Antitrust & Competition Policy Blog

Competitors in Merger Control: Shall They Be Merely Heard or Also Listened to?

Thomas Giebe, TU Berlin and Miyu Lee, Humboldt University of Berlin - School of Business and Economics ask Competitors in Merger Control: Shall They Be Merely Heard or Also Listened to?

ABSTRACT: There are legal grounds to hear competitors in merger control proceedings, and competitor involvement has gained significance. To what extent this is economically sensible is our question. The competition authority applies some welfare standard while the competitor cares about its own profit. In general, but not always, this implies a conflict of interest. We formally model this setting with cheap talk signaling games, where hearing the competitor might convey valuable information to the authority, but also serve the competitor's own interests. We find that the authority will mostly have to ignore the competitor but, depending on the authority's own prior information, strictly following the competitor's selfish recommendation will improve the authority's decision. Complementary to our analysis, we provide empirical data of competitor involvement in EU merger cases and give an overview of the legal discussion in the EU and US.

Entertainment Made in Spain: Competition in the Bullfighting Industry

Francisco Marcos, IE Law School has a very Spanish paper - Entertainment Made in Spain: Competition in the Bullfighting Industry.

ABSTRACT: Controversial for many reasons, bullfighting is probably one of the most typical entertainment activities in Spain. Bullfights are an idiosyncratic spectacle belonging to the Spanish cultural tradition, but which has also a meaningful economic significance. This paper will look at the role of market forces and competition in the bullfighting industry, describing the peculiarities of its organization and looking at the many anticompetitive features that characterize it. Spanish local authorities are strongly involved in the organization of bullfights and strict and detailed public rules govern the intervening actors and the performance during the shows. Thus, the institutional framework of bullfighting heavily constrains competition conditions in the industry, setting the scenario for a limited role of market forces. Furthermore, history shows that the collective organization of different players involved (promoters, breeders, bullfighters and subordinates) in order to exert their market power has occasionally lead to anticompetitive actions and reactions. Thus, unsurprisingly, the Spanish Competition authorities have dealt with some anticompetitive behaviour by some of the players participating in the bullfighting industry.

The Application of EU Competition Rules in the Transport Sector

Filomena Chirico and Itai Rabinovici (DG Competition) explore The Application of EU Competition Rules in the Transport Sector.

ABSTRACT: Aviation continued in 2014 to be in the centre of the Commission work with a new market test before a commitment decision, a major merger, and the publication of the new State aid guidelines for airlines and airports. The Commission's attention was also drawn to the container shipping industry where an unprecedented form of cooperation was considered, a major merger took place, and the consortia block exemption regulation reviewed. In State aid, besides two packages of decisions concerning aid to airlines and airport, the Commission assessed several airlines restructuring cases. It also continued its case-by-case analysis

Attaching Criminal Liability to Organizations for Anti-Competitive Offences: What Can Be Learnt From the Canadian Experience

Pierre-Christian Collins Hoffman and Guy Pinsonnault (McMillan) have written on Attaching Criminal Liability to Organizations for Anti-Competitive Offences: What Can Be Learnt From the Canadian Experience.

ABSTRACT: There is a considerable debate in Europe as to whether corporate criminal liability should be used in order to strengthen competition law enforcement. That debate can draw from the Canadian experience where a relatively balanced model, borrowing from USA and UK concepts, has been introduced ten years ago.

The FTC/DOJ’s March madness

David Balto has an op-ed on The FTC/DOJ’s March madness.

Sponge

Ariel Ezrachi - Oxford has a new paper called Sponge.

ABSTRACT: A look at the international competition law landscape reveals consensus as to the main goals of competition law. Indeed, core economic reasoning and market analysis serve as the backbone to competition analysis and support assimilation of thought and policy worldwide. Orbiting that core, one may identify a wider, heterogeneous, range of policies advanced by competition regimes. These policies are sometimes viewed as external to the pure competition analysis and, as such, may be regarded as illegitimate. Overall, the ‘in’ and ‘out’ methodology presupposes the presence of a legal and analytical structure which defines competition law and to which jurisdictions are expected to align. This paper explores that proposition. It considers the inherent properties of the law and questions the presence of a clear dividing line between competition law and external considerations. It argues that the law, by its nature, provides for an absorbent and flexible platform which soaks up national values and interests. Accordingly, the inherent scope and nature of modern competition laws are not necessarily as consistent and objective as one might like them to be.

Antitrust, Competition Policy, and Inequality

Steven C. Salop, Georgetown University Law Center and Jonathan B. Baker, American University - Washington College of Law have a provocative new paper on Antitrust, Competition Policy, and Inequality.  Worth downloading!

  Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust policy adjustments that might be considered in response to that market power, or to inequality more generally. The aim of this article is to identify various potential competition policy alternatives that would respond to concerns about inequality, while recognizing that some are more controversial and provocative than others. These policy adjustments include embracing the consumer welfare standard, increasing enforcement agency budgets, targeting enforcement and remedies to benefit the less advantaged, adopting more interventionist antitrust and regulatory standards, recognizing abuse of dominance as an antitrust offense, and adopting reduction of inequality as an explicit antitrust goal.

Intel, Leveraging Rebates and the Goals of Article 102 TFEU

Nicolas Petit, University of Liege - School of Law describes Intel, Leveraging Rebates and the Goals of Article 102 TFEU.

ABSTRACT: This paper reviews the 2014 Intel judgment of the General Court of the EU in relation to exclusivity rebates given by dominant firms. It distinguishes between the positive issue – ie the legal standard currently applicable to the assessment of dominant firms' rebates – and the prospective discussion – ie the legal standard that should optimally apply to dominant firms rebates. On the positive debate, the paper argues that Intel affirms a modified per se prohibition rule against dominant firms' exclusivity rebates. The scope of this standard is confined to leveraging rebates, and does not cover non-leveraging rebates, which must be analysed under the rule of reason. The paper also draws a distinction between exclusivity obligations and exclusivity options for which agencies and courts should undertake more economic analysis.

On the prospective debate, the paper starts from the assumption made by several scholars that Intel endorses a non-welfarist view of the goals of Article 102 TFEU. With this background, it questions which non-welfarist alternative goal can be ascribed to Article 102 TFEU. The paper finds that none of the three classic non-welfarist goals (ie competitive process, consumer choice and raising rivals' costs) can be acclimated in modern EU competition law.

It concludes that it would help all stakeholders, and in the first place the Commission, the national competition agencies, the General Court and the national courts – who are in the driving seat of competition enforcement – to benefit from a clear dicta of the Court of Justice of the EU ("CJEU") on the rationale underpinning the Article 102 TFEU prohibition, in so far as exclusionary conduct is concerned. The Court already sought to advance on this complex journey in Post Danmark, which remains a model of judicial clarity and literacy. Future cases – and in particular the pending appeal of the GC Intel judgment before the CJEU – offer a welcome opportunity to settle once and for all the current "purposivist" controversy, or whatever other label is used.

Leniency and Damages

Paolo Buccirossi, Laboratory of Economics, Antitrust, Regulation (LEAR), Catarina Moura Pinto Marvao, Stockholm School of Economics - Stockholm Institute of Transition Economics (SITE); Trinity College Dublin, and Giancarlo Spagnolo, Stockholm School of Economics (SITE); Centre for Economic Policy Research (CEPR); University of Rome 'Tor Vergata'; EIEF have a new paper on Leniency and Damages.

ABSTRACT: Modern antitrust engenders a possible conflict between public and private enforcement due to the central role of Leniency Programs. Damage actions may reduce the attractiveness of Leniency Programs for cartel participants if their cooperation with the competition authority increases the chance that the cartel’s victims will bring a successful suit. A long legal debate culminated in a EU directive, adopted in November 2014, which seeks a balance between public and private enforcement. It protects the effectiveness of a Leniency Program by preventing the use of leniency statements in subsequent actions for damages and by limiting the liability of the immunity recipient to its direct and indirect purchasers. Our analysis shows such compromise is not required: limiting the cartel victims’ ability to recover their loss is not necessary to preserve the effectiveness of a Leniency Program and may be counter-productive. We show that damage actions will actually improve its effectiveness, through a legal regime in which the civil liability of the immunity recipient is minimized (as in Hungary) and full access to all evidence collected by the competition authority, including leniency statements, is granted to claimants (as in the US).

15th ANNUAL LOYOLA ANTITRUST COLLOQUIUM April 24, 2015

In honor of the 20^th anniversary of the Institute for Consumer Antitrust Studies, we are making the April 24, 2015 annual Loyola Antitrust Colloquium open to the public on a space available basis.  The colloquium is free and Illinois CLE is available.  Persons interested in reserving a spot should email [email protected].  The schedule follows below.

 

                                                       15^th ANNUAL LOYOLA ANTITRUST COLLOQUIUM

 

                                                                                           April 24, 2015

 

                                                       INSTITUTE FOR CONSUMER ANTITRUST STUDIES

                                                                         LOYOLA UNIVERSITY CHICAGO

                                                                                       SCHOOL OF LAW

 

8:45 AM                                               Continental Breakfast and Registration

Loyola University Chicago School of Law

10^th Floor Power Rogers & Smith Ceremonial Courtroom              

25 E. Pearson

Chicago, IL. 60611

 

9:10 AM                                               Welcome Professor Spencer Weber Waller

Professor and Director

Institute for Consumer Antitrust Studies

Loyola University Chicago School of Law

 

9:15 AM                                   Joshua Paul Davis, University of San Francisco School of Law

                                                                    Shannon Wheatman, Kinsella Media

                                                                   

                                                                    Writing Better Jury Instructions: Antitrust as an Example

 

Commentators:               

 

                                                                Adam Levitt, Grant & Eisenhofer

                                                                Thomas Horton, University of South Dakota School of Law

                                                                               

10:30 AM                                             Coffee Break

 

10:45 AM                                             Jonathan B. Baker, Washington College of Law, American University

                                                                Steven C. Salop, Georgetown University Law Center

 

                                                                Antitrust, Competition Policy, and Inequality

 

                                                                Commentators

 

Daniel Crane, University of Michigan Law School

                                                                Honorable Tom Miller, Attorney General of Iowa

 

 

12:00 PM                                             Lunch

Kasbeer Hall

15^th Floor

25 E. Pearson

 

12:30 PM                                             Lunch Address

 

David Gelfand, Deputy Assistant Attorney General for Litigation, Antitrust Division, U.S. Dep’t of Justice

 

 

1:30 PM                                                Max Huffman, University of Indiana-Indianapolis School of Law

                                                                Mark Anderson, University of Idaho College of Law

 

                                                                Devils, Scriptures, and Antitrust

 

Commentators:

               

                                                                Robert Pratt, Chief, Illinois Antitrust Bureau

                                                                Peter Carstensen, Wisconsin Law School

 

                                                               

2:45 PM                                                Ice Cream Sundae Break

 

                                                                And join the authors for a book signing of:

 

                                                                Andrew I. Gavil & Harry First, The Microsoft Cases: Competition Policy for the 21^st Century (MIT Press 2014)

 

                                                                Copies available for sale

 

 

3:30 PM                                                Paul Stancil, J. Reuben Clark Law School, Brigham Young University 

 

                                                                The Neglected Role of the Individual in Antitrust Theory

 

                                                                Commentators

 

                                                                Ted Banks, Scharf Banks Marmor LLC

                                                                Justin (Gus) Hurwitz, University of Nebraska College of Law

 

 

4:50 PM                                                Reception for Current and Former Student and Research Fellows of the Institute

                                                                13^th Floor Faculty Lounge

Rethinking Competition Law: From a Consumer Welfare to a Capability Approach

Rutger J.G. Claassen, Utrecht University Department of Philosophyn and Anna Gerbrandy, Europa Institute Utrecht University School of Law address Rethinking Competition Law: From a Consumer Welfare to a Capability Approach.

ABSTRACT: European competition law is predominantly focused on maximizing consumer welfare. This overarching purpose (which is supported by economic theory) leaves little place for safeguarding non-economic values, such as sustainability. This makes it difficult to allow cooperation between companies which contributes to such non-economic goals. In this paper, discussed during Mancept Conference in Fall 2014, we explore whether it is possible to establish a different normative framework, in which such goals can be taken into account and balanced against the economic goal of consumer welfare. To answer this question, we take four steps. First, we discuss (concisely) current EU competition law and the difficulty of fitting non-economic goals into the dominant interpretation of that law. Second, we proposes a different normative framework, based on the capability approach advanced by philosopher Martha Nussbaum and economist Amartya Sen. Third, we argue that there are good principled reasons to incorporate non-economic goals into competition law. Fourth, we compare to which results applying both the capability approach and the consumer welfare approach to three (illustrative) cases in which non-economic goals are at stake would lead. Overall, we argue that the capability framework, although not without difficulties of its own, may provide a more legitimate theory for application of European competition law.

FRAND Royalty Rates After Ericsson v. D-Link featuring The Honorable Judge James Robart May 15, 2015

The ABA Section of Antitrust Law’s Intellectual Property Committee

and the ABA Section of Intellectual Property Law’s Antitrust Committee

Present

 

FRAND Royalty Rates After Ericsson v. D-Link
featuring The Honorable Judge James Robart

   May 15, 2015

Noon-1:15p.m. EST

The U.S. Court of Appeals for the Federal Circuit recently issued an important decision in Ericsson v. D-Link, addressing proper methodologies for calculating FRAND royalty rates. This panel, featuring The Honorable Judge James Robart, who was the first U.S. judge to determine a FRAND royalty rate, will provide a legal and economic analysis of the Federal Circuit's decision. Panelists from the judiciary, government, and the private sector will discuss issues such as the appropriate methodology, the incremental value approach, concerns about hold-up and royalty stacking, and the use of the “smallest salable patent practicing unit."

Moderator

Henry Su, Attorney Advisor to Chairwoman Edith Ramirez, U.S. Federal Trade Commission  
Speakers

The Honorable Judge James Robart, U.S. District Court for the W.D. Washington

Tina Chappel, Director of Intellectual Property Policy, Intel Corp.

Greg Leonard, Economist and Partner, Edgeworth Economics LLC

Koren Wong-Ervin, Counsel for Intellectual Property and International Antitrust, U.S. Federal Trade Commission

 

To register and receive dial-in information, visit:  http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=187572212.

Air Ticket Sales as Bids from Airline Alliances

Marc Ivaldi, Toulouse School of Economics; Centre for Economic Policy Research (CEPR), Milena T. Petrova, Bocconi University, Miguel Urdanoz, University of Toulouse 1 - Toulouse School of Economics (TSE) discuss Air Ticket Sales as Bids from Airline Alliances.

ABSTRACT: Motivated by the higher price sensitivity and service homogenisation in the airline industry in recent years, we propose a new methodology to deal with transaction prices and to estimate the effect of alliances in the US domestic market. The assumption that airlines compete on price allows us to take advantage of the observational equivalence between Bertrand competition and the reverse English auction. We then apply an MLE method, developed by Paarsch (1997) for estimating auctions, to recover the distributional characteristics of air fares using a sample of airline tickets from the US domestic market. This procedure allows us to benefit from the heterogeneity of individual prices while most studies have used average prices, which would have involved a loss of information and a potential bias. We find that an alliance operating in a market is associated with prices on average 18.9 percent higher. Additionally, we find the standard deviation of ticket prices to be 4.3 percent higher, which is likely related to more efficient revenue management practice by alliance partners operating together in the same market.

Competition, Consumer Protection, and the Right (Approach) to Privacy

Maureen K. Ohlhausen, Federal Trade Commission and Alexander Okuliar, Federal Trade Commission have an important new paper on Competition, Consumer Protection, and the Right (Approach) to Privacy.  Worth reading!

ABSTRACT: Many people view Samuel Warren and Louis Brandeis’s 1890 work, The Right to Privacy, as the starting point for the consumer privacy laws in the United States. Warren and Brandeis’s concerns about the ability of technology to invade the private sphere continue to resonate today, 125 years later. The technology encroaching on privacy now is, of course, the Internet – or, to be more precise, the technologies that permit the tracking and aggregation of individual consumers’ online behavior and that support the many services that financially sustain the broader Internet ecosystem. As was the case in Warren and Brandeis’s day, numerous proposals have surfaced for how to defend expectations of personal privacy while still realizing the benefits of commercialized technology. Those defending free market principles argue that the best solution is little-to-no government intervention – consumer demand for privacy will create a market for privacy protections. Other commentators propose increased governmental scrutiny of the collection and use of consumer data online, and some even advocate unifying the competition and consumer protection laws to examine privacy through a competition lens. We focus this paper on evaluating this last proposal.
This article proceeds in three main parts. We begin with the historical development of privacy protections in the United States and the tension between privacy concerns and the growing value of consumer data in the digital arena. Next, we explore how the agencies and courts have applied the FTC Act and antitrust law in this area over the years and the reasoning behind the bifurcation of the FTC Act into separate spheres of competition and consumer protection law. This explains the historical separation of privacy as a consumer expectation from commercialized privacy and data. Third, we synthesize analytical factors from the historical approaches to privacy and offer them as guidance for distinguishing between competition and consumer protection issues at the intersection of competition law, consumer protection law, and privacy.

Tesla, Dealer Franchise Laws, and the Politics of Crony Capitalism

Dan Crane, Michigan has a timely paper on Tesla, Dealer Franchise Laws, and the Politics of Crony Capitalism.

ABSTRACT: Tesla Motors is fighting the car dealers' lobby, aided and abetted by the legacy Detroit manufacturers, on a state by state basis for the right to distribute its innovative electrical automobiles directly to consumers. The Tesla wars showcase the important relationship between product innovation and innovation in distribution methods. Incumbent technologies may block competition by new technologies by creating legal barriers to innovative distribution methods necessary to secure market acceptance of the new technologies. While judicial review of such special interest capture is generally weak in the post-Lochner era, the Tesla wars are creating new alliances in the political struggle against crony capitalism that could contribute to a significant re-telling of the conventional public choice story.

Tacit Collusion – The Neglected Experimental Evidence

Christoph Engel Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Universitat Osnabrück - Faculty of Law explores Tacit Collusion – The Neglected Experimental Evidence.

ABSTRACT: Both in the US and in Europe, antitrust authorities prohibit merger not only if the merged entity, in and of itself, is no longer sufficiently controlled by competition. The authorities also intervene if, post merger, the market structure has changed such that "tacit collusion" or "coordinated effects" become disturbingly more likely. It seems that antitrust neglects the fact that, for more than 50 years, economists have been doing experiments on this very question. Almost any conceivable determinant of higher or lower collusion has been tested. This paper standardises the evidence by way of a meta-study, and relates experimental findings as closely as possible to antitrust doctrine.

Horizontal Merger Analysis in Retail Markets

Daniel S. Hosken, Government of the United States of America - Federal Trade Commission and Steven Tenn, Charles River Associates analyze Horizontal Merger Analysis in Retail Markets.

ABSTRACT: In this essay, we describe antitrust analysis of horizontal mergers in U.S. retail markets. We begin by providing a brief overview of the economic and legal framework governing horizontal merger policy, and highlight key issues in analyzing retail mergers. Next, we discuss the changing legal treatment of retailing mergers by providing a description of four major merger challenges brought by U.S. antitrust authorities over the last 50 years. We then provide a detailed discussion of the economic tools used to analyze retailing mergers. We start by presenting a frequently used model of retail competition to illustrate how retail mergers can create or enhance market power. We then describe a variety of structural and reduced form empirical techniques that can be used to quantify competition between merging retailers and, in some cases, to forecast merger price effects.

Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe

Ioannis Lianos, UCL ponders Causal Uncertainty and Damages Claims for the Infringement of Competition Law in Europe.

ABSTRACT: In a tort law regime established on the basis of corrective justice considerations, causation requirements will tend to play a predominant role in regulating the damages claims brought forward. The requirement of the causal link between the harm suffered and the anticompetitive conduct in damages claims for infringement of EU competition law has nevertheless received remarkably little attention in the recently adopted EU Damages Directive and in academic literature. The Damages Directive and some recent case law of the Court of Justice of the EU proceed to some limited harmonization of evidential presumptions and procedural requirements, as well as the exclusion of national rules that may deny the right of the parties harmed by the competition law infringement to receive compensation. Yet, the contours of the requirement of causal link are left to the interpretative work of national courts, in view of their respective tort law doctrines on causation and the lack of a proper EU tort law. The study first explores the role of the concept of causation in claims for damages for infringement of EU competition law and the different approaches taken by the legal systems of EU Member States in conceptualizing the inquiry of a causal link. It then focuses on the methods used by the tort law systems of the EU Member States, the recent Damages Directive and the case law of the EU Court to engage with situations of causal uncertainty, which may frequently arise in the context of competition law actions for damages, in view of the complexity of the commercial environment and the multiple factors influencing markets.

Illegal Cartel Overcharges in Markets with a Legal Cartel History: Bitumen Prices in South Africa

Willem H. Boshoff, Stellenbosch University - Department of Economics describes Illegal Cartel Overcharges in Markets with a Legal Cartel History: Bitumen Prices in South Africa.

ABSTRACT: In recent years, South African competition authorities have initiated a number of price-fixing cases in markets where cooperation among competitors was legal and often encouraged. These markets present economists with special difficulties when estimating cartel overcharges. Conventional approaches often rely on temporal approaches, where pricing during the cartel period is compared with prices in a competitive period. In markets with a legal cartel history, a competitive price cannot be identified in the period preceding illegal collusion. Structural change also reduces data, and hence the robustness of temporal models. Spatial approaches, where prices are compared with those in other countries, offer a better alternative. The paper studies the performance of temporal and spatial approaches in estimating overcharge in the context of a bitumen price-fixing case. The results suggest that, while the bitumen cartel may have responded to cost and demand shocks in a similar way to how players in more competitive markets respond, it was still cushioned by a large monopoly premium: the long-run level of South African bitumen prices are higher than in comparable competitive markets. The findings have implications for the study of transition dynamics from legal to illegal cartel regimes and for the detection of cartels.

Podcast with Prof. Michael Carrier on "How Not to Apply Actavis"

The podcast discusses and elaborates on Professor Carrier's essay, in which he explores two recent district court decisions that could frustrate the Supreme Court's recent directive to apply antitrust law to "exclusion payment" patent settlements. The Court's high-profile Actavis decision set broad guidelines for lower courts on how to assess the settlements, in which a brand-name drug company pays a generic to drop its patent challenge and delay entering the market. Carrier carefully surveys and refutes the district courts' understanding of the Actavis decision, arguing that the courts improperly favor settlements at the expense of meaningful antitrust scrutiny. Carrier concludes that consumers will pay the price if other courts do not step in to correctly apply Actavis.

 

The link to the podcast with Professor Carrier is: http://www.northwesternlawreview.org/online/conversation-professor-michael-carrier-antitrust-law-and-patent-settlements.

 

The link to Professor Carrier's essay is: http://www.northwesternlawreview.org/online/how-not-apply-actavis.