Antitrust & Competition Policy Blog

Interview with Sharis A. Pozen - Antitrust Source

Posted by D. Daniel Sokol

The current issue of the Antitrust Source has an interview with Sharis A. Pozen (DOJ). Read it here.

Flexibility and Collusion with Imperfect Monitoring

Posted by D. Daniel Sokol

Maria Bigoni (Universita di Bologna), Jan Potters (Tilburg), Giancarlo Spagnolo (Stockholm School of Economics ) discuss Flexibility and Collusion with Imperfect Monitoring.

ABSTRACT: Flexibility - the ability to react swiftly to others' choices - facilitates collusion by reducing gains from defection before opponents react. Under imperfect monitoring, however, flexibility may also hinder collusion by inducing punishment after too few noisy signals. The combination of these forces predicts a non-monotonic relationship between flexibility and collusion. To test this subtle prediction we implement in the laboratory an indefinitely repeated Cournot game with noisy price information and vary how long players have to wait before changing output. We find that (i) the facilitating role of flexibility is lost under imperfect monitoring, and (ii) with learning, collusion unravels with low or high flexibility, but not with intermediate flexibility.

Financing Constraints, Product Market Competition, and Business Cycle Sensitivity

Posted by D. Daniel Sokol

Peter Pontuch (Universite Paris Dauphine) has written on Financing Constraints, Product Market Competition, and Business Cycle Sensitivity.

ABSTRACT: We analyze the interactions between financing constraints and product market competition. Financially constrained firms face restricted access to external finance during economic downturns, precisely when their internal funds decrease. This leads to vicious circle dynamics. We argue that in competitive industries cash flows are particularly sensitive to aggregate shocks, and the adverse dynamics are amplified. We find significant support for this hypothesis in firms' operating profitability and fixed investment. The adverse effects of financing constraints are increasing in the level of product market competition. Market valuations do not take into account these differences in fundamental risk. Unconstrained firms in competitive industries earn positive abnormal returns (on average 24-40 bp per month), especially following periods of macroeconomic distress. Furthermore, financing constraints affect competitive mechanisms! within industries. The industry-average level of financing constraints tends to reduce the intra-industry mean-reversion of firm profitability. Again, this regularity is not priced: highly profitable firms earn alphas of 20-29 bp per month if they operate in industries with many constrained firms, but virtually no alphas if their industries have few constrained firms.

Pricing and Market Concentration: A New Estimation Strategy

Posted by D. Daniel Sokol

Michael J. Doane, Competition Economics LLC, Luke Froeb, Vanderbilt University - Owen Graduate School of Management, Gregory J. Werden, U.S. Department of Justice - Antitrust Division, and David M. Zimmer, Western Kentucky University - Department of Economics address Pricing and Market Concentration: A New Estimation Strategy.

ABSTRACT: Estimation of the effect of competition on prices is complicated by entry: High prices and profits attract entry, which reduces market concentration and prices. Regressing price on concentration, therefore, picks up both the effect of concentration on prices and the confounding effect of prices on concentration. This paper addresses this endogeneity problem by constructing an estimator that utilizes only variation in ownership concentration, while holding entry constant. The estimator is applied to the rental car industry, in which past mergers have created multi-brand firms. Despite significant market segmentation, overall market concentration, rather than segment concentration, explains rental car pricing. The estimated effect of concentration on prices is found to be roughly what simple theoretical models predict, and this estimate is used to predict the price effects of two recently proposed car rental mergers.

The Fallacy of 'Competition' in Agriculture

Posted by D. Daniel Sokol Michael E. Sykuta, University of Missouri at Columbia discusses The Fallacy of 'Competition' in Agriculture. ABSTRACT: Agriculture has long been viewed by economists as the best example of an industry characterized by perfect competition. However, the history of modern agriculture is marked with differences about just how competitive the industry is and whether competition is in fact a desirable thing. Present debates about competition in agriculture rally discontent with the competitive environment around the mantra of “free and fair competition.” But this populist ideal presents problems of its own. First, what is the economic meaning of “free and fair” competition? Second, how does the argument about the need for free and fair competition meet with the facts of how the agricultural industry behaves? And finally, what are the ethical implications of arguments for government intervention in the agricultural economy?

Most Downloaded - TOP 10 Papers for SSRN Antitrust February 29, 2012 to April 29, 2012

Posted by D. Daniel Sokol

RECENT HITS (for all papers announced in the last 60 days) TOP 10 Most Downloaded Papers for Journal of Antitrust: Antitrust Law & Policy eJournal February 29, 2012 to April 29, 2012

Rank Downloads Paper Title

1 318 Occupy Wall Street and Antitrust
Maurice E. Stucke, University of Tennessee College of Law,

2 286 Why (Ever) Define Markets? An Answer to Professor Kaplow
Gregory J. Werden, U.S. Department of Justice - Antitrust Division,

3 264 Theories of Harm in European Competition Law: A Progress Report
Hans Zenger, Mike Walker, Charles River Associates (CRA), Charles River Associates, Incorporated ,

4 168 Chicago, Post-Chicago, and Beyond: Time to Let Go of the 20th Century
Bruce H. Kobayashi, Timothy J. Muris, George Mason University - School of Law, George Mason University School of Law,

5 134 Competition-Based Reform of the National Health Service in England: A One-Way Street?
Lucy Reynolds, Amir Attaran, Tamara K. Hervey, Martin McKee, London School of Hygiene and Tropical Medicine, University of Ottawa - Faculties of Law and Medicine, University of Sheffield - Faculty of Law, London School of Hygiene and Tropical Medicine,

6 120 Are Those Who Ignore History Doomed to Repeat it?
Peter Decherney, Nathan Ensmenger, Christopher S. Yoo, University of Pennsylvania, University of Texas at Austin - School of Information, University of Pennsylvania Law School,

7 117 The Rule of Reason and the Goals of Antitrust: An Economic Approach
Roger D. Blair, D. Daniel Sokol, University of Florida - Department of Economics, University of Florida - Levin College of Law,

8 111 Competition for Innovation
Herbert J. Hovenkamp, University of Iowa - College of Law,

9 101 Antitrust’s State Action Doctrine and the Ordinary Powers of Corporations
Herbert J. Hovenkamp, University of Iowa - College of Law,

10 95 The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy
D. Daniel Sokol, University of Florida - Levin College of Law,

AAI 13th Annual Conference: Civil Liberties and Competition Policy Thursday, June 21, 2012

Posted by D. Daniel Sokol

AAI 13th Annual Conference: Civil Liberties and Competition Policy Event Date:

Thursday, June 21, 2012

Location:

National Press Club, Washington DC

This year we are taking a first-time look at the overlap of Civil Liberties and Competition Policy. There are challenging questions of market definition, concentration, convergence, privacy, and the shaping of remedies in light of the First Amendment. What role can and should antitrust play, for example, in the rapidly evolving online and information markets? What role will concepts like diversity, quality, and choice play in the analysis of future competition issues? We will also touch on Noerr-Pennington, the chilling effects of cartels, employment-controlling cartels, political boycotts, and more. We are sure this conference will open your eyes in new ways to the changing legal environment as it can affect competition.

Our gala luncheon will honor Stanford University’s Roger Noll, one of the greatest regulatory economists of his generation.

Click here to register.

If you are interested in supporting this event through the purchase of a table for $6,000, please contact [email protected]

Agenda and Supporting Materials

Welcome and Overview

Albert A. Foer, President, American Antitrust Institute

Supporting Materials:

How Privacy Has Become an Antitrust Issue, by Al Franken (D-Minn)

The Political Content of Antitrust Revisited

Robert Pitofsky, Joseph and Madeline Sheehy Professor of Antitrust and Trade Regulation Law, Georgetown Law

Supporting Materials: The Political Content of Antitrust, Symposium on Antitrust Law and Economics, Robert Pitofsky University of Pennsylvania Law Review, April 1979

Harmonizing Civil Liberties and Antitrust Policy

Moderator: Hon. Douglas H. Ginsburg, Judge, U.S. Court of Appeals for the District of Columbia Circuit; former Assistant Attorney General for Antitrust

Barry C. Lynn, Director, Markets, Enterprise and Resiliency Initiative, New America Foundation

Jeffrey Rosen, Professor of Law, George Washington University School of Law

Maurice Stucke, Associate Professor of Law, University of Tennessee College of Law

Jonathan T. Weinberg, Professor of Law, Wayne State University Law School

Supporting Materials:

Killing the Competition: How the new monopolies are destroying open markets by Barry C. Lynn

The Roberts Court v. America: How the Roberts Supreme Court is using the First Amendment to craft a radical, free-market jurisprudence by Jedediah Purdy, DEMOCRACYJOURNAL.ORG, Winter 2012

Breakout Sessions

Religion and Competition

Moderator: Babette E. Boliek, Ph.D., Associate Professor of Law, Pepperdine University School of Law

Barak D. Richman, Professor of Law and Professor of Business Administration, Duke Law School

Nelson Tebbe, Professor of Law, Brooklyn Law School

Supporting Materials:

Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels by Barak D. Richman

Hosanna-Tabor Evangelical Luthern Church and School v. Equal Employment Opportunity Commission

The Liberties and Risks of Collective Entities

Moderator: Allen P. Grunes, Shareholder, Brownstein Hyatt Farber Schreck, LLP Donald I. Baker, Partner, Baker & Miller

Hillary Greene, Professor of Law and Director of the University of Connecticut's Intellectual Property and Entrepreneurship Law Clinic

Maureen K. Ohlhausen, Commissioner, Federal Trade Commission Supporting Materials:

Antitrust Censorship of Economic Protest by Hillary Greene, Duke Law Journal VOLUME 59 MARCH 2010 NUMBER 6

The Superior Court Trial Lawyers Case - a battle on the frontier between politics and antitrust by Donald Baker, Chapter 9 in Antitrust Stories, 2007

Judicial Activism, The First Amendment and Antitrust

Moderator: Richard Brunell, Director of Legal Advocacy, American Antitrust Institute

Warren S. Grimes, Professor of Law, Southwestern Law School

Gary L. Reback, Of Counsel, Carr & Ferrell LLP

Luncheon

Presentation of Jerry S. Cohen Award for Antitrust Scholarship Presentation of the AAI’s Alfred Kahn Award for Antitrust Achievement to Roger Noll

Albert A. Foer, President, American Antitrust Institute

Wayne Dale Collins, Partner, Shearman & Sterling LLP

Competition and Liberty: Issues in Modern Media

Moderator: Albert A. Foer, President, American Antitrust Institute

Susan S. DeSanti, Director, Policy Planning, Federal Trade Commission Neal Katyal, Partner, Hogan Lovells; former Acting Solicitor General of the United States

Gene I. Kimmelman, Chief Counsel for Competition Policy and Intergovernmental Relations, U.S. Department of Justice Antitrust Division (invited)

Robert H. Lande, Venable Professor of Law, University of Baltimore School of Law Eli Noam, Director, Columbia Institute for Tele-Information; Garrett Professor of Public Policy and Business Responsibility and Professor of Finance and Economics, Columbia Business School

Gary L. Reback, Of Counsel, Carr & Ferrell LLP

Kurt Wimmer, Partner, Covington & Burling LLP

Supporting Materials: The Civil Liberties and Competition Policy: A Personal Essay Dedicated to John J. Flynn by Albert A. Foer

Economic Structure and Performance of the Australian Retail Industry

Posted by D. Danel Sokol

Productivity Commission of the Government of Australia has a new report on Economic Structure and Performance of the Australian Retail Industry.

ABSTRACT: There are almost 140 000 retail businesses in Australia, accounting for 4.1 per cent of GDP and 10.7 per cent of employment. Both current trading conditions and longer term trends are challenging. Retail sales growth has trended down over the past half-decade as consumers save more of their rising incomes and their spending is increasingly directed towards a range of non-retail services.

The retail industry has met many competitive challenges in the past. Online retailing and the entry of new innovative global retailers are just the latest. The intensified competition is good for consumers, but is challenging for the industry which, as a whole, does not compare favorably in terms of productivity with many overseas countries. And the productivity gap appears to have widened over time.

Australia also appears to lag a number of comparable countries in its development of online retailing. The Commission's best estimate is that online retailing represents 6 per cent of total Australian retail sales. In some other countries, online sales figures are higher and set to grow further, as will also happen here. Retailers operate under several regulatory regimes that restrict their competitiveness and ability to innovate including planning and zoning, and trading hours regulations.

Does Compliance Really Matter to DG Comp?

Posted by D. Daniel Sokol

Joe Murphy (CCEP) asks Does Compliance Really Matter to DG Comp?

ABSTRACT: The DG Comp posting speaks about ignorance not being a defense. But ignorance is not and never was the issue. It is the reality that organizations are not individuals, and that there is no means known to humans to control the conduct of every individual, every day, in any large organization. So society wisely elects to encourage organizations to make the most diligent efforts to prevent misconduct through compliance programs with the knowledge that such efforts will not and cannot be perfect. Government then distinguishes those companies that try from those that do not. DG Comp's refusal to do so is the issue.

Italy Overhauls its Merger Control Filing Fee System

Posted by D. Daniel Sokol

Stefano Grassani (Pavia e Ansaldo) describes how Italy Overhauls its Merger Control Filing Fee System.

ABSTRACT: As of January 2013, what is known as probably the world heftiest merger control filing fee structure will be abolished. As a matter of fact, further to an ancillary addition to the so-called "Deregulation Decree"-sponsored by Prime Minister Mario Monti and passed by the Italian Parliament on March 22, 2012-Italy has abandoned a regime that had drawn bitter criticism among practitioners and companies alike.

The Performance of Corporate Credit Ratings

Posted by D. Daniel Sokol

Albert Metz (Moody's) describes The Performance of Corporate Credit Ratings.

ABSTRACT: Following the performance of structured finance securities in general and residential mortgage-backed securities ("RMBS") related securities in particular, the reputations of the major credit rating agencies-Moody's, S&P and Fitch-have suffered considerably. The core competency of rating agencies is now sometimes questioned even outside of structured finance. But are investors too quick to dismiss the utility of corporate credit ratings? In this short note I will explore the accuracy of the corporate default forecasts Moody's has published throughout the recent financial crisis.

Network Neutrality & Antitrust

Posted by D. Daniel Sokol

Kevin Coates (DG Comp) has written on Network Neutrality & Antitrust.

ABSTRACT: The concern underlying the network neutrality debate is that owners of consumer broadband data networks-initially wired networks, but now also wireless networks-might discriminate against, or between, particular types of content or particular content providers. The debate is often confused by proponents and opponents of network neutrality talking about rather different things.

Competition Policy, Patent Pools and Copyright Collectives

Posted by D. Daniel Sokol

Nancy Gallini (UBC) has posted Competition Policy, Patent Pools and Copyright Collectives.

ABSTRACT: This paper analyzes and compares two types of cooperative agreements that combine Intellectual Property (IP): patent pools and copyright collectives. I evaluate antitrust policy in three environments in which owners of the intellectual property (IP): (1) are vertically integrated into the downstream (product) market; (2) face competition in the upstream (input) market and (3) own downstream products that do not require a license on the pooled IP but compete with products that do. Although patent pools and copyright collectives differ in purpose, membership size and market conditions, their efficiency implications are qualitatively similar in each of the three situations. Therefore, a uniform rather than IP-specific competition policy is appropriate for pools and collectives, thus lending economic support for the approach followed by antitrust authorities toward IP-related cooperative agreements.

Competition in Hospital Services – The Policy Dimension

Posted by D. Daniel Sokol

Frank P. Maier-Rigaud (OECD) has written on Competition in Hospital Services – The Policy Dimension.

ABSTRACT: Health care is one of the most important public policy areas both due to the economic importance of the sector and its impact on individual well-being. Health and hospital services have historically been provided through centralised, highly regulated or non-market means in most OECD countries outside the United States. While health systems vary substantially across OECD countries, Governments have used their control over supply - either through financing or the delivery of health care services - to drive efficiency and improve quality of care. Consumer choice between insurers or health care service providers have been a feature of some health care systems, however evidence on its influence in driving improvements in performance is mixed.

The last two decades have seen a substantial focus on driving further competition in the delivery of health and hospital services. On the demand side, governments have sought to improve the availability of information about the performance of health care services and providers and support more informed choices by patients. At the same time, Governments have undertaken reforms seeking to restructure supply and financing arrangements to encourage competition - even in health systems with long standing traditions of publicly operated health care services. Various market-oriented reforms have been introduced across the Netherlands, Germany, Belgium, Israel, Australia, New Zealand and the UK over recent years. Yet the question of whether establishing a ‘market’ is an appropriate way of improving outcomes in hospital services and general health services remains contested.

As OECD countries grapple with fast-rising and substantial health spending, improving the efficiency of health care systems is a central priority for governments, as they seek to maintain quality and the range of services that their citizens have been accustomed to.

There is a growing empirical and theoretical literature describing the impact of market structure on price and quality of hospital services. Some of the key economic issues raised in this literature include:

• What are the conditions for and repercussions of price or quality competition in the hospital services sector?

• What are the key demand side factors in the provision of hospital services and how could demand side factors contribute to effective competition on prices and quality of health and hospital services?

• What are the relevant supply side factors that determine the scope for competition in the provision of hospital services and what steps could be taken to promote effective competition on prices and quality?

• What could be appropriate institutional frameworks and policy reforms for countries to introduce to allow more worthwhile competition in hospital services?

Does Cost Uncertainty in the Bertrand Model Soften Competition?

Posted by D. Daniel Sokol

Johan Lagerlof ((Department of Economics) Kobenhavns Universitet) asks Does Cost Uncertainty in the Bertrand Model Soften Competition?

ABSTRACT: Although naive intuition may indicate the opposite, the existing literature suggests that uncertainty about costs in the homogeneous-good Bertrand model intensifies competition: it lowers price and raises total surplus (but also makes profits go up). Those results, however, are derived under two assumptions that, if relaxed, conceivably could reverse the results. The present paper first shows that the results hold also if drastic innovations are possible. Next, the paper assumes asymmetric cost distributions, a possibility that is empirically highly plausible but which has been neglected in the previous literature. Using numerical methods it is shown that, under this assumption, uncertainty lowers price and raises total surplus even more than with identical distributions. However, if the asymmetry is large enough, industry profits are lower under uncertainty; this is in contrast to the known results and reinforces the no! tion that uncertainty intensifies competition rather than softens it.

Manipulation of Product Ratings: Credit-Rating Agencies, Google, and Antitrust

Posted by D. Daniel Sokol

Mark Patterson (Fordham Law) has written on Manipulation of Product Ratings: Credit-Rating Agencies, Google, and Antitrust.

ABSTRACT: The important competitive role played by information providers like credit-rating agencies is not matched by a well-developed competition analysis for the informational problems they pose. To be sure, competition law has developed approaches to some informational issues, such as collective suppression of information and misleading statements directed at competing products. But it has not focused on allegations of anticompetitive manipulation of information by firms whose business is the provision of product ratings. This essay suggests that a requirement imposed on credit-rating agencies in the recent Dodd-Frank financial reform legislation is also well-suited to address competition issues.

Dynamic Price Competition with Switching Costs

Posted by D. Daniel Sokol

Natalia Fabra (University Carlos III) and Alfredo Garcia (Virginia) describe Dynamic Price Competition with Switching Costs.

ABSTRACT: We develop a continuous-time dynamic model with switching costs. In a relatively simple Markov Perfect equilibrium, the dominant firm concedes market share by charging higher prices than the smaller firm. In the short-run, switching costs might have two types of anti-competitive effects: first, higher switching costs imply a slower transition to a symmetric market structure and a slower rate of decline for average prices; and second, if firms are sufficiently asymmetric, an increase in switching costs also leads to higher current prices. However, as market structure becomes more symmetric, price competition turns fiercer and in the long-run, switching costs have a pro-competitive effect. From a policy perspective, we conclude that switching costs should only raise concerns in concentrated markets.

Chicago, Post-Chicago, and Beyond: Time to Let Go of the 20th Century

Posted by D. Daniel Sokol

Bruce H. Kobayashi George Mason University - School of Law and Timothy J. Muris George Mason University School of Law have written Chicago, Post-Chicago, and Beyond: Time to Let Go of the 20th Century.

ABSTRACT: We clarify and defend the Chicago School of antitrust against incorrect and uninformed claims that it represents a narrow set of inefficiency impossibility theorems based on free market ideology. The Chicago School arose decades ago as a reaction to the then current antitrust policies. Chicago prevailed, both as a methodology and in changing antitrust law for the better. That triumph was based primarily on scholarship before 1980, work that focused largely on overthrowing the old order, not on the myriad details that are necessary to implement policy. Moreover, to the extent they addressed implementation issues, prominent Chicago scholars often disagreed.

Despite Chicago’s successes, we argue for the term’s demise. The current popular understanding of the Chicago School of Antitrust as a narrow and uniform ideological approach to antitrust is inaccurate. As a result, the term Chicago, as well as the derivative terms Post- and Neo-Chicago, add little value and are frequently misused to make normatively incorrect points. We therefore add our voices to those who doubt the continuing usefulness of such labels, outside of discussions of antitrust history. We hope to hasten the demise of using labels like Chicago pejoratively and as a substitute for the economic analysis that has been at the core of the Chicago School of Antitrust.

Backwards Integration and Strategic Delegation

Posted by D. Daniel Sokol

Matthias Hunold (ZEW), Lars-Hendrik Roller (ZEW), and Konrad O Stahl (University of Mannheim) explore Backwards Integration and Strategic Delegation.

ABSTRACT: We analyze the effects of one or more downstream firms’ acquisition of pure cash flow rights in an efficient upstream supplier when firms compete in prices in both markets. With such an acquisition, downstream firms internalize the effects of their actions on that supplier’s and thus, their rivals’ sales. Double marginalization is enhanced. While vertical integration would lead to decreasing downstream prices, passive backwards ownership in the efficient supplier leads to increasing downstream prices and is more profitable, as long as competition is sufficiently intensive. Downstream acquirers strategically abstain from vertical control, inducing the efficient upstream firm to commit to a high price. Forbidding upstream price discrimination is then pro-competitive. All results are sustained when upstream suppliers are allowed to charge two part tariffs.

Entry, Imperfect Competition, and Future Market for the Input

Posted by D. Daniel Sokol

Georges Dionne (HEC Montreal) and Marc Santugini (HEC Montreal) discuss Entry, Imperfect Competition, and Future Market for the Input.

ABSTRACT: We analyze firms’ production and hedging decisions under imperfect competition with potential entry. Specifically, we consider an oligopoly industry producing a homogeneous output in which risk-averse firms incur a sunk cost upon entering the industry, and, then, compete in Cournot with one another. Each firm faces uncertainty in the input cost when making production decision, and has access to the futures market to hedge its random cost. We provide two sets of results. First, we show that there exists a unique equilibrium in which, in contrast to previous results in the literature, production and output price depend on the distribution of the spot price and risk aversion, i.e., there is no separation when the firms have access to the futures market. Second, we study the effect of access to the futures market on entry, production, and prices. The effect of access to the futures market on the number of firms is ambiguous depending on the value of the futures price and the parameters of the model. We also show that hedging induces the risk-averse firm to produce more, while speculating reduces production.