Antitrust & Competition Policy Blog

Public Policy Forum on the Forthcoming FTC Report on Patent Assertion Entities Thursday, October 13, 2016

 The Searle Center on Law, Regulation, and Economic Growth at Northwestern Pritzker School of Law will host a Public Policy Forum on the Forthcoming FTC Report on Patent Assertion Entities.  This lunch-time forum event will be held at Top of the Hill in Washington D.C. (One Constitution Ave., NE, Washington DC) on Thursday, October 13, 2016.  There is no registration fee for this widely attended event that is sponsored by the Searle Center.

The forum will begin with registration in the Top of the Hill Minuteman Ballroom starting at 11:00 a.m. with a buffet lunch commencing at 11:30am, followed by an esteemed panel discussion on this important and timely report.

The goal of this forum is to examine the legal, regulatory, and economic implications of the recently released FTC report on Patent Assertion Entities. The panelists will delve into the policy implications of the report’s findings, as well as the report’s methodology and the inherent strengths and limitations of the findings.  

Panelists will include:
  

Hon. Douglas H. Ginsburg
Senior Judge
U.S. Court of Appeals for the District of Columbia Circuit
 Professor of Law
Antonin Scalia Law School, George Mason University

Mark A. Lemley
William H. Neukom Professor of Law
Stanford Law School
 
Suzanne Drennon Munck
Chief Counsel for Intellectual Property,
Deputy Director, Office of Policy Planning
U.S. Federal Trade Commission

Anne Layne-Farrar
Vice President
Charles River Associates
 
 David L. Schwartz
Professor of Law
Northwestern Pritzker School of Law (moderator)
 
Matthew L. Spitzer
Howard and Elizabeth Chapman Professor
Director, Searle Center on Law, Regulation, and Economic Growth
Northwestern Pritzker School of Law

To confirm your attendance please provide your full professional contact information via e-mail reply at [email protected].

Arbitration and Competition Law: Integrating Europe Through Arbitration

Marianela Lopez-Galdos, GW Law, describes Arbitration and Competition Law: Integrating Europe Through Arbitration.

ABSTRACT: The analysis presents an insightful study of how the use of arbitration to solve antitrust-related disputes is contributing to the integration of the European Union (EU). The paper delves into the question of whether competition can be subjected to arbitration by reviewing the US, EU, and national case law. The analysis explores the relationship between arbitration and the modernised competition policy as enforced by the European Commission. The paper concludes that arbitration is a useful tool to contribute to the optimal enforcement of competition policy and ultimately to further the integration of the EU.

EU Competition Rules in the Insurance Sector: A Different World in Change

Fabian Stancke, Brunswick European Law School and Josef Hainz, Dentons Europe LLP discuss EU Competition Rules in the Insurance Sector: A Different World in Change.

ABSTRACT: Although the insurance industry is subject not only to its sector-specific legal framework and commercial peculiarities, it is also a very different world with regard to European competition law and practice.1 The amount of sector-specific co-operation is, at best, only comparable to the banking sector. The European Commission (Commission), in the past, has acknowledged that co-operation in the industry can enhance efficiency, for instance by helping insurers to share large and unpredictable risks or to gain better understanding of certain specific risks.2 Like in the banking and other heavily regulated sectors, the majority of sector-specific co-operation of the insurance industry has never been expressly exempted from the ban of restrictive agreements in Art. 101 para. 1 TFEU. Although this fact leads to legal uncertainty and some administrative proceedings as well as to long-standing discussions between stakeholders and competition authorities as well as in academic literature, in most cases apparently workable solutions were found. However, new considerations by the Commission not to renew the still existing Block Exemption Regulation (BER) that contains rules on co-operation in the fields of joint compilations, tables and studies3 that require specific risk-related information exchange and common coverage of certain types of risks (‘co-(re)insurance’) may lead to yet unknown and possibly undesirable effects of the competitive structure of the European insurance industry.

Happy 40th Birthday Hart-Scott-Rodino Antitrust Improvements Act of 1976

Today marks the 40th anniversary of the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

EU State Aid Law and Transfer Pricing: A Critical Introduction to a New Saga

Liza Lovdahl Gormsen, offers EU State Aid Law and Transfer Pricing: A Critical Introduction to a New Saga.

ABSTRACT:  This article argues that the European Commission's recent State aid investigations concerning tax rulings are not based on firm legal grounds. The author examines the Commission's opening decisions in of Apple, Starbucks, Fiat Finance and Trade, Amazon, and McDonald's and criticises the Commission's use of the arm's length principle and the prudent market operator principle. The overall conclusion is that in the Commission's effort to try to develop the law and to expand its remit, it takes a number of unacceptable shortcuts.

Novel But a Long Time Coming: The Bundeskartellamt Takes on Facebook

Robert McLeod, MLex offers a Novel But a Long Time Coming: The Bundeskartellamt Takes on Facebook.

ABSTRACT: With German antitrust chief Andreas Mundt taking on Facebook in a case that many describe as unprecedented in its attempt to tie a possible breach of an unrelated set of laws to an abuse of dominance, he is taking on a challenge that while novel, reflects changes in attitudes to privacy and data that have been a decade or more in the making.

In a statement released in early March, the Bundeskartellamt announced it has initiated a proceeding against Facebook, Inc., USA, the Irish subsidiary of the company, and Facebook Germany GmbH, Hamburg. The authority is investigating suspicions that with its specific terms of service on the use of user data, Facebook has abused its possibly dominant position in the market for social networks.

There is an initial suspicion that Facebook's conditions of use are in violation of data protection provisions and that, in the case in question, Facebook's use of unlawful terms and conditions could represent an abusive imposition of unfair conditions on users. The Bundeskartellamt will examine, among other issues, to what extent a connection exists between the possibly dominant position of the company and the use of such clauses.

All Eyes on Antitrust Enforcement in China's Pharmaceutical Industry

Adrian Emch, Hogan has written on All Eyes on Antitrust Enforcement in China's Pharmaceutical Industry.

ABSTRACT: A wide range of recent antitrust enforcement actions in the pharmaceutical sector have taken place in China over the past months. All three Chinese antitrust authorities have been involved, and all types of anti-competitive conduct have been targeted. The multiple enforcement actions by a number of regulators put the pharmaceutical sector very clearly into the spotlight. Very few other sectors have seen the same level of antitrust enforcement activism in recent months in China, and there does not seem to be an end in sight to this activism.

Happy National Coffee Day

Today the United States celebrates national coffee day.

 

In honor of the holiday I will drink the fall classic (light - skim milk and no whipped cream) Pumpkin Spiced Latte.

 

Pumpkin Spice Latte

Our signature espresso and milk are highlighted by flavor notes of pumpkin, cinnamon, nutmeg and clove to create this incredible beverage that's a fall favorite. Enjoy it topped with whipped cream and real pumpkin pie spices.

Short 8oz Tall 12oz Grande 16oz Venti 20oz Nonfat milk Whole Milk 2% Milk Soy (United States) Soy (Canada) No Whipped Cream Whipped Cream Apply

 

 

 

Nutrition Facts Per Serving (12 fl oz)

Calories 200	Calories from Fat 5
	% Daily Value*
Total Fat 0g	0%
Saturated Fat 0g	0%
Trans Fat 0g
Cholesterol 5mg	2%
Sodium 170mg	7%
Total Carbohydrate 39g	13%
Dietary Fiber 0g	0%
Sugars 38g
Protein 11g
Vitamin A 10% Vitamin C 0% Calcium 40% Iron 0%
Caffeine 75mg**
*Percent Daily Values are based on a 2,000 calorie diet.
**Each caffeine value is an approximate value.

Regulation in Developing Countries: Growing Pains of the Indian Merger Review Regime

Archana G. Gulati, Government of India - Department of Telecommunications describes Regulation in Developing Countries: Growing Pains of the Indian Merger Review Regime.

ABSTRACT: Given the lack of information and institutional weaknesses found in low-income countries, private monopolies are more likely to exploit their position by influencing the regulatory environment or by evading regulation. Weak regulation of competition is likely to undermine the potential gains to be made from privatisation and deregulation. This paper seeks to highlight the problems faced by Competition Authorities in developing countries in implementing merger review effectively with specific reference to merger review reform in India.

 

 

Anti-Competitive Agreements in Russian Courts (2008-2012): Antitrust Law Implementation and Interpretation

Andrey V. Makarov, National Research University Higher School of Economics (Moscow) examines Anti-Competitive Agreements in Russian Courts (2008-2012): Antitrust Law Implementation and Interpretation.

ABSTRACT: This paper analyses antitrust enforcement practice in Russia (2008–2012), in the area of competition-restricting agreements (horizontal and vertical). The analysis is based on a court decision database of litigation with the Russian competition authority (FAS). The database contains 400 cases, including 236 horizontal agreements (HA), 164 other agreements (vertical agreements (VA), conglomerate and mixed agreements). On the basis of this database important features of the interpretation and implementation of the competition law in Russian practice and the priority areas of the enforcement were identified. Antitrust policy was analysed taking into account the risks of type 1 and 2 errors, including the problem of the flexibility of prohibitions (per se vs rule of reason (ROR)), standards of proof, the problem of consistency of enforcement.

 

 

The Empirical Effects of Competition on Price Discrimination in the Presence of Arbitrage

Andre Boik, University of California, Davis -- Department of Economics examines The Empirical Effects of Competition on Price Discrimination in the Presence of Arbitrage.

ABSTRACT: Since Borenstein (1985) and Holmes (1989), a theoretical and empirical literature has emerged that examines the effects of competition on third degree price discrimination. Since transaction costs involved in conducting arbitrage are typically unobserved, empirical investigations in this area have largely been restricted to markets such as for air travel where arbitrage is difficult if not impossible. Using an entirely novel dataset, this paper documents the effect of competition on price discrimination in the presence of arbitrage in the Canadian online sports betting market where prices for Canadian teams are higher than in the world market. I observe how the prices of Canadian teams change in real time in response to the presence of arbitrageurs that establish Canadian sportsbooks’ observable marginal opportunity costs. I exploit the existence of government betting outlets not subject to arbitrage to obtain reduced form counterfactual estimates of the extent to which competition affects price discrimination in the presence of arbitrage. In this new empirical environment, I find results consistent with the airline literature: competition reduces overall price dispersion and markups, but dispersion and markups shrink more for those in the “strong” market than the “weak” market.

 

 

A Critical Evaluation of the FTC's Theory of Product Hopping as a Way to Promote Competition

Dennis W. Carlton, University of Chicago - Booth School of Business; National Bureau of Economic Research (NBER), Frederic A. Flyer, Compass Lexecon, and Yoad Shefi, University of Chicago - Booth School of Business; Compass Lexecon offer A Critical Evaluation of the FTC's Theory of Product Hopping as a Way to Promote Competition.

ABSTRACT: This paper evaluates the effect on competition of adopting the FTC’s product hopping theory as an antitrust doctrine. The paper criticizes the theory and explains why it would be a mistake to adopt it as a guide to antitrust liability.

 

 

Does Merger Enforcement Depend on the Portion of the Merger Associated with the Competitive Concerns?

Malcolm B. Coate, U.S. Federal Trade Commission (FTC) and Shawn W. Ulrick, U.S. Federal Trade Commission (FTC) ask Does Merger Enforcement Depend on the Portion of the Merger Associated with the Competitive Concerns? Worth downloading!

ABSTRACT: Most mergers involve multiple markets. The potential for settlement can vary by the fraction of the overall deal attributable to the markets of concern. (i.e., by the “overlap”). If an antitrust agency challenges a merger having only a small overlap, negotiating a settlement is very likely; but if the entire transaction is at issue, a challenge decision often leads to litigation. Regulators, antitrust attorneys, and expert economists have long wondered if the degree of overlap influences upon the agency’s challenge decision, because settlement and litigation impose disparate costs (including litigation risks and time-delays) on the agency and firms. Given over 20 years of experience with modern merger analysis, it is possible to address this question with several empirical models: (1) a two-stage estimation of the settle-challenge process, (2) decomposition analyses focused on matters exhibiting either high or low overlaps, and (3) statistical matching analyses. These models predict differences of 13 to 19 percentage points between the challenge probabilities of mergers exhibiting high and low overlaps. The difference suggests the potential for over- or under-enforcement. Comparing the FTC policy to that of the court quantifies this potential. The exact magnitude depends on the assumptions used to interpret the evidence. One set of assumptions suggests less enforcement when the overlap is high, while another set of assumptions predicts more enforcement when the overlap is low.

 

 

Is There a Gap in the Definition of Corporate Mergers in Zimbabwe's Competition Act? Revisiting the Caledonia Holdings (Africa) Limited/Blanket Mine (1983) (Private) Limited Merger

Ignatious Nzero, University of Pretoria asks Is There a Gap in the Definition of Corporate Mergers in Zimbabwe's Competition Act? Revisiting the Caledonia Holdings (Africa) Limited/Blanket Mine (1983) (Private) Limited Merger.

ABSTRACT: Effective merger regulation is necessary to achieve the goals of competition law; that is, ensuring that competition is promoted and maintained in the economy through the protection of the competition process to benefit consumers in particular. The Zimbabwean Competition Act which was enacted in 1996 and became effective in 1998 as part of a comprehensive economic reform programme, aims at promoting and maintaining competition within the Zimbabwean economy. Merger regulation is central to the achievement of these goals.

 

 

The NCAA and the Rule of Reason

Herb Hovenkamp, Iowa ponders The NCAA and the Rule of Reason.

ABSTRACT: This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising issues that are not only commercial but also educational. More important for the purpose at hand, is whether jettisoning amateurism in NCAA athletics is a suitable task for an antitrust tribunal. This paper argues that antitrust law is not an appropriate vehicle for addressing that issue. This does not mean that antitrust has no role to play in policing athlete compensation in NCAA schools. But it does suggest that that role be limited to addressing restraints on trade that occur within the rubric of amateur status -- at least until such time as a more competent body decides whether amateurism in collegiate athletics is worth preserving.

Abuse of Market Power: The End of 'Make-Believe' Analysis?

Donal Curtin, Economics New Zealand Ltd asks Abuse of Market Power: The End of 'Make-Believe' Analysis?

ABSTRACT:  This paper argues that the New Zealand legislation against abuse of market power, and subsequent jurisprudence, is ineffective to deal with the problem, in particular by relying on a counterfactual test - would a firm without market power have done the same thing, and if so, the firm with market power cannot be said to have "used" its market power (the language of the legislation). This subverts the over-riding issue, that some actions when undertaken by firms with market power have anti-competitive effects. The paper recommends that New Zealand follow Australia's proposed solution, to move to an "effects" test, with an efficiency defence.

Interlocking Directorates and Anti-Competitive Risks: An Enforcement Gap in Europe?

Florence Thepot, University of Glasgow; Droit & Croissance (Rules for Growth), Florian Hugon, Droit & Croissance (Rules for Growth), and Mathieu Luinaud, Droit & Croissance (Rules for Growth) ask Interlocking Directorates and Anti-Competitive Risks: An Enforcement Gap in Europe?

ABSTRACT: Interlocking directorates between competitors may raise significant anti-competitive risks, which attract little attention in comparison to that posed by other structural links, such as minority shareholdings. This article provides a systematic analysis of the ability of current legal tools of competition law, as well as of company law and corporate governance to address those anti-competitive risks, and thereby, highlights the existence of an enforcement gap in Europe.

Categories and Competition

Gino Cattani, New York University (NYU) - Leonard N. Stern School of Business; New York University (NYU) - Department of Management and Organizational Behavior, Joseph F. Porac, New York University (NYU) - Department of Management and Organizational Behavior, and Howard Thomas, Singapore Management University - Lee Kong Chian School of Business ponder Categories and Competition.

ABSTRACT: In this paper, we review, integrate, and extend the literature on markets, competition, and categories as it applies to strategic management theory. Developments in the literatures of economics and organizational theory have shed new light on market categories and category dynamics. These developments highlight the fact that boundary questions are fundamental to the competitive process, and represent a fertile area for research and theory. The objective is to encourage a theoretically grounded rapprochement between current strategic management research and both older and newer research on categories and competition.

R&D Cooperatives and Market Collusion: A Global Dynamic Approach

Jeroen Hinloopen, Utrecht University School of Economics; Tinbergen Institute, Grega Smrkolj, Newcastle University (UK) - Business School, and Florian O. Wagener, University of Amsterdam - Center for Nonlinear Dynamics in Economics and Finance (CeNDEF) - Department of Quantitative Economics; Tinbergen Institute explore R&D Cooperatives and Market Collusion: A Global Dynamic Approach.

ABSTRACT: We present a continuous-time generalization of the seminal R&D model of d’Aspremont and Jacquemin ('American Economic Review', 1988) to examine the trade-off between the benefits of allowing firms to cooperate in R&D and the corresponding increased potential for product market collusion. We consider all trajectories that are candidates for an optimal solution as well as initial marginal cost levels that exceed the choke price. Firms that collude develop further a wider range of initial technologies, pursue innovations more quickly, and are less likely to abandon a technology. Product market collusion could thus yield higher total surplus.

No Shortage of Theories: The Role of Capacity in Antitrust Analysis

Seth B. Sacher, Federal Trade Commission and Jeremy Sandford , Federal Trade Commission offer No Shortage of Theories: The Role of Capacity in Antitrust Analysis.

ABSTRACT: Issues of productive capacity can play a role in nearly every aspect of competition analysis. This paper provides an overview of the economic literature on capacity and the role that capacity has played in actual antitrust and competition law enforcement. The goal is to aid practitioners in matters where capacity issues potentially play a significant role. For the most part, the theoretical role of capacity in various aspects of competition analysis is ambiguous and the empirical literature is similarly inconclusive. Moreover, in many situations, measuring excess capacity may be quite difficult. Given the theoretical and empirical ambiguity regarding the role of excess capacity, or the lack thereof, the overall theme of our analysis is that practitioners should not presume any particular impact in the absence of strong case-specific evidence regarding capacity’s effects.