring assessment of market foreclosure.
One fact seems inescapable: if the logic of unilateral effects analysis applies to mergers, then it should apply equally to other antitrust practices that serve to eliminate or blunt competition between reasonably adjacent firms in differentiated markets. For example, a firm that predates its closest rival into bankruptcy may be able to induce a unilateral price increase, just as much as a merger between these same two firms. Indeed, the industrial organization literature often treats merger and predation as alternative ways of eliminating a rival. The same thing could also be true of tying or exclusive dealing intended to deny a relatively close rival access to a market, as well as loyalty discounts. All of these could be used in differentiated markets to exclude reasonably proximate rivals, with the result that prices increase.
Ironically, giving legal recognition to the problem of eliminating competition in unilateral effects mergers, while denying recognition in nonmerger cases arising in the same market settings, gives firms the incentive to employ the pricing or contractual exclusion strategies rather than merger. One perverse result may be that the elimination of competition will occur, but without the offsetting efficiencies that at least some mergers can provide.
Barak Orbach, University of Arizona has written about Antitrust Stare Decisis.
ABSTRACT: The concept of stare decisis, the idea that the Supreme Court follows its own precedents, presumes that settled law offers advantages that may outweigh the costs of its imprecision. Explaining its antitrust jurisprudence, the Supreme Court occasionally argues that stare decisis has “less-than-usual force in cases involving the Sherman Act.” This narrative, however, doesn’t describe correctly the law. The concept of stare decisis has produced specific applications in antitrust law that follow five general patterns: the traditional, post-traditional, methodological, anomalous, and neglected antitrust stare decisis. (1) The “traditional pattern” consists of the old per se illegality rules, which the Court was reluctant to overturn on stare decisis grounds. (2) The “post-traditional pattern” emerged in the late 1970s as a judicial policy that intended to update antitrust law by narrowing and even overruling precedents. The Court sometimes presents this pattern as its general antitrust stare decisis jurisprudence. (3) The “methodological pattern” is the practice of relying on judicial statements to structure antitrust analysis. (4) The “anomalous pattern” is comprised of antitrust doctrines, such as the baseball exemption, that were created because of peculiar beliefs and have survived because of stare decisis even though antitrust lawyers and economists generally consider them misguided. (5) The “neglected pattern” refers to the underdevelopment of antitrust stare decisis resulting from the Court’s limited interest in antitrust law. This paper explains the patterns of antitrust stare decisis and the relationships among them.
Peter Grajzl, Washington and Lee University - Department of Economics; CESifo, and Andrzej Baniak, Central European University (CEU) - Department of Economics, examine Private Enforcement, Corruption, and Antitrust Design.
ABSTRACT: Recent adoption of competition laws across the globe has highlighted the importance of institutional considerations for antitrust effectiveness and the need for comparative institutional analyses of antitrust that extend beyond matters of substantive law. Contributing to the resulting nascent research agenda, we examine how the rationale for enabling versus precluding private antitrust enforcement as one salient choice in antitrust design depends on whether antitrust enforcement is corruption-free or plagued by corruption. Contingent on the nature of adjudicatory bias, bribery either discourages private antitrust lawsuits or incentivizes firms to engage in frivolous litigation. Corruption expectedly reduces the effectiveness of antitrust enforcement at deterring antitrust violations. Yet private antitrust enforcement as a complement to public enforcement can be social welfare-enhancing even in the presence of corruption. Under some circumstances, corruption actually increases the relative social desirability of private antitrust enforcement. Our analysis highlights that the appropriate design of antitrust institutions is context-specific.
Holiday cheer from someone who just bought a seasonal Keurig variety yesterday at Trader Joe's (and I love Trader Joe's as a concept and for the combination of price and quality) - Pumpkin Spice: Coffee is good for your health and can save your life. Every antitrust lawyer and economist should rejoice.
Association of Coffee Consumption with Total and Cause-Specific Mortality in Three Large Prospective Cohorts
- Ming Ding1;
- Ambika Satija1;
- Shilpa N. Bhupathiraju1;
- Yang Hu1;
- Qi Sun2;
- Jiali Han3;
- Esther Lopez-Garcia4;
- Walter Willett2;
- Rob M. van Dam5;
- Frank B. Hu2*
- Harvard School of Public Health, Boston, MA
- Harvard School of Public Health, Boston, MA & Brigham and Women's Hospital and Harvard Medical School, Boston, MA
- Indiana University, Indianapolis, IN
- Universidad Autónoma de Madrid/IdiPAZ, CIBER of Epidemiology and Public Health (CIBERESP), Madrid, Spain
- Harvard School of Public Health, Boston, MA & National University of Singapore and National University Health System, Singapore
Background—The association between consumption of caffeinated and decaffeinated coffee and risk of mortality remains inconclusive.
Methods and Results—We examined the associations of consumption of total, caffeinated, and decaffeinated coffee with risk of subsequent total and cause-specific mortality among 74,890 women in the Nurses' Health Study (NHS), 93,054 women in the NHS 2, and 40,557 men in the Health Professionals Follow-up Study. Coffee consumption was assessed at baseline using a semi-quantitative food frequency questionnaire. During 4,690,072 person-years of follow-up, 19,524 women and 12,432 men died. Consumption of total, caffeinated, and decaffeinated coffee were non-linearly associated with mortality. Compared to non-drinkers, coffee consumption one to five cups/d was associated with lower risk of mortality, while coffee consumption more than five cups/d was not associated with risk of mortality. However, when restricting to never smokers, compared to non-drinkers, the HRs of mortality were 0.94 (0.89 to 0.99) for ≤ 1 cup/d, 0.92 (0.87 to 0.97) for 1.1-3 cups/d, 0.85 (0.79 to 0.92) for 3.1-5 cups/d, and 0.88 (0.78 to 0.99) for > 5 cups/d (p for non-linearity = 0.32; p for trend < 0.001). Significant inverse associations were observed for caffeinated (p for trend < 0.001) and decaffeinated coffee (p for trend = 0.022). Significant inverse associations were observed between coffee consumption and deaths due to cardiovascular disease, neurological diseases, and suicide. No significant association between coffee consumption and total cancer mortality was found.
Conclusions—Higher consumption of total coffee, caffeinated coffee, and decaffeinated coffee was associated with lower risk of total mortality.
Tuesday, November 17, 2015
Their comments are in quotes.
- Chanukah (Shake It Off) - "This is almost as cool as Taylor Swift"
Sohvi Leih, University of California, Berkeley - Haas School of Business and David Teece, University of California, Berkeley - Business & Public Policy Group identify Market Entry Strategies.
ABSTRACT: A firm’s business strategies regarding the choice of a market, market entry timing, and entry mode can significantly influence the firm’s performance. A number of factors such as control, experience, and cultural distance can influence the formulation of a firm’s market entry strategy – e.g. whether to choose between licensing and franchising or between joint ventures or wholly owned subsidiaries. Scholars have analyzed the choice of a firm’s market entry strategy from various theoretical perspectives, such as transaction cost economics, the resource-based view, the capabilities perspective and the eclectic framework.
SECTORAL REGULATION AND COMPETITION POLICY: THE U.K.'S CONCURRENCY ARRANGEMENTS—AN ECONOMIC PERSPECTIVE
Jon Stern, City University has written on SECTORAL REGULATION AND COMPETITION POLICY: THE U.K.'S CONCURRENCY ARRANGEMENTS—AN ECONOMIC PERSPECTIVE.
ABSTRACT: This article discusses the U.K.'s concurrency arrangements under which sector regulators can apply aspects of competition law to their industries. It is frequently claimed that concurrency is a unique aspect of U.K. competition policy. However, this article argues that it arose during the 1980s as one aspect of an almost uniquely procompetitive regulatory framework for privatized telecommunications and other U.K. infrastructure industries. The article discusses the origins of these formal concurrency arrangements and their use in the U.K. since the 1980s. It also compares the U.K. with other EU and OECD countries over the role of ex post competition policy relative to ex ante regulation and the interactions between sector regulators and competition authorities. It emphasizes the role of “informal” concurrency as well as “formal” concurrency in the U.K. and other countries. The article concludes with a discussion of the likely prospects for the U.K. under the enhanced concurrency regime established in 2013 and makes some recommendations for the future. Developing and implementing effective methods to evaluate the net welfare benefits of the enhanced concurrency regime will be crucial both in their own right and in establishing a robust deterrence strategy against anticompetitive behavior in industries with sector regulators.
Robert M. Feinberg, American University and Minsoo Park, Sungkyunkwan University examine DETERRENCE EFFECTS OF KOREAN ANTITRUST ENFORCEMENT ON PRODUCER PRICES AND PROFIT MARGINS.
ABSTRACT: Antitrust enforcement is well established in Korea, yet there has been little study of its effectiveness. John Connor, however, noted that “the Korean [Federal Trade Commission] has the best record of anti-cartel enforcement in Asia.”1 In this article, we examine several datasets to investigate whether antitrust enforcement in Korea, especially anti-cartel activity, has had a price-limiting impact over the past couple of decades. We compare the behavior of firms and industries that have been subject to antitrust investigation to those that have not. We examine the response of the firms and industries under antitrust investigation following the cases. The results presented here are consistent across two very different data sets of indicators for the Korean economy. The results suggest that long-term deterrence is unlikely to be observed from antitrust investigations, although the impact on short-term price and profit margin may be expected. However, the stronger effects observed suggest that firms in Korea have begun to pay more attention to the actions of the Korean Federal Trade Commission (KFTC) over the past decade since the more rigorous enforcement of antitrust.
Ariel Ezrachi explores The Competitive Effects of Parity Clauses on Online Commerce.
ABSTRACT: Parity clauses, also known as most-favoured-nation clauses, are designed to address the hold-up problem in vertical relations and facilitate investment and efficiencies by the downstream platform. However, when designed too broadly, they have the potential of undermining the dynamics of competition and reducing consumer welfare. This paper explores the welfare effects of parity clauses and reflects on the level of intervention they may call for. It reviews the possible theories of harm associated with parity clauses and draws a dividing line between the effects generated by narrow and wide parity.
Monday, November 16, 2015
Mike Carrier, Rutgers-Camden discusses How Not to Apply the Rule of Reason: The O’Bannon Case.
ABSTRACT: The case of NCAA v. O’Bannon has received significant attention. Straddling the intersection of antitrust, intellectual property, and sports law, the case presents engaging and complex issues. Much of the complexity, however, is unnecessary. For it stems from a Ninth Circuit ruling that misconstrued antitrust law. In particular, the court applied a version of the Rule of Reason that short-circuited the analysis and insufficiently deferred to a district court judge who presided over an exhaustive trial on amateurism.
Based on my review of more than 700 Rule-of-Reason cases in the modern era, the first section of this essay highlights courts’ analyses based on “less restrictive alternatives” and a four-stage burden-shifting framework. Second, it highlights three errors with the Ninth Circuit’s application of the Rule of Reason: inappropriately holding that the plaintiff’s failure to prove a less restrictive alternative resulted in the plaintiff losing the case, misconstruing the scope of the justification to which the alternative would be applied, and eliminating the balancing stage of the analysis. The final section emphasizes the court’s error in substituting its conception of amateurism for that of the lower court.
The essay concludes that the Ninth Circuit’s ruling striking down the $5,000 payment for the use of student-athletes’ names, images, and likenesses should be overturned for a fuller balancing of anticompetitive and procompetitive effects.
Murillo Campello Cornell University; National Bureau of Economic Research (NBER) Daniel Ferres Universidad de Montevideo Gaizka Ormazabal University of Navarra, IESE Business School ask Whistleblowers on the Board? The Role of Independent Directors in Cartel Prosecutions.
ABSTRACT: Stock market reactions to news of cartel prosecutions are muted when indicted firms have a high proportion of independent directors on their boards. This finding is robust to self-selection and is pronounced when independent directors hold more outside directorships and fewer stock options -- when those directors have fewer economic ties to indicted firms. Results are even stronger when independent directors' appointments were attributable to SOX, preceded their CEO's own appointment, or followed class action suits -- when directors have fewer ties to indicted CEOs. Independent directors serving on indicted firms are penalized by losing board seats and vote support in other firms. Firms with more independent directors are more likely to cooperate with antitrust authorities through leniency programs. They are also more likely to dismiss scandal-laden CEOs after public indictments. Our results show that cartel prosecution imposes significant personal costs onto independent directors and that they take actions to mitigate those costs. We argue that understanding these incentive-compatible dynamics is key in designing strategies for cartel detection and prosecution.
Maureen K. Ohlhausen, Federal Trade Commission and Gregory P. Luib, U.S. Federal Trade Commission ask Brother, May I?: The Challenge of Competitor Control Over Market Entry.
Rex Ahdar, University of Otago describes The abolition of the group boycott prohibition from New Zealand competition.
ABSTRACT: New Zealand competition law’s per se prohibition upon group boycotts (contracts, arrangements or understandings containing an exclusionary provision), s 29 of the Commerce Act 1986, is destined for the scrap heap. Proponents of its repeal contend that its infrequent use and attenuated reach means its absence will not be missed, that hitherto s 29 has had a damaging chilling effect upon commercial activity and that the apparent ability of other provisions in the Act (especially the enhanced cartel offence) to fill the vacuum will assuage any lingering concerns. The article finds these justifications wanting and concludes that the preservation of the group boycott ban is warranted.
Sunday, November 15, 2015
Vivek Ghosal (Georgia Tech) asks Startups, HI-Tech industries & Digital Economy… Is CCI promoting them or thwarting progress ?
My ten year old Raquel just received her bat mitzvah date from the synagogue (note to the non Jewish readers: you really do reserve three years ahead to make sure that everyone in the family has a clear schedule as well as the synagogue). We were discussing how competition/antitrust means hard work (for companies). We found that many of the top recording artists did not have an easy trip to the top (Maroon Five has discussed this in countless interviews and still is on top after 12 years - and I tell her that Adam Levine's mom is not happy about his permanent tattoos because nice Jewish boys don't get tattoos). Our newest favorite family song is courtesy of a band out of NYU (Harry First, there is still hope for you as a rock star- and let me note that last Halloween Harry First went trick or treating with us, for which he is loved in our home even more than for his Microsoft book). We read up recently on how her new favorite band A Great Big World had to work very hard to get to their Grammy success. She particularly likes the Jew-fro of singer Ian Axel.
Friday, November 13, 2015
Edited by Josef Drexl, Director, Max Planck Institute for Innovation and Competition, Munich, Germany and Fabiana Di Porto, Associate Professor of Law, University of Salento, Lecce, Italy have a new book that asks Competition Law as Regulation?
BOOK ABSTRACT: To what extent should competition agencies act as market regulators? Competition Law as Regulation provides numerous insights from competition scholars on new trends at the interface of competition law and sector-specific regulation. By relying on the experiences of a considerable number of different jurisdictions, and applying a comparative approach to the topic, this book constitutes an important addition to international research on the interface of competition and regulation. It addresses the fundamental issues of the subject, and contributes to legal theory and practice. Topics discussed include foundations of the complex relationship of competition law and regulation, new forms of advocacy powers of competition agencies, competition law enforcement in regulated industries in general, information and telecommunications markets, and competition law as regulation in IP-related markets.
Competition authorities have been spending a lot of time on telecommunications, especially in the merger area, tackling such questions as: How to balance two key needs—ensuring enough players to maintain sufficient competition while allowing that innovation requires deep pockets? How to define the appropriate market? How much consideration to give local vs. regional needs? This issue first looks at how the U.S. and EU have tackled these, and other, questions and then finishes with economic insights on how to analyze this ever-changing industry.
- Telecommunications: Mergers and More
We looked at theory and we looked at facts and we arrived at a series of important conclusions about the nature of the marketplace and competition. Jonathan Sallet (U.S. Federal Communications Commission)
Guidelines, perhaps jointly issued by the FCC and the Justice Department, could also lessen the propensity of government enforcers to compromise away the public’s strong interest in competition. Warren Grimes (Southwestern Law School)
The Commission appears to have significantly lowered the intervention threshold for challenging mergers on the basis of non-coordinated effects well beyond what was originally anticipated back in 2004. Nikolaos Peristerakis, Lodewick Prompers, & Mar Garcia (Linklaters)
Competition in the Spanish Telecommunications Sector: Mergers, Football Rights, and Other Regulatory Issues
It remains to be seen whether this apparently radical shift in industrial policy from the European Commission will cast its shadow on national markets such as Spain and also influence decisions at the local level. Pedro Callol (Callol, Coca & Asociados)
The particularities of national markets call for more involvement of national competition authorities, and highlight the limits of the one-stop-shop merger control in Europe. Pranvera Këllezi (KËLLEZI LEGAL)
This means that a SGEI cannot be provided at any cost and that competition limitations have to be proportionate. Aleksander Maziarz (Kozminski University)
There is much fodder in this case, including the analysis of two-sided platforms, monopoly bottlenecks, bargaining theory, vertical restraints, and the use of natural experiments to test hypotheses. David S. Evans (Global Economics Group)
But citizens deserve the same effectiveness of competition policy, regardless of whether they pay with money, with their time, or with their data. Fernando Herrera González (Telefonica, S.A.)