Antitrust & Competition Policy Blog

Optimizing Innovation and Strengthening Intellectual Property Protection

Maureen Ohlhausen, FTC gave a speech on Optimizing Innovation and Strengthening Intellectual Property Protection.

DOJ victorious in Anthem/Cignaon Appeal

This is an important case.

 

Download 17-5024-1673054

 

 

E.CA Competition Law & Economics Expert Forum 31 May 2017 in Brussels

E.CA Competition Law & Economics Expert Forum

 

5th E.CA Expert Forum

31 May 2017 in Brussels

This conference offers insights into recent developments in competition law and economics with a special focus on market definition for merger and antitrust purposes. This year, the EU Notice on Market Definition marks its 20th anniversary. We will take this opportunity to review some of the “classic” methods and issues related to market definition and look ahead at new questions arising in the era of fast-moving digital markets and two-sided platforms.

The preliminary programme is available here.

Keynote address: Tommaso Valletti, Chief Economist, DG Competition

Panellists include:

·         Gregory Crawford, Professor, University of Zurich and CEPR

·         Thomas Deisenhofer, DG Competition

·         Joseph Farrell, Professor, University of California (Berkeley) and Partner, Bates White

·         Arno Rasek, Chief Economist, Bundeskartellamt

·         Gerwin van Gerven, Partner, Linklaters

·         Frank Verboven, Professor, KU Leuven

·         Thomas Vinje, Partner, Clifford Chance

Location and Schedule

Le Châtelain Brussels Boutique Hotel

Rue du Châtelain 17

1000 Brussels - Belgium

Registration and Coffee

14.00-14.30

Keynote Address and Panel Sessions

14:30–18:20

Reception

18:20–19:30

Please note that there is no registration fee, but registration is required for organisational reasons. For registration, please send your full contact details to [email protected].

Accommodation can be reserved at a special conference rate at Le Châtelain Brussels Boutique Hotel until 1 May 2017. Please enter your code “ECA17”. The reservation form is also available here.

Copyright and Generic Entry in Book Publishing

Imke Reimers, Northeastern University - Department of Economics addresses Copyright and Generic Entry in Book Publishing.

ABSTRACT: Copyright affects the distribution of creative content. Taking works off copyright promotes their availability, which benefits consumers. But it also allows generic entry to dissipate producer surplus. This paper examines the effect of a copyright on the availability and price of books when incentives to create new works are not affected. I evaluate the welfare impact of the 1998 Sonny Bono Copyright Extension Act by estimating differences in consumer and producer surplus across a range of affected works under copyright protection and in the public domain. Using a regression discontinuity analysis, I find that a copyright significantly limits the availability of works. In a demand and entry model, I find that this leads to decreases in consumer surplus which are more than four times as large as any increases in profits to copyright holders and publishers. Without changing incentives to create new ideas, the copyright extension was economically inefficient.

Resale Price Maintenance and Informative Advertisement

Seung-Gyu (Andrew) Sim, University of Tokyo and Gihwan Yi, Korea Economic Research Institute discuss Resale Price Maintenance and Informative Advertisement.

ABSTRACT: This paper studies a monopolistic producer's resale price maintenance scheme when downstream retailers simultaneously put (informative) advertisement efforts and sell final products. It posits that each retailer's advertisement effort increases not only its own sales, but also the entire market size, because consumers, after observing an advertisement from one retailer, may purchase from another. We demonstrate that unless the advertisement cost is too elastic, the minimum resale price maintenance scheme is binding and welfare-enhancing. In contrast to existing literature, it supports the legal doctrine of "rule of reason" rather than "illegal per se" even under consumer surplus standard for competition policy.

Do Premiums Increase after Health Insurance Mergers? – A Reassessment of Guardado Et Al.'s Findings

Robert Bourke, Compass Lexecon, Mark A. Israel, Compass Lexecon, Ben Wagner, Compass Lexecon,and David A. Weiskopf, Compass Lexecon; Johns Hopkins University ask Do Premiums Increase after Health Insurance Mergers? – A Reassessment of Guardado Et Al.'s Findings

ABSTRACT: Guardado, Emmons, and Kane (2013) found that premiums in Nevada increased by 13.7 percent following the merger of United Healthcare and Sierra Health Services in 2008. Using methods similar to those used by Guardado et al., we study a series of more recent mergers to see if their results generalize, particularly given recent changes in the health insurance industry. We find that the results of their analysis do not generalize, with no pattern of higher premiums following recent mergers and, in fact, lower premiums following the mergers with the highest combined shares, a result consistent with lower medical costs or other efficiencies.

Consolidation and Innovation in the Pharmaceutical Industry: The Role of Mergers and Acquisitions in the Current Innovation Ecosystem

Joanna Shepherd, Emory University School of Law discusses Consolidation and Innovation in the Pharmaceutical Industry: The Role of Mergers and Acquisitions in the Current Innovation Ecosystem.

ABSTRACT: Recent changes in the pharmaceutical industry have spurred an unprecedented wave of mergers and acquisitions. Some researchers and agencies have questioned whether pharmaceutical consolidation could impede drug innovation. However, as I explain in this Article, these concerns are largely based on an outdated understanding of the drug innovation ecosystem. Whereas a few decades ago almost all drug discovery took place inside traditional pharmaceutical companies, today most drug innovation is externally-sourced from biotech companies and smaller firms. Internal R&D is no longer the primary source, or even an important source, of drug innovation. As a result, analyses that focus on the impacts of pharmaceutical consolidation on internal drug innovation are incomplete and missing the point. Instead, merger analyses should examine whether consolidation increases demand for externally-sourced innovation and, ultimately, strengthens aggregate drug innovation.

A Return to Antitrust Populism?

James Cooper asks A Return to Antitrust Populism?

ABSTRACT: The trend of modern antitrust policy is consumer protection based on economic analysis. This trend has enabled meaningful protections and coherent policy. It should continue despite recent, successful populist political campaigning.

 

Common Ownership, Institutional Investors, and Antitrust

Menesh Patel, Columbia Law has written on Common Ownership, Institutional Investors, and Antitrust.

ABSTRACT: Recent empirical studies demonstrate the significant extent to which a small number of well-known institutional investors have taken on large ownership interests in the majority of large U.S. public companies, including large ownership interests in horizontal competitors. The response to these studies has been dramatic, with calls for significant overhauls of antitrust policy and institutional shareholding due to common ownership’s potential anticompetitive effects. Yet, this Article argues, it is important to first appreciate a number of consequential complexities before any such changes occur. This Article makes two contributions to demonstrate this and situate the fact of common ownership within a more nuanced antitrust context. First, the Article shows that while common ownership can harm competition as a theoretical matter, whether and the extent to which common ownership will actually generate competitive harm in a given market depends on numerous factors, such as the nature and extent of common ownership in the relevant market, the structure of the market, shareholder incentives, and managerial objectives. For that reason, the mere fact of institutional investors’ significant equity holdings generating high levels of common ownership by itself is insufficient to conclude that this common ownership results in substantial competitive harm in a given market. The Article’s second contribution is a set of modest, but important, policy proposals that flow directly from the paper’s core finding that there is no unequivocal answer to whether common ownership in a particular market will generate substantial competitive harm. Most important, rather than restrictions on common ownership or widespread antitrust investigation, or safe harbors or presumptions of legality, common ownership should continue to be evaluated on a case-by-case basis. In assessing the competitive effects of common ownership, courts and the antitrust agencies should not be bound by modified concentration measures (which in many circumstances may poorly gauge competitive effects) and, instead, should consider all factors bearing on the potential for common ownership to generate competitive harm. This approach remains true to both the modern structure of antitrust and current understanding of common ownership’s effect on competition.

Collective Rights Organizations: A Guide to Benefits, Costs and Antitrust Safeguards

Rich Gilbert, Compass Lexecon has written on Collective Rights Organizations: A Guide to Benefits, Costs and Antitrust Safeguards.

ABSTRACT: Collective rights organizations (CROs) are patent pools, copyright collectives and cross-licensing arrangements that coordinate the licensing of intellectual property rights. CROs can have efficiency benefits by reducing transaction costs, eliminating royalty stacking and resolving conflicting claims by rights owners. However, CROs also can have potential antitrust risks by raising prices, excluding competition for technology rights or downstream products, shielding weak patents and reducing incentives for innovation. The availability of independent licensing mitigates but does not eliminate the risk of anticompetitive practices by a collective rights organization. Antitrust enforcers should be vigilant about collective rights organizations that may harm competition while also respecting the large benefits that these institutions can create for consumers.

Pre-International Competition Network Forum: New Trends in Global Competition Policy , IBA-ICC-World Bank Group Pre-ICN Forum, Porto, May 9 2017

Pre-International Competition Network Forum: New Trends in Global Competition Policy

Join us at the IBA-ICC-World Bank Group Pre-ICN Forum, Porto, May 9 2017
Dear colleagues, we are happy to announce that the World Bank Group together with the International Bar Association and the International Chamber of Commerce will be hosting the 2017 Pre-ICN Forum in Porto on May 9 2017h under the theme “New Trends in Global Competition Policy”.

Keynote speakers:
· Caroline Freund, Senior Fellow, Peterson Institute for International Economics, Washington
· Johannes Laitenberger, Director General DG COMP, European Commission, Brussels
· Andreas Mundt ICN Chair and President of the Bundeskartellamt, Berlin
· Paul Lugard, Baker Botts, Chair of the ICC Commission on Competition, Brussels,
· Ana L. Revenga, Deputy Chief Economist of the WBG, Washington DC

Enforcement authority speakers invited include:
· Tembinkosi Bonakele, Commissioner, Competition Commission of South Africa
· Esteban Greco, President, Commission for the Defense of Competition of Argentina
· Margarida Matos Rosa, President, Portuguese Competition Authority
· Alejandra Palacios, President Mexican Federal Competition Commission
· Ivo Gagliuffi Pierechi, President Peruvian Competition Authority
· Rod Sims, Chairman Australia Competition and Consumer Commission
· Yuriy Terentyev, Chairman, Antimonopoly Committee of Ukraine


Topics will include:
· Reaping competition efficiencies in global markets
· Fostering global antitrust enforcement
· Competition enforcement trends and challenges
· Compliance 2.0: agencies' and business perspective
· Elevating competition policies in economic policy agendas


The World Bank Group together with the ICC wish to invite representatives from ICN Member Agencies and observers as well as ICC affiliates to participate in this important event.

Given the restrictions in the number of attendants, the World Bank Group and the ICC will receive expressions of interest to participate until April 28^th in the following link.

Final invitations will be sent by May 2^nd on a personal basis in order to ensure a balanced and diverse regional and institutional representation of ICN Member Agencies and observers.

Attendants to the ICN with a different affiliation wishing to participate in this conference shall pursue registration through the IBA webpage at the following link.

We look forward to seeing you in Porto

Conference Co-Chairs:

Klaus Tilmes
The World Bank Group, Washington DC; Director of the Trade and Competitiveness Global Practice

Paul Lugard
Baker Botts, Brussels; Co-Chair, ICC Antitrust Committee

Janet McDavid
Hogan Lovells, Washington DC; Co-Chair, IBA Antitrust Committee

Pieter Steyn
Werksmans, Johannesburg; Co-Chair, IBA Antitrust Committee

Pre-International Competition Network Forum: New Trends in Global Competition Policy

Defining 'Big Data' in Antitrust

Xavier Boutin, Compass Lexecon Brussels; Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES) and Georg Clemens, Compass Lexecon are Defining 'Big Data' in Antitrust.

ABSTRACT: This paper provides a definition of “big data” in antitrust. While big data has become an important topic in the antitrust literature and in competition policy practice, no clear-cut definition of big data has been provided yet. This contribution fills a gap clarifying, that a big data definition should not be volume centred but instead include aspects of data analysis and the variety of data. The definition provided in this paper can resolve uncertainties that prevail in the big data antitrust debate and contribute to assess market entry and competitive pressure in data related markets for future antitrust analysis.

The Notice on the Notion of State Aid: Every Light has its Shadow

Andrea Biondi, King's College London – The Dickson Poon School of Law and Oana Andreea Stefan, King's College London – The Dickson Poon School of Law; King's College London offer The Notice on the Notion of State Aid: Every Light has its Shadow.

ABSTRACT: The paper analyses at the Notice on the notion of aid through the prism of its legal status and of the evolution of the case law on the notion of aid. It discusses the place of the notion within the hybrid framework of State aid regulation in Europe.

Applying for Leniency is a Leap in the Dark: Protecting the Effectiveness of Leniency Programmes

Cristina Volpin Centre for Commercial Law Studies, Queen Mary University of London explores Applying for Leniency is a Leap in the Dark: Protecting the Effectiveness of Leniency Programmes.

ABSTRACT: After Pfleiderer, Donau Chemie and Kone the CJEU returned on the topic of the effectiveness of leniency programmes with a key judgment on multijurisdictional leniency applications. The preliminary reference ruling in DHL Express stated how, absent a European Union-wide harmonised system of leniency programmes, the relationship between the leniency application for immunity made to the Commission and a summary application made to an NCA for the same cartel is one of mutual autonomy. According to the CJEU, the purpose of leniency programmes might be impaired by the elimination of uncertainty regarding the exact amount of information that is required to trigger the granting of immunity or reductions of fines. By establishing that unpredictability is one of the intended features of EU leniency policy, the CJEU has once again prioritised the effectiveness of the Commission’s investigation over the rights of defence of the undertakings, also at the preliminary stage of the gathering of evidence by means of leniency programmes. This article is aimed at describing how the judgment gave a prominent role to the principle of effectiveness, also in regard to leniency programmes. While it is not a novelty that the principle of effectiveness is given a decisive role in preliminary rulings dealing with leniency programmes, in the DHL Express case, for the first time, the principle of effectiveness proved decisive in a situation where the rights of individuals in the private enforcement were not at stake.

ABA Section of Antitrust/NYU Next Generation Conference - January 26, 2018 (papers due September 15, 2017)

Junior antitrust scholars are invited to participate in the 5th biennial ABA Section of Antitrust/NYU Next Generation of Antitrust Scholars Conference, which will take place on January 26, 2018 at NYU School of Law.  Last time we survived snowmaggedon to put on a great conference.  This year we expect the conference topics to heat things up.

Conference Co-organizers
Edward Cavanagh, St. John's University School of Law
Harry First, NYU School of Law
D. Daniel Sokol, University of Florida Levin College of Law

Abstract
The purpose of this day-long conference is to provide an opportunity for antitrust/competition law professors who began their full time professorial career in or after August 2010 to present their latest research. Senior antitrust scholars and practitioners in the field will comment on the papers.

Registration
Free and open to the public. NY CLE credits are available to attendees. For registration and more information visit the ABA Section of Antitrust Law.

The deadline for submitting a preliminary draft will be September 15, 2017. Please send your draft to [email protected].

 

Saying no to the Starbucks Unicorn Frappuccino as a Parent

We love Starbucks - the experience is a fun one for the family and we love to walk over to the one nearest us and to pre-order drinks.

My children are not allowed to order the Starbucks Unicorn Frappuccino because it is like ordering a cup of sugar water (59 grams of sugar) that also has half of the daily serving of fat and a fifth of carbs for the day for an adult.  For a grande Starbucks Unicorn Frappuccino with whole milk and whipped cream, this is the nutritional serving of a single drink:

Nutrition Facts Per Serving (16 fl oz)

Calories 410	Calories from Fat 140
	% Daily Value*
Total Fat 16g	25%
Saturated Fat 10g	50%
Trans Fat 0g
Cholesterol 45mg	15%
Sodium 230mg	10%
Total Carbohydrate 62g	21%
Dietary Fiber 0g	0%
Sugars 59g
Protein 5g
Vitamin A 15% Vitamin C 0% Calcium 20% Iron 0%
Caffeine 0mg**

 

I have been told that I am mean, a bad father and not as fun as the other moms and dads that my daughters' friends have because all of their friends have tried the Unicorn Frappuccino.  We love you Starbucks for making the Unicorn Frappuccino a temporary item.  Hopefully this means that my kids will forget about it in a month.

EU Competition Law: Current Issues in a Global Context Friday, May 19, 2017

Please Join Us For...

EU Competition Law: Current Issues in a Global Context

King's College Centre of European Law in co-operation with Crowell & Moring LLP

Friday, May 19, 2017

Hilton Brussels Grand Place
Carrefour de l’Europe
1000 Brussels, Belgium
9:00 - 17:45 (drinks to follow)

Click here for details, including the complete program schedule. 

Our four panels will cover:

• Merger Control Developments – Innovation Theories and EU Procedures
• ECN Policy – Consistency and the Brexit Impact
• Innovation and Unilateral Conduct
• Cartel Litigation – International Year in Review

Panel Chairs:

Professor William E Kovacic
George Washington University Law School and King's College London

Professor Richard Whish QC (Hon)
King's College London

Professor Alison Jones
King's College London

Sean-Paul Brankin
Partner, Crowell & Moring

Speakers: 

Carles Esteva Mosso
Deputy Director General for Mergers, Competition Directorate-General of the European Commission

Andrea Lofaro
Partner, RBB Economics

Mary Anne Mason
Partner, Crowell & Moring

Marceline Tournier
Senior Antitrust Counsel Globally Managed Businesses and M&A, Nestlé

Professor Jacques Steenbergen
President, Belgian Competition Authority

Sarah Cardell
General Counsel, U.K. Competition and Markets Authority

Martina Maier
Global and European General Counsel Competition, Unilever

Robert O’Donoghue QC
Brick Court Chambers

Nicholas Banasevic
Head of Unit (Antitrust: IT, Internet and Consumer Electronics), European Commission

Professor Andrew Gavil
Howard University School of Law and Crowell & Moring

Anneli Howard
Monckton Chambers

Hans Bousie
Partner, bureau Brandeis

Dr. Stephanie Pautke
Partner, Commeo LLP

 
Tickets £125.00 and available here.

Space is limited; for further information,
please contact: Christine Copping, King’s College, London,
tel.  + 44 207 848 2387, email [email protected].

Pharmaceutical Patent Wars, Reverse-Payment Settlements, and Their Anticompetitive Effects for Consumers

Steven Adamson, U. Mississippi describes Pharmaceutical Patent Wars, Reverse-Payment Settlements, and Their Anticompetitive Effects for Consumers.

ABSTRACT: Generic drugs have been provided considerable cost-savings to consumers. The Hatch-Waxman Act provides economic incentives to both generic and brand-name manufacturers, but it is a complicated piece of legislation scattered across numerous sections of the United States Code. This obfuscation has led to abuse by brand name and generic drug manufacturers, resulting in anticompetitive behaviors for the consumer. Despite attempts to ameliorate the problem, a review of case law makes plain that the judicial and legislative systems are currently inadequate to address this problem.

Litigation typically arises in the context of patented drug filings after a generic drug manufacturer files an Abbreviated New Drug Application for a generic drug modeled after the patented drug, an act of constructive patent infringement. This then initiates paragraph IV patent litigation. In order to avoid a finding of patent invalidity, branded and generic manufacturers have entered into collusive “reverse-payment” agreements in which the branded manufacturer agrees to pay the generic company to stay out of the market.

While direct cash payments seem to have been foreclosed in FTC v. Actavis, subsequent iterations of reverse payments have evaded this holding, allowing reverse payments to continue to the frustration of many consumers. Finally, the latest mode of manipulation does not involve monetary transfers, but rather manipulates the FDA system via product hopping, risk evaluation monitoring systems, and sham citizen petitions, to achieve anticompetitive aims.

This articles examines the patenting system for generic drugs, the numerous modes of reverse-payment, particularly with the difficulty of prescribing a bright-line approach to often fluid definitions of “reverse payments.” This is the first article to review the array of reverse payment modes, explaining how legislative and judicial efforts to combat these practices have failed, and arguing for a systemic legislative approach to solving this problem.

Airline Performance in China and India: What Drive Airline Efficiency and Pricing

Kun Wang, University of British Columbia, Sauder School of Business, Anming Zhang, University of British Columbia (UBC) - Sauder School of Business and Yahua Zhang, University of Southern Queensland analyze Airline Performance in China and India: What Drive Airline Efficiency and Pricing.

ABSTRACT: China and India’s air transport sector exhibits substantial differences 30 years after deregulation. The strong presence of private and low-cost carriers and the intense route-level competition are the key drivers for an overall better performance for Indian carriers measured by technical efficiency. The low-cost carrier has the effect of reducing the air fare and promoting the demand in India. However, in China, the entry of a low-cost carrier has not had such effects. We also found that airport concentration in India could lead to cost savings and thus lower air fare, but this did not occur in China.

Lear Conference 2017

 

In 2017, Lear Conference together with the Global Procurement Conference are organizing an international event: “Public Procurement Days”. During the three days, the two conferences will encourage an intensive exchange of ideas and experiences on issues of public procurement & competition policy.

Lear Conference 2017 “PUBLIC PROCUREMENT & COMPETITION POLICY” will bring together experts from a wide range of fields including academia, international organizations, law firms, public authorities and the private sector, encouraging a comprehensive debate on the current challenges related to competition in public procurement.

Among the covered topics:

Are competition policy and contracting authorities friends or foes? Which is the relationship between corruption and collusion? How to solve the problem of conflicting policy choices when tackling corruption and collusion? What are the screening tools developed to detect collusion in public procurement? How the availability of a large set of information (big data) may be exploited to enhance the reliability of these tools? Which type of circumstantial evidence can be deemed sufficient to legally prove bid-rigging? What measures can be adopted to encourage contracting authorities to seek compensation through actions for damages for the harm suffered by citizens and taxpayers?

Find out more information about the program of the #LearConference2017

Register before April 30 and benefit from the early bird offer (30% off) on the conference registration rate!