Antitrust & Competition Policy Blog

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

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Saturday, January 10, 2015

Coming on January 15, 2015 - McWane Symposium

In conjunction with oral arguments on January 16, I have a number of people who will be blogging on January 15 their thoughts on the McWane case.

January 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Antitrust as a Multidisciplinary Field- New Issue of the Antitrust Bulletin

The Antitrust Bulletin, Vol 59, No. 4 / Winter, 2014

Front Matter Download Free
  • Board of Editors
  • Article Submission and Publication
  • Publication Information and Subscription
  • Advisory Board
  • Table of Contents

Volume 59, Number 4 / Winter 2014


 

The Antitrust Bulletin Journal of Antitrust Law and Trade Regulation


SYMPOSIUM:AMERICAN ANTITRUST INSTITUTE’S 2013 INVITATIONAL SYMPOSIUM—ANTITRUST AS AMULTIDISCIPLINARY FIELD Gregory T. Gundlach, Guest Editor


Antitrust as a Multidisciplinary Field: Introduction and Overview of the Symposium       By Gregory T. Gundlach

How Competition Agencies Can Use Behavioral Economics       By Maurice Stucke

Network Organization and Competition: A Marketing Primer       By Ravi S. Achrol and Gregory T. Gundlach

Strategic Management Concepts for Antitrust: Cooperation, Stakeholders and Sustainability       By Norman W. Hawker and Thomas N. Edmonds

The Influences of Strategic Management on Antitrust Discourse       By Hillary Greene and Dennis A. Yao

Is Complexity in Antitrust a Virtue?: The Accuracy- Simplicity Tradeoff       By Timothy J. Brennan

 

ECONOMICS

Dominance Thresholds: A Cautionary Note       By Douglas A. Herman, Shawn W. Ulrick and Seth B. Sacher

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Bargaining Power and the Effects of Joint Negotiation: The “Recapture Effect”

Craig T. Peters (Economic Analysis Group, U.S. Department of Justice) discusses Bargaining Power and the Effects of Joint Negotiation: The “Recapture Effect”.

ABSTRACT: This paper considers the effects of joint negotiation when suppliers and intermediaries engage in bilateral negotiation over inclusion of a supplier’s product in an intermediary’s network. I identify conditions under which joint negotiation by two suppliers increases the suppliers’ bargaining power even when the suppliers’ products are not substitutes for each other. In particular, joint negotiation increases the suppliers’ bargaining power if suppliers face smaller losses from disagreement when they negotiate jointly. If joint negotiation causes an intermediary to lose more of its consumers to competing intermediaries in the event of disagreement, and if the suppliers sell their products through these competing intermediaries, the suppliers will be able to recapture more of the sales that they would otherwise have lost in the event of disagreement. As a result, joint negotiation reduces the suppliers’ losses from disagreement, and thus enhances their bargaining power. I show that these conditions arise under a wide range of assumptions about consumer preferences.

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Sequential selling and information dissemination in the presence of network effects

Junjie Zhou (Shanghai University of Finance and Economics) and Ying-Ju Chen (Hong Kong University of Science and Technology) comment on Sequential selling and information dissemination in the presence of network effects.

ABSTRACT: In this paper, we examine how a seller sells a product/service with a positive consumption externality, and customers are uncertain about the product's/service's value. Because early adopters learn this value, we consider the customers' intrinsic signaling incentives and positive feedback effects. Anticipating this, the seller commits to provide price discounts to the followers, and charges the leader a high price. Thus, the profit-maximizing pricing features the cream skimming strategy. We also show that the lack of seller's commitment is detrimental to the social welfare; nonetheless, the sequential selling still boosts up the seller's profit. Embedding a physical network with arbitrary payoff externality among customers, we investigate the optimal targeting strategy in the presence of information asymmetry. We provide precise indices for this leader selection problem. For undirected graphs, we should simply choose the player with the highest degree, irrespective of the seller's commitment power. Going beyond this family of networks, in general the seller's commitment power affects the optimal targeting strategy.

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Patent Pledges

Jorge Contreras, University of Utah analyzes Patent Pledges.

ABSTRACT: An increasing number of firms are making voluntary public commitments to limit the enforcement and other exploitation of their patents. I term these commitments "patent pledges." The best-known form of patent pledge is the so-called FRAND commitment, in which a patent holder commits to license patents to manufacturers of standardized products on terms that are "fair, reasonable and non-discriminatory." But patent pledges have been appearing in fields and environments well beyond technical standard-setting, including open source software, green technology and the biosciences. Pledges include FRAND commitments, as well as commitments not to assert patents against specified technologies or entities, and not to transfer patents to non-practicing entities. This article draws upon the public database of patent pledges compiled by the author and others to provide a comprehensive descriptive account of patent pledges across the board. It offers, for the first time, a taxonomy of pledge structures, content and settings, and identifies common goals and objectives of firms making pledges. Finally, it identifies challenges that will face patent pledges in the future, including issues surrounding the transfer of underlying patents, enforceability of pledge commitments, location and impermanence of pledges, and calls for a state-sponsored public registry of patent pledges.

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Let the Best 'One' Win: Policy Lessons from the New Economics of Platforms

E. Glen Weyl, Microsoft Research New England; University of Chicago and Alexander White, Tsinghua University - School of Economics & Management suggest Let the Best 'One' Win: Policy Lessons from the New Economics of Platforms.

ABSTRACT: The primary policy problem in platform markets is usually considered to be excessive lock-in to a potentially inefficient dominant platform. We argue that, once one accounts for sophisticated platform pricing strategies, such concerns are overblown. Instead the greater market failure is excessive fragmentation and insufficient participation. These problems, in turn, call for a very different policy response: aiding winners in taking all, ensuring they and not their copycats profit from success, subsidizing adoption and regulating the resulting "One" dominant firm.

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

How Not to Apply Actavis

Michael Carrier, Rutgers Camden cautions How Not to Apply Actavis.

ABSTRACT:  One of the most pressing issues in patent and antitrust law involves agreements by which brand-name drug companies pay generic firms to delay entering the market. In FTC v. Actavis, Inc., the Supreme Court held that these settlements could violate the antitrust laws. And while the Court introduced a blueprint for analyzing the agreements, it anticipated that the lower courts would play a crucial role in elaborating the framework.

Along these lines, two recent district court decisions portend ominous difficulties for this area. In fact, if the rulings in In re Lamictal Direct Purchaser Antitrust Litigation and In re Loestrin 24 FE Antitrust Litigation are affirmed and adopted by other courts, plaintiffs will face nearly insurmountable hurdles, rendering the landmark Actavis decision nothing more than a dead letter. This Essay shows that the Lamictal and Loestrin courts erred in (1) applying a framework never anticipated in Actavis, (2) ignoring crucial holdings from Actavis, and (3) amassing unjustified powers for themselves.

In blocking affordable generic prescription drugs, “exclusion payment” settlements cost consumers billions of dollars and have profound consequences for public health. But if the trend unleashed by the Lamictal and Loestrin cases is not quickly reversed, courts will be relegated to the role of traffic cops waving anticompetitive settlements through flashing green lights of judicial “scrutiny.”
cautions

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

The New Hong Kong Competition Law: Anomalies and Challenges

Kelvin H. Kwok, University of Hong Kong - Faculty of Law describes The New Hong Kong Competition Law: Anomalies and Challenges.

ABSTRACT: Enacted in 2012, the Hong Kong Competition Ordinance represents the first cross-sector competition legislation governing the Hong Kong Special Administrative Region. This article critically evaluates the peculiar aspects of the Competition Ordinance with reference to the legislative history as well as the competition law and enforcement experience of foreign jurisdictions (such as the European Union, the United States, and Australia). These aspects include: (i) the lack of cross-sector merger control; (ii) the ‘substantial market power’ requirement under the second conduct rule; (iii) the ‘object or effect’ test under the second conduct rule; (iv) the blanket exclusion of statutory bodies; (v) the power of the Chief Executive in Council to disapply the competition rules; (vi) the turnover de minimis thresholds; (vii) warning notices; (viii) the judicial enforcement model and restrictive private actions; and (ix) the capping of fines at 10% of local turnover. This article discusses solutions to some of these problems, and the challenges ahead for competition law enforcement in Hong Kong.

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

The Greek Betting State Monopoly: A Case for EU Fundamental Freedoms, EU Competition Law or Both?

Ioannis Platis, Centre of International and European Economic Law examines The Greek Betting State Monopoly: A Case for EU Fundamental Freedoms, EU Competition Law or Both?

ABSTRACT: This is an essay on the interconnection between different sets of EU rules when deciding a single case. The overlap between EU fundamental freedoms and EU competition rules consists in a continuous challenge posed to EU courts which is resolved in a case by case manner. This casuistic treatment was the main motivation to write this article while trying to fix the boundaries in the context of a certain EU judgment which happens to foster such an internal regulatory conflict.

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

15th annual workshop on Conducting Empirical Legal Scholarship

The 15th annual workshop on Conducting Empirical Legal Scholarship, co-taught by Lee Epstein and Andrew D. Martin, will run from June 15-June 17 at Washington University in St. Louis. The workshop is for law school faculty, lawyers, political science faculty, and graduate students interested in learning about empirical research and how to evaluate empirical work. It provides the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. 

Participants need no background or knowledge of statistics to enroll in the workshop. Registration is here. For more information, please contact Lee Epstein.

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Note - I asked specifically about whether or not they cover econometrics in the course. They do not.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Proportionality of EU Competition Fines: Proposal for a Principled Discussion

Hans Gilliams, Eubelius describes Proportionality of EU Competition Fines: Proposal for a Principled Discussion.

ABSTRACT: The TFEU and Regulation 1/2003 mandate the Commission to seek compliance with the competition rules through the imposition of fines that have deterrent effect. Deterrence is to be pursued subject to Article 49(3) of the Charter, which prohibits fines that are disproportionate to the gravity of the infringement. This contribution attempts to articulate a principled test for assessing compliance with Article 49(3). The current case law of the European Courts makes it difficult to fully apply that provision: the Courts have identified the relevant factors for the assessment of gravity but have not clarified the respective weight of these factors, and neither have the Courts indicated which fine level corresponds to a given degree of gravity. Pending such clarifications, the proportionality principle as expressed in the Charter would seem to prohibit the imposition of fines of an amount that the offender is unable to pay. I also conclude that the Commission’s Fining Guidelines may not be compatible with the Charter to the extent they allow for increases of the basic fine amount for undertakings with a large turnover beyond the cartelized sales, and for improper gains.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Defining the Role of Courts and Administrative Bodies in Private Enforcement in Europe: United in Diversity?

Bernardo Cortese, University of Padua - Department of Public Law, International Law and EU Law asks Defining the Role of Courts and Administrative Bodies in Private Enforcement in Europe: United in Diversity?

ABSTRACT: This study is a follow-up to a survey conducted by the author in the framework of Euro-Comp-Aid, a networking programme co-funded by the European Commission, DG Competition, and directed by the author. Several experts, mainly from National Competition Authorities (NCAs) of the EU Member States, answered a questionnaire drafted by the author of the present study.1 The present study reflects on some of the most interesting results of the survey, as to the actual impact of cooperation tools provided for by Article 15 of Regulation 1/2003. It also addresses the ways in which the legal systems of Member States complement Article 15 cooperation tools especially as concerns NCAs. Such national mechanisms of cooperation between courts dealing with private enforcement cases and public enforcement authorities are assessed by taking into account their soundness in the framework of the modernization and decentralization of EU competition law and some concerns about possible inconsistencies with the system designed by Article 267 TFEU. Due account is also taken of the role played by NCA public enforcement findings before civil courts dealing with private enforcement follow-on actions.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Contemporary Challenges in Competition Law - 15 May 2015, 09:30-18:00 - University of Leeds

Date and time: 15 May 2015, 09:30-18:00

Contemporary Challenges in Competition Law - 15 May 2015, 09:30-18:00 - University of Leeds

 

This one-day conference focuses on the most important contemporary challenges in competition law. It will examine the most pressing and challenging issues of competition law presently and in the near future. It will consider some of the cutting-edge, most difficult topics of competition law and its enforcement. These are issues that competition law and economics, as they stand, struggle to resolve.

The contemporary challenges will be grouped around four themes: issues particularly relevant to the practice of competition law and economics; the enforcement of competition law; substantive issues in competition law; and the interplay between competition law and regulation.

The keynote speech will be delivered by Lord David Currie, Chairman of the Competition and Markets Authority. Lord Currie’s speech will be followed by presentations from leading academics and practitioners from Europe and the United States. These presentations will be grouped into four (90 minute) panel sessions, with each panel reflecting on one of the four above-mentioned themes.

The conference is organised under the auspices of the Centre for Business Law and Practice. It is generously funded by the School of Law and Leeds University Business School.

09:30-09:40- Welcome Address

09:40-10:20- Keynote Speech by Lord David Currie, Chairman of the Competition and Markets Authority

10:20-11:50- Contemporary Challenges in Enforcement of Competition Law

Dr Niamh Dunne (King’s College London) Dr Peter Whelan (University of Leeds) Dr Arianna Andreangelli (University of Edinburgh)

11:50-12:45- Lunch

12:45-14:15- Contemporary Challenges in the Practice of Competition Law and Economics

Lord David Currie (Competition and Markets Authority) Tom Sharpe QC (One Essex Court) Adam Aldred (Kings Chambers) Dr Adrian Majumdar (RBB Economics)

14:15-14:30: Coffee

14:30-16:00- Contemporary Challenges in Substantive Competition Law

Professor Nicolas Petit (University of Liege) Professor Daniel Sokol (University of Florida) Dr Pinar Akman (University of Leeds)

16:00-16:20: Coffee

16:20-17:50- The Challenging Interplay between Competition and Regulation

Dr Oke Odudu (University of Cambridge) Dr Pablo Ibanez-Colomo (London School of Economics) Dr Raphael Heffron (University of Leeds)

17:50- Concluding Remarks

Date and time: 15 May 2015, 09:30-18:00

Location: Moot Court Room The Liberty Building School of Law University of Leeds Leeds LS2 9JT

(Please use postcode LS6 1AN for Sat Nav's)

The Liberty Building is number 16 on the campus map.

Registration

The event is free to attend but pre-registration is required. Please visit Eventbrite to book your place.

For further information please contact Antony Butcher.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

What Can the Duration of Discovered Cartels Tell Us About the Duration of Cartels?

Joseph E. Harrington Jr, University of Pennsylvania and Yanhao Wei, University of Pennsylvania - Department of Economics ask What Can the Duration of Discovered Cartels Tell Us About the Duration of Cartels?

ABSTRACT: There are many data sets based on the population of discovered cartels and it is from this data that average cartel duration and the annual probability of cartel death are estimated. It is recognized, however, that these estimates could be biased because the population of discovered cartels may not be a representative sample of the population of cartels. This paper constructs a simple birth-death-discovery process to theoretically investigate what it is we can learn about cartels from data on discovered cartels.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

NOTES ON THE MARGIN: AN OVERVIEW OF NMA'S MORTGAGE MARKET STUDY

Bastiaan Overvest, CFB and Gulbahar Tezel, PWC offer NOTES ON THE MARGIN: AN OVERVIEW OF NMA'S MORTGAGE MARKET STUDY.

ABSTRACT: This article presents the findings of a sector study conducted by the Netherlands Competition Authority on the Dutch mortgage market. Following the outbreak of the financial crisis, the average margins in the Dutch mortgage market increased sharply and reached historically high levels. In 2011, the margins fell back to pre-financial crisis levels. The historically high margins were accompanied by significant increases in concentration due to a merger between two relatively large banks and the (partial) exit of several smaller (foreign) banks. In the study, we found no indication that the temporary high margins were driven by collusive conduct. The price leadership bans of the European Commission can also not explain the margin developments around 2009, because these developments precede their introduction. There is, however, some evidence that the bans have led to higher prices in the Dutch mortgage market.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Standards: Competition and Innovation?

Justin Pierce, Lund University - Faculty of Law and Megi Medzmariashvili, Lund University ask Standards: Competition and Innovation?

ABSTRACT: In the European Union, the Commission has identified the use of standards as a mechanism of innovation sharing, European competitiveness and further economic integration within the Union. Additionally, the Union has developed and promoted a dynamic approach to research and development, largely supported by a robust intellectual property and antitrust exemption regime. The underlying purpose of which is to provide protection for inventions, facilitate cost recovery and enhance the exploitation of profits from the developed invention. Nonetheless, innovators face a continuous struggle not only to stay ahead of the pack but also to develop strategies to secure capital to continue research and development. The difficulties associated with technological advancement in standardised areas is exasperated given that the lack of guarantee the developed technology will be included within the standard, alongside other associated difficulties arising as a result of the existing standard. This paper explores whether driving standardisation in innovation markets is potentially counter effective and ultimately, an impediment to innovation and development.

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

On Tacit versus Explicit Collusion

Yu Awaya, Penn State University and Vijay Krishna, Penn State University offer thoughts On Tacit versus Explicit Collusion.

ABSTRACT: Antitrust law makes a sharp distinction between tacit and explicit collusion whereas the theory of repeated games -- the standard framework for studying collusion -- does not. In this paper, we study this difference in Stigler's (1964) model of secret price cutting. This is a repeated game with private monitoring since in the model, firms observe neither the prices nor the sales of their rivals. For a fixed discount factor, we identify conditions under which there are equilibria under explicit collusion that result in near-perfect collusion -- profits are close to those of a monopolist -- whereas all equilibria under tacit collusion are bounded away from this outcome. Thus, in our model, explicit collusion leads to higher prices and profits than tacit collusion.

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Choosing Whether to Compete: Price and Format Competition with Consumer Confusion

Paolo Crosetto, Grenoble Applied Economics Laboratory and Alexia Gaudeul, Friedrich-Schiller-Universitat Jena are Choosing Whether to Compete: Price and Format Competition with Consumer Confusion.

ABSTRACT: We run a market experiment where firms can choose not only their price but also whether to present comparable offers. They are faced with artificial demand from consumers who make mistakes when assessing the net value of products on the market. If some offers are comparable however, some consumers favor the best of the comparable offers vs. non-comparable offers. We vary the number of such consumers as well as the strength of their preferences for the best of the comparable offers. In treatments where firms observe the past decisions of their competitors, firms learn not to present comparable offers especially when many consumers prefer comparable offers. This occurs after initial periods with strong competition and leads to lower welfare for all consumers. In treatments where firms cannot monitor the competition, firms end up having to present comparable offers, which leads to an improvement in welfare for all consumers.

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Networks, Cartels, and Antitrust Policy

Miguel Cuerdo Mir, Universidad Rey Juan Carlos and Pilar Grau-Carles, Universidad Rey Juan Carlos de Madrid discuss Networks, Cartels, and Antitrust Policy.

ABSTRACT: Despite multiple applications of network theory in different fields of social and legal sciences in general, the possibility of applying this theory to the economic analysis of the antitrust law and, more specifically, to the study of cartels has not yet been considered. This paper develops a set of distances, clustering and centrality measures, taken from network theory, and applies them to the specific case of a cartel sanctioned as such by the European Commission. This approach has enabled us to quantify some characteristic elements of the cartel, such as, for instance, a remarkable asymmetry between operators (nodes in the network), its different degree of influence (study of links), as well as the critical importance of some operators versus other cartelized agents, such that their elimination from the organization would not enable them to create their own cartel. This leads the authors to reconsider the antitrust policy based on leniency programmes.

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

Registration Still Open! GCR Live 4th Annual Antitrust Law Leaders Forum 6 February 2015 at 09:00 to 7 February 2015 at 18:00 (far warmer than much of Europe and the United States)

Most of the US has been hit with a very cold spell.  Parts of Minnesota are hitting -50F tonight.  Europe isn't so warm either.  Ask yourselves - wouldn't you rather be in sunny Miami Beach with beautiful people, sun, beaches, tropical drinks and serious discussions of the latest developments of antitrust/competition law and policy?  Yes! Of course you do!

GCR Live 4th Annual Antitrust Law Leaders Forum

6 February 2015 at 09:00 to 7 February 2015 at 18:00

Thursday, 5th February

8:00pm: Welcome Reception - Sponsored byBlake, Cassels & Graydon LLP

Friday, 6th February

7:30am – 8:30am:

Registration/ Light Breakfast

8:30am – 9:15am: (Plenary)

Chairpersons’ Opening Remarks

  • Jason Gudofsky, Blake, Cassels & Graydon LLP (Toronto)
  • Margaret Sanderson, Charles River Associates (Toronto)

Keynote Address

  • William Baer, Assistant Attorney General, Antitrust Division, US Department of Justice (Washington)

9:15am – 10:30am: (Plenary)

Roundtable with Agency Heads of Economics

Moderator:

  • Margaret Sanderson, Charles River Associates (Toronto)

Speakers:

  • Tim Brennan, Chief Economist, US Federal Communications Commission (Washington)
  • Giulio Federico, Merger Coordinator, Chief Economist Team, DG Competition, European Commission (Brussels)
  • Mike Walker, Chief Economic Advisor, Competition and Markets Authority (London)
  • Nancy Rose, Deputy Assistant Attorney General for Economic Analysis, US Department of Justice (Washington)
  • Francine Lafontaine, Director, Bureau of Economics, US Federal Trade Commission (Washington)

10:30am – 10:45am:

Coffee Break

10:45am – 12:30pm: (Concurrent sessions)

Merger: Evidence in Merger Reviews – Handling Customer Views

This panel will discuss the relative and potentially changing importance of customer feedback and economic evidence to agencies conducting merger reviews in light of the court's discounting of the views of customers in BazaarVoice.

  • Is it still an effective use of agency time to solicit the views of large numbers of customers, and if so, why?
  • What is the value and what are the limitations of commissioning a customer survey, and how should surveys be best used by merging parties?
  • How should agencies interpret economic evidence that is at odds with feedback from customers and other market participants?
  • Are theories of harm about the exercise of bargaining power - whether resulting in exclusion of upstream suppliers or horizontal competitors e.g., water-bedding - economically provable in the merger context?
  • If customer opinion is not capable of being determinative of a merger's legality in some instances, does this diminish the probative value of customer opinion in other circumstances?

Moderator:

  • Olivier Antoine, Crowell & Moring LLP (New York)

Speakers:

  • Jordan Ellison, Slaughter and May (Brussels)
  • Scott Sher, Wilson Sonsini Goodrich & Rosati (Washington)
  • David Wales, Jones Day (Washington)
  • Carl Shapiro, University of California at Berkeley (Berkeley)

or

Antitrust: Sharing Technology and Facilitating Competitor Success as a Remedy in Innovation Markets

This panel will discuss the obligation to share technology with competitors and facilitate the success of competitors as a remedy in certain innovation markets, and the effectiveness of such remedies in restoring competitive market dynamics.

  • Is there good evidence of a causal relationship between a lack of sharing and the achievement of dominance or exclusion in certain industries? If not, why is sharing a potentially appropriate remedy?
  • In what circumstances is sharing with or facilitating a competitor likely to overcome tying and other exclusionary practices? In what circumstances is it likely to overcome entrenched business models that customers are accustomed to?
  • What are the economic circumstances in which mandated sharing or facilitation is most likely to succeed? Is sharing an appropriate remedy in regulated industries (when other regulators are capable of ordering sharing)?
  • Does the imposition of "net neutrality" regulations constitute a facilitation?
  • Is "Big Data" an industry where sharing should be required, given the high barriers to entry (both for data accumulation and server capacity)?
  • If sharing and facilitation is an effective and appropriate remedy, particularly in industries given to innovation, what does it mean if Aspen Ski is considered to be at the outer edge of monopolization/ abuse of dominance?

Moderator:

  • Ilene Knable Gotts, Wachtell, Lipton, Rosen & Katz (New York)

Speakers:

  • Sean Durkin, Charles River Associates (Chicago)
  • Jenine Hulsmann, Clifford Chance LLP (London)
  • Dina Kallay, Director, Intellectual Property and Competition, Ericsson, Inc. (Washington)
  • James Keyte, Skadden, Arps, Slate, Meagher & Flom LLP (New York)
  • Nikhil Shanbhag, Director, Competition, Google Inc. (California)

12:30pm – 1:45pm:

Lunch (Plenary)

Introduction: William Kolasky, Hughes Hubbard & Reed LLP (Washington)

2:00pm – 3:45pm: (Concurrent sessions)

Merger: Merger Review in Rapidly Evolving Industries

This panel will discuss how agencies should approach the task of merger review when industries go through rapid consolidation and successive transactions, including a discussion of how innovation competition and portfolio effects can be reliably assessed in such circumstances.

  • Industry consolidation, especially in the technology sector, may be driven by product evolution or technology convergence. How should agencies address relevant product market definition in such cases?
  • Is rapid industry consolidation an appropriate time to apply theories of competitive harm that are more difficult to apply from an evidentiary perspective, including portfolio effects and innovation effects?
  • Where consolidation occurs rapidly (e.g., SeaGate/Samsung and Western Digital/Hitachi) how should agencies assess the likelihood of future coordinated effects? Will these circumstances bring about the first "tipping point" case?

Moderator:

  • Susanne Zuehlke, Latham & Watkins LLP (Brussels)

Speakers:

  • Deborah Feinstein, Director, Bureau of Competition, US Federal Trade Commission (Washington)
  • Antonio Bavasso, Allen & Overy LLP (London)
  • Ronan Harty, Davis Polk & Wardwell LLP (New York)
  • Aviv Nevo, Northwestern University (Evanston)
  • Scott Darling, Vice President, General Counsel, Trulia, Inc. (San Francisco)

or

Antitrust: Creating Transparency in Markets: Coordination and Information Exchange

This panel will discuss the recent antitrust scrutiny of coordination and information exchange practices used by market participants to create price discovery mechanisms and enhance price transparency as well as agency responses to information exchange and hub-and-spoke coordination.

  • Industries that do not operate in open markets have little price transparency. How can this information gap be remedied in a pro-competitive manner? Is a lack of transparency necessarily a bad thing?
  • In what cases can information exchanges be pro-competitive (e.g. Rx 360, Tristate Health Partners)? How can economic tools be used to make this determination?
  • What steps have European regulators taken recently to reduce the risk of horizontal coordination and hub-and-spoke coordination in particular (e.g. Tesco, Post Danmark)? How have these efforts affected particular sectors, especially the food and textile sectors?
  • What benefit do these antitrust cases have for consumers (e.g. Libor, Gold Investigation)? What are the economic benefits?
  • How has the US approach to coordination and information exchange to enhance price transparency differed from the European approach?

Moderator:

  • Katrin Gaßner, Freshfields Bruckhaus Deringer LLP (Düsseldorf)

Speakers:

  • Matthew Reilly, Simpson Thacher & Bartlett LLP (Washington)
  • Matthew Bennett, Charles River Associates (London)
  • James Mutchnik, Kirkland & Ellis LLP (Chicago)
  • Cecilio Madero Villarejo, Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)
  • Kyriakos Fountoukakos, Herbert Smith Freehills LLP (Brussels)

3:45pm – 4:00pm:

Coffee Break

4:00pm – 5:30pm: (Concurrent sessions)

Merger: Clean Up in Aisle 3 – New Approaches to Merger Review in the Retail Sector

This panel will discuss competition and consolidation in the retail sector and how the rise of online sales platforms and other disruptive technologies have influenced the development of merger analysis.

  • In a world with Amazon, are mergers in the retail sector (outside of groceries) ever likely to be anti-competitive again?
  • How are agencies approaching the effects of retail mergers on upstream suppliers? How can economics be used to further our understanding of these effects?
  • How should merger analysis (both as presented by the parties and as performed by the agencies) reflect the rapid (and continuing) evolution of distribution structures?
  • How do antitrust agencies approach the general problem of disruptive new entrant retailers when performing merger review?

Moderator:

  • Rebecca Farrington, White & Case LLP (Washington)

Speakers:

  • George Cary, Cleary Gottlieb Steen & Hamilton LLP (Washington)
  • James Fishkin, Dechert LLP (Washington)
  • Paul Collins, Stikeman Elliott LLP (Toronto)
  • Peter Boberg, Charles River Associates (Boston)
  • Mike Walker, Chief Economic Advisor, Competition and Markets Authority (London)

or

Antitrust: "Sir, please step out of line" - Extraterritoriality and Extradition in the Antitrust Context

This panel will discuss the implications for clients of the US DOJ demonstrating its ability to extradite a foreign national for participation in a cartel and explore the limits of extraterritoriality in cartel enforcement today as well as the incentives of those subject to extradition.

  • Is the risk of extradition to the United States more significant than previously?  Is this a general risk, or specific to the country in which individuals reside?
  • What influences the incentives of individuals who are potentially subject to extradition?
  • Do antitrust laws properly capture the risk profiles of individuals who engage in cartel behaviour that could potentially subject them to extradition?
  • What is an appropriate threshold for "dual criminality" under antitrust law?
  • In trans-national cartels, in which jurisdiction should individuals plead guilty, and where should they serve their sentences?
  • How can corporate counsel best handle potential extradition proceedings against one of its employees? Should those employees be carved out of plea agreements? Should they be advised to retain separate counsel? Should they enter cooperation agreements?
  • What are the limits on extraterritoriality in US law and what are the implications for individuals and companies likely to arise out of Motorola Mobility LLC v. AU Optronics Corp.?

Moderator:

  • Peter Niggemann, Freshfields Bruckhaus Deringer LLP (Düsseldorf)

Speakers:

  • José Carlos da Matta Berardo, Barbosa, Müssnich & Aragão Advogados (São Paulo)
  • Kenneth O’Rourke, O’Melveny & Myers LLP (Los Angeles)
  • Kathryn Hellings, Hogan Lovells US LLP (Washington)
  • Yusuke Nakano, Anderson Mori & Tomotsune (Tokyo)
  • Matthew Boswell, Senior Deputy Commissioner of Competition, Criminal Matters, Competition Bureau (Ottawa)

7:30pm: Conference Dinner - Sponsored by Charles River Associates

Saturday, 7th February

8:15am - 8.45am:

Welcome Coffee

8:45am – 10:30am: (Plenary)

A Retrospective on the Term of Commissioner Joaquín Almunia, and a Look Ahead

GCR Miami 2015 will be one of the first opportunities to reflect on the accomplishments of Joaquín Almunia's term as EU Commissioner of Competition, and to look ahead at the challenges facing the new Commission.

  • What are the key accomplishments of the European Commission under Joaquín Almunia?
  • In what areas has the European Commission under Joaquín Almunia failed to advance enforcement? How should the next Commissioner address enforcement?
  • How do these accomplishments and failures match against those of US agencies during the same time period? What are the lessons that other agencies can take from Joaquín Almunia’s term?
  • What ought to be the priorities of the next Commissioner? How do these proposed priorities compare to trends in other jurisdictions?

Moderator:

  • Paula Riedel, Linklaters LLP (London)

Speakers:

  • Rachel Brandenburger, Senior Advisor to Hogan Lovells US LLP (New York)
  • William Blumenthal, Sidley Austin LLP (Washington)
  • Cristina Caffarra, Charles River Associates (London)
  • Frédéric Jenny, Chairman, OECD Competition Law and Policy Committee (Cergy-Pontoise)

10:30am – 10:45am:

Coffee Break

10:45am – 12:15pm: (Concurrent sessions)

Merger: A Vertical Tide in Merger Review

This panel will discuss recent trends in vertical theories of harm in merger review.

  • Are vertical concerns the new horizontal? 
  • Are questions of vertical effects more important to the exercise of market power in certain industries?
  • What strategies should merging parties consider in the context of a vertical merger?
  • How does the analysis of vertical mergers differ across jurisdictions?

Moderator:

  • Navin Joneja, Blake, Cassels & Graydon LLP (Toronto)

Speakers:

  • Ian John, Kirkland & Ellis LLP (New York)
  • Joshua Soven, Gibson, Dunn & Crutcher LLP (Washington)
  • Ulrich Denzel, Gleiss Lutz (Stuttgart)
  • Steven Salop, Georgetown University (Washington)
  • Sophie Moonen, Head of Unit, European Commission (Brussels)

or

Antitrust: Compliance and Crisis Management: A Global Perspective

This panel will discuss the qualities that make up effective antitrust and anti-corruption compliance programs and their growing importance, and consider how those policies help (or hinder) in a crisis situation.

  • What are the key substantive and procedural aspects of an effective compliance program?
  • How can economics help clients in determining their damage exposure and be used effectively in settlement discussions with the agency or private parties?
  • In what circumstances is compliance risk estimable for reserve purposes?
  • In what circumstances can compliance programs aggravate corporate liability? How can such circumstances be prevented?
  • How can compliance programs help/ hinder after an investigation has been commenced? What economics tools can be used to gauge the scale of damages?

Moderator:

  • Daniel Sokol, Levin College of Law, University of Florida (Gainesville)

Speakers:

  • Alfredo O’Farrell, Marval, O'Farrell & Mairal (Buenos Aires)
  • Fiona Schaeffer, Milbank, Tweed, Hadley & McCloy LLP (New York)
  • Helen Bardell, Director, Competition Team, Barclays Bank (London)
  • Claire Debney, Vice President & General Counsel, Group Legal Affairs & Compliance, Reckitt Benckiser Group plc (Slough)
  • Robert Topel, University of Chicago (Chicago)

12:15pm – 1:00pm: Chairpersons' Concluding Remarks and Lunch

  • Jason Gudofsky, Blake, Cassels & Graydon LLP (Toronto)
  • Margaret Sanderson, Charles River Associates (Toronto)

 

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