Friday, March 22, 2019
Stephen Houck, Offit Kurman, P.A. suggests Exercising Antitrust Enforcement Discretion: Android.
ABSTRACT: This paper examines what factors guide U.S. antitrust enforcement officials in the exercise of their prosecutorial discretion, and applies that analysis to a hypothetical challenge to the Android operating system for mobile devices. With limited resources, U.S. antitrust enforcement officials must be discerning in the cases they choose to prosecute. Four principal considerations drive antitrust enforcement decisions: (1) the strength of the case on the merits; (2) consumer harm and remedies; (3) deterrence of similar conduct by others in the marketplace; and (4) the importance of protecting competition, not competitors. Applying these considerations, the paper concludes that Section 2 action directed at Android would be unlikely to succeed because Android does not have a monopoly share of a reasonably defined market protected by structural barriers to entry, and Google’s conduct is very different from that condemned by the D.C. Circuit in Microsoft. Moreover, there is no clear-cut consumer harm. On the contrary, the advent of Android, which is based on a disruptive new technology, resulted in downward pressure on prices, expanded output and has led to greater -- not less -- consumer choice. A risky, complex litigation would also produce opportunity costs from an enforcement perspective. Additionally, there is no credible argument that such a case is necessary for deterrence. Finally, the principal complainant about Google has ample means to defend itself, suggesting that its real motivation in seeking government intervention is to enhance its own bottom line, not to protect competition.
Thursday, March 21, 2019
Damien Geradin, Tilburg Law & Economics Center (TILEC); EUCLID Law; University College London - Faculty of Laws and Robert O'Donoghue, Brick Court Chambers are Papering Over the Cracks: The GCEU Judgement in Case T-851/14 Slovak Telekom v Commission.
ABSTRACT: On 15 October 2014, the European Commission adopted a decision finding that Slovak Telekom breached Article 102 TFEU for its refusal to provide unbundled access to its local loops, as well as its margin squeeze of alternative operators in the provision of unbundled access to its local loops. On 13 December 2018, GCEU adopted its judgement on the appeal brought by Slovak Telekom. The GCEU confirms the Commission’s decision that the Slovak Telekom had breached Article 102 TFEU by engaging in constructive refusal to supply and margin squeeze. This paper reviews the main arguments that ST raised in its appeal against the Commission decision, and analyses the response of the GCEU to these arguments, and in the process provides commentary and critique on the GCEU judgment. It argues that this judgement is a missed opportunity as it fails to engage with the fundamental issues of principles raised by Slovak Telekom in its appeal.
Dennis Carlton, U Chcago, explains The Anticompetitive Effects of Vertical Most-Favored-Nation Restraints and the Error of Amex.
ABSTRACT: This paper illustrates the underlying economic logic behind the anticompetitive effects of what Ralph Winter and I have labeled vertical most favored nation restraints in Carlton and Winter (2018). Those are restraints in which one supplier tells a retailer that the retailer cannot set the retail price of its product higher than that of a rival, even if its wholesale price is higher than that of its rival. I explain the possible anti-competitive effect of such restraints. I then apply the reasoning to credit cards and finally, using the economic framework developed, explain the economic errors in the Court’s recent Amex decision.
Jay P. Kesan, University of Illinois College of Law, Anne Layne-Farrar, Charles River Associates; Northwestern University and David L. Schwartz, Northwestern University - Pritzker School of Law offer Understanding Patent 'Privateering': A Quantitative Assessment.
ABSTRACT: Since 2011, several papers and articles have speculated about the motivations, activities, and possible anticompetitive effects of hybrid patent assertion entities (PAEs), or more pejoratively, “patent privateers.” Patent privateers are non-practicing entities that obtain patent enforcement rights from practicing entities, assert those patents in litigation or licensing, and then share the earnings with the original patent holder. Most prior work has assumed that privateers are essentially extorting money from firms by making weak infringement claims employing weak patents. Under a more classical law-and-economics approach, we would expect patent privateers to acquire valuable patents to reduce litigation risk and justify patent enforcement. But to date, there has been no quantitative analysis on this form of patent holder to support or disprove either of these theoretical viewpoints. This paper is a first step toward filling that gap in the analysis by conducting an empirical assessment of patent lawsuits filed between 2010 and 2013. While several studies have provided useful analysis on who litigates patents and which patents are more likely to be litigated, we add new variables and insights to the analysis. First, our dataset identifies the business models of the parties involved, including hybrid PAEs. Second, we include data on patent reassignments, which allows us to identify when a hybrid PAE takes (partial) possession of a patent. Third, for making comparisons between litigated and unlitigated patents, our dataset includes a set of unlitigated patents that match our litigated patent dataset on several key variables.
In this work, we explore three interesting questions: (1) what patent characteristics predict a patent’s acquisition by a hybrid PAE? (2) do hybrid PAEs acquire patents that are more likely to be litigated? and (3) does reassignment to a hybrid PAE affect the time when a patent is first asserted in litigation? We find that hybrid PAEs tend to acquire patents in Information Technology and Surgery & Medical Instrument fields more often than patents in other technology areas. Hybrid PAEs also obtain relatively higher quality patents than average, but objective quality metrics generally are on par when compared to patents litigated by firms with other business models. Our analysis also suggests that hybrid PAEs prefer patents with a broader scope of protection. Reassigning a patent to a hybrid PAE is generally associated with higher odds that the patents will be litigated. And finally, patents held by hybrid PAEs at some point in their lifespan experience their first litigation later than those never held by a hybrid PAE. In short, our analysis suggests that patent privateers appear to be focused on improving the possibility of successful patent monetization by focusing on acquiring higher quality patents with a broader scope of protection. This research is consistent with the law and economics theory that hybrid PAEs acquire valuable patents and not the extortion theory that they acquire weak patents.
C. Scott Hemphill, New York University School of Law and Marcel Kahan, New York University School of Law; European Corporate Governance Institute comment on The Strategies of Anticompetitive Common Ownership.
ABSTRACT: Recent scholarship considers the potential anticompetitive effects when institutional investors hold substantial stakes in competing firms. Empirical evidence reporting that common concentrated owners (“CCOs”) are associated with higher prices and lower output poses a sharp challenge to antitrust orthodoxy and corporate governance scholarship.
We identify and examine the causal mechanisms that might link common ownership to higher prices. We distinguish potential mechanisms along three dimensions: whether the mechanism produces conflict with noncommon owners by inducing actions that raise CCO portfolio value at the expense of firm value; whether the mechanism targets specific firm actions as opposed to affecting firm activities across-the-board; and whether the mechanism is active (rather than passive), in the sense that the CCO undertakes some act in furtherance of its strategy, such as communicating with management or voting.
We consider whether each mechanism is tested by the existing empirical evidence, and whether it is plausible—that is, feasible, effective, and in a CCO’s interest. Our main conclusion is that, for most proposed mechanisms, there is no significant evidence suggesting that institutional CCOs employ them, no strong theoretical basis for believing that they could and would want to do so, or both. The mechanism that is most consistent with the empirical evidence and most plausibly employed by institutional CCOs is selective omission: to press for firm actions that increase both firm value and the CCO’s portfolio value, while remaining passive where the two conflict.
We make three major points. First, several mechanisms emphasized in the literature are not, in fact, empirically tested. Of particular interest, the leading empirical studies are limited to mechanisms that are conflictual and targeted. Second, some mechanisms are infeasible or else ineffective in raising portfolio value. Third, because most institutional investors have only weak incentives to increase portfolio value, it is not in their economic interest to pursue mechanisms that carry significant reputational or legal liability risks.
Our analysis has several important implications. First, any serious analysis of anticompetitive effects must pay careful attention to systematic differences in the incentives of different investor types. Second, CCOs often have procompetitive effects, particularly when they are invested in some but not all firms in an industry. Third, a convincing case for broad reform has not been made. We advocate a searching examination of the steps actually taken by CCOs and firms—the who, where, when and how predicted by the most plausible mechanisms.
Wednesday, March 20, 2019
Tim Wu, Columbia offers The American Express Opinion, Tech Platforms & the Rule of Reason.
ABSTRACT: This paper makes two points. First, it describes the opinion as creating a mirror-image of the "per se" rulings, this time favoring defendants instead of plaintiffs.
Second, however, it points out the narrowness of the decision. If the American Express opinion had created rules for all two-sided platforms it would have fundamentally changed much of antitrust law, by reaching so much of American commerce. For the concept of a two-sided platform is open-ended enough to conceivably describe businesses as diverse as malls, sports leagues, real estate agents, stock exchanges, and most tech platforms.
However, the American Express opinion is narrower than this, and claims that the decision “immunizes” the major tech platforms from antitrust scrutiny are incorrect. It seems clear that firms like Google, Facebook, and Twitter are not covered by the American Express opinion. For the Court emphasized that credit-card companies are so-called “transaction platforms,” a subset of two-sided platforms. The opinion goes on to define transaction platforms as those that can’t provide a service to one side of the market independently — those that, by necessity, facilitate a “simultaneous” interaction between the two sides. As such, according to the Court, transaction platforms only compete with other transaction platforms.
Oscar Borgogno, University of Turin, Faculty of Law; University of Oxford, Faculty of Law and Giuseppe Colangelo, University of Basilicata, Department of Mathematics, Computer Science and Economics; Stanford Law School; LUISS Guido Carli, Department of Business and Management; Bocconi University - Department of Law have a paper on Antitrust Analysis of Two-Sided Platforms after AmEx: A Transatlantic View.
ABSTRACT: The US Supreme Court ruling in American Express marks a breakthrough for antitrust enforcement in two-sided markets. Not surprisingly, the ruling has sparked lively discussions in the antitrust law and economics community.
The majority of the Court argues that if both groups of players are needed to participate simultaneously for a transaction to occur, then both sides of the platform must be included when defining the relevant market. Furthermore, indirect network effects must be duly considered when carrying out antitrust analysis of transaction platforms. Hence, no inference of anti-competitive effects can be derived from price increases on one side of the platform, this being only a natural consequence of differences in the two groups’ demand elasticity. Moreover, the Court stresses the relevance of the business model when carrying out the antitrust evaluation of a commercial practice.
By drawing a comparison with the EU scenario, the paper analyses how the two-sidedness of platforms may affect the definition of the relevant market, and the assessment of competitive effects and undertakings’ business models.
Barak Orbach, University of Arizona addresses Interstate Circuit and (Other) Antitrust Myths. Highly recommended
ABSTRACT: Interstate Circuit v. United States, 306 U.S. 208 (1939), one of the most known Supreme Court’s antitrust opinions, introduced an evidentiary framework for conspiracy inference under Section 1 of the Sherman Act: in the absence of direct evidence, proof of conspiracy requires evidence of conscious parallelism supplemented with “plus factors,” which are circumstantial evidence that is consistent with concerted action but largely inconsistent with independent conduct. Hundreds of judicial opinions, books, monographs, and articles summarize and interpret Interstate Circuit. With some minor variations, the summaries of the case are similar in their details, yet materially incomplete and erroneous. As commonly described in judicial opinions and the literature, Interstate Circuit is a myth.
This Article examines the Interstate Circuit myth. First, the Article presents the core elements of the myth and explains why courts and scholars should have been aware of its flaws. The Article then summarizes antitrust standards and concepts for which courts and scholars cite Interstate Circuit as a precedent and, in certain contexts, the leading and even paradigmatic precedent. Second, the Article studies the development of the contractual arrangements that Interstate Circuit found to be a conspiracy in violation of Section 1 of the Sherman Act. The Article shows that the challenged contractual arrangements were products of extensive coordination and negotiations among the defendants. More precisely, the Article shows that the alleged conspiracy concerned parallel compliance with a plan that resolved failed coordination efforts among competitors and that the company that developed the plan was a partially-owned subsidiary of one of the competitors. Third, the Article offers several doctrinal refinements for conspiracy inference standards arising from the study of the Interstate Circuit’s alleged conspiracy. The study illustrates that evidence of intricate relationships among competitors could and should serve as circumstantial evidence that may support the inference of antitrust conspiracy, although standing alone such evidence does not prove the existence of conspiracy.
Kelvin Hiu Fai Kwok The University of Hong Kong - Faculty of Law explores The Belt and Road Initiative: Cooperation in Trade Liberalisation and Antitrust Enforcement.
ABSTRACT: This chapter addresses the important issue of how China’s Belt and Road Initiative (BRI) can best achieve its stated objective of promoting ‘unimpeded trade’ between China and the other BRI countries. Whilst many of the initiative’s announced proposals relate to infrastructure projects facilitating the transport of products and inputs across BRI countries, it is argued that it is equally important for the Chinese government to develop comprehensive trade liberalisation and competition policies emphasising cooperation between China and its BRI partners. This chapter has explained why cooperation in both trade liberalisation and antitrust enforcement across BRI countries is essential to the successful implementation of the initiative’s unimpeded trade objective, and has also explored strategies for the negotiation and conclusion of free trade agreements and antitrust enforcement cooperation arrangements. This chapter argues, in particular, that a BRI competition policy emphasising antitrust enforcement cooperation would ensure that the efficiency benefits derived from efforts to reduce natural and state-initiated trade barriers are not compromised by the anti-competitive conduct of private firms. It is argued that the effectiveness of a competition policy in the context of cross-border trade is crucially dependent on effective antitrust enforcement cooperation between the countries party to the free trade initiative. Owing to the legal and political complexities created by anti-competitive practices that impede free trade, such as export cartels and the abuse of power by local firms to exclude foreign entities, joint enforcement efforts are often required to successfully tackle such practices. This chapter contributes to the debate on the interaction between public and private trade barriers, and the broader relationship between trade liberalisation and antitrust enforcement, in the specific context of China and BRI countries.
Tuesday, March 19, 2019
Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives
Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law is Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives.
ABSTRACT: Recent expansive applications of the ‘object’ prohibition under Article 101 Treaty on the Functioning of the European Union have left the scope of ‘object’ restrictions in a state of uncertainty and incoherence. This article undertakes an unprecedented theoretical study of the ‘object’ test in comparison with U.S. antitrust law. It re-conceptualizes ‘object’ analysis as a form of preliminary enquiry that serves a similar classificatory function as a U.S. ‘quick look’ analysis, namely to distinguish naked restrictions from non-naked ones in order to determine whether summary condemnation or an effect-based analysis is called for. This normative theory rests on the important conceptual distinction between proximate and ultimate objects, and a detailed comparison of the methods of antitrust analysis under E.U. and U.S. law. The article constructs a ‘quick look’ framework for ‘object’ analysis that combines both theoretical and comparative insights, and applies this framework to critically analyze joint venture restrictions, regulatory restrictions, vertical restrictions, and industry restructuring arrangements.
Digital Data, Platforms and the Usual [Antitrust] Suspects: Network Effects, Switching Costs, Essential Facility
Catherine Tucker, MIT has a short paper on Digital Data, Platforms and the Usual [Antitrust] Suspects: Network Effects, Switching Costs, Essential Facility. Recommended
ABSTRACT: This paper asks whether the large amounts of digital data that are typically observed on large technology platforms - such as Google, Facebook, Uber and Amazon - typically give rise to structural conditions that would lead to antitrust concerns. In particular, I evaluate whether digital data augments or decreases concerns with regard to network effects and switching costs. I also evaluate whether data should be thought of as an 'essential facility.'
Sachin Coothoopermal, Open University of Mauritius and Hemant Chittoo, University of Technology Mauritius are Assessing the Significance of Competition Law in Mauritius: A Quantitative Study.
ABSTRACT: This paper investigates the significance of the Competition Act since its enactment in 2007 in Mauritius. Whilst, antitrust laws are very common in developed countries, the implementation and a quantitative analysis of their impact are relatively rare in developing countries. This paper aims to provide a scientific insight as to whether the Mauritius Competition Act meets the enforcement features of international standards. It also shows its relationship with Competition Intensity. A longitudinal study, from 2001 to 2014, was carried out to test the hypotheses. Findings showed that enactment of the Mauritius Competition Act in 2007 significantly improved enforcement and penalty in matters of uncompetitive behaviour. It was also found that there is a significant positive relationship between Competition Law scope and Competition Intensity. Further multiple regression analysis, however, showed that when controlling covariates GDP per capita, the population growth rate, the average wage in the manufacturing sector, government spending as a percentage of GDP, the competition enforcement budget as a percentage of GDP, this relationship was not significant. The multiple regression analysis thus provides a model which comprises Competition Law and the covariates for Competition Intensity.
iovanna Massarotto, University of Iowa - Henry B. Tippie College of Business writes From Digital to Blockchain Markets: What Role for Antitrust and Regulation.
ABSTRACT: In the context of antitrust, digital markets do not seem to be the primary issue, nor is punishing big companies the real solution. It is most likely that markets will shift from centralized closed platforms into decentralized, open networks based on blockchain technologies. Blockchain technology built on a consensus mechanism can make intermediaries [or third parties] unnecessary. Antitrust enforcers should encourage the innovation process by deterring those intermediaries from engaging in anticompetitive conduct that might slow such a process down and still provide support to those companies as they often have the best resources and knowledge to increase innovation — Microsoft v. Java. On the other hand, although blockchain technology presents the potential for future opportunities, it is far from being perfect; the risk of collusion, for example, is particularly high in private blockchains. The success of blockchain relies on the trust of people in this new technology, which if not used appropriately can damage instead of benefiting markets and consumers. Similar to the Internet, antitrust enforcers and regulators are essential to develop trust in the blockchain and to make viable a decentralized system of democratic markets based on blockchain technology.
Monday, March 18, 2019
Rebel A. Cole, Florida Atlantic University, Douglas J. Cumming, Florida Atlantic University, and Jon Taylor, Florida Atlantic University - Finance ask Does FinTech Compete with or Complement Bank Finance?
ABSTRACT: We consider comprehensive data on crowdfunding in the U.S., including debt (marketplace lending), rewards, donations, and equity crowdfunding, to formally test for the first time if banks are complements or substitutes to crowdfunding. The data indicate that bank failures in a county are associated with a reduction in debt and rewards crowdfunding, and total crowdfunding (including donations and rewards as well, however, bank failures are statistically unrelated to those types of crowdfunding in our empirical setting). The data are consistent with bank failures being associated with a reduction in the aggregate number of entrepreneurs in a county, while the remaining entrepreneurs seeking crowdfunding are less reliant on external debt finance in their county. Overall, the data indicate crowdfunding and traditional bank finance are complements.
Should companies be allowed to recover their regulatory fines against directors and employees? Wed, 20 March 2019 13:00 – 14:00 GMT
Yee Wah Chin Ingram Yuzek Gainen Carroll & Bertolotti, LLP writes on Standards and Patent Assertion Entities at the IP-Antitrust Interface: Adhering to Basic Principles.
ABSTRACT: The United States antitrust approach to intellectual property has evolved over time. The same antitrust analysis now applies to conduct involving IP as to conduct involving other forms of property, taking into account the specific characteristics of the particular property right.
However, there have been significant calls recently for presumptions that infringements suits and licensing conduct by patent assertion entities (PAEs) labeled “patent trolls” and holders of standard essential patents (SEPs) are monopolization or attempts to monopolize that violate Sherman Act §2, 15 U.S.C. §2. This paper argues that the basic principles of keeping in mind history and context, and general antitrust principles, apply equally to SEPs and PAEs as to other economic phenomena, and there is no need for any special presumptions.
Mark Dijkstra University of Amsterdam - Amsterdam Center for Law & Economics (ACLE) Maarten Pieter Schinkel University of Amsterdam - Amsterdam Center for Law & Economics (ACLE); Tinbergen Institute - Tinbergen Institute Amsterdam (TIA) identify State-aided Price Coordination in the Dutch Mortgage Market. Worth reading
ABSTRACT: This paper shows how price leadership bans imposed, as part of the European Commission's State aid control, on all main mortgage providers but the largest bank shifted the Dutch mortgage market from a competitive to a collusive price leadership equilibrium. In May 2009, mortgage rates in The Netherlands suddenly rose against the decreasing funding cost trend to almost a full percentage point above the Eurozone average. We derive equilibrium best-response functions, identify the price leader, and estimate response adjustments in cointegrating equations on a large data set of daily mortgage rates 2004-2012. Consistent with the full coordination equilibrium, we find structural decreases in the leader's cost pass-through and H-statistic, suggesting monopoly power, as well as much closer following of the leader's price and strongly reduced transmission of common cost changes into price followers' mortgage rates. All the structural breaks are around the Spring of 2009, when the price leadership bans were negotiated. Predicted overcharges are 125 basis points or 26% on average.