Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Friday, June 30, 2017

Georgetown Law Global Antitrust Enforcement Symposium, Tuesday, September 12, 2017

Speakers: Andrew Finch
Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice

Maureen K. Ohlhausen
Acting Chairman, U.S. Federal Trade Commission

Isabelle de Silva
President, Competition Authority, France

Cecilio Madero Villarejo
Deputy Director-General for Antitrust, European Commission’s Competition Directorate-General

Click here to register.

June 30, 2017 | Permalink | Comments (0)

Recent Developments in EU Merger Remedies

ABSTRACT: Over a decade has passed since the Commission published the Merger Remedies Study, which found around one-third of the remedies evaluated to have been wholly or partially ineffective. Subsequent empirical studies covering the Commission's early merger control practice supported the notion that EU merger remedies sometimes failed to preserve effective competition in the affected markets, for reasons including inadequate scope of the divestment business, unsuitable purchasers, and insufficient cooperation from third parties.

 

June 30, 2017 | Permalink | Comments (1)

Airline Competition Conference, Monday, July 17, 2017

Monday, July 17, 2017

Airline Competition Conference

Georgetown Center for Business and Public Policy

 

DATE AND TIME

Mon, July 17, 2017

8:30 AM – 3:00 PM EDT

Add to Calendar

LOCATION

Georgetown University

3700 O Street, NW

Hariri Building, Case Room 340

Washington, DC 20057

 

REGISTER

 

8:30 am - 9 am Conference registration and breakfast

 

9 am - 9:05 am

Opening remarks

John Mayo, Professor of Economics, Business and Public Policy, Georgetown University McDonough School of Business

 

9:10 am - 10:40 am

Panel 1: Merger Retrospectives

Antitrust merger analysis is largely prospective. Merger retrospectives allow for an ex post assessment of the effects of a merger across a number of dimensions of competition: price, quality, variety, and innovation for the merged firms and their rivals. Merger retrospectives also allow for an evaluation of the efficacy of models used by enforcement agencies in reviewing mergers. In the context of airlines, not only merger retrospectives allow for an analysis of how a given merger may have impacted markets where merging airlines competed directly, but also those where the parties did not compete directly.

Speakers:

Dennis Carlton, University of Chicago

John Kwoka, Northeastern

Dave Oshinsky, FTC

Dan Rubinfeld, Berkeley/NYU

Moderator: Paul Denis, Dechert

 

10:40 am - 10:50 am Break

 

10:50 am - 12:20 pm

Panel 2: ATI: Case Studies and Consumer Benefits

Given foreign ownership constraints and the desire of carriers to offer seamless global networks, many U.S. carriers participate in alliances with foreign carriers. The U.S. Department of Transportation is authorized, under appropriate circumstances, to grant immunity from the U.S. antitrust laws (antitrust immunity or “ATI”) to these alliances. This panel will examine a number of the competitive issues associated with international alliances, including their impact on consumer welfare and the public interest, whether the rationale for ATIs has changed over time, and whether grants of antitrust immunity should be subject to a sunset provision.

Speakers:

Brian Keating, Compass Lexecon

Oliver Richard, GAO

Jan Brueckner, UC Irvine

Mark Israel, Compass Lexecon

Darin Lee, Compass Lexecon

Moderator: Paul Yde, Freshfields

 

12:20 pm - 1:30 pm Lunch

 

1:30 pm - 3 pm

Panel 3: Distribution Models for Airlines

Airlines offer differentiated products, and use differentiated strategies to make their products available to consumers. Some carriers rely solely on their own websites, while others participate extensively in online travel agencies and metasearch sites. In the latest formulation of the longstanding debate about whether carriers should be mandated to participate in various distribution channels, critics argue that limited distribution strategies unnecessarily increase search costs for consumers and that the government should mandate unrestricted distribution. These arguments ignore the fact that consumers already have a wide range of choices – including airline websites, online travel agencies (“OTAs”), metasearch sites, and travel agents – when comparing the fares from different airlines and selecting air carriers. There is no market failure, and competition, not regulation, will produce the most efficient, innovative, and transparent marketplace for consumers.

Speakers:

Dan Kasper, Compass Lexecon

Gary Doernhoefer, General Counsel, Journera

Robert W. Kneisley, Associate General Counsel, Southwest Airlines

Other panelists are TBA

Moderator: MJ Moltenbrey - Paul Hastings

June 30, 2017 | Permalink | Comments (0)

Competition or conflict? Beyond traditional ordo-liberalism

Dold, Malte and Krieger, Tim ask Competition or conflict? Beyond traditional ordo-liberalism.

ABSTRACT: According to the traditional ordo-liberal view of the Freiburg School, the central role of the state in economic affairs is to set up rules that create a competitive order within which private actors have sufficient incentives to coordinate their economic affairs efficiently. Underlying this view is the implicit assumption that, given the right institutional framework, competition within markets is mainly characterized by peaceful and conflict-free rivalry between actors that leads to an optimal allocation of resources. In such a setting, competition may be described as a "record-type" game. This view, however, ignores the possibility that competition itself may very well trigger conflict rather than having an appeasing effect. In this case, competition appears to be a "struggle-type" game in which competitors invest in conflict activities that are not efficiency enhancing but rather resource wasting. Against this background, ordo-liberalism has yet to provide a clear-cut distinction between competition and conflict. In addition, it fails to identify - in a normative way - which institutional and regulatory framework could hamper conflict sensitivity of economic competition, given the harmful effect of conflict on the security of property rights. Our contribution investigates how the ordo-liberal research program needs to be extended when introducing conflict.

June 30, 2017 | Permalink | Comments (0)

Call For Papers 2nd TILEC Conference on "Competition, Standardization, and Innovation"

Call For Papers
2nd TILEC Conference on "Competition, Standardization, and Innovation"


18-19 December 2017, Tilburg Law and Economics Center (TILEC), Tilburg University, the Netherlands

http://www.tilburguniversity.edu/tilec/csi

KEYNOTE SPEAKERS:
Vincenzo Denicolo (University of Bologna)
John Golden (University of Texas at Austin)
Petra Moser (New York University)
Katherine Strandburg (New York University)

The goal of this interdisciplinary conference is to bring together economists and legal scholars in order to advance our understanding of the relationships between competition, standardization, and innovation, as well as their implications for public policy. It aims at fostering exchange between the two disciplines in this field where complementarities between law and economics are particularly strong. Papers need not display use of both legal science and economics, but speakers will be invited to make their results accessible to a mixed audience. Research of the highest scientific or scholarly quality will be selected, independently of the field of origin and methods used (theory, empirics, experimental research, case study, etc.), provided it sheds light on at least two, and preferably three, of the relevant dimensions (i.e., competition, standardization, and innovation).

FORMAT: The workshop will take place on 18 and 19 December 2017 and is planned for two full days. Parallel sessions may be run, but most sessions will be plenary. Regular presentations (25 minutes) will be followed by a discussant (10 minutes) and public discussion (10 minutes). Keynote presentations (45 minutes) will be followed by 15 minutes of public discussion. There will be plenty of time for informal discussion and social interaction. Speakers may be asked to discuss a paper.

REGISTRATION FEES AND REIMBURSEMENT POLICY: There is a EUR 200 fee to attend the conference (which includes lunches, coffee breaks, and the conference dinner on 18 December). The fee will be waived for speakers and discussants. In addition, TILEC will cover speakers' and discussants' accommodation expenses. A limited budget will be available for funding of travel costs, upon motivated request at the time of submission.

PAPER SUBMISSIONS/FURTHER INFORMATION: The deadline for submissions is 15 September 2017. Long abstracts are accepted but full papers are preferred. Please contact the organizers for any questions (see below).

Submissions (in PDF format) should be sent to csi@tilburguniversity.edu. After selection by the scientific committee, authors of accepted papers will be notified by 8 October 2017. The deadline for speakers' registration is 22 October 2017. Completed drafts of accepted papers are due by 20 November 2017, and will be made available for download on the conference website. Presenting authors are expected to attend and participate in the full duration of the conference.

ORGANIZER: Florian Schuett (f.schuett@tilburguniversity.edu)

June 30, 2017 | Permalink | Comments (0)

Mixed Duopoly: Differential Game Approach

Koichi Futagami (Graduate School of Economics, Osaka University) ; Toshihiro Matsumura (Institute of Social Science, The University of Tokyo) ; and Kizuku Takao (Department of Economics, Aomori Public University) discuss Mixed Duopoly: Differential Game Approach.

ABSTRACT: Previous studies in differential games reveal that intertemporal strategic behaviors have an important role for various economic problems. However, most of their analyses are limited to cases where objective functions are identical among agents. In this paper, we characterize the open-loop Nash equilibrium and the Markov perfect Nash equilibrium of a mixed duopoly game where a fully or partially state-owned firm and a fully private firm compete in the quantities of homogeneous goods with sticky prices. We show that in the Markov perfect Nash equilibrium, an increase in the governments f share-holdings of the state-owned firm has a non-monotonic effect on the price, and in a wide range of parameter spaces, it increases the price. These results are derived from the interaction of an asymmetric structure of agents f objectives and inter-temporal strategic behaviors, which are in sharp contrast with those in the open-loop Nash equilibrium. We provide new implications for privatization policies in the presence of dynamic interactions, against the static analyses.

June 30, 2017 | Permalink | Comments (0)

Thursday, June 29, 2017

The Google Search Case: Quo Vadis? July 11, 2017

Queen Mary Law Presents

 

A limited number of free tickets are available for this event. If free early bird registration is closed, you can still purchase your tickets here: http://eshop.qmul.ac.uk/conferences-and-events/conferences-events/conferences-events/the-google-search-case-quo-vadis

 

 

The Google Search Case: Quo Vadis?

The Google Search Case conference focuses on the Statement of Objections issued by the European Commission, investigating the possible favourable treatment, within Google’s web search results, of links to Google’s own specialised web search services.

The conference will provide a forum for a fruitful discussion not only on the existence and abusive nature of the alleged infringement, but also on the principle of fairness in competition law. In addition, the challenges posed by high tech markets, and the issues relating to the construction of effective remedies in this market will be explored.

The conference will be an occasion to exchange ideas, discuss legal issues and challenges of unilateral conducts in digital economies, trying to predict future outcomes and developments.

The conference is organised by IGLEF, the Institute for Global Law, Economics and Finance, of the Centre for Commercial Law Studies, Queen Mary University of London.

 

Programme

 

12:00 Registration

 

12:30 - 14:15 Favouring as an abuse: quo vadis Commission?

  • Chair: Ioannis Kokkoris (Queen Mary University London)
  • Thomas Vinje (Clifford Chance)
  • Thomas Graf (Cleary Gottlieb Steen & Hamilton)
  • Pablo Ibanez Colomo (London School of Economics)
  • Tim Cowen (Preiskel/ICOMP)

 

14:15 - 14:45 Break

 

14:45 - 16:30 Fairness in competition law/unilateral conduct assessment

  • Chair: Philip Marsden (Competition and Markets Authority)
  • Maurits Dolmans (Cleary Gottlieb Steen & Hamilton)
  • Alfonso Lamadrid de Pablo (Garrigues)
  • Maria Ioannidou (Queen Mary University London)
  • Pinar Akman (University of Leeds)

 

16:30 - 17:00 Break

 

17:00 - 18:30 High Tech markets: challenges in constructing effective remedies

  • Chair: Maria Ioannidou (Queen Mary University London)
  • Oliver Bethell (Google)
  • Mark Williams (ECLM Economics)
  • Lars Kjolbye (Latham Watkins)

 

 

DATE AND TIME

Tue 11 July 2017

12:00 – 18:30 BST

Add to Calendar

LOCATION

Centre for Commercial law Studies

67-69 Lincoln's Inn Fields

London

WC2A 3JB

United Kingdom

June 29, 2017 | Permalink | Comments (0)

Choosing whether to compete: Price and format competition with consumer confusion

Manova, Kalina and Yu, Zhihong are Choosing whether to compete: Price and format competition with consumer confusion.

ABSTRACT: We examine the global operations of multi-product firms. We present a flexible heterogeneous-firm trade model with either limited or strong scope for quality differentiation. Using customs data for China during 2002-2006, we empirically establish that firms allocate activity across products in line with a product hierarchy based on quality. Firms vary output quality across their products by using inputs of different quality levels. Their core competence is in varieties of superior quality that command higher prices but nevertheless generate higher sales. In markets where they offer fewer products, firms concentrate on their core varieties by dropping low-quality peripheral goods on the extensive margin and by shifting sales towards top-quality products on the intensive margin. The product quality ladder also governs firms' export dynamics, both in general and in response to the exogenous removal of MFA quotas on textiles and apparel. Our results inform the drivers and measurement of firm performance, the effects of trade reforms, and the design of development policies.

June 29, 2017 | Permalink | Comments (0)

Markup and Product Differentiation in the German Brewing Sector

Giannis Karagiannis (University of Macedonia, Department of Economics) ; Magnus Kellermann (The Bavarian State Research Center for Agriculture) ; Simon Pröll (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development) ; and Klaus Salhofer (University of Natural Resources and Life Sciences Vienna, Institute of Sustainable Economic Development) examine Markup and Product Differentiation in the German Brewing Sector.

ABSTRACT: In this paper we provide a method to separate the markup from product differentiation from other sources of market power, i.e. collusive behavior or market intransparency, based on the estimation of a single reduced form equation. We apply this method to a sample of 118 German breweries, since beer is a differentiated product and at the same time the sector has repeatedly been subject to collusive behavior. Our empirical results show that the “general” markup goes beyond the markup from product differentiation, but the latter accounts for most of the deviation of prices from marginal costs. Moreover, typically for a market with monopolistic competition, we observe average costs above marginal costs and, hence, a high markup does not necessarily translate into a high a profit margin.

June 29, 2017 | Permalink | Comments (1)

Spatial Price Discrimination and Privatization on Vertically Related Markets

Eleftheriou, Konstantinos and Michelacakis, Nickolas study Spatial Price Discrimination and Privatization on Vertically Related Markets.

ABSTRACT: We consider a vertically structured market with two retail firms of mixed ownership competing against each other exercising spatial price discrimination. We examine the strategic behavior of downstream rivals as well as the effect of privatization on the intensity of competition and welfare in two cases; when location decisions are taken sequentially and when location decisions are taken simultaneously. We show that production cost differentials are crucial in determining the Nash equilibrium locations (hence market shares) and the impact of the degree of privatization on the level of downstream competition. Privatization leads to stiffer competition when the mixed ownership firm has the cost advantage. However, it can be welfare enhancing only when decisions are taken sequentially with the follower being the semi-public firm having a moderate production cost advantage over the market leader. The results of our model generalize to capture the case of vertical mergers.

June 29, 2017 | Permalink | Comments (0)

An Empirical Analysis of Mergers: Efficiency Gains and Impact on Consumer Prices

Bonnet, Céline and Schain, Jan Philip offer An Empirical Analysis of Mergers: Efficiency Gains and Impact on Consumer Prices.

ABSTRACT: In this article, we extend the literature on merger simulation models by incorporating its potential synergy gains into structural econometric analysis. We present a three-step integrated approach. We estimate a structural demand and supply model, as in Bonnet and Dubois (2010). This model allows us to recover the marginal cost of each differentiated product. Then we estimate potential efficiency gains using the Data Envelopment Analysis approach of Bogetoft and Wang (2005), and some assumptions about exogenous cost shifters. In the last step, we simulate the new price equilibrium post merger taking into account synergy gains, and derive price and welfare effects. We use a homescan dataset of dairy dessert purchases in France, and show that for two of the three mergers considered, synergy gains could offset the upward pressure on prices post. Some mergers could then be considered as not harmful for consumers.

June 29, 2017 | Permalink | Comments (1)

Wednesday, June 28, 2017

Competitive pricing and quality disclosure to cursed consumers

Schwardmann, Peter and Ispano, Alessandro address Competitive pricing and quality disclosure to cursed consumers.

ABSTRACT: We study the disclosure decision and price-setting behavior of competing firms in the presence of cursed consumers, who fail to be sufficiently skeptical about a firm's quality upon observing non-disclosure of quality-relevant information. We show that neither competition nor the presence of sophisticated consumers necessarily offer protection to cursed consumers. Exploitation arises if markets are vertically differentiated, if there are many sophisticated consumers, and if it is more likely ex ante that product quality is high. Information campaigns that seek to educate consumers may encourage exploitation and decrease social welfare. Mandatory disclosure laws restore efficiency, but at the cost of redistributing rents from consumers to firms. Our simple model delivers a rich set of positive results, captures important markets, like those for food and consumer finance, and speaks to several recent policy initiatives aimed at consumer protection.

June 28, 2017 | Permalink | Comments (0)

Competing for Market Shares: Why the Order of Moves Matters Even When It Shouldn't

Stracke, Rudi ; Hörtnagl, Tanja and Kerschbamer, Rudolf explain Competing for Market Shares: Why the Order of Moves Matters Even When It Shouldn't.

ABSTRACT:  This paper analyzes a contest for market shares where two homogeneous firms compete by investing either simultaneously or sequentially. Standard theory predicts that equilibrium investments and payoffs are independent of the order of moves. To test this prediction, we implement two treatments in the lab, one where firms chose investments simultaneously, and one where they invest sequentially. Our results suggest that it is an inherent advantage to move second rather than first even in the absence of strategic concerns. This is so because first movers face strategic uncertainty, while second movers have the power to ultimately determine relative payoffs through their investment choices. This power is particularly valuable in our experiments, since many first movers try to establish a collusive outcome and second movers not only care about own monetary earnings, but also about relative standing vis-\`a-vis the first mover.

June 28, 2017 | Permalink | Comments (0)

Tuesday, June 27, 2017

Pinar Akman Initial Reactions to the Infringement Decision in Google Search

My friend Pinar Akman (we wrote a recent paper on online RPM and MFNs togther) asked me to post her initial thoughts on the Google search decision.

 

Initial Reactions to the Infringement Decision in Google Search*

Professor Pinar Akman

University of Leeds

 

Pending a full review of the Commission’s decision which is yet to be published, some preliminary observations can be offered on the Google Search decision which saw the largest antitrust fine ever to be imposed on Google. The infringement, according to the European Commission, is that Google abused its dominant position on the internet search market to favour its own comparison shopping service over those of its rivals (ie comparison shopping sites).[1]

 

The first striking aspect of the decision is the ‘remedy’ that the Commission proposes (or fails to propose): the Commission states that Google must stop its illegal conduct within 90 days and it can do so by ‘respecting a simple principle: [i]t has to give equal treatment to rival comparison shopping services and to its own’. This is nothing but simple. Ordering a company which vehemently argues that it does treat all equivalent services equally, falls well short of what would have been expected of the Commission in terms of identifying with sufficient legal certainty what the company should do to stop infringing the law. Further, once one appreciates the fact that Google’s shopping results are simply ads for products and Google treats all ads with the same ad-relevant algorithm and all organic results with the same organic-relevant algorithm, the Commission’s order becomes impossible to comprehend. Is the Commission imposing on Google a duty to treat non-sponsored results in the same way that it treats sponsored results? If so, does this not provide an unfair advantage to comparison shopping sites over, for example, Google’s advertising partners as well as over Amazon, eBay, various retailers, etc which are the competitors of the comparison shopping sites but which do not receive such favourable treatment from Google but compete with them?

The second striking aspect of the decision is that, we still do not know what the relevant abuse is. On what existing law the case has been built is unclear. The theory of harm is also unclear. The Commissioner in the Press Conference has alluded to the practice not being a novel type of abuse, but as this author has argued elsewhere, it is impossible to fit the existing facts of this case within existing case law.[2] This leads to the third striking aspect of the decision, which is the record fine. Fining a company more than twice as much any other company has been fined for an abuse of a dominant position in the history of EU competition law in a case where the practice is at least arguably a novel type of abuse does not follow previous practice of the EU Commission where no fine was imposed due to the practice being a novel abuse.[3] The previous practice is preferable for legal certainty purposes.

Finally, it is sad to see that the decision appears to revolve around harm to a group of competitors and in particular, how Google’s practice led to a loss of traffic to some websites. There is practically no discussion of how the practice has affected Google’s only trading partners – advertisers – and there is little convincing discussion of how the users – consumers – (might) have been harmed as a result of Google’s practice. The suggestion that the practice leads to lack of innovation on both Google’s and the comparison shopping sites’ part and thereby harms consumers by reducing choice does not hold water. First, according to the EU’s own statistics, Google is the world’s fourth R & D investor, which has increased its investment in R & D by over 20% in 2016.[4] Second, the comparison shopping sites – sites which merely comprise ads – have likely lost business as a result of the normal dynamics of competition as they could not innovate to catch up with Amazon’s numerous offerings to consumers. Third, comparison shopping sites remain fully accessible to consumers who value their offerings, irrespective of where Google ranks them in its results. All in all, a robust theory of harm that demonstrates harm to consumers from Google’s practices in this case appears to be still missing.

 

* This piece has not been commissioned or funded by any entity. The author has previously conducted research commissioned by Google on the Google Search case. That research is available here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811789.

[1] ‘Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service’ 27/6/2017 http://europa.eu/rapid/press-release_IP-17-1784_en.htm.

[2] See P Akman ‘The Theory of Abuse in Google Search: A Positive and Normative Assessment Under EU Competition Law’ (forthcoming) (2017) Journal of Law, Technology and Policy, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811789.

[3] See Case AT.39985—Motorola—Enforcement of

GPRS Standard Essential Patents, Comm’n Decision (Motorola) (summary at 2014 O.J. (C 344)

6), ec.europa.eu/competition/antitrust/cases/dec_docs/39985/39985_928_16.pdf.

[4] http://iri.jrc.ec.europa.eu/documents/10180/1030082/The%202016%20EU%20Industrial%20R%26D%20Investment%20Scoreboard as noted in N Petit ‘My 2 cents on the EC decision against Google’ https://medium.com/@nicolaspetit_89712/my-2-cents-on-the-ec-decision-against-google-683651adeee.

 

Sokol disclosure: I do Google client work in my capacity as Senior Of Counsel at Wilson Sonsini Goodrich and Rosati. I did not work on the European case.  I also in no way solicited or edited Pinar's thoughts. I saw Pinar briefly at the Oxford JAE symposium this weekend (good conference).  We spoke about our respective families and that is it.

June 27, 2017 | Permalink | Comments (1)

Retooling the Patent-Antitrust Intersection: Insights from Behavioral Economics

Daryl Lim, John Marshall Law, is Retooling the Patent-Antitrust Intersection: Insights from Behavioral Economics.

ABSTRACT: Behavioral economics has been embraced in finance and implemented by the government. In IP law, scholars have argued it can inform non-obviousness analyses, decipher patent damages, and develop a more nuanced narrative for incentivizing innovation. In antitrust law, scholars have argued for a larger role for behavioral economics in antitrust law more generally. Yet to date, there has been no consideration of the role of behavioral economics at the patent-antitrust intersection.

In presenting pioneering work on the issue, this Article explains the role heuristics and biases play at the patent-antitrust intersection, and identifies specific ways that courts can take them into account. If antitrust law based on neoclassical economics were analogized to an app, behavioral economics would be a patch, not an overhaul of the status quo. A court that understands how patentees, licensees, consumers, and enforcers decide can more accurately contextualize and assess competing narratives and articulate more effective remedies. In other words, behavioral economics can help judges better understand how to use the rule of reason to achieve more dynamically efficient outcomes.

Through the lens of patents, Part II traces how the discretion given to courts in applying the rule of reason has empowered them to treat patents first with disdain, and then with veneration under antitrust law. This shift parallels the ascendance of the importance of IP industries to the national economy and the rise of neoclassical economics. It also explains how the quest for dynamic efficiency has resulted in antitrust ennui, before mounting three challenges to the belief that antitrust policy deference toward patent owners promotes innovation. These challenges are that (1) deference underestimates anticompetitive harm and undervalues the value of gains from intervention, (2) courts are inconsistent about their insecurities in regulating innovation through antitrust: they worry about getting it wrong in exclusionary abuses and yet approach vertical restraints and merger analysis with surprising confidence, and (3) patent deference is suspect as a matter of patent policy.

Part III explains how Actavis’s requirement to scrutinize permissible patent conduct through the rule of reason also creates the challenge of developing a coherent and predictable framework of doing so. It argues that Kimble empowers courts to incorporate insights from behavioral economics. In doing so, courts can become more aware of their own cognitive biases and those of the parties appearing before them, giving them a chance to reach more dynamically efficient outcomes.

Part IV addresses the three criticisms against behavioral economics most pertinent to the patent-antitrust intersection: (1) that irrational conduct is irrelevant to antitrust analysis, (2) that behavioral economics fails to provide predictability to antirust analysis, and (3) behavioral economics experiments are anecdotal and fail to provide antitrust with a generalizable organizing principle.

Part IV then identifies four areas where behavioral economics can help courts reach better outcomes: (1) analyzing anticompetitive harm and procompetitive justifications, by contrasting the Court of Appeals for the D.C. Circuit’s approaches in Microsoft and Rambus, as well as the Supreme Court’s approaches in Actavis and Kimble, (2) empowering judges by enlarging the role of intent, with lessons drawn from cases such as Aspen Skiing, McWane, and Intellectual Ventures, (3) determining market power and lock-ins in aftermarkets, with lessons drawn from Kodak and FRAND (fair, reasonable, and nondiscriminatory) litigation, and (4) crafting smarter remedies by looking at the EU’s Microsoft decision. The discussion draws on past, recent, and ongoing cases to illustrate each area. Part V identifies areas for future research and concludes.

June 27, 2017 | Permalink | Comments (0)

Joint Bidding and Object Restrictions of Competition: The EFTA Court's Take in the ‘Taxi Case’

Ignacio Herrera Anchustegui, University of Bergen - Faculty of Law addresses Joint Bidding and Object Restrictions of Competition: The EFTA Court's Take in the ‘Taxi Case’.

ABSTRACT: On December 22, 2016, the EFTA Court handed its Advisory Opinion in Ski Taxi SA, Follo Taxi SA og Ski Follo Taxidrift AS v Staten v/Konkurransetilsynet. In this case, the EFTA Court dealt with a preliminary question concerning the applicable test to determine whether a joint bid for a public contract constitutes an object restriction of competition under Section 10 of the Norwegian Competition Law, corresponding to Article 53 EEA – the equivalent to Article 101 TFEU.

The Opinion discusses three issues. Firstly, it confirmed that for a conduct to qualify as an object restriction of competition it must reveal a sufficient degree of harm as determined by a limited context assessment, and be capable of having some market impact. Also, the ‘object’ concept must be given a restrictive interpretation – adding that this is only applicable for conducts “easily identifiable, in the light of experience and economics”. Thus, it is not sufficient that the conduct is simply capable of resulting in the prevention, restriction or distortion of competition. To constitute an object restriction a conduct must both reveal a sufficient degree of harm and be capable of having some market impact.

Secondly, the EFTA Court offered guidance whether the submission of joint bids may restrict competition by object as a type of price fixing. To assess this, regard must be had to the nature of the cooperation, its objectives and its economic and legal context. Additionally, it must be determined if the parties are actual or potential competitors and whether the joint price setting may constitute an ancillary restraint with respect to a wider not anticompetitive operation.

Lastly, it found that, although openly submitting a joint tender may reveal a lack of an anticompetitive intention, this is in itself not a prerequisite for determining whether an agreement restricts competition by its object. 

June 27, 2017 | Permalink | Comments (0)

Constitutional challenges in Europe– the impact and role of competition law Thursday 14th September 2017

The Competition Law Scholars Forum (CLaSF) and  the Amsterdam Centre for European Law and Governance

Workshop  

 Constitutional challenges in Europe– the impact and role of competition law’.

At the University of Amsterdam (details venue tbc), on Thursday 14th September 2017

Mandatory prior registration by 7th September at acelg@uva.nl

 

PROGRAMME

09:30 – 10.00: Registration

10.00: Introduction: Prof Barry Rodger (CLaSF), Dr. Kati Cseres (Amsterdam Centre for European Law & Governance)

10.10-10.50 Keynote Speaker, tbc

10.50-11.10 Coffee

11.15-12.15 Rule of Law Challenges and the Role of National Parliaments- Chair: TBC

Kati Cseres, Rule of Law Challenges and the Enforcement of EU Competition Law, a case-study of Hungary and its Implications for EU Law, ACELG

Mary Guy, The Role of the EU and National Parliaments in shaping competition policy in healthcare- experiences from the Netherlands and England, Lancaster University,

12.15-13:15  NCA Independence and Accountability- Chair: TBC

Barry Rodger, Rule of Law or Rule of Politics: Competition Authority Independence and Accountability, the UK’s CMA University of Strathclyde

Javier Guillen Carames, Combining Various Regulatory Bodies Into One Multisector Body: The Problem with Independence of NCAs; Universidad Rey Juan Carlos, Madrid

13:15-14:30 LUNCH

14:30- 16.00  Competition Law, Constitutionalism and Particular Case Studies:- Chair:TBC

Jotte Mulder, The constitutional implications of the economisation and modernisation of EU competition law: a case study from the Netherlands Utrecht University

Antoine Duval, Competition law as Constitutional Law: Counter-democratizing the lex sportive through EU Competition law control, Asser Institute, The Hague

David Reader, Understanding the ‘uneasy bedfellows’: The prospects for foreign investment review and merger control in the UK  CCP, UEA

16.00-16:15 Coffee Break

16:15-17:15 Constitutional Challenges: Effectiveness and Private Actions:- Chair: TBC

Cristina Volpin, Constitutional Challenges in Europe- The Impact and Role of Competition Law QMU, London

Bruce Wardhaugh, The More Economic Approach and Private Actions: A Rule of Law Threat in the EU?

University of Manchester

17:15-17:30 Closing remarks: Kati Cseres, Prof Barry Rodger (CLaSF)

17.30 Drinks and dinner for participants sponsored by Amsterdam Centre for European Law & Governance and ACCESS EUROPE

June 27, 2017 | Permalink | Comments (0)

Intellectual Property and Competition Law

Scott Hemphill, NYU provides an overview of Intellectual Property and Competition Law.

ABSTRACT: This chapter, prepared for the Oxford Handbook of Intellectual Property Law, surveys the intersection of competition law — or antitrust law, as it is known in the United States — with intellectual property (IP). It examines whether and how IP rights alter the substantive scope of antitrust law, either by operation of statute or as a matter of economic policy. It discusses a wide variety of antitrust claims, alleging collusion, exclusion, or both, that have been raised against IP rights holders. The examples are drawn mainly from the United States, although European developments are also included where relevant. The analysis supports the conclusion that, beyond a rights holder’s core ability to assert a valid, infringed right against a rival, IP restricts antitrust law less than one might expect. Moreover, the restrictions that do exist are often subtle.

June 27, 2017 | Permalink | Comments (0)

Anti-Competitive Effects of Common Ownership

José Azar, University of Navarra, IESE Business School Martin C. Schmalz, University of Michigan, Stephen M. Ross School of Business and Isabel Tecu, Charles River Associates (CRA) have written on the Anti-Competitive Effects of Common Ownership.

ABSTRACT: Many natural competitors are jointly held by a small set of large institutional investors. In the US airline industry, taking common ownership into account implies increases in market concentration that are ten times larger than what is "presumed likely to enhance market power" by antitrust authorities. We find a robust correlation between within-route changes in common ownership concentration and route-level changes in ticket prices, also when we only use variation in ownership due to the combination of two large investors. We conclude that a hidden social cost - reduced product market competition - accompanies the private benefits of diversification and good governance.

 

June 27, 2017 | Permalink | Comments (0)

Monday, June 26, 2017

Villains or Heroes? Private Banks and Railroads after the Sherman Act

Miguel Cantillo, Universidad de Costa Rica asks Villains or Heroes? Private Banks and Railroads after the Sherman Act.

ABSTRACT: This paper analyzes and measures the value that American private banks added as directors of non financial companies. Using data between 1874 and 1913, and an event study from 1906, I find that bank directors added about 20% of a firm's market capitalization. Collusive practices encouraged by private banks accounted for 65% of this value, and were the equivalent of creating a three player market among railroads. About 35% of the value added by banks came from better governance. I argue that although policymakers were partly right in sidelining private banks as activist investors, this helped entrench managers.

June 26, 2017 | Permalink | Comments (0)