Thursday, July 25, 2013

Federal League Baseball Club of Baltimore v. National League et al.

Posted by D. Daniel Sokol

Roger Ian Abrams, Northeastern University - School of Law has posted Federal League Baseball Club of Baltimore v. National League et al.

ABSTRACT: In Federal League Baseball Club of Baltimore v. National League (1922), the Supreme Court unanimously ruled that Major League Baseball did not affect interstate commerce, an astounding decision even at the time. As a result, the restrictive baseball reserve system, which bound a ballplayer to his club for his entire work life at salary unilaterally determined by his employer, was held not cognizable under the federal antitrust laws. This chapter explains the origins of the decision in the economic battle between Organized Baseball and the rival Federal League and the arguments made by the parties in their briefs submitted to the Court. It then explores Justice Holmes’ decision which continues to remain the law, but only in the business of baseball.

July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 24, 2013

As efficient competitor test in exclusionary prices strategies: Does really Post-Danmark pave the way towards a more economic approach?

Posted by D. Daniel Sokol

Frederic Marty (CNRS), Universite de Nice Sophia-Antipolis and Sciences Po asks As efficient competitor test in exclusionary prices strategies: Does really Post-Danmark pave the way towards a more economic approach?

July 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity

Posted by D. Daniel Sokol

James C. Cooper, George Mason University School of Law - Law & Economics Center explores Privacy and Antitrust: Underpants Gnomes, the First Amendment, and Subjectivity.

ABSTRACT: Privacy has begun to creep into antitrust discussions. In some ways, this should not be surprising. Some of the largest and most ubiquitous companies, like Google and Facebook, give away their services in return for consumer data. If information about ourselves really is the price we pay for content, why shouldn’t antitrust limit companies’ ability to collect and analyze consumer data? Although this logic has some facial appeal, this paper identifies three major concerns with the inclusion of privacy in antitrust analysis. The first concern is conceptual. The analogy between privacy and quality begins to break down once we recognize that unlike selecting lower quality levels to enjoy lower costs, firms invest in collecting and analyzing data to improve content and to enhance matching between sellers and consumers, who have heterogeneous tastes for privacy. Second, an antitrust rule that limits firms’ ability to collect and analyze consumer data is likely to raise some First Amendment concerns. Third, allowing antitrust enforcers to consider privacy would inject an undesirable level of subjectivity into antitrust enforcement decisions, which is likely to attract socially wasteful rent seeking expenditures and to deter beneficial data collection efforts.

July 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Pay for delay: Now it's Congress' turn to come to bat

Posted by D. Daniel Sokol

David Balto has an op-ed on Pay for delay: Now it's Congress' turn to come to bat.

July 24, 2013 | Permalink | Comments (0) | TrackBack (0)

COMESA Competition Law—A New Regional Merger Regime for Eastern and Southern Africa

Posted by D. Daniel Sokol

Desmond Rudman and Robert Wilson (Webber Wentzel) discuss COMESA Competition Law—A New Regional Merger Regime for Eastern and Southern Africa.

ABSTRACT: On 14 January 2013, a new regional competition law regime came into operation across the 19 African countries that constitute COMESA. Under that regime, mergers are notifiable where either or both the ‘acquiring firm’ and the ‘target firm’ operate in two or more COMESA Member States. A large notification fee of up to COM$500,000 (US$500,000) is payable to the COMESA Competition Commission (CCC). It is not clear whether the new regime constitutes a one-stop-shop, or if parallel national notification of mergers that have a regional dimension is required.

July 24, 2013 | Permalink | Comments (0) | TrackBack (0)

The EU Cartel Settlement Procedure: Current Status and Challenges

Posted by D. Daniel Sokol

Flavio Laina and Elina Laurinen (DG Comp) describe The EU Cartel Settlement Procedure: Current Status and Challenges.

ABSTRACT: Since 2008, six cartel settlements have been concluded successfully. In one additional case, discussions have discontinued due to lack of progress and the Commission has reverted to the standard procedure. A new wave of cases is currently being dealt with under that procedure. Lessons are being drawn from these experiences and discussions are currently underway to further streamline the process.

July 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

The Law on Fines Imposed in EU Competition Proceedings: Faster, Higher, Harsher

Posted by D. Daniel Sokol

Eric Barbier de La Serre and Eileen Lagathu (Jones Day) describe The Law on Fines Imposed in EU Competition Proceedings: Faster, Higher, Harsher.

ABSTRACT: Although in 2012 the Commission adopted few decisions imposing fines, in TV and computer monitor tubes it imposed a record aggregate fine of €1.47 billion and granted a record reduction of the fine for inability to pay.

The General Court has delivered important judgments on the ne bis in idem principle, partial immunity, recidivism, and inability to pay, as well as the calculation of fines for obstruction, non-compliance with a decision finding an infringement, and gun jumping.

The EU Courts have become increasingly harsh with offenders, and less inclined to exercise their theoretically broad powers of review on fines.

July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

From the Prosecution of Infringements to a Systematic Analysis of Markets

Posted by D. Daniel Sokol

Alexis Walckiers (Belgian Competition Authority) describes the shift From the Prosecution of Infringements to a Systematic Analysis of Markets.

ABSTRACT: The benefits of well-functioning markets are well-known, and widely accepted. Such benefits are not theoretical, they are established on undisputable evidence. With competition, prices go down1 and quality goes up.

In that context, the overarching objective to be pursued by competition authorities is to contribute to the better functioning of markets. This cannot be limited to the prosecution of competition law infringements, which can only address a subset of market failures. Depending on sectors, competition enforcement can be complemented by sector regulation, consumer policy and advocacy to foster a more competition-friendly legal environment.

Designing a roadmap to improve market outcome may require significant resources to undertake a detailed analysis of markets—an analysis that would seek to describe economic drivers of the sector as well as the dynamics of consumer and firm behaviour in the market.

July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Competition and Competition Law in Japan: Between Scepticism and Embrace

Posted by D. Daniel Sokol

Simon Vande Walle, University of Tokyo - Graduate Schools for Law and Politics has written on Competition and Competition Law in Japan: Between Scepticism and Embrace.

ABSTRACT: Japan’s engagement with international models of competition law has been decidedly ambiguous and counter-cyclical with its economic performance. During times of prolonged economic growth, Japan’s attitude to Western styles of competition regulation has been predominantly skeptical, if not hostile. By contrast, during times of economic stagnation, it has been much more positive.

The first part of this chapter charts the ebb and flow of competition law in Japan. In the 1950s and 1960s, competition law conflicted with Japan’s industrial policy and enforcement became anemic. There was a revival in the 1970s, when the oil crisis wreaked havoc on the Japanese economy, but momentum was lost again in the 1980s. Finally, in the 1990s and 2000s, competition law gained increasing acceptance among policymakers seeking ways to revive a stagnating economy.

The second part of this chapter explores the link between competition law and Japan’s specific form of capitalism. It argues that competition law can best be characterized as a legal irritant, rather than as a legal transplant that is either fully accepted or rejected. Indeed, the introduction of competition law in Japan triggered a process of mutual irritation between the law and Japan's economic system. This process led to a double transformation: on the one hand, competition law was changed, interpreted and enforced in ways to make it more compatible with Japan’s capitalism. At the same time, competition law triggered change in Japan's economic and social order. This process of mutual irritation is still continuing and suggests that competition law in Japan will continue to evolve, in parallel with Japan's capitalist system itself and conditioned by the performance of that system, along a trajectory distinct from that of the West.

July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Vertical Control and Price Cycles in Gasoline Retailing

Posted by D. Daniel Sokol

O. Foros, Norwegian School of Economics (NHH) - Department of Economics and Frode Steen, Norwegian School of Economics (NHH) - Department of Economics address Vertical Control and Price Cycles in Gasoline Retailing.

ABSTRACT: We examine Norwegian gasoline pump prices using daily station‐specific observations from 2003 to 2006. The four big gasoline companies use a vertical restraint that is adopted industry‐wide (labeled price support). This moves price control from the hands of independent retailers into the hands of the headquarters. Retail gasoline prices follow a fixed weekly pattern, where we observe de facto simultaneous decision‐making by the headquarters (without knowledge of their rivals’ prices) when every Monday around noon they decide to increase pump prices to the same level. The price level on Mondays corresponds to the recommended prices published by the headquarters of the gasoline companies.

July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Effects of Transport Regulation on the Oil Market: Does Market Power Matter?

Posted by D. Daniel Sokol

Snorre Kverndokk, Ragnar Frisch Centre for Economic Research and Knut Einar Rosendahl, Norwegian University of Life Sciences (UMB) - Department of Economics and Resource Management; Statistics Norway - Research Department ask Effects of Transport Regulation on the Oil Market: Does Market Power Matter?

ABSTRACT: Instruments used to regulate the consumption of oil in the transport sector include fuel taxes, biofuel requirements, and fuel‐efficiency standards. However, the effects that these have on oil consumption and price vary. If market power is present in the oil market, the directions of change in consumption and price might contrast with those in a competitive market. As a result, the market structure affects not only the effectiveness of the policy instruments used to reduce oil consumption, but also the terms of trade and carbon leakage. In particular, reduced oil consumption, as a result of increased fuel‐efficiency standards, will unambiguously increase the price of oil under a monopoly.

July 22, 2013 | Permalink | Comments (1) | TrackBack (0)

To Merge or to License: Implications of Information Sharing for Optimal Merger Policy

Posted by D. Daniel Sokol

Shiou Shieh, National Taipei University - Department of Economics, Chi-Fei Huang, National Taipei University, and Hsiao-Chi Chen, National Taipei University - Department of Economics discuss To Merge or to License: Implications of Information Sharing for Optimal Merger Policy.

ABSTRACT: We investigate the antitrust authority's optimal merger policy in a duopoly model with cost asymmetry and asymmetric information regarding uncertain demand. Technology can be transferred either through a merger or a license, while market information is shared only through a merger. We show that the optimal merger policy differs under Cournot and Bertrand competition. If firms compete in Bertrand fashion, then mergers should never be allowed. If firms compete in Cournot fashion, then mergers are permitted if market volatility is high or if volatility is in the intermediate range and the size of innovations is large enough.

July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Fordham 40th Annual Conference on International Antitrust Law and Policy: Thursday, September 26 & Friday, September 27, 2013

Posted by D. Daniel Sokol

Dates for the 40th Annual Conference on International Antitrust Law and Policy:
Thursday, September 26 & Friday, September 27, 2013

The conference will be held at McNally Amphitheater, Fordham Law School, located at 140 West 62nd Street, New York, NY.

Each year, a full two-day program focuses on a wide range of issues related to antitrust policy and enforcement. Leaders in the field, representing competition authorities, the judiciary, private practice and the academia, regularly contribute to the success of the conference as speakers and
discussants.

The conference attracts close to 400 participants, including competition authorities from Africa, Asia, Europe, Latin/South America and North America, as well as practitioners and academics.


CORPORATE SPONSORSHIPS
are available. Please contact Alice Wong aalwong@law.fordham.edu

THURSDAY SEPTEMBER 26

8:30am
Breakfast & Registration

9:00am
Introduction and Welcome
   Barry E. Hawk, Fordham Law School

Competitor Agreements under  U.S. Antitrust Law
  
William J. Baer, Assistant Attorney General, U.S. Department of Justice Antitrust Division

Competitor Agreements under  EU Competition Law
  
Alexander Italianer, Director General, DG for Competition, EU Commission

Discussion
   A. Paul  Victor, Winston & Strawn,  Presider
   Deborah Garza, Covington & Burling
   Mario Siragusa, Cleary Gottlieb Steen & Hamilton

Break

Competitor Agreements under Brazilian Antitrust Law
  
Vinicius Marques de Carvalho, President, Council for Economic Defence (CADE)

Competitor Agreements under EU Member State Laws
   Bruno Lasserre, President, Autorite de la concurrence

Discussion
   A. Paul Victor, Winston & Strawn, Presider
   Gabriel Dias, Magalhaes, Nery & Dias
   Mario Siragusa, Cleary Gottlieb Steen & Hamilton

12:45pm
Lunch

2:00pm
Mergers
   James Keyte, Skadden Arps Slate Meagher & Flom, Adjunct Professor, Fordham Law School, Presider
   Johannes Luebking, DG for Competition, EU Commission
  
Andreas Mundt, President, Bundeskartellamt
   Aviv Nevo, Chief Economist, Antitrust Division, Department of Justice
   Jorge Padilla, Compass Lexecon
   Joshua Wright, Commissioner, Federal Trade Commission

6:00pm
Cocktail reception

------------------------------------------------------------

FRIDAY
SEPTEMBER 27

8:30am
Breakfast & Registration

9:00am
Future of Unilateral Conduct Enforcement and Policy --- An
EU Perspective
   Joaquin Almunia, EU Commissioner for Competition

Future of Unilateral Conduct Enforcement and Policy --- A U.S.
Perspective
   Edith Ramirez, Chair, Federal Trade Commission

Discussion
   William Kovacic, George Washington University School of Law, Presider
   Luc Gyselen, Arnold & Porter

Break

Future of Unilateral Conduct Enforcement and Policy --- A Polish
Perspective
   Malgorzata Krasnodebska-Tomkiel

Future of Unilateral Conduct Enforcement and Policy --- A Mexican
Perspective
   Eduardo Perez Motta, President, Mexican Competition Commission

Discussion
   William Kovacic, George Washington University School of Law, Presider
   Jaroslaw Sroczynski, Markiewicz & Sroczynski

12:45pm
Lunch

2:00pm
Antitrust and the Courts
   Frederic Jenny, Co- Director of the European Center for Law and Economics, ESSEC Business School, Presider  

  Gerald Barling, President, UK Competition Appeal Court
  Judge Ricardo Villas Boas Cueva, Brazilian Supreme Court
  Dennis Davis, South Africa Competition Appeal Court
  Vaughn Walker, U.S. District Court for the Northern District of California (ret.) 
  Nils Wahl, EU Court of Justice

6:00
End

July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

FTC must move quickly against patent trolls

Posted by D. Daniel Sokol

Robin Feldman (UC Hastings) advocates in an op-ed that the FTC must move quickly against patent trolls.

July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

The Distortive Effects of Antitrust Fines Based on Revenue

Posted by D. Daniel Sokol

Vasiliki Bageri, Athens University of Economics and Business, Yannis Katsoulacos, Athens University of Economics and Business, Giancarlo Spagnolo, Stockholm School of Economics (SITE) analyze The Distortive Effects of Antitrust Fines Based on Revenue.

ABSTRACT: In most jurisdictions, antitrust fines are based on affected commerce rather than on collusive profits, and in some others, caps on fines are introduced based on total firm sales rather than on affected commerce. We uncover a number of distortions that these policies generate, propose simple models to characterise their comparative static properties, and quantify them with simulations based on market data. We conclude by discussing the obvious need to depart from these distortive rules-of-thumb that appear to have the potential to substantially reduce social welfare.

July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

A Structuralist Approach to the Two State Action Doctrines

Posted by D. Daniel Sokol

Justin Desautels-Stein, University of Colorado Law School provides a critical turn in A Structuralist Approach to the Two State Action Doctrines.

ABSTRACT: By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, really not even all that messy. It’s not that the traditional readings of the two doctrines have been wrong, so much as they persistently fail to take notice of the political theory that threads the two doctrines together. That theory is liberal legalism, and in the context of liberalism the two state-action doctrines bear witness to a story about American "competition law" that is only half-told in the conventional fields of law and economics. To better understand the legal foundations of market society, as well as the requisites of market reform, we need something other than an "economic analysis of law," much less a singular focus on various forms of economic regulation. What is needed instead is an image of the structure of market society, and an understanding of the deep premises that make that image possible. In the service of that goal this Article maps the manner in which these underground notions inform the background rules of the market through the use of the constitutional state-action doctrine, and simultaneously manage the market through the use of regulatory devices like antitrust law. These are the premises of our liberal legalism, and a fruitful field of their study lies in the surprising connection between the two state-action doctrines.

July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

Ex-Post Merger Evaluation in the UK Retail Market for Books

Posted by D. Daniel Sokol

Luca Aguzzoni, Lear - Laboratory of Economics, Antitrust, Regulation, Elena Argentesi, University of Bologna - Department of Economics, Lorenzo Ciari Sr., European University Institute, Tomaso Duso, German Institute for Economic Research (DIW Berlin); Duesseldorf Institute for Competition Economics (DICE), and Massimo Tognoni UK Competition Commission analyze Ex-Post Merger Evaluation in the UK Retail Market for Books.

ABSTRACT: This paper empirically evaluates the price effects of the merger of two major book retail chains in the UK: Waterstone’s and Ottakar’s. We employ differences-in-differences techniques and use a rich dataset containing monthly scanner data information on a sample of 200 books sold in 60 stores in 50 different local markets for a period of four years around the merger. Since retail mergers may have either local or national effects (or both) according to the level at which retail chains set prices, we undertake an ex-post assessment of the impact of the merger at both levels. At the local level, we compare the changes in the average price charged before and after the merger in the shops located in overlap areas – i.e. areas where both chains were present before the merger – and in non-overlap areas – i.e. areas where only one chain was present before the merger. At the national level, we employ two distinct control groups to evaluate the merger, namely the competitors and the top-selling titles. We find that the merger did not result in an increase in prices either at the local or at the national level. We also perform heterogeneous treatment effects estimations in order to assess whether the effect of the merger differs along various dimensions of heterogeneity that are present in our data.

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Inconvenient Truths and Constructive Suggestions on Merger Retrospective Studies

Posted by D. Daniel Sokol

Greg Werden (DOJ) has written on Inconvenient Truths and Constructive Suggestions on Merger Retrospective Studies.

ABSTRACT: A merger retrospectives research agenda should be pursued. It should stress careful evaluation of agency assessments of the competitive effects of mergers in the hope of improving the accuracy of the enforcement process. But several inconvenient truths may prevent much from being learned, and “a little learning is a dangerous thing.”

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Evaluating Unilateral Effects at the Federal Trade Commission: Do Markets Matter?

Posted by D. Daniel Sokol

Malcolm B. Coate, U.S. Federal Trade Commission (FTC) and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) ask Evaluating Unilateral Effects at the Federal Trade Commission: Do Markets Matter?

ABSTRACT: The 2010 Merger Guidelines highlight unilateral effects analysis as the most prominent theory of concern in differentiated markets. Building on the discussion in the FTC/DOJ Merger Commentaries, the Guidelines tend to marginalize definition of a relevant market. This study evaluates the FTC’s historical record to determine if market-based variables appear to affect policy. Our results, detailed in Tables 3, 4, and 7 highlight the importance of both market-agnostic and market-based explanatory variables. Moreover, competitive effects’ evidence and a focus on price-based competition tends to increase the probability of a unilateral effects finding.

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Cunning as a Fox - Dutch Competition Authority Clears Long-Term Acquisition of Dutch Football Broadcasting Rights

Posted by D. Daniel Sokol

Ben Van Rompuy, T.M.C. Asser Instituut; Free University of Brussels (VUB) is Cunning as a Fox - Dutch Competition Authority Clears Long-Term Acquisition of Dutch Football Broadcasting Rights.

ABSTRACT: On August 8, 2012, Eredivisie Media & Marketing C.V. (EMM), the media and commercial arm of the Premier football league (Eredivisie) in the Netherlands, announced a long-term partnership with Fox International Channels Inc (Fox). On November 29, 2012, the Netherlands Competition Authority (NMa) approved the broadcasting deal, which is the largest of its kind in the history of Dutch football.The NMa adopted a formal decision, clearing the acquisition of EMM by Fox, and an informal opinion on the proposed modes of exploitation of the Eredivisie broadcasting rights. This article scrutinizes these decisions and reveals a worrying sign of competition law enforcement fatigue in the area of sports media rights.

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)