Antitrust & Competition Policy Blog

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

Monday, October 9, 2017

Auctions for essential inputs

Rey, Patrick and Salant, David offer a paper on Auctions for essential inputs.

ABSTRACT: We study the design of auctions for the allocation of essential inputs, such as spectrum rights, transmission capacity or airport landing slots, to firms using these inputs to compete in a downstream market. When welfare matters in addition to auction revenues, there is a trade-off: provisions aimed at fostering post-auction competition in the downstream market typically result in lower prices for consumers, but also in lower auction proceeds. We first characterize the optimal auction design from the standpoints of consumer and total welfare. We then examine how various regulatory instruments can be used to implement the desired allocation.

October 9, 2017 | Permalink | Comments (0)

Collusive Vertical Relations

S. Bolatto and L. Lambertini have written on Collusive Vertical Relations.

ABSTRACT:We investigate the possibility for two vertically related firms to at least partially collude on the wholesale price over an infinite horizon to mitigate or eliminate the effects of double marginalisation, thereby avoiding contracts which might not be enforceable. We characterise alternative scenarios envisaging different deviations by the upstream firm and different punishments. This allows us to show that the most efficient case is that in which the upstream firm deviates along its best reply function and the punishment prescribes the disruption of the vertical relation for good after a deviation from the collusive path.

October 9, 2017 | Permalink | Comments (0)

Exploitation of Consumer Decision-making and How to Address it: Lessons From Past Demand-side Interventions

Amelia Fletcher, University of East Anglia discusses Exploitation of Consumer Decision-making and How to Address it: Lessons From Past Demand-side Interventions.

ABSTRACT: In a number of recent antitrust cases, the authorities’ concerns have centred on firms’ ability to distort and exploit the behaviour of consumers to their own ends.  

October 9, 2017 | Permalink | Comments (0)

The Rise of Market Power and the Macroeconomic Implications

Jan De Loecker, Princeton University - Department of Economics; National Bureau of Economic Research (NBER); Centre for Economic Policy Research (CEPR) and Jan Eeckhout, University College London - Department of Economics explore The Rise of Market Power and the Macroeconomic Implications.

ABSTRACT: We document the evolution of markups based on firm-level data for the US economy since 1950. Initially, markups are stable, even slightly decreasing. In 1980, average markups start to rise from 18% above marginal cost to 67% now. There is no strong pattern across industries, though markups tend to be higher, across all sectors of the economy, in smaller firms and most of the increase is due to an increase within industry. We do see a notable change in the distribution of markups with the increase exclusively due to a sharp increase in high markup firms. We then evaluate the macroeconomic implications of an increase in average market power, which can account for a number of secular trends in the last 3 decades: 1. decrease in labor share, 2. increase in capital share, 3. decrease in low skill wages, 4. decrease in labor force participation, 5. decrease in labor flows, 6. decrease in migration rates, 7. slowdown in aggregate output.

October 9, 2017 | Permalink | Comments (0)

Friday, October 6, 2017

Deputy Assistant Attorney General Roger Alford Delivers Remarks at International Conference on the Rule Of Law and Anti-Corruption Challenges

Deputy Assistant Attorney General Roger Alford Delivers Remarks at International Conference on the Rule Of Law and Anti-Corruption Challenges.

October 6, 2017 | Permalink | Comments (0)

ANTITRUST IN 60 SECONDS: DOES SIZE MATTER IN COMPETITION POLICY?

23.º Seminário Internacional de Defesa da Concorrência 25 a 27 de Outubro de 2017 | Grande Hotel, Campos do Jordão, São Paulo, Brasil

23.º SEMINÁRIO INTERNACIONAL DE DEFESA DA CONCORRÊNCIA
25 a 27 de Outubro de 2017 | Grande Hotel, Campos do Jordão, São Paulo, Brasil

O maior evento anual de defesa da concorrência da América Latina!

The largest competition law meeting in Latin America!

PANELISTAS CONFIRMADOS / CONFIRMED PANELISTS

AUTORIDADES BRASILEIRAS / BRAZILIAN AUTHORITIES

Alexandre Barreto de Souza - Presidente do CADE /President

Alexandre Cordeiro Macedo - Conselheiro do CADE /Commissioner

Gilvandro V. C. de Araújo - Conselheiro /Commissioner

Maurício Oscar Bandeira Maia - Conselheiro do CADE / Commissioner

Paulo Burnier da Silveira - Conselheiro do CADE /Commissioner

Walter Agra Júnior - Procurador-Chefe do CADE /Attorney-General

Diogo Thomson de Andrade Superintendente Geral Interino do CADE / Acting Superintendent-General

Kenys Menezes Machado Superintendente Geral Adjunto do CADE / Deputy Superintendent-General

Amanda Athayde Chefe de Gabinete da SG-CADE /Chief Of Staff

Guilherme Resende Economista-Chefe do CADE /Chief-Economist

Márcio Barra Lima Procurador do MPF  / FederalProsecutor

Fernando Barbosa Bastos Costa Procurador do CADE /Attorney

CONVIDADOS ESTRANGEIROS / FOREIGN GUESTS

Richard Whish – Kings College, UK

William Kovacic – George Washington University, US

Esteban Greco – CNDC, Argentina

Juan Cristóbal Gumucio – Cariola, Chile

Pablo Márquez – MBCR, Columbia

Michael Scarborough, Sheppard Mullin, US

Susan Jones, Novartis, Switzerland

William MacLeod, Immediate Past Chair of the ABA Section of Antitrust Law, US

Stephen Lewis, RBB Economics, UK

Tone Oeyen, Freshfields, Belgium

Nadine Watson, Compass Lexecon, Spain

Hiram Andrews, Freshfields, US

Paul Anthony Hitchings, Cuatrecasas, Spain

SIMULTANEOUS TRANSLATION TO ENGLISH AVAILABLE FOR ALL PANELS

 

QUARTA-FEIRA, 25 DE OUTUBRO DE 2017

WEDNESDAY, 25 OCTOBER 2017

14:30 – 15:00

Credenciamento

Registration

15:00 – 15:15

ABERTURA

OPENING REMARKS

15:15 – 17:00

Painel 1 - QUAL O LIMITE DA DISCRICIONARIEDADE DO CADE EM CASOS DE ACORDOS DE LENIÊNCIA E TCC?

O painel vai oferecer um panorama dos requisitos legais e regulamentares existentes para a celebração de acordos de leniência (AL) e compromissos de cessação de prática (TCC) e a respectiva prática do CADE; se há espaço e qual seu limite (caso afirmativo), para o exercício da discricionariedade técnica, ou administrativa, por parte da Autarquia no momento de avaliação ou homologação das propostas de ALs e TCCs (p. ex. no que diz respeito à conceituação de “colaboração efetiva” e de “informações e documentos que comprovem a infração noticiada ou sob investigação”). Ainda, diante da difusão da utilização das colaborações premiadas no âmbito penal e dos acordos de leniência pelo Ministério Público, o painel também traçará um paralelo sobre o tema, pontuando a orientação do MP e do Poder Judiciário sobre a existência, ou não, de discricionariedade do órgão de acusação quanto ao uso destes institutos, em especial no que toca ao exame da presença da oportunidade, efetividade e utilidade no manejo desses instrumentos de investigação.

Panel 1 - WHAT ARE CADE'S DISCRETIONARY LIMITS IN CASES INVOLVING LENIENCY AND SETTLEMENT AGREEMENTS?

The panel will provide an overview of the statutory and non-statutory requirements to enter into a Leniency Agreement (AL) and Cease and Desist Agreement (TCC) with the CADE, to assess the limits of the authority’s discretion – if any – when evaluating the AL or TCC applications (e.g. with respect to the concept of “effective collaboration” and the evaluation of “information and documents that prove the violation under investigation”). Moreover, due to the increase of similar cooperation arrangements in criminal cases, the panel will also draw a comparison between the understanding of the Public Prosecutor and the Judiciary regarding prosecutorial discretion in the adoption of such arrangements – in particular when examining the opportunity, effectiveness and usefulness in the use of these investigation instruments.

17:00 – 17:45

HOMENAGEM IBRAC 25 ANOS

TRIBUTE TO IBRAC 25th ANNIVERSARY

17:45 – 18:00

Coffee-Break

Coffee-Break

18:00 – 19:00

CONFERÊNCIA PROF. RICHARD WHISH

KEYNOTE SPEECH BY PROF. RICHARD WHISH

19:00 – 19:30

ENTREGA DO PRÊMIO IBRAC-TIM

PRESENTATION OF IBRAC-TIM AWARD

19:30 – 20:00

POSTER SESSION 1

POSTER SESSION 1

20:00 – 21:30

COQUETEL/JANTAR [Homenagem aos ex-Presidentes do IBRAC, aos ex-Presidentes e ex-Superintendentes-Gerais do CADE e ex-Secretários da SDE e SEAE]

COCKTAIL/DINNER [Tribute to former presidents/heads of IBRAC, CADE Tribunal and SG, SDE and SEAE]

22:00

Baden Baden

Baden Baden

 

 

QUINTA-FEIRA, 26 DE OUTUBRO DE 2017

THURSDAY, 26 OCTOBER 2017

09:00 – 10:45

Sala A | Painel 2 - INOVAÇÃO NA ANÁLISE DE ATOS DE CONCENTRAÇÃO: UMA NOVA TEORIA DE DANO?

Os desafios que empresas e autoridades enfrentam para lidar com aspectos concorrenciais envolvendo a inovação no contexto do controle de estruturas. Quais os impactos que decisões passadas podem ter sobre operações futuras.

Room A | Panel 2 - INNOVATION IN THE CONTEXT OF MERGER REVIEW: A NEW THEORY OF HARM?

The challenges that companies and authorities face to deal with competition aspects surround the role of innovation in the context of merger review. The impacts of past decisions in future transactions.

 

Sala B | Painel 3 - COMBATE A CARTÉIS E SOLUÇÕES COOPERATIVAS NA AMÉRICA LATINA: UM PANORAMA GERAL DAS LIÇÕES E DESAFIOS FUTUROS

Autoridades de defesa da concorrência e advogados discutirão sobre o uso de mecanismos de cooperação entre investigador e investigado (i.e., acordo de leniência e termos de compromisso de cessação/acordos em geral) no combate a cartéis na América Latina. Serão discutidas as nuances dos mecanismos de cooperação nas diferentes jurisdições, as lições e desafios associados ao uso dessas ferramentas para investigar e combater cartéis. Com base na experiência da Argentina, Brasil, Chile e Colômbia, pretende-se responder a seguinte pergunta: o arcabouço regulatório e a política de defesa da concorrência nos países da América Latina favorecem o uso de mecanismos de cooperação entre investigador e investigado para instaurar e encerrar investigações de cartel?

Room B | Panel 3 - ANTI-CARTEL ENFORCEMENT AND COOPERATIVE SOLUTIONS IN LATIN AMERICA: AN OVERVIEW OF LESSONS AND CHALLENGES AHEAD

Enforcement leaders and lawyers will discuss about the use of cooperative solutions (i.e., leniency agreements and settlements) in the fight against cartel in Latin America. It will be discussed the nuances of cooperative solutions adopted in each of the relevant jurisdictions, lessons and challenges associated to the use of those tools to prosecute and fight cartels. Based on the experience from Argentina, Brazil, Chile and Colombia, this panel will answer the following question: do the regulatory framework and the competition policy in force in those countries favor the use of cooperative solutions to launch and close cartel investigations?

10:45 – 11:00

Coffee-Break

Coffee-Break

11:00 – 12:45

Sala A | Painel 4 – A PROVA ECONÔMICA NO PROCESSO CONCORRENCIAL: LIMITES JURÍDICOS DA TEORIA ECONÔMICA

Dado o cada vez mais frequente uso das chamadas provas indiretas nos processos administrativos conduzidos pelo CADE, o painel propõe discutir os limites do uso da análise econômica como padrão de prova e os conflitos entre essa abordagem e os princípios do direito processual. A teoria econômica busca se apropriar do método científico das ciências naturais ao utilizar modelos de análise quantitativa para estabelecer relações de causalidade, mas ao mesmo tempo depende de premissas simplificadoras da realidade social. A teoria do direito processual, por outro lado, vê as provas como um instrumento de reconstrução da realidade para embasar uma decisão. A questão que o painel pretende discutir é se as conclusões obtidas pela análise econômica podem ser aceitas pela teoria do direito processual como provas, ou se devem ser consideradas como um recurso retórico.

Room A | Panel 4 – THE USE OF ECONOMICS AS EVIDENCE IN THE ANTITRUST PROCEEDING: THE LEGAL LIMITS OF THE ECONOMIC THEORY.

Given the increasingly frequent use of so-called indirect evidence in administrative proceedings conducted by CADE, the panel will discuss the limits of the use of economic theory as evidence and the conflicts that exist between this approach and procedural law principles. Economic theory utilizes natural science methods by relying on quantitative analysis models to establish causal relationships. However, these same analyses also tend to rely on simplified premises of social reality. Procedural law theory, on the other hand, treats evidence as a tool to reconstruct reality to support decisions. This panel will discuss whether conclusions of economic analyses can be accepted as evidence according to procedural law theory, or whether such economic analyses should merely be considered a rhetorical exercise.

 

Sala B | Painel 5 - Análise de efeitos coordenados em concentrações no CADE

Recentemente o CADE passou a analisar de forma mais detida efeitos coordenados para aprovação de atos de concentração. Igualmente em jurisdições estrangeiras tal análise voltou a ganhar impulso recentemente. O presente painel tem como objetivo debater essa nova direção levando em conta tanto a visão da autoridade quanto de profissionais da prática privada, inclusive estrangeira.

Room B | Panel 5 - Analysis of Coordinates Effects in CADE´s Merger Control

Recently CADE started to analyze more closely coordinated effects for the approval of merger cases. Such analysis has also gained momentum recently in foreign jurisdictions. The purpose of this panel is to discuss this new trend, taking into account both the views of the authorities and professionals in private practice, including foreigners.

12:45 –14:30

Almoço

Lunch

14:30  – 16:15

Sala A | Painel 6 - QUESTÕES CONTROVERSAS NA RESPONSABILIDADE CIVIL ANTITRUSTE

As ações de indenização são internacionalmente reconhecidas como elemento fundamental da aplicação do direito concorrencial. Nos últimos anos, como consequência do desenvolvimento do direito concorrencial no Brasil, houve aumento significativo de ações indenizatórias em matéria antitruste. O objetivo do painel é discutir algumas das principais questões controversas relacionadas à responsabilidade civil em matéria antitruste, comparando as experiências em diferentes jurisdições (Brasil, Estados Unidos e União Europeia) com ênfase nos seguintes temas: (i) interação entre os programas de leniência e as ações de indenização (incluindo a discussão sobre acesso aos documentos do acordo de leniência); (ii) demonstração dos prejuízos e admissibilidade da “pass-on defense”; e (iii) prescrição da pretensão reparatória.

Room A | Panel 6 - CONTROVERSIAL ISSUES IN ANTITRUST CIVIL LIABILITY

Antitrust damages claims are a very important element of antitrust enforcement. In recent years, due to the development of competition law in Brazil, there has been a significant increase in antitrust damages claims. The purpose of the panel is to discuss some of the key issues related to antitrust damage claims, comparing experiences in different jurisdictions (Brazil, United States and European Union) with focus on the following topics: (i) interaction between leniency programs and damage claims (including the discussion on access to documents from leniency agreements); (ii) demonstration of damages and pass-on defense; and (iii) statute of limitations.

 

Sala B | Painel 7 - BICHO DE SETE CABEÇAS? A REVOLUÇÃO DOS SCREENINGS? A ECONOMETRIA A FAVOR DO ANTITRUSTE

Discussão prática sobre ferramentas econométricas no universo antitruste, abordando os principais avanços, limitações e tendências, tanto da perspectiva do controle de condutas, quanto de estruturas. O histórico do Projeto Cérebro no CADE e seus desafios no contexto de detecção de cartéis, a interface entre big data e machine learninge os filtros econométricos em Atos de Concentração serão discutidos, dentre outros temas de interesse.

Room B | Panel 7 - IS IT ROCKET SCIENCE? A SCREENING REVOLUTION? ECONOMETRICS IN FAVOR OF ANTITRUST

Practical discussion on econometric tools in the antitrust environment, addressing the main advances, limitations and trends, both from the standpoint of anticompetitive practices control and merger control. The background of Brain Project (Projeto Cérebro) at CADE and its challenges in the context of detection of cartels, the interplay between big data and machine learning and the econometric screenings under merger control review will be discussed, among other topics of interest.

16:1516:30

Coffee-Break

Coffee-Break

16:30 –  18:15

Sala A | Painel 8 – MOCK TRIAL: TROCA DE INFORMAÇÕES ENTRE CONCORRENTES - ANÁLISE PELA REGAR DA RAZÃO

Empresas concorrentes, atuantes no mercado de aplicativos para transporte individual de passageiros, reuniram-se em Associação de Classe e trocaram informações sobre gestão e RH, tecnologia, práticas comerciais e licitações. Encontram-se sob investigação da SG/CADE, que determinou a aplicação da regra da razão à analise concorrencial do caso. Acusação e defesa apresentarão seus argumentos e quem decidirá o final será você!

Room A | Panel 8 – MOCK TRIAL: EXCHANGE OF INFORMATION AMONG COMPETITORS - ANALYSIS UNDER THE RULE OF REASON

Some competitors in the market of apps connecting passengers and drivers have participated of meetings of their class association and exchanged information about management and HR, technology, commercial practices and bids. Now they are under investigation by the Brazilian Antitrust Authorities (SG/CADE), which determined that this case should be analyzed under the rule of reason. The prosecution and the defense will present their arguments and you will decide the end of it!

 

Sala B | Painel 9 - ARBITRAGEM E CONCORRÊNCIA

Alguns anos atrás dizia-se serem dois temas incompatíveis. Questões concorrenciais não poderiam ser levadas à arbitragem; hoje, o CADE inclui a arbitragem em suas decisões. O painel propõe a discussão teórica e os efeitos práticos do debate sobre a arbitrabilidade de temas de defesa da concorrência e o uso da arbitragem pelo CADE. A discussão passará pela análise dos julgados do CADE que incluiu a arbitragem como ferramenta de monitoramento de suas decisões, bem como pelos efeitos de levar à arbitragem questões e argumentos concorrenciais ou que gerem impacto competitivo.

Room B | Panel 5 - ARBITRATION AND COMPETITION

Few years ago, arbitration and competition are matters considered incompatible. Competition issues could not be discussed in arbitration. Recently, CADE included arbitration as part of its decisions. The panel will discuss the theory behind and the practical effects in taking competition issues to be discussed in arbitration and the use of arbitration by CADE. The discussion will review CADE’s decisions which choose arbitration as a monitoring tool of the authority’s decisions, as well as the effects of submitting competition arguments and questions that may impact the competition dynamics to an arbitration tribunal.

18:15 – 19:30

POSTER SESSION 2

POSTER SESSION 2

22:00

FESTA 25 ANOS DO IBRAC

PARTY IBRAC 25th ANNIVERSARY

 

 

SEXTA-FEIRA, 27 DE OUTUBRO DE 2017

FRIDAY, 27 OCTOBER 2017

09:45 – 10:45

Sala A | CONFERÊNCIA PROF. WILLIAM KOVACIC

Room A | KEYNOTE SPEECH BY PROF. WILLIAM KOVACIC

10:4512:00

Sala A | Painel 10 - MESA-REDONDA COM PALESTRANTES INTERNACIONAIS

Room A | Panel 10 - ROUNDTABLE WITH FOREIGN SPEAKERS

12:00 – 13:30

Sala A | Painel 11 - ENTREVISTA COM AUTORIDADES

Room A | Panel 11 - INTERVIEW WITH AUTHORITIES

13:30

ENCERRAMENTO

CLOSING REMARKS

Inscrições / Registrationwww.ibrac.org.br

 

Early-Bird (até 06.Out.2017)

Regular (após 06.Out.2017)

Associados IBRAC / IBRAC Members

R$2.000 / ≈US$670

R$2.400 / ≈US$800

Não Associados / Non-Members

R$3.000 / ≈US$1,000

R$3.600 / ≈US$1200

Estudantes - Professores (dedicação exclusiva) / Students and Scholars

R$1.000 / ≈US$335

R$1.200 / ≈US$400

October 6, 2017 | Permalink | Comments (0)

Is a Big Entrant a Threat to Incumbents? The Role of Demand Substitutability in Competition among the Big and the Small

Lijun Pan, Nagoya University - Graduate School of Economics and Makoto Hanazono, Nagoya University - Graduate School of Economics ask Is a Big Entrant a Threat to Incumbents? The Role of Demand Substitutability in Competition among the Big and the Small.

ABSTRACT: We establish a model of market competition between large and small firms and investigate how demand substitutability affects how the entry of big firms impacts incumbents. We focus on the relative strength of two opposing effects of entry on large incumbent firms' demand: the direct substitution effect among large firms (negative) and the indirect feedback effect through the change in small firms' aggregated behavior (positive). If the substitutability between large and small firms is sufficiently high, the indirect effect dominates the direct effect and large incumbents' equilibrium prices and profits increase. We show that welfare effects are ambiguous, which calls for careful assessment when regulating big firms' entry.

October 6, 2017 | Permalink | Comments (0)

Price Effects of a Merger: Evidence from a Physicians’ Market

Thomas G. Koch, FTC and Shawn W. Ulrick, FTC offer Price Effects of a Merger: Evidence from a Physicians’ Market.

ABSTRACT: Physicians’ practices vary widely, as do their effectiveness and reimbursement. Using a merger of six orthopaedic groups in southeastern Pennsylvania, we find that such groups can generate large, anti-competitive price increases without any demonstrated increases in quality (indirectly measured by way of revealed preference) or efficiency. Further, we find that these price increases were targeted at certain beneficiaries, payors and codes, so any research design that omits care and billing along any of these dimensions is likely to be biased.

October 6, 2017 | Permalink | Comments (0)

The Effect of Casino Proximity on Lottery Sales: Evidence from Maryland

Will Cummings, Douglas M. Walker. College of Charleston and Chad D. Cotti, University of Wisconsin - Oshkosh; University of Connecticut - Department of Agricultural and Resource Economics Tstudy he Effect of Casino Proximity on Lottery Sales: Evidence from Maryland.

ABSTRACT: The continued expansion of the casino industry has caused increasing concern regarding the cannibalization of other industries, and in particular, state lotteries. For example, Maryland Lottery sales flattened shortly after casinos began opening in the state. Although previous papers have found that casinos and lotteries have a negative relationship with each other, no previous research has analyzed the impact of casino proximity on lottery sales or has examined the relationship between casinos and different types of lottery games. In this paper, we examine ZIP code‐level monthly lottery sales data from Maryland between July 2009 and February 2014, in order to test the impact of casino proximity on lottery sales, by type of game. Our findings indicate that aggregate lottery sales decline more in closer proximity to casinos, but that casinos affect different lottery products differently. We discuss the consumer behavior and public finance implications of the findings.

October 6, 2017 | Permalink | Comments (0)

Thursday, October 5, 2017

The Curious Case of Wellbutrin: How the Third Circuit Mistook Itself for the Supreme Court

Michael A. Carrier, Rutgers Law School explains The Curious Case of Wellbutrin: How the Third Circuit Mistook Itself for the Supreme Court.

ABSTRACT: FTC v. Actavis was one of the most important antitrust cases of the modern era. In one fell swoop, the Supreme Court ensconced antitrust’s role in analyzing settlements by which brand firms pay generics to delay entering the market. The Court underscored the harms presented by large and unjustified payments and rejected some of the prized justifications that settling parties had previously offered.

Since Actavis, the lower courts have begun to flesh out the antitrust analysis of drug patent settlements. In particular, the federal appellate courts have held that “payment” extends beyond cash to noncash forms of consideration and have liberally interpreted the pleading requirements for noncash conveyances. 

A recent opinion, however, threatens the orderly development of the post-Actavis caselaw. In analyzing plaintiffs’ claim of antitrust injury in In re Wellbutrin XL Antitrust Litigation, a Third Circuit panel mistook itself for the Supreme Court. The plaintiffs had alleged that the generic would have entered the market earlier if not for the settlement, but the Third Circuit found that they could not make such a showing because they did not definitively prove that the patent was invalid or not infringed. The panel only reached this conclusion, however, by studiously ignoring the evidence of a large and unjustified payment that the Supreme Court had indicated was a surrogate for the patent’s weakness and accepting a defense based on avoiding risk that the Supreme Court had rejected.

This Essay first provides a background on pharmaceutical patent settlements. It then discusses the Actavis and Wellbutrin cases. Finally, it shows how the Third Circuit panel issued a ruling that was based on inappropriate assumptions and is inconsistent with Supreme Court caselaw, Third Circuit precedent, and relevant regulatory policies.

October 5, 2017 | Permalink | Comments (0)

ABA Antitrust Section IP Committee Law Student Essay Contest - $1,500 prize

Calling all third-year law students with an interest in antitrust and intellectual property law!  The American Bar Association ("ABA") Section of Antitrust Law ("Section") Intellectual Property Committee ("Committee") is hosting a student essay writing contest ("Contest") for 2017-2018. Each contestant must follow the Official Rules and Additional Rules of the competition detailed herein.

Who:  Eligible contestants include third-year (full-time or part-time) law students expecting to receive their J.D. at the end of the 2018 academic year.  Eligibility to participate in this Contest or to win prizes is limited to an individual who at the time of entry is:

  • at least 18 years of age;
  • a legal resident of the United States; and
  • a student who is enrolled in a law school that is ABA-accredited, in each case, at the time of submission.
  • Contestant need not be a member of the ABA or the Section.
  • Limit 1 entry and prize per contestant.
  • Employees, officers, directors, contractors, agents and representatives of the ABA and their immediate families and household members are ineligible to enter the Contest.
  • The ABA's determination of eligibility, in its sole discretion, is final.

What:  Participants are required to submit an essay of a current issue of interest with implications for antitrust and intellectual property law. 

  • Entry form and essay should be submitted to Tiffany Goldston, Program Specialist, American Bar Association, Section of Antitrust Law, via email at tiffany.goldston@americanbar.org.
  • Entry form can be found here.
  • The ABA is not responsible for errors or for lost, late, or misdirected email, or telecommunication or hardware or software failures, including by reason of any bug or computer virus or other failure.   
  • Essays must be:
    • the original work of the entrant;
    • in the English language;
    • written during 2017-2018 or the current academic year;
    • submitted in electronic format (Word or PDF);
    • no less than 2500 words and no more than 4000 words including footnotes, with 12-point font and 1-inch margins; and
    • specifically written for this Contest; a law school class, seminar, or independent study; or a law review or journal note, comment, or article.
  • All entries are final. No revisions are accepted.
  • Please note: Entries that do not meet these requirements will be disqualified.

When:  The ABA will accept entries via email through midnight (CST) November 17, 2017, and will not consider any entry received after the due date and time. The winning essay—chosen by the Committee leadership—will be announced at the end of January 2018

The leadership of the Committee will judge all essays.  The decision of the judges is final.

The winner will be notified by email by 11:59 PM (CST) January 31, 2018. The winner must acknowledge and confirm agreement to the terms and conditions of winning the Contest no later than February 7, 2018. If a prize winner: (i) cannot be located (e.g., an email notification or prize is returned as undeliverable, or does not respond to an award email notification by February 7, 2018); (ii) is found to be ineligible (as determined solely by the ABA); or (iii) fails to execute an affidavit or other documentation as required by the ABA, the ABA may consider such prize winner to have forfeited the prize, and may, at its sole option, award the prize to another contestant.

The ABA reserves the right not to award any prize(s) if, in the ABA's sole judgment (based upon the Committee's recommendation), the quality of submitted entries does not merit award(s) or publication.

Why:  The winner will receive a cash scholarship of $1,500, plus free attendance (and travel expenses up to $1,000) to the ABA Antitrust Law Section's 2018 Spring Meeting in Washington, D.C.  In addition, the top essay, along with a biography of the winning student, will be published in an ABA publication.

  • The Sponsors may substitute a prize of equal or greater value in its sole discretion. Prizes are non-transferable and cannot be substituted by the winner. Cash equivalent for prizes is not available. The ABA makes no warranties with regard to the prizes.
  • Winners will be solely responsible for reporting and payment of all taxes (federal, state, local or other) on prizes, which will include the value of any accommodations and airfare. Winners will be required to complete an IRS Form W-9, affidavit of eligibility, tax acknowledgment, publicity release (except where prohibited) and liability waiver. All forms must be completed and returned to the Section within 5 business days of receipt and prior to the delivery of any prize, or prizes will be considered forfeited and another winner may be named. 

Take advantage of this contest to get some cash in your pocket, network with your colleagues in the Antitrust Bar, and get your work published in a major ABA publication!  For more information, including how to apply, please review the additional rules below. Best of luck!

Applicants should send questions to Tiffany Goldston, Program Specialist, American Bar Association, Section of Antitrust Law, via email at tiffany.goldston@americanbar.org.

October 5, 2017 | Permalink | Comments (0)

The Prohibition of Single-Firm Market Abuses: US Monopolization versus EU Abuse of Dominance

Francisco Marcos, IE Law School explores The Prohibition of Single-Firm Market Abuses: US Monopolization versus EU Abuse of Dominance.

ABSTRACT: This article looks at the commonalities and disparities in the rules against single-firm market abuses in the US and in the EU and their enforcement. Despite they target the same type of business behaviour, the US and the EU have always followed divergent paths. This article will examine alternative explanations for the differences and will also look at the different forms of conduct caught under the prohibition, underlining the most recent enforcement discordances.

October 5, 2017 | Permalink | Comments (0)

Hedonic Prices and Patent Royalties

J. Gregory Sidak (Critereon) & Jeremy O. Skog and (Criterion) have written on Hedonic Prices and Patent Royalties.

ABSTRACT: hedonic model explains a good’s price in terms of its characteristics.1 In this article, we use hedonic prices to estimate the permissible range for a reasonable royalty for a standard-essential patent (SEP) subject to its owner’s commitment to offer to license the patent on reasonable and nondiscriminatory (RAND) terms. Our methodology is equally applicable to the calculation of fair, reasonable, and nondiscriminatory (FRAND) royalties for SEPs. The immediate purpose of our analysis is to determine whether, as a matter of contract law, a particular offer that the SEP holder has made has discharged its obligation to its standard-setting organization (SSO) to make an offer to license its SEPs on RAND or FRAND terms to a third party seeking to implement the standard. However, if asked or required to set a specific RAND or FRAND rate for a specific portfolio of SEPs, a court or arbitral panel could take our analysis one step further, by determining where within the RAND or FRAND bargaining range a bilaterally negotiated royalty between the parties would most likely fall. More generally, our methodology shows how one can use hedonic prices to calculate the permissible range for reasonable royalties for the infringement of patents that are not encumbered by a RAND or FRAND obligation, even if no comparable licenses exist. In short, our methodology of using hedonic prices to calculate the permissible range for reasonable royalties for patent infringement has potentially broad applicability.

October 5, 2017 | Permalink | Comments (0)

Confidentiality in Patent Dispute Resolution: Antitrust Implications

Mark R. Patterson, Fordham University School of Law discusses Confidentiality in Patent Dispute Resolution: Antitrust Implications. Worth downloading!

ABSTRACT: Information is critical to the functioning of the patent system. Legal rules encouraging the patent challenges that produce information regarding patent validity and scope are evidence of this importance. In contrast, licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents, where a patent’s elimination of competition can increase market uncertainty.

Information about licensing terms is particularly important in one of today’s most important patent licensing contexts: FRAND licensing. Standard-setting organizations that define the technologies used in important products like smartphones typically require their members to commit to license patented technologies that are adopted in standards on fair, reasonable, and non-discriminatory (FRAND) terms. The non-discriminatory element of this commitment is difficult for potential licensees to enforce without information about the licensing terms to which other licensees have agreed.

Where confidentiality agreements cause competitive harm, antitrust law may provide a remedy. Several U.S. Supreme Court cases have condemned agreements that suppress information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, particularly when it involves only private negotiations. In other con-texts, however, and notably in arbitration, which is a substitute for open court proceedings, the competitive balance is more problematic. Indeed, U.S. patent law mandates that patent arbitration awards be made public through the Patent and Trademark Office, though this requirement is generally ignored.

This Article describes the importance of patent licensing information and dis-cusses the antitrust implications of confidentiality agreements, particularly in the FRAND context and in arbitration. The Article also offers several ways in which parties, standard-setting organizations, and arbitration bodies could seek to avoid the possible anticompetitive effects of confidentiality.

October 5, 2017 | Permalink | Comments (0)

Wednesday, October 4, 2017

The Relationship between Articles 14 and Article 15 of the AML

Qing Li, National Development & Reform Commission (NDRC) and Liyang Hou, Shanghai Jiao Tong University (SJTU) - KoGuan Law School provide thoughts on The Relationship between Articles 14 and Article 15 of the AML.

ABSTRACT: The ambiguous relationship between Article 14 and Article 15 of AML has begun to produce many problems in China. Most dramatically, different understandings of the relationship have resulted into contradictory decisions between the courts and the NDRCL. This article is aimed to shed some light on this issue. It is submitted that although the courts’ position matched better the relevant economics theories, it is not compatible with the AML; in comparison, the NDRC’s practice, though initially looking more intrusive and rigid, as a matter of fact comply with the AML.

 

October 4, 2017 | Permalink | Comments (0)

Counter-IP Conspiracies: Patent Alienability and the Sherman Antitrust Act

Hannibal Travis, FIU Law offers Counter-IP Conspiracies: Patent Alienability and the Sherman Antitrust Act.

ABSTRACT: Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes empirical evidence that the prime economic and business-related justification for such collusion, namely the need to reduce patent holdup, is relatively weak. It argues that some decisions not to license intellectual-property rights, or to license them at suppressed rates, may be anticompetitive, particularly if they are the result of a collusive process or serve to maintain or expand market power. Finally, it urges greater attention from a macroeconomic perspective to the plight of inventors and workers in the high-technology and patent-intensive industries. As a preliminary attempt to heighten awareness of the issue, it describes recent allegations that market power on the part of consumers of high-technology patent licenses, and reduced bargaining clout on the part of individual employees and inventors, may be contributing to unemployment and inequality.

October 4, 2017 | Permalink | Comments (0)

Proportional Restraints and the Patent System

Erik Hovenkamp, Harvard Law School and Jorge Lemus, University Of Illinois Urbana Champaign identify Proportional Restraints and the Patent System.

ABSTRACT: To be mutually-preferred to litigation, patent agreements between rivals often must restrain competition to some degree. Any such agreement forestalls a ruling on the patent’s validity (and hence its enforceability), which depends largely on the “innovativeness” of the invention. Ideally, there would be proportionality between (1) the quality of the patent (the probability it is valid) and (2) the extent to which competition is restrained. We show that antitrust can accomplish this by simply policing the manner in which competition is restrained, and by prohibiting certain side-deals that always subvert proportionality. Different restraints vary considerably — and predictably — in the extent to which bargaining possibilities deviate from the firms’ litigation expectations (which depend on patent quality). We can thus infer the degree of proportionality from the nature of the agreement, making it unnecessary to estimate competitive effects or patent quality.

October 4, 2017 | Permalink | Comments (0)

Network Effects: March to the Evidence, Not to the Slogans

David S. Evans, Global Economics Group; University College London and Richard Schmalensee, Massachusetts Institute of Technology (MIT) - Sloan School of Management have written on Network Effects: March to the Evidence, Not to the Slogans.

Abstract: Though network effects are important for multisided platforms, the simple winner-take-all notion that they always give larger platforms an insurmountable advantage over smaller rivals has been disproven by numerous counterexamples. It is now being argued that big data is power, so that a firm that has more customer data than its rivals has an insurmountable advantage over them. This argument has no theoretical or empirical support, and it, too, has been disproven by numerous counterexamples.

October 4, 2017 | Permalink | Comments (0)

Tuesday, October 3, 2017

Market Competition and Bank Efficiency: A Post GFC Assessment of Australia and New Zealand

Salah U-Din, Massey University, David W.L. Tripe, Massey University - School of Economics and Finance, and MH. Kabir, Massey University discuss Market Competition and Bank Efficiency: A Post GFC Assessment of Australia and New Zealand.

ABSTRACT: Banking markets of Australia and New Zealand have become more concentrated for the period of 2003-15. This paper examines the relationship between market competition and bank efficiency in these two markets during this period. The Quiet Life Hypothesis (QLH) is tested to estimate relationship between market concentration, power, and bank efficiency. The selected period is also important to assess the impact of Global Financial Crisis 2008 (GFC-2008) on market competition and bank efficiency. Results find a positive impact of market power and concentration on profit efficiency whereas negative impact is found on cost efficiency in both markets during the study period. Moreover, capital adequacy ratio and loan losses are found to have negatively influenced the bank efficiency whereas interest rate, GDP per capita, loans to assets ratio, bank risk and size are positively related to efficiency. The GFC significantly affected the bank efficiency, market power and concentration in both economies during the crisis period. Overall, our findings do not support the existence of QLH in Australia and New Zealand. However, the negative consequences of increasing bank power may be a future challenge for both countries. The study can be useful for regulators and banks with respect to the changing market structure and GFC 2008.

October 3, 2017 | Permalink | Comments (0)