Antitrust & Competition Policy Blog

Best Practices for Antitrust Procedure: The Section of Antitrust Law Offers Its Model

Abbott B. (“Tad”) Lipsky, Jr. and Randolph Tritell describe Best Practices for Antitrust Procedure: The Section of Antitrust Law Offers Its Model.

Litigating Civil Antitrust Matters In The United States

Jeff LeVee is author of the Lexis book Litigating Civil Antitrust Matters In The United States.

BOOK ABSTRACT: This book offers both lawyer and non-lawyer the opportunity to understand the various types of civil antitrust litigation that is active in the United States. The book is organized by legal theory and starts with by addressing the most common type of antitrust litigation, which is litigation arising under Section 1 of the Sherman Act. The book then addresses Section 2 (monopolies) and the Robinson-Patman Act, before devoting two chapters to the intersection of antitrust and intellectual property, both generally and specifically with respect to the pharmaceutical industry. The book concludes by addressing issues associated with litigating civil antitrust claims brought by the federal government.

The focus is on trying to make the chapters easy to read while still providing sufficient case citations so that a lawyer who wishes to pursue a more in-depth focus on a topic would have the leading cases at his or her disposal. The book will be updated in order to account for new developments in the law.

The eBook versions of this title feature links to Lexis Advance for further legal research options.

 

University of Melbourne Global Competition and Consumer Law fully online program

Global Competition and Consumer Law

This challenging and growing area of legal practice and government activity is interdisciplinary and significant to economies and societies, both nationally and internationally. Delivered by world leading experts in the field, the program is one of only a handful of comprehensive graduate offerings in competition and consumer law available in the Asia-Pacific region and many other parts of the world.

Directed by Professor Caron Beaton-Wells of the Melbourne Law School, these courses allow you to take advantage of direct instruction, inquiry-based learning and small, peer-based collaboration and exchange, with high levels of academic and technical support.

All resources and learning materials are available online in rich digital media format and you will have the opportunity to participate in a face-to-face workshop in a major city location towards the end of your course. You will have a high degree of flexibility in where and when you choose to study, making it possible to fit your studies around your professional and personal commitments.

You will graduate with a world-recognised, highly respected qualification that will open up and enhance global career pathways in the private and public sectors.

 

An Economic Analysis of Debarment

Auriol, Emmanuelle and Fourati, Maleke have an interesting paper on An Economic Analysis of Debarment.

ABSTRACT: With a view to reducing the consequences of corruption in public procurement, many governments have introduced debarment of suppliers found guilty of corruption and some other forms of crime. This paper explores the market effects of debarment on public procurement. Debarment is found to make little difference in markets with high competition, while in markets with low competition it may deter corruption as long as firms value public procurement contracts in the future and there is a certain risk of being detected in corruption. On the other hand, debarment when it works has an anti-competitive effect, and this effect will contribute to facilitate collusion between suppliers. Debarment may work as a tool against collusion, but only if targeting one firm at the time (such as a ring-leader or the specific beneficiary when the collusion is detected) and not all the members of a cartel. If designed with an understanding of the market mechanisms at play, debarment can deter both collusion and corruption, thus improving the results of public procurement. If so, most current debarment regimes need modification.

Star Wars - Thank you Mom and a gift to my own kids

This afternoon the Sokol family has tickets for the 4pm showing of Star War The Force Awakens.  Last night when we Skyped with my parents (note: we Skype with my parents every night - this is good for grandchildren  and grandparents) I thanked my mother for a special day - Friday, May 25, 1983. That day my mother pulled my brother and I from school and stood in line with us for five hours to watch the premier of Return of the Jedi. 

This morning on the drive to school, the girls asked all sorts of questions about the Force, mysticism, souls that shift from one body to the next, why evil exists and whether or not good will always triumph over evil.  I hope that we keep this conversation going over the weekend.

Kids are like sponges and I am always amazed by how quickly they learn.  They now explain antitrust and consumer protection missions of the FTC to their friends:

Consumer protection it is about protecting people from lying (their interpretation of misleading advertising) lying is bad.  Similarly ganging up (collusion) and monopolization (bullying) are bad.  Data protection is about protecting yourself so that people do not steal information from you (think Wyndham). 

Competition and Auctioning Licenses

Chatterjee, Rittwik ; Chattopadhyay, Srobonti describe Competition and Auctioning Licenses.

ABSTRACT: Promoting competition in domestic markets is very often an important policy concern of governments in context of developmental objectives. Direct government intervention of different forms to promote competition becomes all the more necessary especially in the markets that have higher tendencies to concentrate. For example, in the market for telecom spectrum licenses, many countries impose ceilings on the number of licenses that a single individual company can possess. It is commonly believed that in the markets where permission from government is required for fresh operation or expansion of operation, e.g. through licenses, larger number of licenses lead to higher competition. But some earlier literature show that increasing the number of licenses might actually be detrimental to competition contrary to popular belief. This paper considers a situation where there is an incumbent monopolist in a market; the government is auctioning two new licenses, one f! or this same market and another one for a completely new market where no firm had been operating so far. A number of potential entrants are willing to bid for both the licenses. The incumbent firm is allowed to purchase only one of these licenses. If it purchases the license for its own market it can retain its monopoly position. The selling procedure dictates that only the potential entrants will be bidding and in order to purchase the license in its existing market, the incumbent monopolist has to match the highest bid in that auction. Alternatively, it can bid for the entry license for the new market. This paper tries to identify under what conditions the incumbent firm will bid for the outside market. It also tries to find under what conditions providing some other options to the incumbent firm leads to increased competition in the existing market, thus contributing to developmental prospects by enhancing social welfare.

AAI Internships and Research Fellowships

Internships and Research Fellowships

 

The American Antitrust Institute is pleased to receive requests for information about internships and research fellowships.

What We Offer
It is our intention to expose all interns and research fellows to a variety of substantive antitrust issues, procedures, institutions, and personalities. They will work on a variety of assignments under the supervision of an experienced lawyer and/or economist. They will be offered opportunities to attend conferences and symposia as well as a regularly scheduled breakfast with the AAI leadership and various officials and other important personalities in the antitrust community. They will be included on the AAI listserv for its Advisory Board, which allows them to participate in the on-going exchanges of some of the world’s most highly respected experts. We offer a job title, respected experience, and a path for entry into the antitrust world. Former AAI research fellows now serve in important positions around the world. The range of topics and projects that we are involved in may be sampled by browsing our website, www.antitrustinstitute.org.

What We Expect from Interns
Interns and research fellows are not paid by the AAI.  Generally, interns and research fellows will reside in metropolitan Washington, DC.  The AAI is a virtual network of experts. We often are able to arrange for space for an intern, if desired, in a downtown law firm. A Memorandum of Understanding will be entered into, stipulating the duration of the internship and minimum hours per week.  Summer interns will commit to a minimum of 90 days full time work. Research fellows will commit to a minimum of six months full time or one year either half or full time, with full time definitely preferred. 

How to Apply
Send a letter outlining your training and experience in antitrust and/or relevant economics to aai@antitrustinstitute.org. Summer interns will need to have completed at least one antitrust course and have the professor’s recommendation. Include a resume and contact information for several references. If a student, please include a transcript. We may request applicants to take a kind of test that will help us evaluate their writing and analytical ability. This could involve writing  a one or two page analysis of a hypothetical situation of the type that might come up as an AAI assignment. There is no particular deadline for applying and no particular starting date for those accepted.

Big cartel news from Europe - court throws out Air Cargo fines

See here for details.  This is a setback for cartel enforcement in Europe.

My previous academic work on the air cargo carte is here.  This final version appeared in this recent book.  My recent empirical working paper on US and European cartel enforcement is here.

 

 

 

Private Damages Actions in the Wake of a Commitment Decision: New Risks after the Judgment of the Paris Commercial Court in Eco-Emballages?

Anna Duron, Ashurst LLP looks at Private Damages Actions in the Wake of a Commitment Decision: New Risks after the Judgment of the Paris Commercial Court in Eco-Emballages?

ABSTRACT: A commitment decision does not in itself establish that an undertaking infringed (EU) competition law. The Paris Commercial Court nevertheless inferred from statements made by the French Competition Authority in a commitment decision that undertakings had infringed competition law and it awarded a claim for damages against the committing party. This judgment significantly increases the exposure of undertakings agreeing to commitments to subsequent damages actions.

The Independence of Chinese Competition Agencies and the Impact on Competition Enforcement in China

Wendy Ng, University of Adelaide - School of Law describes The Independence of Chinese Competition Agencies and the Impact on Competition Enforcement in China.

ABSTRACT: Administrative enforcement of China’s Anti-Monopoly Law is shared among three ministries, and a pan-ministry commission sits above these ministries to coordinate competition policy. This two-tiered tripartite enforcement structure has been criticized as inefficient, costly, and ineffective. In particular, commentators are concerned that the agencies’ lack of independence will lead to the consideration of non-competition matters in competition enforcement. However, there has been minimal research done on how these institutional arrangements limit the independence of the Chinese competition agencies and whether and how this has actually impacted the enforcement of the Anti-Monopoly Law.

This article addresses this gap by investigating whether a lack of independence has affected competition enforcement in China. By looking at the concept of agency independence, this article argues that, in addition to the constraints on independence that arise from the competition agencies’ positions as ministries within the executive branch, their independence is also limited by the conventions, coordination mechanisms, and relationships that exist within China’s socialist system. Applying this broader, multidimensional concept of independence to understand the enforcement experience of the Anti-Monopoly Law, the article finds that the limitations placed on the independence of the competition agencies have shaped enforcement processes and outcomes.

Cross-Licensing and Competition

Doh-Shin Jeon, Toulouse School of Economics (TSE); Centre for Economic Policy Research (CEPR) and Yassine Lefouili University of Toulouse 1 - Toulouse School of Economics (TSE) discuss Cross-Licensing and Competition.

ABSTRACT: We study bilateral cross-licensing agreements among N (>2) competing firms. We find that the industry-profit-maximizing royalty can be sustained as the outcome of bilaterally efficient agreements. This holds regardless of whether agreements are public or private and whether firms compete in quantities or prices. We extend this monopolization result to a general class of two-stage games in which firms bilaterally agree in the first stage to make each other payments that depend on their second-stage non-cooperative actions. Policy implications regarding the antitrust treatment of cross-licensing agreements are derived.

 

 

The Determinants of Plant Exit: The Evolution of the U.S. Refining Industry

David W. Meyer, U.S. Federal Trade Commission - Bureau of Economics and Christopher T. Taylor, U.S. Federal Trade Commission - Bureau of Economics examine The Determinants of Plant Exit: The Evolution of the U.S. Refining Industry.

ABSTRACT:  This paper analyzes factors that affect the exit and expansion of U.S. petroleum refineries using plant-level capacity data from 1947 to 2013. We find that larger refineries are less likely to close and that refineries owned by a multi-plant firm are more likely to close. If a multi-plant firm closes a refinery, it is likely to close its smaller refineries. In contrast to previous literature, we find weak evidence that refineries owned by firms with higher market shares are less likely to close. In specifications with more control variables, this relationship is statistically insignificant.

 

 

Heritage Foundation - Antitrust Policy for a New Administration Jan 26, 2016

Event Details

• DATETuesday, Jan 26, 2016
• TIME9:00 AM - 3:00 PM
• VENUEAllison Auditorium

Antitrust Policy for a New Administration

8:30 a.m. – Registration and Continental Breakfast

9:00 a.m. – Welcome and Introduction

Alden Abbott, Deputy Director, and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

9:10 a.m. – Opening Keynote Remarks: “The Next Administration’s Antitrust Policy”

William Kovacic, Former Chairman, Federal Trade Commission, and Professor of Law, George Washington University Law School

9:45 a.m. – Panel I – The United States Federal Trade Commission (FTC)

Susan Creighton, Partner, Wilson Sonsini Goodrich & Rosati, and former Director, Bureau of Competition, Federal Trade Commission

William (Bill) Blumenthal, Partner, Sidley & Austin, and former FTC General Counsel

Joshua Wright, Professor of Law, George Mason University School of Law; Director, Global Antitrust Institute; and former Commissioner, Federal Trade Commission

Dr. Jeffrey Eisenach, Visiting Scholar, American Enterprise Institute, and former Chief of Staff to Federal Trade Commission Chairman James C. Miller III – Moderator

11:00 a.m. – Break

11:15 a.m. – Panel II – The United States Department of Justice (DOJ)

Thomas Barnett, Partner, Covington & Burling LLP and former Assistant Attorney General for Antitrust, DOJ

J. Mark Gidley, Partner, White & Case LLP, and former Acting Assistant Attorney General for Antitrust, DOJ

The Honorable Douglas Ginsburg, Senior Judge, U.S. Court of Appeals for the District of Columbia Circuit; Professor of Law, George Mason University School of Law; and former Assistant Attorney General for Antitrust, DOJ

Stephen Weissman, Partner, Baker Botts, and former Deputy Director, Bureau of Competition, FTC

Hill Wellford, Partner, Morgan, Lewis & Bockius LLP, and former Chief of Staff, Antitrust Division, DOJ – Moderator

12:30 p.m. – Lunch

1:30 p.m. – Panel III – Antitrust Abroad

Damien Geradin, Professor of Law, Tilburg University and George Mason University School of Law, and Founder and Managing Director, EDGE | Legal Thinking

Abbott (Tad) Lipsky, Jr., Partner, Latham & Watkins LLP, and former Deputy Assistant Attorney General for Antitrust, DOJ

James Rill, Senior Counsel, Baker & Botts LLP; former Assistant Attorney General for Antitrust, DOJ; and former ABA Antitrust Section Chief

Bilal Sayyed, Partner, Kirkland & Ellis LLP, and former Attorney-Advisor to the FTC Chairman – Moderator

2:45 p.m. – Closing Comments

Alden Abbott, Deputy Director, and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

More About the Speakers

CPI Antitrust Chronicle DEC-15(1)

Convergence, Diapers, Drugs

1. Kent Bernard, Dec 14, 2015

   Is Full Transatlantic Competition Law Convergence Realistic, or Even Desirable?

   There are enough smart people supporting enough different arguments towards different goals for competition law to cast serious doubt that we can pick “the” correct one. Kent Bernard (Fordham Univ. School of Law)

   Tags:
2. Lia Vitzilaiou, Dec 15, 2015

   The Procter & Gamble Diapers Case: In the Middle of Conflict Between Theory and Effect

   The Pampers decision is significant in demonstrating that the debate about anticompetitive effects actually has very real and practical consequences, and it is not just a question of academic interest. Lia Vitzilaiou (Lambadarios Law Firm)

   Tags:

Diving into Drugs

1. Gregory Asciolla, Matthew Perez, Dec 14, 2015

   “Shall We Dance?” – Biologic-Biosimilar Competition Under the Biologics Price Competition and Innovation Act

   It remains to be seen whether a settlement in the context of biologics patent litigation will ultimately trigger the same competitive concerns that patent settlements in the Hatch-Waxman context have often triggered. Gregory S. Asciolla & Matthew J. Perez (Labaton Sucharow LLP)

   Tags:
   • Antitrust and pharmaceuticals
2. Michael Carrier, Dec 14, 2015

   2008 and 2015: Night and Day for Drug Patent Settlements

   In 2015, robust antitrust analysis of drug patent settlements is alive and well—we are in a far different place than we were in 2008. Michael A. Carrier (Rutgers Law School)

   Tags:
   • Antitrust and pharmaceuticals
3. Douglas Ginsburg, Koren Wong-Ervin, Joshua Wright, Dec 14, 2015

   Product Hopping and the Limits of Antitrust: The Danger of Micromanaging Innovation

   While it is plausible that product hopping may under narrowly defined circumstances constitute exclusionary conduct, applying a standard antitrust law analysis (with the possibility of treble damages) is likely to deter innovation that would have benefitted consumers. Douglas H. Ginsburg, Koren W. Wong-Ervin, & Joshua D. Wright (George Mason University School of Law)

   Tags:
   • Antitrust and pharmaceuticals
4. Ankur Kapoor, Rosa Morales, Dec 14, 2015

   Reverse-Payments Cases in 2015

   But perhaps the bigger takeaway from this year is that causation of antitrust injury remains a major potential pitfall in these cases. Ankur Kapoor & Rosa M. Morales (Constantine Cannon)

   Tags:
   • Antitrust and pharmaceuticals
5. Seth Silber, Jeffrey Bank, Courtney Armour, Kellie Kemp, Brendan Coffman, Ryan Maddock, Dec 14, 2015

   Pharmaceutical Antitrust Litigation in 2015—Settlements, Product Hopping and REMS

   Discussion about what constitutes “competitive” levels of pharmaceutical prices can be heard everywhere; meanwhile, government officials, individual consumers, intermediate distributors and retailers, and, in some cases, generic pharmaceutical companies continue to turn to antitrust law as an enforcement tool. Seth C. Silber, Jeff Bank, Courtney Armour, Kellie Kemp, Brendan Coffman, & Ryan Maddock (Wilson Sonsini Goodrich & Rosati)

Google, Google Shopping and Amazon: The Importance of Competing Business Models and Two-Sided Intermediaries in Defining Relevant Markets

Sebastien Broos, University of Liege, HEC Management School, Students and Jorge Marcos Ramos, University of Liege - School of Law analyze Google, Google Shopping and Amazon: The Importance of Competing Business Models and Two-Sided Intermediaries in Defining Relevant Markets.

ABSTRACT:  We show that the Commission has adopted a flawed definition of the relevant market in the Google Shopping case. Using two-sided intermediaries’ theory, we show that only one market linking the two sides of Google, consumers and advertisers, should be defined. Therefore, competitive constraints should be evaluated on both sides and not only on consumers’ side. Moreover, we show that, because a single market must be defined for Google, competing business models such as those of Amazon also pose significant competitive constraints to Google. In sum, it is not clear that Google enjoys a dominant position if the market is properly defined. We propose that business model competition and two-sided intermediaries’ theory should be included in the market definition toolbox in new technology and dynamic markets.

 

 

Leniency in Japan - An Empirical Survey of its Use

Steven Van Uytsel, Kyushu University - Graduate School of Law offers Leniency in Japan - An Empirical Survey of its Use.

ABSTRACT: This paper would like to add to the empirical research in relation to leniency programs. The purpose of this paper is to inform the reader on what is at play in Japan. This paper does not yet aim at connect conclusions to the empirical data. The empirical data obtained needs to be further checked with a qualitative study. The reason for already making the findings public is twofold. First, there is a wealth of information available on the use of the Japanese leniency program but only in Japanese language. Second, the quantitative study has shown great parallels between the answers of lawyers and cartel participants.

 

 

Ken Elzinga - A Great Teacher

I have noted my deep admiration for Ken Elzinga before, most recently last month.  In reading through the comments on the inspirations that the GCR 40 Under 40 2015 edition had for careers in antitrust,  Logan Breed (Hogan Lovells) and Shelley Webb (Intel) both discussed the lasting impact of Elzinga's undergrad antitrust economics class for sparking a lifelong passion for antitrust.  I note that both went onto careers in antitrust law rather than antitrust economics. 

We in the academy (as well as those in practice) should all be as blessed as Ken Elzinga for helping to shape careers in the field and for being such a great mentor.

The Limits of Price Discrimination

Dirk Bergemann (Cowles Foundation, Yale University) ; Benjamin Brooks (Dept. of Economics, Princeton University) ; Stephen Morris(Dept. of Economics, Princeton University) analyze The Limits of Price Discrimination.

ABSTRACT:  We analyze the welfare consequences of a monopolist having additional information about consumers' tastes, beyond the prior distribution; the additional information can be used to charge different prices to different segments of the market, i.e., carry out "third degree price discrimination." We show that the segmentation and pricing induced by the additional information can achieve every combination of consumer and producer surplus such that: (i) consumer surplus is non-negative, (ii) producer surplus is at least as high as profits under the uniform monopoly price, and (iii) total surplus does not exceed the surplus generated by efficient trade.

How Does Downstream Firms' Efficiency Affect Exclusive Supply Agreements?

Hiroshi Kitamura ; Noriaki Matsushima ; and Misato Sato ask How Does Downstream Firms' Efficiency Affect Exclusive Supply Agreements?

ABSTRACT:  This study constructs a model to examine anticompetitive exclusive supply contracts that prevent an upstream supplier from selling input to a new downstream firm. With regard to the technology to transform input produced by the supplier, as an entrant becomes increasingly efficient, its input demand can decrease, and thus, the supplier earns smaller profits when a socially efficient entry is allowed. Hence, an inefficient incumbent can deter a socially efficient entry through exclusive supply contracts, even in the framework of the Chicago School argument, which comprises a single seller, buyer, and entrant.

GCR 40 Under 40 (2015 edition)

The GCR has its new 40 under 40

40 UNDER 40 2015

GCR’s list of the top young antitrust lawyers in the world

PRIVATE PRACTICE

This year’s survey is more diverse than ever, with candidates selected across 19 different countries and 34 different firms.  More than half of the survey’s entrants hail from either side of the Atlantic, with 11 candidates in the US and six-a-piece in London and Brussels. Brazil counts two nominees, while each other candidate is the sole representative of their home country. 

Linklaters comes out on top with the most candidates, boasting three lawyers selected across their Brussels, Beijing and Paris offices. Freshfields Bruckhaus Deringer, Cleary Gottlieb Steen & Hamilton, Slaughter and May and Hogan Lovells continue to feature at the front of the pack, with two candidates each.

At 33, Hong Kong based Slaughter and May partner Natalie Yeung is the youngest nominee, closely followed by Alice Muhlebach at Ashurst in Melbourne, aged 34.

Two veterans of the 40 under 40 process return after featuring in the 2012 edition. Ana Paula Martinez at Levy & Salomão Advogados is nominated for the second time, while Gönenç Gürkaynak at ELİG celebrates his third selection.

Adam J Di Vincenzo

Alastair Chapman

Alice Muhlebach

Amanda Reeves

Amy W Ray

Ana Paula Martinez

Andrea Agathoklis Murino

Andrea Hamilton

Annamaria Mangiaracina

Anne Lee

Boris Bronfentrinker

Christian Riis-Madsen

Damien Gerard

Daniel Colgan

Elisa Kearney

Fernando Carreño

Gönenç Gürkaynak

Heather Tewksbury

Ian R Conner

Igor Svechkar

James Webber

Jeff L White

Johan Van Acker

Kathryn M Hellings

Kentaro Hirayama

Lisa Wright

Logan Breed

Lucinda Verster

Mark Sansom

Natalie Yeung

Naval Satarawala Chopra

Niall Collins

Nicholas Gibson

Pablo Márquez

Patrick R Bock

Pierre Zelenko

Reena Gambhir

Ricardo Inglez de Souza

Torrin Crowther

Yue (Fay) Zhou

IN-HOUSE

As part of our survey, we have also included in-house competition counsel and economists working at some of the largest corporations and best recognised brands across the world.

Seven lawyers and one economist have been selected, three of whom are based in California, two in London and the others in Belgium, Germany and Hong Kong.

Three of the eight candidates work at Google, underlining the substantial focus and talent allocated to antitrust matters by the online search giant. The other successful nominees work at Intel, American Express, British Airways, Anheuser-Busch InBev and Deutsche Telekom.

The two youngest candidates are 33, while the oldest is 39.

Ben Graham

Fabien Curto Millet

Jan Lohrberg

Katerina Soteri

Margaret Auraellia Wang

Natasha Franklin

Rosie Lipscomb

Shelley J Webb

ENFORCERS

For the first time in our survey, we have included nominees from enforcement agencies.

In the past we focused solely on lawyers in private practice on the basis that it would be unhelpful, and perhaps unfair, to try to compare lawyers working in very different roles. This year, however, we felt we could no longer overlook those in public service.

We received a host of submissions nominating talented lawyers at enforcers across the globe. This list is not an exhaustive one, but it celebrates seven of the most promising competition lawyers currently working on the other side of the antitrust fence at organisations such as the United States’ Department of Justice (DoJ) and Federal Trade Commission (FTC), the United Kingdom’s Competition and Markets Authority (CMA) and the Mexican Economic Competition Commission, among others.

The youngest candidate is 34 and the oldest 39. Five of the successful nominees started their careers in private practice, often at leading US law firms, while two have worked their whole life in the public sector.

Andre M Geverola

Bitten Thorgaard Sørensen

Carlos Mena

Javier Tapia

Krisztian Katona

Ryan Danks

Sheldon Mills