Antitrust & Competition Policy Blog

Anti-Competitive Agreements: The Meaning of 'Agreement'

Posted by D. Daniel Sokol

George Alan Hay, Cornell University - School of Law discusses Anti-Competitive Agreements: The Meaning of 'Agreement'.

ABSTRACT: In the classic cartel, supposed competitors meet in the proverbial smoke-filled hotel room and agree to fix prices at supra-competitive levels. Even though the “agreement” is unlikely to be legally binding on the parties (i.e., the agreement could not be enforced against one of the cartelists that began to “cheat” by offering lower prices), virtually all modern economies would treat such a cartel as unlawful under their national antitrust laws.

Despite the effectiveness of leniency programs in encouraging confessions from cartel members, there are still cartels (both domestic and international) that operate under a cloak of secrecy, and therefore governments must continue to use more conventional tools to seek them out and prosecute them. Sometimes these traditional investigatory tools will yield the confession or the hot documents that will make prosecution easy, but not always. So the question arises: in the absence of a video-taped cartel meeting, a cooperating participant, or incriminating documents, can a cartel be successfully prosecuted based primarily on “circumstantial” evidence?

However, it is not just a question of what kind of circumstantial evidence can be used to establish the existence of a hard-core cartel – that question might best be described in these circumstances as akin to an economic detective story. A more complicated substantive question underlies the effort to describe the type and quantity of the circumstantial evidence necessary to obtain a successful prosecution, namely, what precisely do we mean to include under the category of an illegal “agreement” or “conspiracy” or “concerted practice?”

The plan of this chapter is to begin by describing how the U.S. treats classic cartel behavior when proof of the existence of a cartel agreement is not an issue. Then we turn to the task of establishing the existence of an illegal agreement primarily or entirely through circumstantial evidence. This will quickly get us into the question of what constitutes an unlawful agreement under U.S. law and in particular, the recently renewed debate about whether classic oligopoly behavior can be prosecuted as an unlawful agreement. In the process, we will refer to how similar issues are dealt with in other jurisdictions, most notably the European Union.

Administrative Adjudication in Antitrust: Still a Controversy? An Annotated Bibliography

Posted by D. Daniel Sokol

Maria Barroso Gomes, American Antitrust Institute (AAI) has posted Administrative Adjudication in Antitrust: Still a Controversy? An Annotated Bibliography.

ABSTRACT: The purpose of this annotated bibliography is to survey the recent literature on administrative adjudication in antitrust and the rule of law in the United States, European Union, and from a comparative or global vision.

The bibliography is organized into three sections: (1) United States, focusing on issues of agency design and due process (mostly in merger control) in the US; (2) European Union, addressing the current debate on the rule of law issues affecting competition proceedings in the EU; and (3) Comparative/Global, covering antitrust and rule of law topics addressed from comparative, convergent or global perspectives. Included are articles, policy statements, conference papers, essays, books and book reviews addressing one of the main categories into which the bibliography is organized.

Behavioral Economics and Its Meaning for Antitrust Agency Decision Making

Posted by D. Daniel Sokol

James C. Cooper, George Mason University School of Law - Law & Economics Center and William E. Kovacic, George Washington University - Law School have a new paper on Behavioral Economics and Its Meaning for Antitrust Agency Decision Making.

ABSTRACT: Of all fields of regulation in the United States, antitrust law relies most heavily on economics to inform the design and application of legal rules. When drafting antitrust statutes in the late 19th and early 20th centuries, Congress anticipated that courts and enforcement agencies would formulate and adjust operational standards to account for new learning. The field of economics — especially industrial organization economics — would give broad statutory commands much of their analytical content.

In principle, the flexibility of U.S. antitrust statutes makes competition policy adaptable and accommodates for upgrades over time. This evolutionary process is only effective if antitrust institutions can identify significant advances in economic learning and refine enforcement policy and doctrine accordingly. Owing to their expertise in economics and law, the two federal antitrust agencies — the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) — are crucial instruments of adaptation. The antitrust system’s quality depends on the agencies’ commitment to reassess existing doctrine and policy in light of new developments.

Extraterritorial Criminal Jurisdiction under the Antitrust Laws

Posted by D. Daniel Sokol

Herbert J. Hovenkamp, University of Iowa - College of Law explores Extraterritorial Criminal Jurisdiction under the Antitrust Laws.

ABSTRACT: When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of domestic antitrust decisions would make little economic, political, or social sense.

The purpose of the distinction between the per se rule and rule of reason is to identify and distinguish situations where anticompetitive effects can be assessed at relatively low administrative costs from those that require more complete analysis. The Ninth Circuit has spoken of a "jurisdictional" rule of reason. However, merging considerations of comity, foreign interests, and domestic effects from extraterritorial conduct into questions about market definition and competitive impact unnecessarily complicates a set of queries that are already complicated enough and are in fact quite different from one another.

One important rationale for expansive reach in such cases is that the sovereign representing purchasers typically has a greater interest than the sovereign representing sellers. A cartel in one country fixing the price of its goods elsewhere transfers wealth away from the territory containing the buyers and toward the territory containing the sellers. As a result, sovereigns, including the United States itself, have typically been less concerned with condemning restraints on export trade where all the buyers are foreign than with restraints on imports. This aspect of United States policy is reflected in the Foreign Trade Antitrust Improvements Act (FTAIA) as well as the Restatement (Third) of the Foreign Relations Law of the United States. At the same time, however, the "effects" query takes on additional relevance in cases involving extraterritorial conduct, because legislative jurisdiction under the Commerce Clause or statutory reach under the Sherman Act or FTAIA require some harmful effect in the United States. Thus, for example, a naked cartel abroad can be made subject to a criminal indictment and per se treatment. However, the government would also have to show a sufficient effect justifying invocation of United States law.

Hurry Up and Wait

Posted by D. Daniel Sokol

Stephen Kinsella (Sidley Austin) tells us to Hurry Up and Wait. ABSTRACT: In this issue we have a range of articles and perspectives on how interim measures can work in antitrust proceedings. I would like briefly to look at the simple fundamental question of whether the European Commission should be making more use of the powers it has in this field.

The debate is undoubtedly timely in Europe but we have also seen recently in the United States a clearer articulation of reasons for hesitating to act at all in high technology markets because of the risk that excessive intervention might discourage innovation. Incoming FTC Commissioner Wright spelled out this "error cost" approach in a speech in Beijing on February 23, 2012 that is well worth reading. While the overall thrust of the argument runs against intervention there is also recognition of the dangers of inactivity.

However, while regulators may have the luxury of engaging in such an analysis in reaching their "final" decision, there are cases where there may well be a need to act more promptly. And while it may seem counter-intuitive to some, it is precisely in those fast moving markets that some interim intervention may be needed because of the risk that by the time the case is finally resolved there may have been irreparable harm to the market.

Effects of Pharmaceutical Promotion: A Review and Assessment

Posted by D. Daniel Sokol

Dhaval M. Dave (Bentley University) describes Effects of Pharmaceutical Promotion: A Review and Assessment.

ABSTRACT: This review discusses the role of consumer-directed and physician-directed promotion in the pharmaceutical market, based on the classic conceptual framework of whether such promotion is “persuasive” and/or “informative”. Implications for public health and welfare partly depend on whether, and to what extent, advertising: 1) raises “selective” or brand-specific demand versus “primary” or industry-wide demand; 2) impacts drug costs; and 3) impacts competition. Empirical evidence from the literature bearing on these effects is surveyed. These studies show that pharmaceutical promotion has both informative and persuasive elements. Consumer advertising is more effective at enlarging the market, educating consumers, inducing physician contact, expanding drug treatment, and promoting adherence among existing users. Physician advertising is primarily persuasive in nature, effectively increasing selective brand demand. There is no strong evidence the drug promotion deters entry, and there is some suggestive evidence that it may even be mildly pro-competitive. There is also no strong evidence that either consumer- or provider-directed promotion substantially raises retail-level prices. While all of these effects point to welfare improvements as a result of pharmaceutical promotion, there is also evidence that consumer ads may induce overuse and overtreatment in certain cases. Market expansion, overtreatment and shifting brands for non-therapeutic reasons further raise the concern of a sub-optimal patient-drug match at least for some marginal patients. A comprehensive evaluation of the welfare effects of pharmaceutical promotion requires a balanced assessment of these benefits and costs.

Parallel Exclusion

Posted by D. Daniel Sokol

C. Scott Hemphill, Columbia University - Law School and Tim Wu, Columbia University - Law School analyze Parallel Exclusion.

ABSTRACT: Scholars and courts have long debated whether and when "parallel pricing" — adoption of the same price by every firm in a market — should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of "parallel exclusion" — conduct, engaged in by multiple firms, that blocks or slows would-be market entrants. Parallel exclusion merits greater attention, for it can be far more harmful than parallel price elevation. Setting a high price leaves the field open for new entrants and may even attract them. In contrast, parallel action that excludes new entrants both facilitates price elevation and can slow innovation. Reduced innovation has greater long-term significance for the economy. Moreover, parallel exclusion regimes may be more stable than parallel price-elevation regimes. A basic game-theoretic analysis reveals that the factors that leave price elevation vulnerable to breakdown do not apply as strongly to parallel exclusion. Indeed, in some instances, maintaining an exclusion scheme is a dominant strategy for each of the excluders. In such cases, the likelihood of collapse is even lower, yielding a potentially indefinite system of parallel exclusion. This Article proposes the recognition of parallel exclusion as a form of monopolization — subject to the strict limits already present in case law, including monopoly power, anticompetitive effect, and an absence of sufficient procompetitive justification. It also explains why parallel exclusion is a proper concern for merger policy, and why it is bad policy to automatically condemn certain boycotts without any evaluation of their anticompetitive effects.

Soft Law in Court. Competition Law, State Aid and the Court of Justice of the European Union

Posted by D. Daniel Sokol

Oana Stefan, HEC Paris, Law Department has a new book on Soft Law in Court: Competition Law, State Aid and the Court of Justice of the European Union.

BOOK ABSTRACT: Drawing on a data set of 696 documents – competition and state aid judgments, orders and opinions of the European Courts, and Advocates’ General opinions referring to various soft law instruments – this detailed textual and doctrinal analysis investigates the way in which the EU Courts deal with soft law, how the normative status of these instruments is acknowledged, and how their effects are recognized. It reveals that several ‘champion’ instruments feature frequently in the case law: the guidelines on fines and the leniency notice in competition law, the state aid instruments on aid to be granted to enterprises in difficulty, regional aid, de minimis aid, and aid to be granted to SMEs – all of them having in common the fact that they regulate highly litigated areas. The analysis treats issues such as the following:

• the pathway from judicial ignorance to judicial acknowledgement of soft law

• the judicial creation of legal ‘hybrids’

•the judicial review of soft law

• the potential use of soft law as a ‘sword’ or as a ‘shield’ in a court of law

• the distinction between legally binding force and legal effects

• how soft law can produce legal effects through the operation of general principles of law such as legitimate expectations, legal certainty, or human rights; and

• how the Courts locate soft law on a strong constitutional pluralist background.

Although the analysis might appear to relate to a fairly narrow spectrum of EU law, in fact the interaction of soft law and legal principles reaches into many diverse areas of law, and increasingly so in the twenty-first century. Consequently, this ground-breaking book will prove immeasurably valuable to any practitioner, academic, or policymaker interested in how the EU Court is fulfilling once again its constitutionalizing role, even in an area traditionally lacking formalism and conventions: that of soft instruments of governance.

What Do We Learn From Schumpeterian Growth Theory?

Posted by D. Daniel Sokol

Philippe Aghion (Harvard) Ufuk Akcigit (U Penn) and Peter Howitt (Brown) ask What Do We Learn From Schumpeterian Growth Theory?

ABSTRACT: Schumpeterian growth theory has “operationalized” Schumpeter’'s notion of creative destruction by developing models based on this concept. These models shed light on several aspects of the growth process which could not be properly addressed by alternative theories. In this survey, we focus on four important aspects, namely: (i) the role of competition and market structure; (ii) firm dynamics; (iii) the relationship between growth and development with the notion of appropriate growth institutions; (iv) the emergence and impact of long-term technological waves. In each case Schumpeterian growth theory delivers predictions that distinguish it from other growth models and which can be tested using micro data.

The Impact of Cartelization, Money, and Productivity Shocks on the International Great Depression

Posted by D. Daniel Sokol

Harold Cole, University of California, Los Angeles and Lee Ohanian, University of California, Los Angeles analyze The Impact of Cartelization, Money, and Productivity Shocks on the International Great Depression.

ABSTRACT: This study exploits panel data from 18 countries to assess the contributions of cartelization policies, monetary shocks, and productivity shocks on macroeconomic activity during the Great Depression. To construct a parsimonious and common model framework, we use the fact that many cartel policies are observationally equivalent to a country-specific labor tax wedge. We estimate a monetary DSGE model with cartel wedges along with productivity and monetary shocks. Our main finding is that cartel policy shocks account for the bulk of the Depression in the countries that adopted significant cartel policies, including the large depressions in the U.S., Germany, Italy, and Australia, and that the estimated cartel policy shocks plausibly coincide with the actual evolution of policies in these countries. In contrast, cartel policy shocks in the countries that did not significantly change policies were small and account for little of their Depressions.

Mergers, Agency Costs, and Social Welfare

Posted by D. Daniel Sokol

Jean-Etienne de Bettignies, Queen’s University analyzes Mergers, Agency Costs, and Social Welfare.

ABSTRACT: We examine the impact of a merger to monopoly in a Cournot duopoly framework where managers make cost-reducing investment or effort decisions prior to choosing output. A well-established result is that, absent agency costs, the merger leads to greater investment and lower production costs. We show that, when agency costs are present, this result may be reversed, with mergers leading instead to lower investment/effort, higher production costs, and lower social welfare.

Claim Efficiencies or Offer Remedies? An Analysis of Litigation Strategies in EC Mergers

Posted by D. Daniel Sokol

Peter L. Ormosi, University of East Anglia (UEA) asks Claim Efficiencies or Offer Remedies? An Analysis of Litigation Strategies in EC Mergers.

ABSTRACT: Efficiency defence and merger remedies are key components in most merger control regimes. Although in many jurisdictions both the provision of efficiency-related evidence and remedy offers are at the merging firms' discretion, most previous works have only analysed them separately. This paper is an attempt to empirically model the system of decisions that firms face in merger litigation where they are allowed to choose what combination of efficiency claims and settlement offers to make. The main novelty of this work is the use of data from company reports on the merger-generated synergy expectations signalled to shareholders, which allows the direct empirical testing of some of the assumptions and findings from previous works. Evidence is presented that the current EC merger control regime is incapable of extracting information from firms on their efficiency expectations and the identity and experience of the legal advisor plays a key role in this; that pre-merger synergy expectations enhance the willingness to offer remedies; and finally, that the cost of delay plays a central role in designing firms' litigation strategy, especially when these costs exceed the cost of the remedy.

After the ACA: Freeing the Market for Health Care

Posted by D. Daniel Sokol

John H. Cochrane, University of Chicago - Booth School of Business argues for After the ACA: Freeing the Market for Health Care.

ABSTRACT: I survey the supply, demand, and market for health care and health insurance. I conclude that a much less regulated system is possible, and necessary. Cost control and technology improvement must come from disruptive competition from new suppliers, as it has in airlines, retail, internet, and other successful industries. People must direct their expenditures at the margin, and feel the benefits and costs of their decisions. Individual, portable, guaranteed renewable insurance can then emerge, addressing the pathologies of today’s insurance markets. I discuss how current law and regulations rather than fundamental market failures are the main reasons a healthy market does not emerge, and why a regulatory approach must fail. I address common objections to market-based health care and insurance.

A Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice

Posted by D. Daniel Sokol

Robert H. Lande, University of Baltimore - School of Law offers A Traditional and Textualist Analysis of the Goals of Antitrust: Efficiency, Preventing Theft from Consumers, and Consumer Choice.

ABSTRACT: This article determines the overall purpose of the Antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the Antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or "plain meaning" determination of the purpose of the Antitrust statutes, using Justice Scalia's methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.S. Antitrust cases, and it does this in light of the history of the times.

Both approaches demonstrate that the overriding purpose of the Antitrust statutes is to prevent firms from stealing from consumers by charging them supracompetitive prices. When firms use their market power to raise prices to supracompetitive levels, consumers pay more for their goods and services, and these overcharges constitute a taking of consumers' property. Economic efficiency was only a secondary concern. In addition, the textualist approach leads to the surprising conclusion that neither the Sherman Act nor the Clayton Act contain an exception for monopolies attained through efficient business conduct. The Antitrust laws are supposed to prevent and condemn all privately created monopolies.

Should Competition Policy in Banking Be Amended during Crises? Lessons from the EU

Posted by D. Daniel Sokol

Iftekhar Hasan, Fordham University; Bank of Finland and Matej Marinc, University of Ljubljana - Faculty of Economics; University of Amsterdam ask Should Competition Policy in Banking Be Amended during Crises? Lessons from the EU.

ABSTRACT: This article investigates the nexus of competition and stability in European banking. It analyzes the European legal framework for competition policy in banking and several cases that pertain to anti-cartel policy, merger policy, and state-aid control. It discusses whether and how competition policy should be amended in order to preserve the stability of the banking system during crises. The article argues for increased cooperation between prudential regulators and competition authorities, as well as an enhanced framework for bank regulation, supervision, and resolution that could mitigate the need to change competition policy in crisis times.

Reverse Payments, Perverse Incentives

Posted by D. Daniel Sokol

Murat C. Mungan, Florida State University - College of Law suggests Reverse Payments, Perverse Incentives.

ABSTRACT: Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, these reverse payment settlements (“RPSs”) have been challenged on antitrust grounds. The federal courts of appeals split over whether this practice is presumptively an illegal restraint of trade, and in December 2012 the Supreme Court agreed to decide the issue, granting a writ of certiorari in FTC v. Watson Pharmaceuticals. In light of the importance of the issue to both drug consumers and manufacturers, it is crucial to understand the economic effects of RPSs. Many courts, including the Second Circuit and the Eleventh Circuit, commentators and scholars have suggested that restricting RPSs would necessarily retard technological progress, by reducing the expected returns of becoming a patentee. In this Article, I show, with the help of a game-theoretical model, that this conclusion is unwarranted. Restricting RPSs has the effect of chilling generic entry when – and only when – the underlying patent is strong, or likely to be held valid and infringed. Therefore, restricting RPSs increases the expected returns of holding a strong patent by eliminating potential payments to generic entrants, while at the same time eliminating the possibility of monopoly profit-splitting between branded and generic manufacturers when the patent is weak. This reward shifting effect implies that restricting the use of RPSs is likely to foster more revolutionary innovations, which lead to stronger patents, while lowering R&D towards relatively obvious inventions, which lead to weaker patents. This reward shifting effect of restrictive rules on RPSs, to the best of my knowledge, has gone unnoticed in the past, and it should play an important role in the Supreme Court’s cost benefit analysis.

A Primer on AIDS-Based Models in Antitrust Analysis

Posted by D. Daniel Sokol

Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) offers A Primer on AIDS-Based Models in Antitrust Analysis.

ABSTRACT: The purpose of this paper is to provide an introduction to AIDS-based demand systems. We discuss derivation of the AIDS model from its microeconomic foundations, clearly state the assumptions underlying AIDS, and provide a primer on how to implement the model in practice. We use a high level of detail to show every step of the AIDS process. We detail the algebra because the original articles by either Deaton and Muellbauer (in 1980) or Hausman et al. (in various papers over several years) skip most of the steps. We discuss using the AIDS model by itself and in two variations of Hausman et al.’s multilevel systems. We briefly discuss some pitfalls common to all demand systems. Finally, at the end of this document, we provide an example of how the elasticities may be used to predict post-merger price changes via a linear approximation to the Bertrand model.

Patent Assertion Entities: Six Actions the Antitrust Agencies Can Take

Posted by D. Daniel Sokol

Mike Carrier (Rutgers Camden) argues for Patent Assertion Entities: Six Actions the Antitrust Agencies Can Take.

ABSTRACT: One of the most pressing issues confronting antitrust in 2013 (and beyond) involves patent assertion entities (“PAEs”), previously known as patent trolls. Supporters proclaim PAEs’ benefits to “invention markets.” Critics lament extortion-like demands. Into this debate tiptoes antitrust, wondering if it can play any meaningful role.

In this article, I offer six actions the antitrust agencies can take to address PAEs: (1) Offer guidance about potential harms from patent aggregation, (2) Promote transparency, (3) Prohibit transfers to PAEs that refuse to adhere to previous standards-based licensing promises, (4) Use PAEs’ distinct incentives to employ Clayton Act Section 7 when “plus” factors are met, (5) Monitor collusive activity, and (6) Consider the use of FTC Section 5.

Antitrust enforcement is crucial to the protection of consumers and a competitive marketplace. Even if certain PAEs can justify some of their conduct, that does not mean that all PAE activity is immune from antitrust scrutiny. For if it was so protected, then the most aggressive and unjustified behavior, undertaken by PAEs with the greatest market power and largest portfolios, and inflicting the greatest harm on rivals and consumers, would fall through the antitrust cracks.

The novelty of PAE behavior ensures that the framework must be applied flexibly. But antitrust enforcement cannot automatically be shunned in a context that presents new and powerful opportunities to inflict anticompetitive harm.

Compliance Costs—Breaking Seals in European Commission Investigations

Posted by D. Daniel Sokol

Suzanne Rab (King and Spalding) explores Compliance Costs—Breaking Seals in European Commission Investigations.

ABSTRACT: The Court of Justice of the EU has dismissed an appeal against a European Commission decision fining E.ON €38 million for breaking a seal during an EU competition inspection.

GCR Women in Antitrust 2013 - Academics

Posted by D. Daniel Sokol

Among the GCR Women in Antitrust 2013 are a number of academics:

Margaret Bloom (Kings College - Law)
Amelia Fletcher (University of East Anglia - Economics)
Eleanor Fox (NYU - Law)
Michal Gal (University of Haifa - Law)
Leslie Marx (Duke - Fuqua School of Business)
Fiona Scott Morton (Yale School of Management)