Antitrust & Competition Policy Blog

International Conference on Quality of Regulation: Case Research and Analysis

Posted by D. Daniel Sokol

INTERNATIONAL CONFERENCE ON QUALITY OF REGULATION: CASE RESEARCH AND ANALYSIS
March 27, 2010 (0900 -1500 hrs)

Conference Room, III, Annexe, India International Centre, 40, Max Mueller Marg, New Delhi 110003, India

CUTS is organising an international conference to demonstrate the use of a general model for assessing the quality of regulation which can be utilised by developing/developed countries in the near future.

Quality of regulation is very important for the success of regulatory interventions in meeting their objectives. The Conference will come out with the findings of a three country research study (covering India, Brazil and Kenya) on the quality of regulation in Electricity, Oil and Gas sectors. The study contains an assessment of the quality of regulation in each project country in the light of political and economic realities.

Please find the backgrounder and the agenda of the conference at:
http://www.cuts-ccier.org/pdf/Agenda-International_Conference_on_Quality_of_Regulation.pdf

For further information, please contact:
Vikash Batham, [email protected], +919460707005

Resale price maintenance: Explaining the controversy, and small steps towards a more nuanced policy

Posted by D. Daniel Sokol

MATTHEW BENNETT, AMELIA FLETCHER, EMANUELE GIOVANNETTI & DAVID STALLIBRASS (all OFT) discuss Resale price maintenance: Explaining the controversy, and small steps towards a more nuanced policy.

ABSTRACT: The paper sets out why we consider that the legal framework in the EU amplifies what are in reality relatively small differences in thinking around RPM. Primarily, this is because it asks economists, in the name of legal certainty, to draw a false dichotomy between agreements and practices which are harmful and those which are beneficial. We then provide a summary of the literature on RPM and, based on this thinking, set out a few small steps that might be taken towards a more nuanced approach to assessing RPM, within a 'presumed illegality' framework without sacrificing the beneficial legal certainty that the current approach brings.

The New Vertical Restraints Regime - The new rules and how they will apply

Posted by D. Daniel Sokol

The New Vertical Restraints Regime - The new rules and how they will apply Tuesday 8 June 2010, The Stanhope Hotel, Brussels     On 1 June 2010, a new Vertical Agreements Block Exemption will come into force, as revised Vertical Restraints Guidelines. It is vital for the legal and business communities to understand the practical consequences of the changes reflected in the new rules without delay. The need is particularly acute as these are the competition law texts of most practical importance to business on a day-to-day basis. GCR has arranged this conference to examine in-depth the new block exemptions and guidelines. Distinguished speakers from the European Commission, law firms, economic consultancies and industry include: Chairman: Andrzej Kmiecik Partner, Van Bael & Bellis Speakers: Luc Peeperkorn Senior Administrator, DG Competition, European Commission Paolo Cesarini Head of Unit, DG Competition, European Commission Frank Wijckmans Partner, Contrast Law Sean Paul Brankin Counsel, Crowell & Moring LLP Adrian Majumdar Partner, RBB Economics Fabien Zivy Chief of Staff to the President, Autorité de la Concurrence   Paul Gilbert Deputy Director of Competition Policy, Office of Fair Trading Joost Haans Senior Legal Counsel, Philips International BV Fiona Carlin Partner, Baker & McKenzie LLP Becket McGrath Partner, Edwards Angell Palmer & Dodge UK LLP Thomas Buettner Principal, Charles River Associates Tim Kasten Partner, Van Bael & Bellis         Register to receive practical advice and expert comment on: • The New Vertical Block Exemption Regulation and Guidelines - major issues and main changes • Exclusive and selective distribution agreements • Resale price maintenance • Self-assessment under the Vertical Guidelines: challenges and solutions for business in applying the key economic concepts in practice • Online distribution and sales - a special problem? • The new rules on motor vehicle distribution - still a special case or convergence at last? • Vertical restraints in after-markets     CONFERENCE FEES Register before 30 April 2010 to save £100 Standard early bird fee: £550 + 21% TVA = £665.50 In-house lawyers and government agencies early bird fee: £450 + 21% TVA = £544.50           FORTHCOMING GCR CONFERENCES       European State Aid 2010 - How State aid is applied and interpreted   Friday 7 May 2010, The Radisson Blu Portman Hotel, London W1       International Merger Control   A major international conference to celebrate the 20th anniversary of the EU Merger Regulation 28 & 29 September 2010, Brussels       2010 Antitrust Litigation   October 2010, London       GCR's 2010 Competition Law Review   In-depth analysis and debate on recent developments in competition law and policy 16 & 17 November 2010, Brussels       For further details on any of these events please contact [email protected]     Cancellations Cancellations must be received in writing. Cancellations received in writing two weeks before the conference will receive a refund less 10% + TVA. Cancellations received after this date will receive a refund less 50% + TVA. Substitute delegates are welcome at any time. To unsubscribe from this briefing To unsubscribe, please email [email protected] with 'unregister' in the subject field. If you have any queries regarding this briefing please contact us at [email protected]. Data protection Any personal information provided by you will be held on a database and may be shared with other Law Business Research publications. If you do not want us to use your information for marketing purposes please contact [email protected]     Law Business Research Limited 87 Lancaster Road London W11 1QQ Registered in England and Wales number 03281866 Vat registration number GB 681 598586

Public and Private: Are the Boundaries in Transition?

Posted by D. Daniel Sokol

The American Antitrust Institute presents:

Public and Private: Are the Boundaries in Transition?
National Press Club, Washington, D.C.
June 24, 2010

8:30 a.m. Welcome and Introduction
Albert A. Foer, President, American Antitrust Institute

9:00 a.m.
Keynote Address
Christine Varney, Assistant Attorney General, Antitrust Division, U.S. Department of Justice

10:00 a.m. Public and Private: Are the Boundaries Moving? Three Challenges in Competition Policy
Standard-Setting
Christopher Sagers, Professor, Cleveland-Marshall College of Law
Public-Private Partnerships
Michael Likosky, Senior Fellow, Institute for Public Knowledge, New York University
Government-Sponsored Enterprises
Thomas Stanton, Fellow, Center for the Study of American Government, Johns Hopkins
University

11:00 a.m. Breakout Sessions

Insurance
Moderator: Lawrence Mirel, former Commissioner of Insurance, Securities and Banking for the District of Columbia
The McCarran Act Under Attack
Randy Stutz, Research Fellow, American Antitrust Institute
What is Public? What is Private? What is Federal? What is State-regulated?
Beth Farmer, Professor of Law, Penn State University
Financial Institutions
Reforming Financial Regulation to Address the Too-Big-To-Fail Problem
Arthur E. Wilmarth, Professor, The George Washington University Law School
Interchange Fees as a Public Utility
Henry Polmer, Attorney, Law Offices of Henry M. Polmer

Telecommunications
Moderator:
Jonathan Baker, Chief Economist, Federal Communications Commission
Panelists:
Joseph Farrell, Director of the Bureau of Economics, Federal Trade Commission
Phil Weiser, Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice

Transportation
Statutory Immunities Related to Transportation
Peter Carstensen, Young-Bascom Professor of Law, University of Wisconsin Law School
The Auto Industry Under Government Ownership
John Kwoka, Finnegan Distinguised Professor of Economics, Northeastern University

12:15 p.m. Break

12:30 p.m. Luncheon
Presentation of the 8th Annual Jerry S. Cohen Award
Presentation of the AAI Antitrust Achievement Award to Steven C. Salop
Jonathan Baker, Chief Economist, Federal Communications Commission
Carl Shapiro, Deputy Assistant Attorney General for Economics, Antitrust Division, U.S. Department of Justice

2:15 p.m. Health Care Reform and Competition

Thomas Greaney, Professor of Law and Director, Center for Health Law Studies at Saint Louis University School of Law
Barak D. Richman, Professor of Law, Duke Law

3:30 p.m. Energy Reform and Competition
Moderator:
Diana Moss, Vice President and Senior Fellow, American Antitrust Institute
Panelists:
Peter Fox-Penner, Principal, The Brattle Group
Susan Kelly, Vice President of Policy Analysis and General Counsel, American Public Power
Association

4:30 p.m. Closing Remarks

Microeconomic Evidence on Price-Setting

Posted by D. Daniel Sokol

Peter J. Klenow (Stanford - Econ) and Benjamin A. Malin (Federal Reserve Board of Governors) explain Microeconomic Evidence on Price-Setting.

ABSTRACT: The last decade has seen a burst of micro price studies. Many studies analyze data underlying national CPIs and PPIs. Others focus on more granular sub-national grocery store data. We review these studies with an eye toward the role of price setting in business cycles. We summarize with ten stylized facts: Prices change at least once a year, with temporary price discounts and product turnover often playing an important role. After excluding many short-lived prices, prices change closer to once a year. The frequency of price changes differs widely across goods, however, with more cyclical goods exhibiting greater price flexibility. The timing of price changes is little synchronized across sellers. The hazard (and size) of price changes does not increase with the age of the price. The cross-sectional distribution of price changes is thick-tailed, but contains many small price changes too. Finally, strong linkages exist between price changes and wage changes.

Prediction and Antitrust: An Invitational Symposium - June 23, 2010

Posted by D. Daniel Sokol

The American Antitrust Institute presents:

Prediction and Antitrust: An Invitational Symposium
National Press Club, Washington, D.C.
June 23, 2010

8:30 a.m. Welcome and Introduction
Albert A. Foer, President, American Antitrust Institute
9:00 a.m.
Overview of Importance of Prediction in Antitrust
Planning, Investigation, Litigation, Remediation
Albert A. Foer, President, American Antitrust Institute
The Role of Prediction in Merger Analysis
John B. Kirkwood, Associate Professor of Law, Seattle University School of Law
The Merger Guidelines and Uncertainty
Howard Shelanski, Deputy Director, Bureau of Competition , Federal Trade Commission
10:00 a.m. The Tools of Prediction Used by Corporations
What is Taught in the Business Schools
TBD
What Services are Supplied to Large Corporations by Prediction Consultants
Justin Miller, Corporate Counsel, E.I. DuPont de Nemours
Beyond Forecasting: Scenario Planning as a Tool for Managing Uncertainty
Scott Snyder, President and CEO, Decision Strategies International Prediction Markets and Other Tools
Michael Abramowicz, Associate Professor of Law, George Washington University; Author of Predictocracy
12:30 p.m. Luncheon: Prediction the Present with Google Trends
Hal Varian, Chief Economist, Google; Professor, Haas School of Business, University of California at Berkeley
2:15 p.m. How Can Prediction Be Enhanced in the Context of Antitrust? Experimentation and Regulation
Hanno Kaiser, Partner, Latham & Watkins LLP
Predicting Fines
John M. Connor, Professor of Industrial Economics, Purdue University
3:30 p.m. Roundtable Discussion
Moderators:
Albert A. Foer, President, American Antitrust Institute
Gregory T. Gundlach, Professor, University of North Florida Coggin College of Business
4:30 p.m. Closing Remarks

Agency Merger Enforcement in Non-Reportable Transactions

Posted by D. Daniel Sokol

Mary K. Marks and Beverly J. Ang (Schulte Roth) explain Agency Merger Enforcement in Non-Reportable Transactions.

ABSTRACT: This article considers what may account for an apparent increase in agency challenges to mergers and acquisitions that fall below the reporting thresholds of the Hart-Scott-Rodino Act.

Oral Hearings and the Best Practices Guidelines

Posted by D. Daniel Sokol

James Modrall & Ruchit Patel, (Cleary Gottlieb) explain Oral Hearings and the Best Practices Guidelines.

ABSTRACT: On January 6, 2010, the European Commission (the "Commission") published for consultation three "Best Practices" documents. Two of these Best Practices documents contain provisions on the Oral Hearing, namely (1) the Guidelines on the procedures of the Hearing Officers in proceedings relating to Article 101 and 102 of the TFEU (the Hearing Officer Best Practices) and (2) the Guidelines on conduct of procedures concerning Articles 101 and 102 (the Investigation Best Practices) (the Hearing Officer Best Practices and Investigation Best Practices are referred to together as the Guidelines).  The general aim of the Guidelines is to improve the transparency and predictability of Commission proceedings  and, to this end, the Guidelines seek inter alia to formalize and codify practices relating to Oral Hearings.

This article examines whether the Guidelines satisfactorily address the most common criticisms on the Oral Hearing. In doing so, it (1) sets out some background to the Oral Hearing; (2) outlines six criticisms often leveled at the Oral Hearing process and analyses whether the Guidelines satisfactorily address these criticisms; and (3) makes specific recommendations on how shortcomings may be addressed.

Class Certification in Antitrust Cases: An Economic Framework

Posted by D. Daniel Sokol

Hal J. Singer, Empiris LLC and Robert B. Kulick, Navigant Economics propose Class Certification in Antitrust Cases: An Economic Framework.

ABSTRACT: A number of recent appellate court decisions pertaining to class certification in antitrust cases have spawned uncertainty and debate about the future course of antitrust enforcement through the class-action mechanism. One leitmotif of these decisions is that Federal Rule of Civil Procedure’s 23(b)(3) “predominance” standard can only be satisfied by “rigorous analysis.” Some antitrust practitioners have argued that these statements regarding rigorous analysis must indicate that many issues traditionally thought of as merits issues must now be resolved during the class-certification inquiry. Yet the same decisions by appellate courts have emphasized that the class-certification process is a limited inquiry and that plaintiffs are not required to prove the validity of their claims regarding violation and impact to achieve class certification.

In this article, we propose an economic framework for interpreting the rule 23(b)(3) predominance standard. We believe that our analysis resolves the apparent conflict between the principle of conducting a rigorous analysis during the class certification inquiry and the principle of conducting an inquiry that implicates the validity of allegations at issue. Our approach also gives a specific economic meaning to the principle articulated by the Supreme Court in Amchem that class certification ultimately comes down to a question of whether a proposed class is sufficiently cohesive to warrant certification. Furthermore, our approach provides a compelling economic justification for a specific puzzle in antitrust class-action jurisprudence: Plaintiffs seeking class certification have often been successful when they have been able to prove that (1) the prices paid by all class members are linked by a common element of pricing, and (2) this common element was altered by the challenged conduct in a way that harmed plaintiffs. Despite the fact that this argument is often advanced through economic expert testimony, some antitrust practitioners have suggested that this approach lacks an economic basis. We review several cases where plaintiffs successfully used this approach to certify a class and show how our framework provides an economic basis for the court’s affirmative decisions in these cases. Our framework also suggests a specific delineation of the responsibilities of class-certification experts, liability experts, and damages experts.

Vertical Merger, Collusion, and Disruptive Buyers

Posted by D. Daniel Sokol

Volker Nocke, Department of Economics, University of Oxford - Department of Economics and Lucy White, Harvard Business School - Finance Unit, Swiss Finance Institute, determine the relationship among Vertical Merger, Collusion, and Disruptive Buyers.

ABSTRACT: In a repeated game setting of a vertically related industry, we study the collusive effects of vertical mergers. We show that any vertical merger facilitates upstream collusion, no matter how large (in terms of capacity or size of product portfolio) the integrated downstream buyer. But a vertical merger with a larger buyer helps more to facilitate upstream collusion than a similar merger with a smaller buyer. This formalizes the idea expressed in the U.S. and EU non-horizontal merger guidelines that some downstream buyers may be more "disruptive" of collusive schemes than others.

U.S. Discovery of European Union and U.S. Leniency Applications and Other Confidential

Posted by D. Daniel Sokol

Samuel R. Miller, Kristina Nordlander, & James C. Owens, (Sidley Austin) have posted U.S. Discovery of European Union and U.S. Leniency Applications and Other Confidential.

ABSTRACT: An issue of growing importance in global competition law is the risk that materials produced pursuant to one foreign sovereign's confidential investigations or proceedings will later be subject to civil discovery in the United States. In many jurisdictions, in particular in the European Union ("EU") and United States, aggressive cartel enforcement has been significantly aided by programs offering leniency to cartel participants. Key to these programs are promises by antitrust enforcers that potentially incriminating documents or oral statements submitted to them by cartel participants will be protected from disclosure in other jurisdictions or proceedings. Indeed, the globalized nature of many modern cartels had made such leniency and confidentiality programs critical—and arguably indispensable—to anti-cartel prosecution.

However, news that the European Commission ("Commission") or the U.S. Department of Justice's Antitrust Division ("DOJ") is conducting an investigation often prompts the filing of civil class action suits in the United States. Counsel for plaintiffs in these private antitrust actions often seek discovery of materials submitted by defendants to the EU or other foreign jurisdictions. Accordingly, U.S. courts are increasingly faced with resolving a fundamental conflict between the liberal scope of U.S. discovery and sovereign promises that certain information or evidence would remain confidential. Because resolving this conflict requires a case-by-case analysis under doctrines such as international comity, litigants and sovereigns alike are faced with uncertainty. Nevertheless, the outcome of recent proceedings has generally favored the preservation of confidentiality against U.S. civil discovery demands.

This article will summarize recent case developments and court rulings addressing the issue of whether documents provided in confidence to the Commission or DOJ will be subject to discovery in private antitrust actions in the United States.

Oral Hearings—Neither a Trial nor a State of Play Meeting?

Posted by D. Daniel Sokol

Michael Albers & Karen Williams (European Commission) ask Oral Hearings—Neither a Trial nor a State of Play Meeting?

ABSTRACT: Oral hearings have always been one of the more prominent features of the European Commission's procedure in competition cases, although these proceedings are predominantly written rather than oral in nature. This prominence is somewhat surprising given that hearings are merely an option for defendants,  organized only at the request of the company which the Commission alleges to be in potential violation of EU competition law.

In practice, oral hearings are requested in around 75 percent of all cases for which a statement of objections ("SO")  has been issued. Broken down by category, oral hearings are held in 90 percent of all cartel cases, 80 percent of all other antitrust cases (Art.101 and 102 TFEU violations), and only 50 percent of all merger cases. In the years 2004-2009, there have been, on average, 12 hearings per year, of which 50 percent have been cartel hearings, 30 percent other antitrust hearings, and 20 percent merger hearings. Recently, the trend for oral hearings to take place in only one out of two merger cases has not continued; hearings have been held in all proceedings with a statement of objections in the last two years, while there were none in 2007.

From the perspective of a defendant the attractiveness of an oral hearing hinges upon a variety of aspects. Considerations such as the nature of the objections, whether it is likely to be a multi-party meeting (including complainants or other hostile third parties), and the evidentiary situation are probably some of the more important aspects influencing the decision whether or not to request a hearing. Time may also play a role in merger cases.

Another important aspect is how the hearing is conducted. Oral hearings have been a constant feature of the Commission's competition proceedings since the first procedural regulation for the application of the competition rules was adopted in 1963.  Much has changed since then, not the least because of the introduction of a Hearing Officer in 1982. Today oral hearings are meetings, very often of several parties, under the chairmanship of an independent Hearing Officer, where the merits of preliminary findings of the Directorate-General for Competition (DG Competition) adopted by the Commission, are discussed in a formal setting. A hearing is neither a trial nor a state of play meeting. A hearing is a hearing. It functions as a check and balance within the administrative procedure before the authority takes a final decision on a case.

DOJ Antitrust/Department of Agriculture Transcript for the March Iowa Workshop Posted

Posted by D. Daniel Sokol

See here.

HT: Geoff Manne

Ian Norris - Welcome to US Jail

Posted by D. Daniel Sokol

The Global Competition Review reports that Ian Norris is flying to the US today after losing his six year battle to avoid a US jail sentence for price fixing. 

Merger Control in the European Union and the United States: Just the Facts

Posted by D. Daniel Sokol

Mats Bergman, Södertörn University College, Stockholm, Uppsala University, Malcolm B. Coate, U.S. Federal Trade Commission (FTC), Maria Jakobsson, Stockholm University - Department of Economics, and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) explain Merger Control in the European Union and the United States: Just the Facts.

ABSTRACT: Using a combination of public and internal information, this paper compares and contrasts EU and US merger policies. Common economics seems to lead both authorities to consider remarkably comparable portfolios of mergers once the nominal differences in the regimes (US reviews more cases) are addressed. Vertical mergers account for less than ten percent and potential competition matters for around five percent of all mergers in both jurisdictions, while purely conglomerate mergers are extremely rare or non-existent. The share of collusion investigations fall over time in both jurisdictions. However, the US relies on collusion theory more than three times as often as the EU, where 85 percent of the horizontal cases concern dominance. Across both regimes, roughly one eighth of all recent horizontal mergers have been analyzed as non-dominance unilateral-effects cases. Only minor differences in the average probability of challenge are observed when controlling for market share. We also find that the EU is more prone to accept (or require) weak remedies and much less likely to consider efficiencies. The 2004 EU reforms seem to be leading towards at least some convergence on enforcement policy.

Inferring the Effects of Vertical Integration from Entry Games: An Analysis of the Generic Pharmaceutical Industry

Posted by D. Daniel Sokol

Kensuke Kubo has written on Inferring the Effects of Vertical Integration from Entry Games: An Analysis of the Generic Pharmaceutical Industry.

ABSTRACT: This paper introduces a novel method for examining the effects of vertical integration. The basic idea is to estimate the parameters of a vertical entry game. By carefully specifying firms' payoff equations and constructing appropriate tests, it is possible to use estimates on rival profit effects to make inferences about the existence of vertical foreclosure. I estimate the vertical entry model using data from the US generic pharmaceutical industry. The estimates indicate that vertical integration is unlikely to generate anticompetitive foreclosure effects. On the other hand, significant efficiency effects are found to arise from vertical integration. I use the parameter estimates to simulate a policy that bans vertically integrated entry. The simulation results suggest that such a ban is counterproductive; it is likely to reduce entry into smaller markets.

IBM Under Antitrust Investigation - Is It the 1970s All Over Again?

Posted by D. Daniel Sokol

For those of you who wore polyester suits to the office back in the 70s, you might remember the long DOJ Antitrust investigation against IBM.  Today's FT reports that IBM is under investigation in the EU.  The DOJ began its newest IBM investigation last year.

I guess this means that a Happy Days remake must be brewing...

Price Squeezes and Vertical Discrimination on Next Generation Access Networks

Posted by D. Daniel Sokol

Henry Ergas, Independent, Emma Lanigan, Concept Economics, and Eric Kodjo Ralph, EKonomics LLC explore Price Squeezes and Vertical Discrimination on Next Generation Access Networks.

ABSTRACT: Next generation access networks (NGANs) are in many cases likely to be supplied by vertically integrated firms, that is, firms that both wholesale access and sell services downstream to end-users. A long standing concern of regulators is that such firms may engage in anti-competitive price squeezes. This paper examines this concern and reviews the difficulties associated with conventional imputation tests in an NGAN context. The paper is organised as follows. Section 2 of the paper provides an analytical framework for understanding vertical integration, vertical discrimination, including price squeezes, and the incentives to engage in such behaviour. Section 3 explains why the incentives for a NGAN provider to vertically discriminate are sharply reduced as compared with a traditional vertically integrated telecommunications carrier. Section 4 considers regulatory approaches to the price squeeze. Section 5 focuses on how regulators are also concerned with inefficiently high prices and derives implications for the efficient setting of NGAN access charges.

Mobile Termination, Network Externalities, and Consumer Expectations

Posted by D. Daniel Sokol

Sjaak Hurkens Institute for Economic Analysis (CSIC) and Ángel L. López (IESE Business School, University of Navarra) discuss Mobile Termination, Network Externalities, and Consumer Expectations.

ABSTRACT: We re-examine the literature on mobile termination in the presence of network externalities. Externalities arise when firms discriminate between on- and off-net calls or when subscription demand is elastic. This literature predicts that profit decreases and consumer surplus increases in termination charge in a neighborhood of termination cost. This creates a puzzle since in reality we see regulators worldwide pushing termination rates down while being opposed by network operators. We show that this puzzle is resolved when consumers' expectations are assumed passive but required to be fulfilled in equilibrium (as defined by Katz and Shapiro, AER 1985), instead of being rationally responsive to non-equilibrium prices, as assumed until now.

Why Markets Matter for Evidence-Based Merger Analysis

Posted by D. Daniel Sokol

Malcolm B. Coate (FTC) and Jeffrey H. Fischer (FTC) explainWhy Markets Matter for Evidence-Based Merger Analysis.

ABSTRACT: While the Merger Guidelines structure represents the standard approach to merger analysis in the US, economists have proposed methods to dispense with market definition and estimate the competitive effect directly. In this note, we argue that market definition is necessary to evaluate the assumptions of any merger analysis and thus, cannot be dispensed with. Moreover, we suggest that market definition plays an important role in the stakeholders’ merger guidance process, the regulator’s merger screening process, and the court’s merger decision process.