Antitrust & Competition Policy Blog

Wall Street Journal Weighs in on the "Whole Foods Fiasco"

Posted by D. Daniel Sokol

Today's Wall Street Journal has an editorial titled Whole Foods Fiasco.  The Journal's conclusion is "The Whole Foods fiasco is an embarrassment for the Bush Administration's antitrust policy."

Consumer Choice and Merchant Acceptance of Payment Media

Posted by D. Daniel Sokol

Wilko Bolt, Bank of the Netherlands - Research Department and Sujit Chakravorti, Federal Reserve Bank of Chicago - Research Department discuss Consumer Choice and Merchant Acceptance of Payment Media in their new working paper.

ABSTRACT: We study the ability of banks and merchants to influence the consumer's payment instrument choice. Consumers participate in payment card networks to insure themselves against three types of shocks - income, theft, and their merchant match. Merchants choose which payment instruments to accept based on their production costs and increased profit opportunities. Our key results can be summarized as follows. The structure of prices is determined by the level of the bank's cost to provide payment services including the level of aggregate credit loss, the probability of theft, and the timing of income flows. We also identify equilibria where the bank finds it profitable to offer one or both payment cards. Our model predicts that when merchants are restricted to charging a uniform price for goods that they sell, the bank benefits while consumers and merchants are worse off. Finally, we compare welfare-maximizing price structures to those that result from the bank's profit-maximizing price structure.

Graduate Diploma in Competition Policy

Posted by D. Daniel Sokol

The Center for Competition Policy (Centro de Libre Competencia) of the Catholic University of Chile has announced a new program for a graduate diploma in competition policy, which incorporates classes in both competition law and economics.  See the course brochure here.

A Proposed Test for Separating Pro-Competitive Loyalty Rebates from Anti-Competitive Ones

Posted by D. Daniel Sokol

Damien Geradin, Tilburg University - Tilburg Law and Economics Center (TILEC) and College of Europe is approaching a Posner level of productivity in terms of the number of articles he turns out a year.  Geradin's most recent is A Proposed Test for Separating Pro-Competitive Loyalty Rebates from Anti-Competitive Ones.

ABSTRACT: While the granting of rebates is a common commercial practice largely used by dominant and non-dominant firms, the assessment of rebates seems to be one of the most complex and unsettled areas of competition law. In the EU, for instance, the decisional practice of the European Commission and the case-law of the Community courts have been harshly criticized as being unnecessarily strict, following a form-based approach that sits uneasily with modern economic theory. In response to such criticisms, DG COMP published in December 2005 a Discussion Paper, which promotes an effects-based approach to the assessment of rebates. US courts have generally shown greater deference to loyalty rebates adopted by dominant firms, but the case-law remains unsettled, notably in the area of bundled rebates. Against this background, this paper proposes a framework, based on a three-step test, designed to separate pro-competitive rebates from anti-competitive ones. While each of the components of this test is reviewed, a particular emphasis will be placed on the treatment of single product all-unit rebates, which create complex issues discussed at length in the Commission's Discussion Paper and the US Department of Justice's September 2008 Report on Single-Firm Conduct under Section 2 of the Sherman Act.

How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust

Posted by D. Daniel Sokol

Bob Pitofsky (Georgetown Law) put together an interesting edited volume on How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust.

BOOK ABSTRACT: How the Chicago School Overshot the Mark is about the rise and recent fall of American antitrust. It is a collection of 15 essays, almost all expressing a deep concern that conservative economic analysis is leading judges and enforcement officials toward an approach that will ultimately harm consumer welfare.

For the past 40 years or so, U.S. antitrust has been dominated intellectually by an unusually conservative style of economic analysis. Its advocates, often referred to as "The Chicago School," argue that the free market (better than any unelected band of regulators) can do a better job of achieving efficiency and encouraging innovation than intrusive regulation. The cutting edge of Chicago School doctrine originated in academia and was popularized in books by brilliant and innovative law professors like Robert Bork and Richard Posner. Oddly, a response to that kind of conservative doctrine may be put together through collections of scores of articles but until now cannot be found in any one book. This collection of essays is designed in part to remedy that situation.

The chapters in this book were written by academics, former law enforcers, private sector defense lawyers, Republicans and Democrats, representatives of the left, right and center. Virtually all agree that antitrust enforcement today is better as a result of conservative analysis, but virtually all also agree that there have been examples of extreme interpretations and misinterpretations of conservative economic theory that have led American antitrust in the wrong direction. The problem is not with conservative economic analysis but with those portions of that analysis that have "overshot the mark" producing an enforcement approach that is exceptionally generous to the private sector. If the scores of practices that traditionally have been regarded as anticompetitive are ignored, or not subjected to vigorous enforcement, prices will be higher, quality of products lower, and innovation diminished. In the end consumers will pay.

Managing the Financial Crisis in Europe: Why Competition Law is Part of the Solution, Not of the Problem

Posted by D. Daniel Sokol

Damien Gerard (University of Louvain) has posted Managing the Financial Crisis in Europe: Why Competition Law is Part of the Solution, Not of the Problem.

ABSTRACT: EU Competition Commissioner Kroes likes to use catchphrases to encapsulate policy statements. Since early October, one of her favorite lines is that competition law, and State aid law in particular, is part of the solution to the financial crisis, not part of the problem. Understand: competition rules do not stand in the way of a solution to the crisis, they are part of that solution. She used it for the first time on October 2 when announcing the approval of a Euro 35 billion aid package laid down by Germany to rescue Hypo Real Estate Holding AG, a German bank holding that became troubled as a result of its involvement in the national and international mortgage business and its short-term refinancing strategy. She repeated it on October 6 in an address to the Economic and Monetary Affairs Committee of the European Parliament outlining her enforcement priorities in the framework of the financial crisis. She resorted to it again on December 2 to defend her record in front of the 27 EU Economics and Finance Ministers, some of them clearly upset at the Commission’s active involvement in the design of general financial recovery plans and individual rescue measures.

Indeed, within the European Union, economic and financial policy remains first and foremost a competence belonging to each of the 27 Member States; there is nothing like an EU Treasury, a centralized EU economic policy institution, or a common EU financial services regulator. Some economic coordination takes place at the EU level, though, notably in the framework of the so-called “Stability and Growth Pact," but it is driven by Member States’ representatives seating in the Economic and Financial Affairs Council (ECOFIN). As a result, in mid-September, when the crisis spread to the whole financial system following the bankruptcy filing of Lehman Brothers, thus affecting credit institutions across Europe, Member States remained in front to devise urgent recovery measures. It was at the ECOFIN meeting of October 7 that Member States came together to devise common principles to guide their respective reactions to the crisis. Those principles were turned into a concerted action plan on October 10 by the Eurogroup, (a meeting of those EU countries that share the Euro as currency), which was then endorsed by the European Council of October 15, 2008.

Originally, in the design of a coordinated effort to contain the financial crisis, the Commission appeared to be largely only a witness to the Member States’ initiatives, under the leadership of the French Presidency. However, in parallel, it was also taking steps to preserve the possibility of playing its own role in managing the crisis, notably to ensure compliance of Member States’ measures with EU single-market principles. The European Council’s support for the continued implementation of EC competition rules in spite of the exceptional circumstances, including “the principles of the single market and the system of State aids," combined with a lack of resources at ECOFIN’s level to monitor Member States’ adherence to the concerted action plan, in effect enabled the Commission to play a critical role in the design of the general recovery plans and individual rescue measures envisaged by various Member States. Eventually, the circumstances led to the emergence of State aid rules as a conduit for “positive” economic policy coordination rather than solely for “negative” control of compliance with the EC Treaty. Some Member States consider such de facto evolution as undue encroachment on their competences while the Commission finds its action legitimized by the magnitude of the amounts at stake and the associated potential for competition distortive effects due, notably, to the massive flow of money to banks benefiting from State backing and the disparity in Member States’ resources to address the challenges posed by the crisis.

This paper describes three factors that contributed to shaping the role played so far by the Commission in its capacity as the major antitrust enforcement authority in the management of the financial crisis in Europe and, hence, the contribution of EC competition law to a solution of the crisis, as advocated by Commissioner Kroes.
.

Does Product Complexity Matter for Competition in Experimental Retail Markets?

Posted by D. Daniel Sokol

Stefania Sitzia, University of East Anglia and Daniel John Zizzo, University of East Anglia ask Does Product Complexity Matter for Competition in Experimental Retail Markets?

ABSTRACT: We describe a first experiment on whether product complexity affects competition and consumers in retail markets. We are unable to detect a systematic effect of product complexity on prices, except insofar as the demand elasticity for complex products is higher. However, there is qualified evidence that complex products have the potential to induce consumers to buy more than they would otherwise. In this sense, consumer exploitability in quantities cannot be ruled out. We also find evidence for shaping effects: consumers' preferences are shaped by past experience with prices, and firms may in principle exploit this to sell more.

Private Enforcement of Competition Law: New Directions

Posted by D. Daniel Sokol

The Competition Law Center at George Washington University Law School will be hosting a conference on Private Enforcement of Competition Law: New Directions, on February 27-28, 2009.  The conference will promote discussion among policymakers, practitioners, and academics about new policy initiatives relating to private enforcement, emerging experience, and new research initiatives.  Attendance is free and strongly encouraged for those interested; please feel free to contact Edward Swaine, Director of the Competition Law Center ([email protected]).

2nd Annual Best Antitrust and Competition Policy Article of the Year

Posted by D. Daniel Sokol

For the second year in a row, the Antitrust and Competition Policy Blog has released its results for the best antitrust and competition policy article of the year.

This year, our expert panel of judges includes:

Darren Bush, University of Houston Law
Oliver Budzinski, University of Southern Denmark - Economics
Einer Elhague, Harvard Law
Shubha Ghosh, University of Wisconsin Law
Alberto Heimler, Scuola Superiore della Pubblica Amministrazione (School of Public Administration)
Ken Heyer, Economics Director, DOJ Antitrust
Max Huffman, Indiana University - Indianapolis Law
Ioannis Lianos, University College London Law
Howard Shelanski, UC Berkeley Law
Barry Rodger, University of Strathclyde Law
Daniel Sokol, University of Florida Law
Josh Wright, George Mason Law

Download 2nd_annual_antitrust-1

Christmas Day and the Antitrust Professor

Posted by D. Daniel Sokol

Merry Christmas to all of our blog readers. 

I do not plan on doing any work today although I am gearing up to begin analyzing my practitioner survey, which yielded 231 responses.  This was an amazing number given that the survey took 10-15 minutes to complete, it was an internet survey, and the people taking it understand that their time is valuable- perhaps even $1,000 a billable hour valuable.

This year Christmas and Channukah overlap, so we will be lighting Channukah candles tonight (night five).  The US Jewish tradition is to eat Chinese food and watch a movie, since there is nothing else to do on Christmas Day.  For the antitrust readership, my list of recommendations for best Chinese food in the DC are (since there is a huge blog readership in DC) includes:

DC- Meiwah Restaurant, 1200 New Hampshire Ave. NW
Bethesda- Penang, 4933 Bethesda Avenue (actually Malaysian but has a lot of Malaysian-Chinese offerings)
Rockville- Bob's 88 Shabu Shabu, 316 N. Washington Street
Wheaton- Paul Kee, 11305-B Georgia Avenue
Virginia - Hong Kong Palace (formerly Saigon Palace), 6387 Leesburg Pike, Seven Corners Center, Falls Church, VA

My three Favorite Channukah songs:

Kyle Broflovski - I'm A Lonely Jew On Christmas

Adam Sandler - Channukah Song

Smooth-E - Hey Ya Channukah

The Merger Specificity of Efficiencies in Merger Review: A Succinct International Comparison

Posted by D. Daniel Sokol

Mory Fodé Fofana, Competition Bureau of Canada has posted The Merger Specificity of Efficiencies in Merger Review: A Succinct International Comparison.

ABSTRACT: Mergers and acquisitions can lead to anti-competitive structural change in the market place. Despite this detrimental effect, mergers and acquisitions have also the potential to generate significant efficiencies through a better resource allocation and other forms of synergy that either merging party could not have achieved without the proposed transaction. Consequently, many antitrust agencies take into account the balancing effects of efficiency gains compared to anti-competitive effects that may result from mergers and acquisitions. In order to appropriately consider efficiency claims in the merger evaluation, competition authorities generally establish certain criteria. Among the criteria considered, there are merger-specificity and the productive or allocative nature of claimed (anticipated) efficiencies.

The merger-specificity test is often subject to confusing interpretation for two seasons: (i) there seems to be no clear indication of whether a claimed efficiency must be specific to the proposed merger or to any other merger; (ii) and, there is no clear indication of whether the claimed efficiencies should be industry (market)-wide or at the level of the newly merged entity. The purpose of this brief comparison is to provide a succinct outlook at how some OECD antitrust agencies approach the issue of merger-specificity of efficiency gains in merger analysis.

Prospects of Korean Antitrust Enforcement Policy

Posted by D. Daniel Sokol

Joseph Seon Hur & Paul S. Rhee (both of Yoon Yang Kim Shin & Yu) offer an assessment of Prospects of Korean Antitrust Enforcement Policy.

ABSTRACT: The financial crisis that originated in the United States is spreading throughout the world and is now causing an economic crisis by infiltrating the real economy. This crisis is of a magnitude that has rarely been witnessed in the past.

This is also the case in Korea. Korea has a small but open economic system. It has heavily relied on exports and foreign investments for growth and jobs, and foreign investors have been active players in the Korean stock and investment markets. Accordingly, the current real economic crisis stemming from the global financial crisis is directly affecting the Korean economy. Stock prices have been cut in half compared to their highest point and the value of the Korean currency has plummeted by about 50 percent compared to earlier this year. Interest rates in the market are still going up despite interest rate cuts by the Korean central bank. Banks are luring deposits with high interest rates in order to increase capital, but their credit ratings are not getting better. As unemployment increases with the economic downturn, some pessimistic institutions in the private sector are starting to announce negative growth projections for next year. Companies are conducting layoffs and taking production cuts for granted and more companies are becoming insolvent. Korean industries are standing in the middle of an economic crisis.

The current economic crisis clearly shows that the market economy has failed in the real world. How should competition laws and policies that are based on the market economy, the key factor of which is competition, respond to this crisis? As in other countries, a new trend is emerging in Korea that looks to the government instead of the market for coordination and control by contending that the current crisis has been caused by a lack of regulation and supervision over the financial markets.

The new administration of Korea, which has been steering the economy into deregulation towards a smaller government by relying on the market instead of the government, and on the creativity of entrepreneurs instead of public officials, is now faced with a backlash due to this global financial crisis.

In this brief article, we will discuss how the Korean competition authorities faced with an economic crisis might change their enforcement policies or whether they will resist any change. We will first examine the systematic devices available under the Monopoly Regulation and Fair Trade Act of Korea (“MRFTA”) that may be used to incorporate industrial policy needs in times of an economic crisis. Since Korea already experienced a similar financial crisis in 1997, we will then review how the Korea Fair Trade Commission (“KFTC”) changed its enforcement policies during that financial crisis. In addition, we will try to predict how and to which direction the KFTC policies would change by analyzing the KFTC’s recent official positions, partial forecasts by some domestic experts, the level of the KFTC’s independence in the Korean government, and the political and economic power of competition policies.

OECD-Korea Policy Centre Looking For an Expert to Head It

Posted by D. Daniel Sokol

According to the OECD Competition Policy website posting (deadline is January 14, 2009):

We are looking for a senior expert with substantial experience in competition policy analysis and the application of competition laws. S/he will be responsible for providing competition capacity building in the Asian region through the OECD-Korea Policy Centre, Competition Programme, in Seoul, South Korea, which was opened in 2004.

The Centre’s activities focus upon helping to build capacity to support effective, efficient competition law enforcement and pro-competitive reform in non-member economies in Asia, to enhance economic performance, growth, employment and living standards in the region.

The person will be based in Paris and will work under the supervision of the Head of Competition Outreach in the Competition Division (http://www.oecd.org/competition) of the Directorate for Financial and Enterprise Affairs (DAF).

Fore more details, please check HERE (reference number 3005).

Intellectual Property Disclosure as 'Threat'

Posted by D. Daniel Sokol

Scott Baker (University of North Carolina, School of Law), Pak Yee Lee (University of Leicester, Department of Economics), and Claudio Mezzetti (University of Warwick, Department of Economics), have an interesting paper on Intellectual Property Disclosure as 'Threat'.

ABSTRACT: This paper models the disclosure of knowledge via licensing to outsiders or fringe firms as a threat, useful in ensuring firms keep their commitments. We show that firms holding intellectual property are better able to enforce agreements than firms that don't. In markets requiring innovation to make a product, IP disclosure presents a more powerful threat than entry by the punishing firm alone. Occasionally, a punishing firm won't be able to translate its intellectual property into a full-blown product, making it impossible for it to enter the cheating firm's market and punish. Even if it can't make a product itself, the punishing firm can always credibly threaten to license the intellectual property it has on hand to someone else. With this intellectual property as a springboard, chances are at least one fringe firm will be able to do the translation, make the product and enter the cheating firm's market. In short, the potential for licensing increases the likelihood of punishment for uncooperative behavior.In the model, firms contract explicitly to ex-change knowledge and tacitly to coordinate the introduction of innovations to the marketplace. We find conditions under which firms can self-enforce both agreements. The enforcement conditions are weaker when (1) firms possess knowledge and (2) knowledge is easily transferable to other firms. The disclosure threat has implications for antitrust law generally, which are considered.

Competition of Competition Policy Journals

Posted by D. Daniel Sokol

Over the last few years, we have witnessed important changes in the antitrust academic journal community.  As new journals have emerged (e.g., Journal of Competition Law and Economics, European Competition Journal, Competition Law Review), I think that the traditional antitrust specific journals (Antitrust Law Journal and the Antitrust Bulletin) have lost a number of articles to competitors.  Over time, I predict a decline of the relative standing of the Antitrust Bulletin.  The first of two big problems for this impressive journal is that the current publisher seems to do a very poor marketing job.  There is no dedicated website for the journal.  In the internet age, this is really inexcusable.  Moreover, the lack of Westlaw and Lexis searchability for the Antitrust Bulletin significantly limits its impact factor (as does the strong opposition to allowing authors to post working paper versions on SSRN).  Given the number of excellent articles that have appeared over the years in the Antitrust Bulletin, I was shocked to discover that it was only the 448th most cited law journal.  Compare this to the Antitrust Law Journal, the 101st most cited law review (not bad for a peer reviewed specialty journal).  Authors will flock to other journals that do a better marketing job as visibility and citation count will affect, if they do not do so already, submission decisions. 

More generally, I am interested in comparing placements of antitrust articles now versus the past.  The sense that I have is that antitrust articles tend to have fewer top placements in non-symposia issue general law reviews than in the past and that there has been a migration to specialty journals and peer review journals over the past 15 years -- if not earlier.  I am told that the Milton Handler antitrust symposium used to be a yearly feature in the Columbia Law Review.  For quite some time, it has been relegated to the Columbia Business Law Review.  The only antitrust article to appear in a Top 10 main law review in 2007 was Dan Crane's review of Herb Hovenkamp's Antitrust Enterprise as part of the special Michigan Law Review book review issue.  Compare this to 1990, in which there were antitrust articles in the Columbia Law Review, Chicago Law Review, Michigan Law Review (by my colleague Bill Page), Stanford Law Review, Duke Law Journal, and Harvard Law Review.

ABA Antitrust-IP Conference

Posted by D. Daniel Sokol

This year’s two-day ABA Antitrust Section Intellectual Property/Antitrust conference will take place at the crossroads of Administrations, and will provide a comprehensive review of recent developments, as well as a look ahead at potential changes, involving the intersection of antitrust and intellectual property. It will feature experienced practitioners and senior agency officials and academics, including a roundtable discussion of the sometimes differing enforcement philosophies in the United States and the European Union. The conference will also include keynote addresses from prominent enforcement officials. Breakout sessions will cover topics such as:

• New Directions in U.S. Antitrust Enforcement Under the New Administration
• Standard Setting
• Licensing of Intellectual Property and Patent Pooling
• Market Definition in Technology Markets

 

The conference will also include a group luncheon (all speakers and registrants are welcome to attend) that will include a keynote address on enforcement priorities for the new Administration.

James A. Wilson
Chair, Section of Antitrust Law (2008-2009)

Richard J. Gilbert
Alfred C. Pfeiffer Jr.
Carl Shapiro
Conference Co-Chairs

The agenda is available here.

Michael Baye to Leave FTC

Posted by D. Daniel Sokol

Just in time for the coming academic semester, Michael Baye will return to the IU Bloomington Kelley School of Business from a successful stint as the head of the Bureau of Economics at the FTC.  The press release is available here.

Keeping the Engagement Ring: Apportioning Antitrust Risk with Reverse Breakup Fees

Posted by D. Daniel Sokol

Darren Tucker, O'Melveny & Myers LLP and Kevin Yingling, O'Melveny & Myers LLP ask about Keeping the Engagement Ring: Apportioning Antitrust Risk with Reverse Breakup Fees.

ABSTRACT: Reverse breakup fees are payments from a buyer to a seller if an acquisition does not close for specified reasons. The use of reverse breakup fees in private equity transactions has become a common practice and the subject of considerable commentary. Little attention, however, has been given to these clauses in strategic deals to allocate the antitrust risk between merging parties. To be sure, reverse breakup fees remain fairly uncommon relative to other risk shifting devices such as "best efforts" clauses and divestiture requirements. Nevertheless, reverse breakup fees in strategic deals appear to be growing in popularity to reassure sellers of the buyers' ability to obtain regulatory approval and encourage them to proceed with an otherwise risky transaction.

In this article, we compare the application of reverse breakup fees in strategic deals with private equity buyouts and consider their use among other contractual risk-shifting provisions. We also identify significant patterns and trends in these provisions based on a survey of strategic merger agreements containing reverse breakup fees.

Competition Law and Policy in Bad Times

Posted by D. Daniel Sokol

David Lewis (Competition Tribunal of South Africa) discusses Competition Law and Policy in Bad Times.

ABSTRACT: Macroeconomists often stand accused—with good reason—of treating firms as black boxes whose diverse features are not acknowledged, or even understood, when responses to fiscal and monetary policy decisions are considered. But by the same token, much of microeconomics treats the broader economic and political context as a black box, as a mere neutral stage on which firms and individuals interact. Competition and regulatory economics, in all its stimulating, mind-bending complexity is the province of very clever microeconomists who endlessly model and theorize the strategic interactions of firms and the behavior of consumers without giving much thought to the context in which this behavior occurs.

However, broader contextual issues set the stage for those interactions and when that set changes, the parameters and possibilities, the outcomes and the public expectations of regulatory interventions shift, sometimes markedly. We are currently experiencing such a change in the stage set, and I want to look at the immediate prospects for competition law and policy in this changed context.

Change and Continuity in International Antitrust under an Obama Administration

Posted by D. Daniel Sokol

D. Daniel Sokol of the University of Florida Levin College of Law (i.e., your blog editor) has a forthcoming essay in Competition Policy International on Change and Continuity in International Antitrust under an Obama Administration.  The essay is my contribution to a forthcoming online symposium that will try to predict the future of antitrust under an Obama administration.

ABSTRACT: The Obama administration inherits an international antitrust situation that is relatively better than the one that the Bush team inherited. Antitrust coordination and cooperation with agencies around the world have never been better. There has been an emergence of best practices across a number of different areas, both substantive and technical. On these issues, I expect that there will be no significant shifts in priority, except perhaps a less forceful approach on monopolization issues. Cooperation and harmonization will continue as will the support of technical assistance.

On the margins, the US agencies may need to refine the message of competition so that market reform does not mean a lack of regulation, just better regulation that protects consumers from anti-competitive harm. Leadership changes may play an important role on a personal level and poor leadership may impact the ability to progress on many issues. International issues should remain a priority merely because of an ever increasing global role of China and other countries and an ever expanding European Union. Yet, the emergence of China and other countries onto the antitrust scene will create new challenges, which the current financial crisis will compound in terms of analytical harmonization about single firm conduct and the proper role of the state in the economy.