Antitrust & Competition Policy Blog

Paulson's Financial Reorg-- Should We Rethink the Structure of US Antitrust Agencies?

Posted by D. Daniel Sokol

Treasury Secretary Henry Paulson has urged a substantial and fundamental reorganization of American oversight of the US financial system.  Here is the report, and here's the text of Paulson's speech.

I wonder if it might not be time to rethink whether or not we need two federal antitrust agencies and for that matter if regulatory agencies should be able to separately review mergers based on a "public interest"  standard.  If we were starting from scratch, I do not think that the current design of competition policy is one that anyone would pick.

Monopoly and the Incentive to Innovate When Adoption Involves Switchover Disruptions

Posted by D. Daniel Sokol

An interesting new paper is Monopoly and the Incentive to Innovate When Adoption Involves Switchover Disruptions by Thomas J. Holmes (Department of Economics, University of Minnesota), David K. Levine (Department of Economics Washington University), James A. Schmitz, Jr. (Research Department Federal Reserve Bank of Minneapolis).

ABSTRACT: When considering the incentive of a monopolist to adopt an innovation, the textbook model assumes that it can instantaneously and seamlessly introduce the new technology. In fact, firms often face major problems in integrating new technologies. In some cases, firms have to (temporarily) produce at levels substantially below capacity upon adoption. We call such phenomena switchover disruptions, and present extensive evidence on them. If firms face switchover disruptions, then they may temporarily lose some unit sales upon adoption. If the firm loses unit sales, then a cost of adoption is the foregone rents on the sales of those units. Hence, greater market power will mean higher prices on those lost units of output, and hence a reduced incentive to innovate. We introduce switchover disruptions into some standard models in the literature, show they can overturn some famous results, and then show they can help explain evidence that firms in more competitive environments are more likely to adopt technologies and increase productivity.

The Implementation of the European Commission's Merger Regulation 2004: An Empirical Analysis

Posted by D. Daniel Sokol

Borja Martinez Fernández (Staffordshire University), Iraj Hashi (Staffordshire University) and Marc Jegers (Vrije Universiteit Brussel) present some interesting findings in their article The Implementation of the European Commission's Merger Regulation 2004: An Empirical Analysis.

ABSTRACT: The factors influencing the European Commission's decisions under the 2004 Merger Regulation are assessed on a sample of 50 cases. Probit analysis results in the finding that the probability of nonclearance in phase I of the procedure is significantly affected by the estimated market share increase due to the proposed merger, the contestability of the market, and the presence of barriers to entry. Furthermore, there is some evidence that the Commission's decisions are biased against market leaders involved in proposed mergers.

The Effect of Mergers on Consumer Prices: Evidence from Five Selected Case Studies

Posted by D. Daniel Sokol

Orley Ashenfelter (Princeton Department of Economics) and Daniel Hosken (FTC) bring us The Effect of Mergers on Consumer Prices: Evidence from Five Selected Case Studies.

ABSTRACT: In this paper we propose a method to evaluate the effectiveness of U.S. horizontal merger policy and apply it to the study of five recent consumer product mergers. We selected the mergers from those that, from the public record, seemed to be most problematic for the antitrust agencies. Thus we estimate an upper bound on the likely price effect of completed mergers. Our study employs retail scanner data and uses familiar panel data program evaluation procedures to measure price changes. Our results indicate that four of the five mergers resulted in some increases in consumer prices, while the fifth merger had little effect.

Effective Competition” Only ? – Google/DoubleClick and other Recent ECMR Controversies

Posted by D. Daniel Sokol

Effective Competition” Only ? – Google/DoubleClick and other Recent ECMR Controversies
Brussels
25 April 2008
Fondation Universitaire Institute for European Legal Studies, LL.M in Competition and IP Law,University of Liège Facultés Universitaires St Louis, Bruxelles

PROGRAMME
13:00 – 13:15 Registration and Coffee

13:15 – 13:30 Welcome Remarks and Purpose of the Event Alain Strowel Professor, Facultés Universitaires St Louis and University of Liège Partner, Covington & Burling Nicolas Petit Professor, University of Liège Special Counsel, Howrey LLP

13:30 – 14:00 Non Competition Concerns under EC competition Law – Mapping out the Conceptual Issues Luc Gyselen Partner, Arnold & Porter

14:00 – 14:30 Data Protection, Privacy and the ECMR Thomas Jestaedt Partner, Jones Day

14:30 – 15:00 Industrial Policy, “National Champions” and the ECMR Antoine Winckler Partner, Cleary Gottlieb

15:00 – 15:30 Coffee Break

15:30 – 16:00 Energy Policy and the ECMR Marc van Der Woude Professor, University of Rotterdam Partner, Stibbe

16:00 – 16:30 Energy Policy and the ECMR – An Insider’s View into the “Spanish Saga” Rafael Allendesalazar Partner, Howrey LLP

16:30 – 17:00 Q&A session

17:00 Close of conference – Cocktail

FURTHER INQUIRIES : Institut d'Etudes Juridiques Européennes, Université de Liège Boulevard du Rectorat, 3 BAT B33, 4000 Liège, Belgium Tel: + 32 4 366 31 30 E-mail : [email protected] www.ieje.net

The Role of Economic Analysis in Intellectual Property Law: Implications for Competition Law

Posted by D. Daniel Sokol

The Role of Economic Analysis in Intellectual Property Law: Implications for Competition Law
Tuesday 6 May 2008
4.30pm - 7.30pm
University College London
Gower Street, London WC1E 6BT

Programme

4.30pm Registration in the South Cloisters, UCL

5.00pm Chair:
Professor Sir Hugh Laddie QC
Chair of Intellectual Property Law, and Director, Institute of Brand and Innovation Law,
Faculty of Laws, University College London

Introduction:
Dr. Ioannis Lianos
UCL Lecturer; Co-director, Centre for Law & Governance in Europe; Jevons Institute of Competition Law & Economics
Trevor Soames
Howrey LLP

Speakers:
Professor Bruno van Pottelsberghe de la Potterie
Université Libre de Bruxelles, ECORE and CEPR; former Chief Economist, European Patent Office
Professor Michael Meurer
Michaels Faculty Research Scholar and Professor of Law, Boston University School of Law

Commentator:
Professor Damien Geradin
Professor of Law, Tilburg Law and Economics Center, Tilburg University; Director, Global Competition Law
Centre, College of Europe, Bruges; Howrey LLP

7.00pm Refreshments and Canapés in the South Cloisters

Eighth Annual Loyola Antitrust Colloquium-Friday April 25

Posted by Shubha Ghosh

The Institute for Consumer Antitrust at Loyola Chicago Law School will be hosting the Eighth Annual Antitrust Colloquium on Friday April 25, and Professor Spencer Waller has put together another stimulating program.   Papers include Professor Maurice Stucke of Tennessee Law School on "Should Governments Prosecute Monopolies?"; Donald Baker of Baker & Miller on "The Deepening Antitrust Divide Across the Atlantic";  Professor Thomas Greaney of St Louis University on "Antitrust After Managed Care"; and Professor Robert Lande of The University of Baltimore on "Private Antitrust Enforcement."  Look for more information on this important conference as the date approaches. 

University of Georgia Conference on "Patent Failure"

Posted by Shubha Ghosh

Professor James Bessen and Michael Meurer have recently published "Patent Failure" available from Princeton University Press.   This weekend The University of Georgia is hosting a day long symposium devoted to the book.   This event promises to be quite stimulating.   I highly recommend the book, which brings together lots of scholarly studies on the patent system and offers a provocative solution: reform the patent system so that it better serves its notice function.  As I plan to state as a participant in the symposium, I do not fully agree with this proposal, largely because I am not sure disclosure by itself is sufficient to promote innovation if there are no adequate institutions to assess the quality of the information being disclosed.  But perhaps more on that later...

For readers of this blog, the most interesting chapter may well be the fourth, which provides a survey of empirical research relating to innovation, competition, and the patent system.  The authors look at four studies: historical, cross-country, "natural" experiments based on patent reform, and studies looking at the relationship between competition, imitation, and innovation.  Ther fourth of these is the most interesting, particularly the citation to Michael Gort and Steven Klepper, "Time Paths in the Diffusion of Production Innovations," Economic Journal 92 (367): 630-53 (1982).  Gort and Klepper identify four stages of the product cycle: start-up, entry, shake-up, and concentration leading to a few dominant firms.  Their study finds innovation is the greatest during the second and third stages of the cycle.

Congratulations to this year's winner of the Jones Day Swope Prize

Posted by Shubha Ghosh

The following was received yesterday:

Young London-Based Lawyer Wins Jones Day's $10,000 Swope Antitrust Writing
Prize

WASHINGTON, March 25 -- A 2007 Yale Law graduate practicing in the UK has
won the Third Annual William E. Swope Antitrust Prize for a paper analyzing
the recent introduction of U.S.-style antitrust settlements in the European
Union. The $10,000 award celebrates a former Jones Day partner and his
pioneering fact-intensive approach to antitrust analysis.

The Prize was awarded today at ceremonies in Jones Day's Washington office
to
George Stephanov Georgiev, a 2007 graduate of Yale Law School currently
working as an associate in the London office of Sullivan & Cromwell. His
paper, "Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust
Settlements in EU Law," finds that "the use of settlements leads to
distortions in enforcement incentives . and is interfering with many of the
original goals of the antitrust modernization program."

Receiving $1,500 honorable mentions prizes were third-year Vanderbilt
University Law School student Yasmine "Becky" Carson for "Judicial
Interference: Redefining the Role of the Judiciary Within the Context of
U.S. and E.U. Merger Clearance Coordination" and Jesse Geraci, a third-year
at Boalt Hall School of Law of the University of California at Berkeley, for
"Misusing Open-Source?  How Technology Companies Using the GPL Might Run
Afoul of Antitrust Law." All three winners have been invited to attend the
Spring Meeting of the American Bar Association's Antitrust Section as guests
of Jones Day.

"At a time when antitrust enforcement clung to rigid rules, tests, and
theories, Bill Swope insisted on focusing on the facts and how they
explained how specific markets worked in the real world," said Phil Proger,
the head of Jones Day's global antitrust practice. "While this is now the
accepted standard, Bill was one of the leaders in pushing for fewer slogans
and more factual analysis."

Only law students and recent graduates are eligible for the annual
competition. The deadline for submissions for next year's prize is December
31. Complete rules are available at jonesday.com/swope/.

Jones Day's Antitrust & Competition Law Practice consists of more than 135
counselors and litigators worldwide, including more than 45 in Beijing,
Brussels, Frankfurt, London, Madrid, Milan, Munich, Paris, Shanghai, and
Tokyo. The practice is frequently recognized in professional publications
and rankings as one of the leading antitrust/competition practices in the
world.

Jones Day is an international law firm with 30 locations in centers of
business and finance throughout the world. With more than 2,300 lawyers,
including more than 400 in Europe, and 200 in Asia, it ranks among the
world's largest law firms.

$10,000 Third Annual William E. Swope Antitrust Prize Awarded

Posted by D. Daniel Sokol

A 2007 Yale Law graduate practicing in the UK has won the Third Annual William E. Swope Antitrust Prize for a paper analyzing the recent introduction of U.S.-style antitrust settlements in the European
Union. The $10,000 award celebrates a former Jones Day partner and his pioneering fact-intensive approach to antitrust analysis.

The Prize was awarded today at ceremonies in Jones Day's Washington office to George Stephanov Georgiev, a 2007 graduate of Yale Law School currently working as an associate in the London office of Sullivan & Cromwell. His paper, "Contagious Efficiency: The Growing Reliance on U.S.-Style Antitrust Settlements in EU Law," finds that "the use of settlements leads to distortions in enforcement incentives and is interfering with many of the original goals of the antitrust modernization program."

Receiving $1,500 honorable mentions prizes were third-year Vanderbilt University Law School student Yasmine "Becky" Carson for "Judicial Interference: Redefining the Role of the Judiciary Within the Context of U.S. and E.U. Merger Clearance Coordination" and Jesse Geraci, a third-year at Boalt Hall School of Law of the University of California at Berkeley, for "Misusing Open-Source?  How Technology Companies Using the GPL Might Run Afoul of Antitrust Law." All three winners have been invited to attend the Spring Meeting of the American Bar Association's Antitrust Section as guests of Jones Day.

"At a time when antitrust enforcement clung to rigid rules, tests, and theories, Bill Swope insisted on focusing on the facts and how they explained how specific markets worked in the real world," said Phil Proger, the head of Jones Day's global antitrust practice. "While this is now the accepted standard, Bill was one of the leaders in pushing for fewer slogans and more factual analysis."

Only law students and recent graduates are eligible for the annual competition. The deadline for submissions for next year's prize is December 31. Complete rules are available at www.jonesday.com/swope/.

Innovation and the Domain of Competition Policy

Posted by D. Daniel Sokol

Herb Hovenkamp offers an insightful examination of Innovation and the Domain of Competition Policy in a new article for the Alabama Law Review.

ABSTRACT: Antitrust policy and the IP laws are both concerned with practices that restrain competition unnecessarily by reducing the size of the public domain beyond that which the Constitution contemplates, or as Congress intended for them to be expanded. In fact, antitrust has a dual role as promoter of competition in IP intensive markets. It regulates both restraints on competition and restraints on innovation. The first line protector of the competitive process in innovation is the IP statutes themselves. The Constitutional Mandate to Congress to create intellectual property regimes in order to promote the Progress of Science and useful Arts is expressly tied to creating incentives to innovate. Indeed, the IP Clause is the only place where the Constitution expressly links the scope of a property right to the incentive to develop it. An optimal IP policy creates just enough incentive to cause creative people to innovate at the optimal level, but not so much so as to restrain excessively others who want to build on their work. Maintaining this balance requires a determination of both the optimal duration and the optimal scope, or coverage, of IP rights.

Antitrust should not be too defensive about asserting a broader role in IP/competition disputes. This is so for two reasons. First, the extent of special interest capture is significantly greater in IP law than in antitrust, although today patent is experiencing some important reforms. Second, antitrust has profited greatly from its period in the wilderness, something that the IP laws have yet to experience. While no statute is free of special interest influence, the antitrust laws must be counted among the relatively cleaner substantive statutory regimes in the United States code. Antitrust has the comparative advantage of well behaved doctrine that, at least currently, is reasonable free of special interest pressure. The patent and copyright acts cannot make the same claim to well behaved doctrine, although patent law seems to be entering its own period of self-criticism and reform.

Google/DoubleClick and the Power of Information to Raise Antitrust Concerns in Vertical Mergers

Posted by D. Daniel Sokol

David Went (Sidley Austin) and Stephen Kinsella (Sidley Austin) discuss Google/DoubleClick and the Power of Information to Raise Antitrust Concerns in Vertical Mergers.

Last week, following an investigation that lasted almost six months but that did not result in a statement of objections, the European Commission cleared Google’s acquisition of ad serving company DoubleClick.

While this result had been widely anticipated for a number of weeks, not many transactions cleared unconditionally have stirred up such hot debate on both sides of the Atlantic and attracted the level of press coverage afforded to this transaction.

Perhaps one of the most controversial aspects of the transaction relates to the reams of information acquired and routinely stored by Google and DoubleClick through their Internet activities. Certainly much of the debate in the press has focused on data protection and privacy issues and the fact that the transaction would merge the parties’ two vast databases on consumers’ online habits.

Although the Commission was no doubt right in its final decision to exclude data protection and privacy issues from its merger control review, the Google/DoubleClick transaction highlights how antitrust concerns in vertical mergers can arise from access to information and the market power that information can confer.

Beyond Critical Loss: Properly Applying the Hypothetical Monopolist Test

Posted by D. Daniel Sokol

Greg Werden of DOJ Antitrust discusses Beyond Critical Loss: Properly Applying the Hypothetical Monopolist Test in his latest article.

ABSTRACT: The hypothetical monopolist test (HMT) for market delineation holds that a group of products and associated area constitute a market only if a profit-maximizing monopolist over them would increase price significantly.

This test was prominently articulated in the 1982 Merger Guidelines issued by U.S. Department of Justice, and it greatly influenced courts in the United States and competition agencies around the world. In no recently litigated U.S. merger case has there been any dispute regarding whether to apply the HMT.

What is disputed—both in the courtroom and in the commentary—is the utility of a particular way of applying the HMT.

2007 Annual Review of Antitrust Law Developments

Posted by D. Daniel Sokol

Recently published is the ABA Antitrust Section's 2007 Annual Review of Antitrust Law Developments.

SUMMARY:  For over 35 years, Antitrust Law Developments and its annual supplements have been recognized as the single most authoritative and comprehensive set of research tools for antitrust practitioners. The 2007 Annual Review of Antitrust Law Developments summarizes developments during 2007 in the courts, at the agencies, and in Congress.

Among other topics, the 2007 Annual Review discusses:
" The two landmark Supreme Court decisions under Section 1 of the Sherman Act: Leegin Creative Leather Products v. PSKS, and Bell Atlantic Corp. v. Twombly
" Developments in monopolization law, including the Supreme Court's Weyerhaeuser decision, and decisions by the United States Courts of Appeals and lower courts concerning private standard-setting and bundled-pricing claims
" The Supreme Court's decision in Credit Suisse Securities (USA) LLC v. Billing addressing the interaction between the securities laws and the antitrust laws
" The many developments in merger and acquisition antitrust enforcement, including the FTC actions brought against Equitable Resources' acquisition of Peoples Natural Gas Company, Western Refining's acquisition of Giant Industries, and Whole Foods Market's acquisition of Wild Oats , as well as enforcement actions against consummated mergers
" FTC and DOJ challenges to joint negotiation and rate-setting ventures among independent physicians and hospitals
" Federal courts' application of the Supreme Court's 2006 decision in Volvo Trucks North America v. Reeder-Simco GMC, Inc. regarding claims brought under the Robinson-Patman Act
" State antitrust challenges from preemption claims to Commerce Clause challenges
" FTC challenges to real estate multiple listing services regarding allegations that they restrained competition in the real estate brokerage market
" Developments in the Antitrust Division's amnesty program 
" Details and impact of the Report of the U.S. Antitrust Modernization Commission to Congress and the President

New Antitrust Research Fellowship For Aspiring Law and Economics Profs

Posted by D. Daniel Sokol

Loyola University Chicago School of Law Institute for Consumer Antitrust Studies has announced a new Research Fellowship.

The Institute for Consumer Antitrust Studies invites applications for a Research Fellowship for the upcoming academic year (2008-09). The Research Fellowship is designed to encourage junior scholars in law, economics and business to pursue theoretical, empirical, and or applied research in antitrust and/or consumer protection law in keeping with the Institute’s mission of promoting a more consumer friendly competitive economy. The Research Fellowship will consist of:

• A Stipend of $38,000 plus benefits
• A small research budget
• Office space, computer facilities, and library privileges
• Opportunities to present Work-in-Progress
• The possibility of teaching one course or seminar for additional compensation depending on the applicant’s background, experience, and teaching interests and the Law School’s needs
• A Faculty Mentor to assist with the anticipated research program
• Participation in the intellectual life of the Institute and the Law School Applications will be accepted on a rolling basis starting April 1, 2008 and may be submitted electronically to https://www.careers.luc.edu. Applications should consist of:

• a current c.v. including a list of all publications
• a research proposal of not more than 2,000 words
• A writing sample of preferably published work
• Two letters of reference discussing the applicant’s ability to successfully complete their proposed research project
• A statement of teaching interests (if applicable) including a course description and any available syllabi
More information about the Institute is available at htpp://www.luc.edu/antitrust.  Inquiries about the Institute and the Research Fellowship may be directed to Professor Spencer Weber Waller, Director, Institute for Consumer Antitrust Studies, [email protected] or 312-915-7137. LUC is an Equal Opportunity/Affirmative Action employer and educator with a strong commitment to a diversified faculty.

EC Competition Law: An Analytical Guide to the Leading Cases

Posted by D. Daniel Sokol

New from Hart Publishing is EC Competition Law: An Analytical Guide to the Leading Cases by Ariel Ezrachi (Oxford Faculty of Law).

BOOK SUMMARY: This book is a concise, highly practical guide to the leading cases of European competition law. It focuses on Article 81 EC, Article 82 EC, the European Commission's enforcement powers and the private enforcement of competition law in national courts.

The book is designed as a working tool for the study and practice of European competition law. An introduction at the beginning of each chapter lays down the relevant laws, regulations and guidelines for each of the topics and sets the analytical framework for the case summaries that follow. The case summaries are then provided, each followed by analysis and commentary that add further context.

Mergers and Acquisitions: Understanding the Antitrust Issues

Posted by D. Daniel Sokol

The ABA Antitrust Section has just released Mergers and Acquisitions: Understanding the Antitrust Issues, Third Edition.

SUMMARY: Since the publication of the first edition of Mergers and Acquisitions, the federal agencies and state attorneys general have continued an active merger agenda and have refined merger analyses through settlements, liquidated cases, and speeches. This third edition has been completely updated to capture the most important developments in this area. 

Teaching Fellowships for Aspiring Law Professors

Posted by D. Daniel Sokol

Paul Caron at Tax Prof Blog has listed various law teaching and research fellowships to help enter the world of legal academics.  These programs have proliferated in recent years and in most cases an advanced degree and/or a teaching fellowship have become necessary to get an academic position in law teaching.

Market Definition, Competition, and Privacy in the Google/DoubleClick Transaction

Posted by D. Daniel Sokol

Mark Seidman (Federal Trade Commission) & Christine Naglieri (Federal Trade Commission) discuss two of the key issues: market definition in the online advertising industry; and the interplay of competition and privacy concerns in their article Market Definition, Competition, and Privacy in the Google/DoubleClick Transaction.

ABSTRACT: On December 21, 2007, the U.S. Federal Trade Commission (FTC) closed its investigation of Google Inc.’s proposed acquisition of DoubleClick Inc. The merger and the Commission’s investigation attracted a great deal of public interest, and the matter presented several novel issues for antitrust practitioners and commentators. This article discusses two of the issues that generated much public discussion: 1. market definition in the nascent, dynamic online advertising industry; and 2. the interplay of competition and privacy concerns surrounding the accumulation of consumer data.

The Use of Customer Surveys For Market Definition and the Competitive Assessment of Horizontal Mergers

Posted by D. Daniel Sokol

Graeme Reynolds (Economic Adviser, U.K. Competition Commission) and Chris Walters (Assistant Director, Mergers, Office of Fair Trading) have written on The Use of Customer Surveys For Market Definition and the Competitive Assessment of Horizontal Mergers in a forthcoming issue of the Journal of Competition Law and Economics.

ABSTRACT: In this paper, we discuss the U.K. Competition Commission's (CC) extensive use of customer surveys in merger control. We point out how the U.K.'s "phase two" merger regime compels the CC to decide upon, design, and commission a customer survey almost as soon as its merger investigation begins. We highlight the effect that this has on two areas of the CC's merger control process that use customer surveys—definition of the relevant market, and assessment of the competitive effects of a merger in the relevant market. We illustrate how to avoid seven consequential pitfalls in using customer surveys with case-study examples from two recent CC horizontal merger inquiries. We suggest that customer surveys, carefully done, have provided useful insights for the CC, but the complications of doing them have meant that they always have been considered in the context of other evidence.