Thursday, July 31, 2014
A Single Merger Control Standard for the US and Abroad? [Washington, DC - Conference, 9 September, 3:00 - 6:00]
Concurrences Journal in cooperation with George Washington University Law School and in partnership with O'Melveny & Myers, is pleased to invite you to its three-hour conference on:
- Deborah L. Feinstein, Director of the Bureau of Competition, Federal Trade Commission, Washington, DC
- William E. Kovacic, Professor, George Washington University, Washington, DC
- Eric J. Stock, Chief, Antitrust Bureau at Office of the Attorney General of the State of New York
- Richard Parker, Partner, O’Melveny & Myers, Washington, DC
- Riccardo Celli, Partner, O’Melveny & Myers, Brussels
- John D. Harkrider, Partner, Axinn, Veltrop & Harkrider, New York
- Albert A. Foer, President and Founder, American Antitrust Institute, Washington, DC
Please be aware that the number of attendees is limited and early registration is recommended. No on site registration will be possible.
Click here to register free of charge, selecting “Concurrences Invitation”, and to view the current agenda.
Nicolas Charbit / Elisa Ramundo
The Editors Concurrences Journal www.concurrences.com
Paul Lugard (Baker Botts) explains Procedural Fairness and Transparency in Antitrust Cases: Work in Progress.
ABSTRACT: There is broad consensus on the need for, and growing importance of, transparency and procedural fairness in competition enforcement. However, the objectives, scope, and practical application of the associated procedural rights have never been undisputed. On the one hand there is a general belief that the wide powers of competition law enforcement agencies require the application of checks and balances. On the other hand, day-to-day practice demonstrates that procedural rights differ significantly from one jurisdiction to another; for instance, the wide variance in degree and ways that the parties to an antitrust investigation can obtain sufficient and timely information about material competitive concerns.
Not surprisingly, the importance of procedural rights and their practical application to real-life cases are often complex and tend to be dependent on legal, cultural, historical, and economic factors. It is hard to dispute the proposition that different traditions may entail different processes and that, despite these differences, competition agencies may still arrive at equivalent end results, albeit through different ways and means. However, this possibility obviously does not mean that all outcomes are-by definition-equally fair and effective in safeguarding the procedural rights of parties subject to an antitrust investigation.
On the contrary, there are—unfortunately—too many examples around the world of enforcement practices that, despite often the best intentions and highest morals of individual agency officials, simply do not meet any reasonably conceivable minimum standard of due process rights. The argument that, as yet, no generally accepted catalog of minimum acceptable procedural norms exists does not alter this observation, but merely underscores that a set of best practices in this area is needed more than ever.
The EU Courts Play a Crucial Role in Ensuring Compliance of the EU’s System of Competition Law Enforcement With Due Process Rights
Georg M. Berrisch (Baker Botts) explains that The EU Courts Play a Crucial Role in Ensuring Compliance of the EU’s System of Competition Law Enforcement With Due Process Rights.
ABSTRACT: In its Menarini ruling, the European Court of Human Rights held that fines imposed by the Italian antitrust authority for the violation of competition law are criminal charges and that, consequently, the requirements of Article 6 of the European Convention of Human Rights apply. However, ECtHR did not consider it incompatible with Article ECHR that these fines were adopted by an administrative authority and not an "independent and impartial tribunal established by law," because, in the view of the ECtHR, it was sufficient that the Italian courts exercised a full review-and not just a legality control-of the fining decisions.
In Schindler, the Court of Justice of the EU, referring to the Menarini ruling, used essentially the same reasoning in finding that the EU's system of antitrust enforcement is not contrary to Article 47 of the Charter-and hence Article 6 ECHR. Referring to its earlier ruling in Chalkor, the CJEU observed that the EU courts review both the facts and the law and have the powers to assess the evidence, to annul the contested decisions, and to alter the fine. It further held that, when reviewing the legality of a Commission decision imposing fines for violation of the EU's competition rules, the EU courts cannot use the Commission's discretion, either as regards the choice or the assessment of the factors used to set the fine, as a ground for not conducting of an in-depth review of the facts and the law. Much has-and can be-said about the merits of both Menarini and Schindler. The purpose of this short note, however, is not to enter into that debate but rather to comment on some specific issues related to the judicial control by the EU courts of the European Commission's decisions imposing fines for infringements of Articles 101 and 102 TFEU. Indeed, it seems fair to say that, as a result of Menarini and Schindler, the compatibility of the EU system of antitrust enforcement with Article 6 ECHR and Article 47 of the Charter depends on the degree of judicial control exercised by the EU courts. In this respect, the work of the General Court is of particular importance because it is the sole "independent and impartial tribunal" assessing the evidence relied on by the Commission in establishing an antitrust infringement and setting a fine.
Download Final ABA Program_SAIC's 8th Draft IP Rules_August 2014 (you can get a link to registration from this pdf)
Didier Lausse, Aix-Marseille University, Ngo Van Long, McGill University and Joana Resende, University of Porto discuss Network Effects, Aftermarkets and the Coase Conjecture: a Dynamic Markovian Approach.
ABSTRACT: This paper analyses the dynamic problem faced by a monopolist firm that produces a durable good (in the primary market) and also participates in the market for complementary goods and services (the aftermarket). Considering the possibility of network effects in both markets, we investigate the Markov Perfect Equilibrium of the dynamic game played by the monopolist and the forward-looking consumers. We characterize the evolution of the monopolists equilibrium network and the equilibrium price trajectories. We show that the Coase Conjecture remains valid if there are only primary network effects, while it fails when aftermarket network effects are present. We also find that the properties of the Markov Perfect Equilibrium vary drastically with the intensity of aftermarket network effects.
Bin-Tzong Chie, Tamkang University and Shu-Heng Chen, National Chengchi University address Non-Price Competition in a Modular Economy.
ABSTRACT: While it has been well acknowledged by economists for a long time that competition is not just about price, the conventional quantity-based economic models have difficulties integrating price competition and quality competition into a coherent framework. In this paper, motivated by Herbert Simon’s view of near decomposability or modularity, we propose a quality-based economic model called the modular economy. In this modular economy, quality is manifested by the evolutionary design of more sophisticated and customized products that can satisfy consumers’ satisfaction to a higher degree. Two essential features of the modular economy are founded through the agent-based simulation of a duopolistic competition. First, market competition tends to be self-annihilating; the competition will eventually end up with a dominant or a monopoly firm (conglomerate). Second, the high-markup firm has a better chance to be the only survivor than its low-markup competitor. We analyze these features through the complex cyclical dynamics of prices, profits, dividends, investment, working capital, and quality.
Wednesday, July 30, 2014
The NCAA's 'Death Penalty' Sanction - Reasonable Self-Governance or an Illegal Group Boycott in Disguise?
Marc Edelman, Zicklin School of Business, Baruch College, City University of New York ask The NCAA's 'Death Penalty' Sanction - Reasonable Self-Governance or an Illegal Group Boycott in Disguise?
ABSTRACT: This Article examines why the NCAA “death penalty,” although arguably benevolent in its intent, undermines the core principles of federal antitrust law. Part I of this Article discusses the history of college athletics, the NCAA, and the “death penalty” sanction. Part II provides an introduction to section 1 of the Sherman Act and its application to the conduct of both private trade associations and the NCAA. Part III explains why a future challenge to the NCAA “death penalty” could logically lead to a court’s conclusion that the “death penalty” violates section 1 of the Sherman Act. Finally, Part IV explains why Congress should not legislate a special antitrust exemption to insulate the NCAA “death penalty” from antitrust law’s jurisdiction.
Paolo Siciliani, BBC explores Luton Buses: Refusal to Supply and the Difficult Path to Economic Tests in Litigation (UK).
ABSTRACT: As appears in this case decided in the UK, refusal to supply cases are subject to a trade-off between short-term benefits from increased competitive rivalry and long-term detriment from reduced incentives to invest in innovation. To frame an alleged abuse of dominance as an exclusionary conduct should not be taken as a shortcut to bypass the demanding standard of proof normally required for an allegation of exploitative abuse in the form of excessive prices. Judges in stand-alone private actions should treat economic evidence produced by a party's expert witness with caution and circumspection.
Kfir Eliaz, Brown University and Rani Spiegler, Tel Aviv University discuss The Market for Keywords.
ABSTRACT: Can a competitive market implement an ideal search engine? To address this question, we construct a two-sided market model in which consumers with limited, idiosyncratic vocabulary use keywords to search for their desired products. Firms get access to a keyword if they pay its competitive price-per-click. An underlying "broad match" function determines the probability with which a firm will enter the consumer's search pool as a function of the keyword it "buys" and the consumer's queried keyword. The main question we analyze is whether there exists a broad match function that gives rise to an efficient competitive equilibrium outcome. We provide necessary and sufficient conditions, in terms of the underlying search cost and the joint distribution over consumers' tastes and vocabulary, and characterize equilibrium keyword prices under such equilibria. The Bhattachayyara coefficient, a measure of closeness of probability distributions, turns out to play a key role in the analysis.
Rolf Golombek, University of Oslo - Frisch Centre, Alfonso Irarrazabal, Norge Bank and Lin Ma, Norwegian University of Life Sciences (NMBU) OPEC's discuss Market Power: An Empirical Dominant Firm Model for the Oil Market.
ABSTRACT: In this paper we estimate a dominant firm-competitive fringe model for the crude oil market using quarterly data on oil prices for the 1986-2009 period. All the estimated structural parameters have the expected sign and are significant at standard test levels. We find that OPEC exercised its market power during the sample period. Counterfactual experiments indicate that world GDP is the main driver of long-run oil prices, however, supply (depletion) factors have become more important in recent years.
Tuesday, July 29, 2014
Jarod M. Bona, Bona Law PC and Luke Anthony Wake, National Federation of Independent Business describe The Market-Participant Exception to State-Action Immunity from Antitrust Liability.
ABSTRACT: The federal antitrust laws embody fundamental values of free enterprise and economic competition. At the same time, our federal system supports a strong degree of state sovereignty. In most cases, these values peacefully co-exist. But in a subset of cases — federal antitrust lawsuits against state and local government entities — they can collide.
Beginning with the U.S. Supreme Court’s 1943 Parker v. Brown decision, the courts have developed a doctrine called state-action immunity that isolates narrow government conduct that is state-sovereign activity and exempts it from antitrust scrutiny. But, the Supreme Court has hinted — without ever deciding — that antitrust law may still apply to these government actors when they are engaged in active competition with private business. The circuits are currently split on the question. Some recognize this “market-participant exceptions,” while others wait for further Supreme Court guidance. In this article, the authors argue that both experience and policy support this commercial-conduct exception to the limited state exemption from the federal antitrust laws. This article further explores how the market-participant doctrine would work if applied in Sherman Act cases and explains why the doctrine is consistent with federalism principles. Finally, the article discusses the possible scope of the market participant exception, including its potential application in cases where government actors have enacted regulations for the sole purpose of displacing competition in a manner that insulates a public enterprise from competition.
Barak Orbach (University of Arizona) describes The Implied Antitrust Immunity.
ABSTRACT: In 1963, Richard Posner, then Justice William Brennan’s motivated clerk, drafted for the Supreme Court the iconic United States v. Philadelphia National Bank (“PNB”) decision. Addressing a set of issues in antitrust and regulation, Posner introduced several important doctrinal innovations and clarifications. Among others, PNB emphasized the primacy of competition over regulation and framed the implied antitrust immunity as a clear antitrust presumption: “Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored.” The logic of the implied antitrust immunity has not changed much since its early days: the doctrine’s primary rationale is the elimination of conflicts between administrative agencies and federal courts. Over time, however, the immunity’s narrative and nature have considerably transformed. Born in the late nineteenth century as an application of the presumption against implied repeals, in PNB, the doctrine turned into an independent antitrust presumption. During the past five decades, the doctrine has transformed into an evaluative framework whose underlying premises tilt its outcomes toward preclusion of antitrust law.The implied immunity doctrine is exceptionally important because it gives antitrust courts the power to preclude the application of antitrust law and influence national competition policy without meaningful a consideration of tradeoffs. Indeed, the doctrine is frequently invoked in courts. Yet, the doctrine has always been murky and confusing. This Article studies and clarifies the operation and applications of the implied immunity, as well as its structure, premises, and flaws.
Net Neutrality: Is Antitrust Law More Effective than Regulation in Protecting Consumers and Innovation?
Bruce M. Owen, Stanford Institute for Economic Policy Research (SIEPR); Stanford University Public Policy Program asks Net Neutrality: Is Antitrust Law More Effective than Regulation in Protecting Consumers and Innovation?
ABSTRACT: Hearing on "Net Neutrality: Is Antitrust Law More Effective than Regulation in Protecting Consumers and Innovation?" Testimony of Bruce M. Owen before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law, Committee on the Judiciary, U.S. House of Representatives, Washington DC, June 20, 2014.
Sebastien J. Evrard & Baohui Zhang (Jones Day) analyze Merger Control in China: Understanding MOFCOM’s Unique Approach.
ABSTRACT: Almost 15 years ago, the European Commission decided to block the merger between GE and Honeywell, which had been cleared by the US Department of Justice and a number of other jurisdictions. This decision unleashed a firestorm of criticism. Since then, the enforcement of merger control provisions on both sides of the Atlantic has been - by and large – consistent.
As merger control enforcement in the US and EU was converging, China developed as a third major antitrust jurisdiction. The Anti-Monopoly Law (“AML”) came into force in 2008 and its enforcement frequently makes the headlines. On the merger control side, MOFCOM does not hesitate to take decisions in global transactions that are not consistent with those taken by other antitrust enforcers.
MOFCOM’s unique approach in some global transaction has not resulted in the same level of criticism as what the European Commission had to endure in the wake of GE/Honeywell. This could be because the additional remedies imposed were not perceived by the parties as onerous enough to complain publicly. This could also be because of the recognition that MOFCOM is a relatively new enforcer and is therefore going through a learning curve.
In this note, we review the most recent decisions in which MOFCOM did not follow its foreign counterparts and propose some explanations for its unique approach. Understanding MOFCOM’s thinking will enable potential merging parties to identify early on some of the possible sticking points, adapt their message and engage with the appropriate stakeholders.
Joshua Sherman, University of Vienna and Avi Weiss, Bar-Ilan University - Department of Economics; Institute for the Study of Labor (IZA) provide An Empirical Analysis of Search Costs and Price Dispersion.
ABSTRACT: We exploit cross-sectional and temporal differences in search intensity in order to examine the relationship between search costs and price dispersion using a hand-collected panel data set from Jerusalem’s Shuk Mahane Yehuda outdoor market. We present empirical evidence that price dispersion increases with the cost of search using several different measures of price dispersion, however, our interpretation of this finding is sensitive to the search proxy in question. We also address several acute difficulties facing empiricists seeking to test theoretical price-dispersion models in which consumers are heterogeneous in their search behavior.
Monday, July 28, 2014
Columbia Law professor Tim Wu (Columbia) coined the term "net neutrality". He has a recent piece in the Yale Law Journal on Parallel Exclusion. He worked at the FTC and is slated to teach Antitrust Law this year at Columbia. He is also running for Lt. Governor of NY. The Wall Street Journal has an interesting interview of him in today's paper. See here.
Identifying Industry Margins with Unobserved Price Constraints: Structural Estimation on Pharmaceuticals
Pierre Dubois, Toulouse and Laura Lasio are Identifying Industry Margins with Unobserved Price Constraints: Structural Estimation on Pharmaceuticals.
ABSTRACT: We provide a method allowing to identify margins in an oligopoly price competition game when prices may not be freely chosen in some markets, for example due to regulation. We use our identification strategy to study the effects of regulatory constraints in the pharmaceutical industry, which is heavily regulated in some countries, and particularly in France. We use data from the US, Germany and France to identify country-specific demand models and then recover price cost margins under the regulated price setting constraints on the French market. To do so, we estimate a structural model on the market for anti-ulcer drugs that allows us to explore the drivers of demand, to identify whether regulation in France truly affects margins and prices and to relate regulatory reforms to industry pricing equilibrium. We provide the first structural estimation of price-cost margins on a regulated market with price constraints and show how to identify unknown possibly binding constraints thanks to three different markets (US, Germany and France) with varying regulatory constraints. Empirical results show that margins have increased over time in France but that firms were especially constrained in price setting after the different reforms in price setting that occurred in 2004. Counterfactual simulations show that overall total spending has significantly increased over the 2004-2007 period because of new regulation of price setting that reduced branded drugs prices but increased sales quantities by displacing part of the demand from generics to branded drugs.
Johan N. M. Lagerlof and Christoph Schottmuller describe Monopoly Insurance with Endogenous Information.
ABSTRACT: We study a monopoly insurance model with endogenous information acquisition. Through a continuous effort choice, consumers can determine the precision of a privately observed signal that is informative about their accident risk. The equilibrium effort is, depending on parameter values, either zero (implying symmetric information) or positive (implying privately informed consumers). Regardless of the nature of the equilibrium, all offered contracts, also at the top, involve underinsurance. The reason is that underinsurance at the top discourages information gathering. We identify a sorting effect that explains why the insurer wants to discourage information acquisition. Moreover, a public policy that decreases the information gathering costs can hurt both parties. Lower information gathering costs can harm consumers because the insurer adjusts the optimal contract menu in an unfavorable manner.