Thursday, March 26, 2015
Christoph Engel Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Universitat Osnabrück - Faculty of Law explores Tacit Collusion – The Neglected Experimental Evidence.
ABSTRACT: Both in the US and in Europe, antitrust authorities prohibit merger not only if the merged entity, in and of itself, is no longer sufficiently controlled by competition. The authorities also intervene if, post merger, the market structure has changed such that "tacit collusion" or "coordinated effects" become disturbingly more likely. It seems that antitrust neglects the fact that, for more than 50 years, economists have been doing experiments on this very question. Almost any conceivable determinant of higher or lower collusion has been tested. This paper standardises the evidence by way of a meta-study, and relates experimental findings as closely as possible to antitrust doctrine.
Daniel S. Hosken, Government of the United States of America - Federal Trade Commission and Steven Tenn, Charles River Associates analyze Horizontal Merger Analysis in Retail Markets.
ABSTRACT: In this essay, we describe antitrust analysis of horizontal mergers in U.S. retail markets. We begin by providing a brief overview of the economic and legal framework governing horizontal merger policy, and highlight key issues in analyzing retail mergers. Next, we discuss the changing legal treatment of retailing mergers by providing a description of four major merger challenges brought by U.S. antitrust authorities over the last 50 years. We then provide a detailed discussion of the economic tools used to analyze retailing mergers. We start by presenting a frequently used model of retail competition to illustrate how retail mergers can create or enhance market power. We then describe a variety of structural and reduced form empirical techniques that can be used to quantify competition between merging retailers and, in some cases, to forecast merger price effects.
Ioannis Lianos, UCL ponders Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe.
ABSTRACT: In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.
Wednesday, March 25, 2015
Willem H. Boshoff, Stellenbosch University - Department of Economics describes Illegal Cartel Overcharges in Markets with a Legal Cartel History: Bitumen Prices in South Africa.
ABSTRACT: In recent years, South African competition authorities have initiated a number of price-fixing cases in markets where cooperation among competitors was legal and often encouraged. These markets present economists with special difficulties when estimating cartel overcharges. Conventional approaches often rely on temporal approaches, where pricing during the cartel period is compared with prices in a competitive period. In markets with a legal cartel history, a competitive price cannot be identified in the period preceding illegal collusion. Structural change also reduces data, and hence the robustness of temporal models. Spatial approaches, where prices are compared with those in other countries, offer a better alternative. The paper studies the performance of temporal and spatial approaches in estimating overcharge in the context of a bitumen price-fixing case. The results suggest that, while the bitumen cartel may have responded to cost and demand shocks in a similar way to how players in more competitive markets respond, it was still cushioned by a large monopoly premium: the long-run level of South African bitumen prices are higher than in comparable competitive markets. The findings have implications for the study of transition dynamics from legal to illegal cartel regimes and for the detection of cartels.
The podcast discusses and elaborates on Professor Carrier's essay, in which he explores two recent district court decisions that could frustrate the Supreme Court's recent directive to apply antitrust law to "exclusion payment" patent settlements. The Court's high-profile Actavis decision set broad guidelines for lower courts on how to assess the settlements, in which a brand-name drug company pays a generic to drop its patent challenge and delay entering the market. Carrier carefully surveys and refutes the district courts' understanding of the Actavis decision, arguing that the courts improperly favor settlements at the expense of meaningful antitrust scrutiny. Carrier concludes that consumers will pay the price if other courts do not step in to correctly apply Actavis.
The link to the podcast with Professor Carrier is: http://www.northwesternlawreview.org/online/conversation-professor-michael-carrier-antitrust-law-and-patent-settlements.
The link to Professor Carrier's essay is: http://www.northwesternlawreview.org/online/how-not-apply-actavis.
Bo Vesterdorf, Herbert Smith Freehills asks Theories of Self-Preferencing and Duty to Deal - Two Sides of the Same Coin?
ABSTRACT: In the on-going EU Commission investigation into Google with respect to online search, a new non-discrimination theory is being proposed: complainants allege that under Article 102 TFEU, a dominant firm must provide its customers access to competitors’ products or content, and must design its own products or manage its own distribution channel so as to not preference their own operations over those of competitors. If this theory is upheld, it will have unexpected adverse effects on firms in a variety of markets, online and offline. This article shows, however, that such a claim has no support in EU jurisprudence or policy. In EU law, only firms controlling truly indispensable or essential facilities can be required to deal with rivals on any terms, and if dominant firms have no duty to deal with rivals, any ‘favouring’ of their own businesses and differential treatment of their competitors cannot be considered abusive.
Einer Elhauge (Harvard) suggests TREATING RAND COMMITMENTS NEUTRALLY.
ABSTRACT: This article argues that the same legal standards should apply to RAND commitments whether they are made to standard-setting organizations or not. The arguments for concluding that RAND commitments should limit injunctive patent relief or trigger antitrust liability turn on whether the commitment reasonably induces lock-in that generates hold-up effects or market power when that commitment is breached. But RAND commitments can induce such lock-in effects when they are made outside of standard-setting organizations and do not always induce them when they are made to standard-setting organizations. Thus, any special legal rules for RAND commitments should turn on whether the commitments induced such lock-in, rather than on the institutional context. The arguments against using special legal rules for RAND commitments turn on the extent to which lock-in might fail to generate holdup problems, denying patent injunctions might generate reverse-holdup problems, and contract or promissory estoppel remedies might obviate the need for antirust liability. But those arguments likewise apply equally inside and outside of standard-setting organizations. Thus, however one resolves the arguments for and against applying special legal rules to RAND commitments, the resulting legal standards should be the same whether or not the commitment is made to a standard-setting organization.
Greg Sidak (Criterion Economics) explains THE MEANING OF FRAND, PART II: INJUNCTIONS.
ABSTRACT: Under what conditions may the holder of standard-essential patents (SEPs) seek to enjoin an infringing implementer without breaching the SEP holder's contract with the standard-setting organization (SSO) to provide access to those SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms? I show that the SEP holder's contractual obligations still permit it to seek an injunction. A FRAND commitment requires the SEP holder to offer a license for the SEPs on FRAND terms (or otherwise to grant implementers access to the SEPs). Extending an offer containing a price within the FRAND range discharges the SEP holder's contractual obligation. Thereafter, the SEP holder may seek to enjoin an implementer that has rejected a FRAND offer. This analysis indicates the imprudence of categorically banning injunctions for the infringement of SEPs, as some scholars have advocated and as one of the world's most significant SSOs—the Institute of Electrical and Electronics Engineers (IEEE)—actually did in 2015 in amendments to its bylaws. Such a ban would invite opportunism by implementers and is unnecessary. Courts already can prevent opportunism by SEP holders by conditioning an injunction on the implementer's actual or constructive rejection of a FRAND offer.
Tuesday, March 24, 2015
Geert Goeteyn (Shearman & Sterling), Patrick Smith (RBB) and Sara Ashall (Shearman & Sterling) ask Away From Market Shares? The Increasing Importance of Contestability in EU Competition Law Cases.
ABSTRACT: In recent cases, the European Commission has shown a willingness to look beyond market shares to the contestability of markets when assessing the compatibility of mergers with EU competition law. In Syniverse/MACH, that approach, which understands that the strength of competition may not be expected to vary together with traditional measures of concentration, allowed the Commission to approve the proposed transaction, despite very high levels of concentration in three different relevant markets. The Commission granted clearance subject to conditions in relation to two of the relevant markets, while accepting that no such remedies were required in the third market of concern taking into account, in particular, the competitive constraints exerted by the customers’ ability to self-supply.
EU Merger Control: The Relevance of Captive Sales for the Purpose of Market Definition and Competition Assessment
Geert Goeteyn and Sara Ashall describe EU Merger Control: The Relevance of Captive Sales for the Purpose of Market Definition and Competition Assessment.
ABSTRACT: When assessing mergers, the European Commission's starting point is to consider only sales made on the merchant market in its assessment and exclude in-house or captive sales, in particular when defining markets. In recent years, it has adopted a pragmatic approach in its competition analysis by taking into account a variety of factors, including how in-house supply works practically in the market, the level of captive sales, and the extent of switching. This pragmatic approach corresponds to that used in the United States as well as, progressively, in emerging jurisdictions like Brazil.
Feng Zhu (Harvard Business School, Technology and Operations Management Unit) and Qihong Liu (University of Oklahoma) research Competing with Complementors: An Empirical Look at Amazon.com.
ABSTRACT: Platform owners sometimes enter complementors' product spaces to compete against them directly. Prior studies have offered two possible explanations for such entries: Platform owners may target the most successful complementors so as to appropriate value from their innovations, or they may target poor performing complementors to improve the platforms' overall quality. Using data from Amazon.com, we analyze the patterns of Amazon's entries into its third-party sellers' product spaces. We find evidence consistent with the former explanation: that the likelihood of Amazon's entry is positively correlated with the popularity and customer ratings of third-party sellers' products. Amazon's entry reduces the shipping costs of affected products and hence increases their demand. Results also show that third-party sellers affected by Amazon's entry appear to be discouraged from growing their businesses on the platform subsequently.
Maria Ana Vitorino (University of Minnesota), Ali Hortacsu (University of Chicago), and Elisabeth Honka (The University of Texas at Dallas) explore Advertising, Consumer Awareness and Choice: Evidence from the U.S. Banking Industry.
ABSTRACT: Does advertising serve to (i) increase awareness of a product, (ii) increase the likelihood that the product is considered carefully, or (iii) does it shift consumer utility conditional on having considered it? We utilize a detailed data set on consumers' shopping behavior and choices over retail bank accounts to investigate advertising's effect on product awareness, consideration, and choice. Our data set has information regarding the entire purchase funnel, i.e. we observe the set of retail banks that the consumers are aware of, which banks they considered, and which banks they chose to open accounts with. We formulate a structural model that accounts for each of the three stages of the shopping process: awareness, consideration, and choice. Advertising is allowed to affect each of these separate stages of decision-making. Our model also endogenizes the choice of consideration set by positing that consumers undertake costly search. Our results indicate that advertising in this market is primarily a shifter of awareness, as opposed to consideration or choice. Along with advertising, branch density, marital status, race and income are very signficant drivers of awareness. We also find that consumers face non-trivial search/consideration costs that lead the average consumer to consider only 2.2 banks out of the 6.7 they are aware of. Conditional on consideration, branch density, the consumer's current primary bank (i.e. inertia), interest rates and education are the primary drivers of the final choice.
Monday, March 23, 2015
Boone, J. (Tilburg University, Center For Economic Research) and Douven, R.C.M.H. (Tilburg University, Center For Economic Research) research Provider Competition and Over-Utilization in Health Care.
ABSTRACT: This paper compares the welfare effects of three ways in which health care can be organized: no competition (NC), competition for the market (CfM) and competition on the market (CoM) where the payer offers the optimal contract to providers in each case. We argue that each of these can be optimal depending on the contracting environment of a speciality. In particular, CfM is optimal in a clinical situation where the payer either has contractible information on provider quality or can enforce cost efficient protocols. If such contractible information is not available NC or CoM can be optimal depending on whether pat! ients react to decentralized information on quality differences between providers and whether payer’s and patients’ preferences are aligned.
Stefan Behringer (Universitat Duisburg-Essen) and Lapo Filistrucchi (Tilburg) discuss Areeda-Turner in Two-Sided Markets.
ABSTRACT: Areeda and Turner (1975) were the first to argue that a price below marginal costs should be considered a sign of predation. Recognizing that marginal cost data were typically unavailable, the authors concluded that a price below average variable cost should be presumed unlawful. This so called Areeda-Turner Rule has become the standard to assess claims of predation. We first show that in two-sided markets price cost margins on the two-sides of the market are interrelated and that a monopolist, even in the absence of actual or potential competition, may find it optimal to charge a price below marginal cost on one s! ide of the market. As a result, showing that the price is below average variable cost on one side of the market cannot be considered a sign of predation in such markets. This is in contrast to a recent decision of the Commercial Court of Paris that sanctioned Google for giving away for free its online mapping services. We thus extend the Areeda-Turner rule to two-sided markets. We argue that one should apply the rule by taking into account revenues and costs from both sides of the market. As applications, we analyse three alleged cases of predatory behaviour in the market for daily newspapers. Our examples highlight that applying a one-sided Areeda-Turner rule may lead to assess a perfectly legitimate profit maximizing pricing policy as a predatory attempt.
The 10th CRESSE Conference is organized from 3-5 July 2015 in Rethimnon in island of Crete.
Confirmed speakers include Jean Tirole, Ariel Pakes (the two Keynote), Joe Harrington, Patrick Rey, Mark Ivaldi, Ralph Winter, Nancy Gallini, Tom Ross, Fiona Scott Morton, Gianca Spangolo, Jacques Cremer, Patrick Legros, Kai Uwe Kuhn, Frederic Jenny, Yossi Spiegel, Frank Verboven, Volker Nocke (TBC), Tommaso Valetti, Jorge Padilla, Massimo Motta, Joshua Gans, Marcel Boyer, Guilio Federico, Frank Maier Rigaud, Cristina Caffara, Juan Pablo Montero and Julian Wright.
Please see the link to the pdf for more details.
CRESSE Lawyers Week
Sunday, July 5th – Friday, July 10th 2015
The Role of Economics in Competition Law and Practice
Damien Neven (IHEID, The Graduate Institute of International and Development Studies, Geneva), Vilen Lipatov and Gregor Langus have an interesting paper on European champions and competition enforcement: Is DG COMP in ideological denial?
ABSTRACT: In the wake of the Alstom restructuring, the French government indicated that current merger control rules do not allow for the development of European champions and called for a change in the rules. This paper argues that such a move may be not be advisable but that enforcement of the current rules should be improved, in particular regarding the assessment of efficiencies and the delineation of the wider public policy considerations that Member States can appeal to in exercising their own control. With respect to efficiencies, the Commission’s practice exacerbates the inherent bias of its consumer harm standard against the development of more efficient firms. The identification of transactions that are likely to harm consumers requires the evaluation of the magnitude and likelihood of efficiencies with respect to a benchmark that is case specific. However, a review of the Commission practice suggests (i) that it has failed to develop a constructive standard for the evaluation of efficiencies, (ii) that the standard of proof that it applies to efficiencies is high and misguided with respect to the extent of pass-through, (ii) that the magnitude of efficiencies is often not assessed in relation to the potential harm and (iii) that a discrete threshold is often applied with respect to the likelihood of efficiencies. An improvement in the assessment of efficiencies along these dimensions would improve enforcement under the existing standard, making it less inimical to the development of efficient firms and would thereby also enhance its political acceptability in relation to the recurring debates on national champions. With respect to the additional oversight over transactions that Member States can exercise, the paper finds that the operation of the merger control framework would be improved if the Commission would pro-actively clarify the wider public policy considerations that can be brought to bear on the transactions under Art 21(4) and impose some transparency requirements on member states that elect to appeal to these public policy grounds to impose additional remedies. The paper also offers some guiding principles for the delineation of these policy grounds.
Lower Sanctions, Greater Antitrust Compliance? Cartel Conduct with Imperfect Information about Enforcement Risk
Johannes Paha (University of Giessen) asks Lower Sanctions, Greater Antitrust Compliance? Cartel Conduct with Imperfect Information about Enforcement Risk.
ABSTRACT: This article provides a model of two risk-neutral firms that may cooperate to achieve a goal that is potentially illegal. The model assumes enforcement risk and firms that are imperfectly informed about antitrust law enforcement. It is shown that compliance training, which educates the agents about law enforcement, may prevent hardcore cartels. Compliance training programs may also promote forms of cooperation that are beneficial for customers. The article shows that a competition authority can sometimes spur the implementation of compliance programs by imposing lower sanctions on wrongdoers.
Friday, March 20, 2015
In our next two issues, compiled with Danny Sokol's guidance, we're diving into the murky waters of patents. We're asking how to balance the need to protect competition with the desire to encourage innovation, and, in an obviously related question, how to compensate for others to use that innovation. Recent events have underscored the continuing turmoil in the field—the Ericsson and Qualcomm decisions; intensified discussion on royalties, including asking whether royalty stacking even exists; the Recent FTC IEEE letter; and others.
And do any conclusions stand out? For one, we couldn't give all these issues sufficient attention in just one issue, so this will be part one of a two-part colloquium. But also, if you're involved in antitrust today, this is a field you really need to understand. And reading these papers will move you a long way down that road.
- Antitrust and Patent Issues, Part 1
- Alden Abbott, Mar 16, 2015
Recent FTC and DOJ actions related to standard setting promote dubious enforcement theories and favor technology implementers over innovator patentees, to the detriment of dynamic competition and innovation. Alden F. Abbott (Heritage Foundation)Tags:
- Stuart Chemtob, Mar 16, 2015
Carte Blanche for SSOs? The Antitrust Division’s Business Review Letter on the IEEE’s Patent Policy Update
The DOJ’s devaluing of concerns about harm to innovation incentives has serious implications that will affect the choices made by other SSOs, as well as enforcement policies of foreign competition authorities looking to U.S. antitrust law for guidance. Stuart M. Chemtob (Wilson, Sonsini)Tags:
- Sean Gates, Mar 16, 2015
Those debating what “reasonable” means in RAND have crafted intricate and complex arguments on both sides. Sean Gates (Morrison & Foerster)Tags:
- Joseph Kattan, Mar 16, 2015
Based on this evidence, it concludes that the choice of the royalty base affects the royalty size. Joseph Kattan, PC (Gibson, Dunn & Crutcher)Tags:
- Richard Stark, Mar 16, 2015
Has the possibility of royalty stacking manifested itself as a real-world problem? Richard J. Stark (Cravath, Swaine & Moore)Tags:
- Dina Kallay, Mar 16, 2015
The CAFC formulation for determining the RAND value of standard-essential patents is different from the FTC formulation of the same. Dina Kallay (Ericsson)Tags:
- Anne Layne-Farrar, Koren Wong-Ervin, Mar 16, 2015
Given that the Federal Circuit is often the last word on patent issues, the court’s Ericsson decision provides important guidance to lower courts on how to determine RAND royalty rates. Anne Layne-Farrar (CRA) & Koren W. Wong-Ervin (FTC)Tags:
- Yoonhee Kim, Hui Jin Yang, Mar 16, 2015
The KFTC’s enforcement action against Qualcomm should create little surprise. Yoonhee Kim & Hui-Jin YangTags:
- Alden Abbott, Mar 16, 2015
Arghya Ghosh, UNSW, Hodaka Morita, UNSW and Chengsi Wang, Mannheim explore Horizontal mergers in the presence of vertical relationships.
ABSTRACT: We study welfare effects of horizontal mergers under a successive oligopoly model and find that downstream mergers can increase welfare if they reduce input prices. The lower input price shifts some input production from cost-inefficient upstream firms to cost-efficient ones. Also, the lower input price makes upstream entry less attractive, reduces the number of upstream entrants, and decreases their average costs in the presence of fixed entry costs. We identity necessary and sufficient conditions for a reduction in input prices and welfare-improving horizontal mergers under a general demand function. Qualitative nature of our findings remains unchanged for upstream mergers.
ABSTRACT: We study a model of firm price setting with customer markets and empirically evaluate its predictions. Our framework captures the dynamics of customers in response to a change in the price set by firms, describes the behavior of optimal prices in the presence of customer retention concerns, and delivers a general equilibrium model of price and customer dynamics. We exploit micro data on purchases from a large U.S. retailer by a panel of households to quantify the model and compare it to the counterfactual benchmark of the monopolistic competition setting. We show that our model with customer markets has markedly dierent implications in terms of the equilibrium price distribution, and better fits the available empirical evi! dence on retail prices. Moreover, the dynamic of the response of demand to policy relevant shocks is also distinctive. Our results suggest that inertia in customer reallocation across firms increases the persistence in the response of firms' demand to these shocks.