Tuesday, July 25, 2017
The Democratic Party has unveiled "A Better Deal" which includes a significant discussion of antitrust and competition policy themes.
There is central emphasis on the importance of competition policy, particularly a focus on concentration and in mergers.
The three parts of A Better Deal are:
- Prevent big mergers that would harm consumers, workers, and competition.
- Require regulators to review mergers after completion to ensure they continue to promote competition.
- Create a 21st century ‘Trust Buster’ to stop abusive corporate conduct and the exploitation of market power where it already exists.
Some of the themes are tied to things that our current antitrust institutions do well and may be critiques of specific deals. Other parts embrace an antitrust populism that has not existed since the 1960s and would require a new institutional structure. It is this part of the agenda of significant change that turns its back on both Clinton and Obama antitrust. Looking at issues such as employment in antitrust review is a real shift away from antitrust as a technocratic area to one that focuses more on antitrust populism. Back in 2012 when Jack Kirkwood, Bob Lande and Barak Orbach organized a Goals of Antitrust conference at GW that appeared in the Fordham Law Review, I thought that the goals of antitrust were more or less settled (contentious at the margins but really only at the margins) with antitrust populism more or less pronounced dead. Only a few years later antitrust populism is growing, particularly by those outside of the field. Within the field there are both law professors (e.g., Tim Wu) and economics professors (e.g., Fiona Scott Morton) pushing for the need for greater antitrust populism, although this view is not mainstream. When I think of the many capable Democratic antitrust enforcers at both agencies - Bob Pitofsky, Joel Klein, Christine Varney, Sharis Pozen, Bill Baer, Renata Hesse, Edith Ramirez among agency heads (to offer a non-exhaustive list and if I omitted you or your friend it was inadvertent) and many highly capable economists such as Carl Shapiro, Joe Farrell, Rich Gilbert, Ginger Gin, Francine Lafontaine, Howard Shelanski, Dan Rubinfeld, Jon Baker (again, if I didn't list you or your friends among economists, this list is not exhaustive - give me a break, it is 6:54am and I am rushing to post this while the kids eat breakfast) this antitrust populism suggests an indictment of their record. I think that overall, antitrust has made the life of American consumers better for the past 30 years.
Why the pushback against economic analysis now? How much of this is due to antitrust specific causes and how much to a broader distrust of markets post Great Recession I do not know. Our economic tools and analytical abilities are better now than in 1975. For me 1975 is a defining moment because it is when Mike Scherer explained before Congress that the then enforcement of the populist Robinson Patman statute hurt consumers (Recent Efforts to Amend or Repeal the Robinson-Patman Act—Part 2: Hearings Before
the Ad Hoc Subcomm. on Antitrust, the Robinson-Patman Act, and Related Matters of the H. Comm. on Small Bus., 94th Cong. 141 (1975) statement of Frederic M. Scherer, Director, Bureau of Economics, FTC). In 1977, DOJ Antitrust released its own report on Robinson Partman, describing the Act “protectionist” with a “deleterious impact on competition.”
What has been a consensus across political parties for decades in antitrust to protect consumers and promote innovation is now being fundamentally questioned.
Michael A. Carrier, Rutgers Law School and Carl J. Minniti III, Rutgers University, identify Biologics: The New Antitrust Frontier.
ABSTRACT: The pharmaceutical industry lies at the intersection of patent law, antitrust law, federal and state regulations, and complex markets. For the past several decades, courts and commentators have analyzed issues presented by brand-name and generic drug companies in the “small molecule” setting. But just as they have begun to comprehend the multiple moving parts, a new frontier has arisen involving large molecules known as “biologics.”
Biologics differ from small-molecule drugs along multiple axes. They are more expensive, costing hundreds of millions of dollars to develop. They cannot be precisely replicated, followed by “biosimilars” rather than generics. They are governed not by the Hatch-Waxman Act but by the Biologics Price Competition and Innovation Act. And they present a blank slate on which issues of innovation and competition will be hammered out in the decades to come. Given that biologics promise revolutionary advances like treatments for previously incurable diseases and cancer regimens offering substantial benefits over chemotherapy, the stakes could not be higher.
The small-molecule setting has been replete with collusive behavior such as “reverse payment” agreements by which brands and generics settle patent litigation and unilateral conduct by which brands modify their drugs to block generics, file frivolous government petitions, manipulate the regulatory regime, and deny materials generics need to enter the market. How likely are these (or other) forms of conduct to appear in the biologics industry? And if these behaviors occur, how should antitrust law respond? This Article addresses these questions, offering an antitrust framework for the conduct most likely to arise. In particular, it concludes that in the biologics setting, “citizen petitions,” the disparagement of biosimilars, and collusion between biologics and biosimilars will be more frequent and that “product hopping” and reverse-payment settlements will be less typical. The Article also recommends antitrust analysis similar to what courts have applied in the small-molecule setting and modestly more deferential for citizen petitions.
Antitrust finds itself at a unique and crucial moment: poised at the precipice of a new industry but able to draw on decades of case law in an analogous setting that has addressed issues of competition and innovation. It is far from obvious how much courts can—or should—take from that setting. This Article assists in this task by determining which antitrust principles and doctrines should be exported to the biologics setting while appreciating the differences that counsel against such extrapolation. Given the importance of life-saving cancer treatments and an impending $400 billion market, there is no time to waste.
Monday, July 24, 2017
Private Equity Companies and Parental Liability—Appeal Court Hands Down Judgement in the Dutch Flour Cartel
Pieter van Osch describes Private Equity Companies and Parental Liability—Appeal Court Hands Down Judgement in the Dutch Flour Cartel.
ABSTRACT: In an appeal against the first ever cartel fine imposed by the Autoriteit Consument & Markt (Authority for Consumers and Markets, ‘ACM’) on a private equity investor, the Rotterdam district court had to decide on the question whether the concept of parental liability applies to these firms without restriction. Applying the case law developed by the EU courts and upon a concrete review of the economic, organisational, and legal links between the parties, the court upheld the ACM’s decision confirming that the concept of parental liability does not except private equity investors.
Andreas Stephan, UEA Law School & Centre for Competition Policy offers An empirical evaluation of the normative justifications for cartel criminalization.
ABSTRACT: A growing number of jurisdictions treat ‘hardcore’ cartel conduct as crime, in the belief that the threat of incarceration is necessary for deterrence. The significant economic harm caused by cartels is generally undisputed, but there is disagreement over whether cartel conduct is morally offensive enough to justify criminalisation. Critics argue that it is another example of ‘over-criminalisation’, seeking to regulate an activity that is morally ambiguous. Those in favour have sought to formulate normative justifications for why cartel conduct should be crime. Many of these rely on the assumption that members of society expect markets to be competitive and believe cartels are undesirable. This paper makes a significant contribution by testing this question empirically. Public surveys from the UK, Germany, Italy and the US are used to critically analyse the extent to which normative justifications for cartel conduct have empirical backing.
Albert Sanchez-Graells asks Ski Taxi: Joint Bidding in Procurement as Price-Fixing?
ABSTRACT: Since joint bidding in public procurement procedures involves price-fixing between the members of the bidding consortium, the assessment of whether it reveals a sufficient degree of harm to competition only requires limited consideration of its economic and legal context, which may be restricted to what is strictly necessary to establish the existence of a restriction of competition by object.
Evonik Degussa v Commission: Hearing Officer’s Review of Confidentiality Claims on Leniency Information in Public Versions of European Commission Cartel Decision
Christian von Köckritz has written on Evonik Degussa v Commission: Hearing Officer’s Review of Confidentiality Claims on Leniency Information in Public Versions of European Commission Cartel Decision.
ABSTRACT: When deciding on the disclosure or publication of leniency information in public versions of Commission decisions, the hearing officer is obliged to examine any ground based on rules of EU law raised by the company concerned in order to justify the confidentiality of the contested information. Public versions of Commission decisions may not contain quotes from corporate statements of leniency applicants; however, they may contain quotes from other documents submitted in support of a leniency application subject to compliance with professional secrecy and the protection owed to business secrets and other confidential information.
Friday, July 21, 2017
Giuseppe Colangelo, LUISS Guido Carli, Department of Business and Management; University of Basilicata, Department of Mathematics, Computer Science and Economics and Mariateresa Maggiolino, Bocconi University - Department of Legal Studies; Ask Research Center have written on Big Data as a Misleading Facility.
ABSTRACT: Currently, many technologies translate both empirical phenomena and human interactions into digital data. Accordingly, when processed and analysed, these data become sources of pieces of information, correlations, predictions and meanings that would otherwise remain hidden inside facts and human behaviours. Firms may use this “disclosed knowledge” for business purposes; that is, to guess not only rivals’ strategies but also consumers’ actual and potential wants and needs. Therefore, there is room to argue that, for bringing about better products and services, such “disclosed knowledge” is a competitive advantage. Yet, does this conclusion entail that the data revealing this “disclosed knowledge” essential facilities?
We do not believe so. The logic gap between business-friendly knowledge and essential data is huge, even if the data under scrutiny are not among the many and varied ones that firms may collect, and even if some consider these data as barriers to entry that shelter the market power of some firms. In other words, we maintain that characterising big data resulting in business-friendly knowledge as an essential facility is misleading. Such a characterization misses an intermediate step: that concerning the information extracted from big data. In addition, to argue against the idea that big data could be essential facilities, we consider the many drawbacks that the connected duty to share could produce.
From the press release:
UvA economists crack Libor and Euribor scandals as cartels
Researchers from the University of Amsterdam (UvA) and the German Institute for Economic Research (DIW Berlin) have cracked the manipulation scandals surrounding the Libor and Euribor interest rates as potential cases of collusion. Against the prevailing view that this would be impossible, they show that entire subsets of the major commercial banks could have been involved in these unlawful cartels. The researchers conclude that the benchmark interest rates remain vulnerable to cartel mechanisms, even after the implementation of recent and proposed reforms.
Libor and Euribor are important interest rates between banks. In 2008, the Libor and Euribor scandals came to light in which prominent banks were identified as having had manipulated the benchmark inter-bank borrowing rate. Since then, common perception has been that the Libor and Euribor scandals simply involved rogue traders from some of the specified banks who fraudulently manipulated the rates for personal gain, possibly even to the detriment of their own employers. Massive collusion would be too complex to pull off. The US and European authorities indeed treated the cases as fraudulent misreporting in breach of the banking code of conduct and client confidentiality. Only the European Commission prosecuted several panel banks for collusion under the competition rules, Article 101 TFEU.
To date, it is still not known how the cartel operated. Meanwhile, private litigation for cartel damages is progressing slowly, partly because of conceptual questions in the US on whether the Libor and Euribor manipulations could legally be considered under American antitrust law.
Tenacity of benchmark rates cartel
In a new working paper, Nuria Boot (DIW Berlin), Timo Klein (UvA) and Maarten Pieter Schinkel (UvA) show how a continuous benchmark rates cartel could be sustained by pre-emptive portfolio changes using inside information, which would allow the contributing banks to prevent conflicting interests from their trade book positions varying too much. The designated banks can then manipulate certain specific transactions in order to produce the collusive interest rates. Because the cartel is not always able to maintain a stable partnership on account of fluctuating portfolio interests, the members sometimes revert temporarily to non-cooperative behaviour whereby banks (to a certain degree) honestly submit their interest rates.
The researchers’ analysis reveals that even after implementation of the proposed reforms of the Libor and Euribor benchmark rate setting processes, which are planned to take effect in the course of 2017, the rates remain vulnerable to collusive manipulation. Periods of heightened volatility in the benchmark rates can be a sign of collusion. ‘This gives us a firm basis for developing new statistical tests with which to detect collusive manipulation’, says Maarten Pieter Schinkel, professor of Economics at the UvA. ‘These methods could in future be used by central banks and other market authorities, or even potential victims (see figure below). Our paper also offers insight into the type and extent of the damages that may have been caused by this kind of cartel.’
Mechanisms also apply to other markets
The cartel mechanisms apply to more recent findings of coordinated manipulation in Foreign Exchange (FX) rates too, as well as to other benchmarks that have recently been subject to allegations of misconduct, including gold, energy and commodities markets.
Boot, Nuria, Klein, Timo en Schinkel, Maarten Pieter, ‘Collusive Benchmark Rates Fixing’, Amsterdam Center for Law & Economics Working Paper No. 2017-02, June 27, 2017.
Barak D. Richman, Duke University - School of Law, Will Mitchell, Duke University - Fuqua School of Business; University of Toronto - Rotman School of Management, Elena Vidal, Baruch College - City University of New York, and Kevin A. Schulman, Duke University Medical Center advocate Pharmaceutical M&A Activity: Effects on Prices, Innovation, and Competition.
ABSTRACT: The rise of blockbuster pharmaceutical acquisitions has prompted fears that unprecedented market concentration will weaken competition. Two of the most prominent concerns focus on the upstream and downstream ends of the pharmaceutical industry: (1) the concern that these mergers will concentrate the market for discovery and will therefore lead to fewer discoveries; and (2) the concern that merging large marketing, sales, and distribution forces will strengthen the hands of select pharmaceutical manufacturers and weaken downstream competition. Having considered potential dynamic effects in the industry and conducted a series of preliminary interviews with knowledgeable observers, though, this Article argues that neither of these common fears is systematically warranted. There are, however, potential dangers in market concentration at an intermediate stage during the discovery-to-development path: the stage for regulatory approval. These preliminary findings are a product of dramatic changes that are currently reshaping the structure of the pharmaceutical industry. This Article discusses how these structural changes contribute to the current merger wave, how dynamic responses by industry players in response to the merger wave mitigate the potential harm from competition, and how the political arena might still offer threats to market concentration.
Katharine Kemp, University of New South Wales (UNSW) - Faculty of Law asks 'The Big Chill'? A Comparative Analysis of Effects-Based Tests for Misuse of Market Power.
ABSTRACT: In November 2016, the Australian government recently made the controversial announcement that it plans to amend the prohibition of misuse of market power in section 46(1) of the Competition and Consumer Act 2010 (Cth) (‘CCA’) to incorporate an effects-based test, the ‘substantial lessening of competition’ test, in line with the recommendations of the Competition Policy Review Panel. This proposal has met with vigorous opposition, particularly by those who argue that the amendment would in fact deter firms with substantial market power from engaging in conduct which is procompetitive and in the interests of consumers: that is, it would ‘chill’ competition. This article provides vital context for this debate by explaining the origins of these arguments and making a comparative analysis of the proposed amendment to section 46(1) of the CCA against several effects-based tests for unilateral anti-competitive conduct proposed or adopted in other jurisdictions. It concludes that, while claims regarding the ‘chilling’ effects of the proposed amendment have been overstated, there are more subtle weaknesses in the proposal which may create disincentive effects for dominant firms.
Thursday, July 20, 2017
Timothy J. Layton, Harvard Medical School - Department of Health Care Policy, Ellen Montz, Harvard Medical School - Department of Health Care Policy, and Mark Shepard, Harvard University - Harvard Kennedy School (HKS) investigate Health Plan Payment in U.S. Marketplaces: Regulated Competition with a Weak Mandate.
ABSTRACT: The Affordable Care Act Marketplaces were introduced in 2014 as part of a reform of the U.S. individual health insurance market. While the individual market represents a small slice of the U.S. population, it has historically been the market segment with the lowest rates of take-up and greatest concerns about access to robust coverage. As part of the reform of the individual insurance market, the Marketplaces invoke many of the principles of regulated competition including (partial) community rating of premiums, mandated benefits, and risk adjustment transfers. While the Marketplaces initially appeared to be successful at increasing coverage and limiting premium growth, more recent outcomes have been less favorable and the stability of the Marketplaces is currently in question. In this paper, we lay out in detail how the Marketplaces adopt the tools of regulated competition. We then discuss ways in which the Marketplace model deviates from the more conventional model and how those deviations may impact the eventual success or failure of these new markets.
Michael Kopel, University of Graz, Clemens Löffler, Vienna University of Economics and Business, and Thomas Pfeiffer, University of Vienna - Accounting and Control offer Complementary Monopolies and Multi-Product Firms.
ABSTRACT: According to the classical result on complementary monopolies, a single-product firm unambiguously prefers purchasing complementary inputs from an integrated monopolistic supplier rather than from different non-integrated monopolistic suppliers. In this note, we account for the fact that firms often manufacture multiple products and show that the classical result on complementary monopolies can be reversed in such a case. Purchasing complementary inputs from non-integrated suppliers can be optimal for multi-product firms.
Marc Ivaldi, Toulouse School of Economics; Centre for Economic Policy Research (CEPR) and Jiekai Zhang, CREST-ENSAI study Advertising Competition in the Free-to-Air TV Broadcasting Industry.
ABSTRACT: This paper empirically investigates the advertising competition in the French broadcast television industry within a two-sided market framework. We use a unique dataset on the French broadcast television market including audience, prices, and quantities of advertising of twenty-one TV channels from March 2008 to December 2013. We specify a structural model of oligopoly competition and identify the shape and magnitude of the feedback loop between TV viewers and advertisers. We also implement a simple procedure to identify the conduct of firms on the market. We find that the nature of competition in the French TV advertising market is of the Cournot type. Further, we provide empirical evidence that the price-cost margin is not a good indicator of the market power of firms operating on two-sided markets. Finally, we provide a competition analysis. The counterfactual simulation suggests that the merger of advertising sales houses would not have significantly affected the equilibrium outcomes in this industry because of the strong network externalities between TV viewers and advertisers. These results provide a critical evaluation of the 2010 decision of the French competition authority to authorize the acquisition of two broadcast TV channels by a large media group under behavioral remedies.
Wednesday, July 19, 2017
Bruce Lyons, David Reader, and Andreas Stephan comment on UK competition policy post-Brexit: taking back control while resisting siren calls.
ABSTRACT: A notable effect of ‘Brexit’ is that it will create new freedoms for the UK to shape its competition policy outside the EU, but these freedoms come at a cost and could prove damaging to competitive markets. In merger control, the UK will be free to employ more frequent public interest interventions (especially for foreign acquisitions), but these could be misused and create uncertainty. In State aid, there will be pressure for greater protection of UK industries through State interventions, but such freedom will constrain, and be constrained by, the UK’s new trade arrangements and could prove wasteful. In antitrust, the UK will be free to set its own path, for example by fully criminalizing its cartel enforcement regime, but cooperation with other EU competition agencies will dwindle. The UK also faces difficulties in continuing to benefit from the significant level of fines currently imposed by the European Commission on its behalf. The article concludes that any immediate changes to policy should be avoided and that it may even be necessary to legislate to limit the exercise of some new freedoms. We also note how, for current EU/UK levels of enforcement to be maintained, the Competition and Markets Authority’s resource requirement may have to be doubled.
Suhail Nathani and Pınar Akman discuss The interplay between consumer protection and competition law in India.
ABSTRACT: The protection of the interests of consumers is a central aspect of all modern competition laws as well as a direct aim of consumer protection laws. However, despite being complementary in many ways, competition and consumer protection laws cover different issues and employ different methods to achieve their goals. While consumer protection rules are built upon the premise that consumers are the weaker party to transactions and should be directly protected for this reason in their dealings with traders through certain consumer rights, competition law only indirectly protects the consumers’ economic well-being by ensuring that the markets are subject to effective competition. This article explores the interplay between consumer protection and competition law in the Indian context with some comparison with the EU position, where relevant. After an examination of the relevant legislation and case law, the article finds that given that the mandate of the Competition Commission of India is to prevent practices having an adverse effect on competition, in cases of overlap between consumer protection and competition laws, the Authority should act only on the basis of adverse effects on competition. The treatment of ‘unfair trade practices’ is used to demonstrate the appropriateness of this approach.
Tuesday, July 18, 2017
Testing Justification for Segment Based Relevant Product Market Definition in Merger Control: Evidence From Turkey
Gönenç Gürkaynak and Ekrem Kalkan are Testing Justification for Segment Based Relevant Product Market Definition in Merger Control: Evidence From Turkey.
ABSTRACT: In this paper, we aim to investigate whether different segments of beer products can constitute a separate relevant product market within the framework of competition law. This question gained importance when the merger between Anheuser-Busch InBev and SABMiller became subject to a Phase II investigation by the Turkish Competition Authority in March 2016, which ultimately ended with an unconditional clearance decision, based on an intact “beer” market, recognizing that the relevant product market regarding beer brands in Turkey must be wider than the premium segment. To answer the research question above concerning relevant product market definition, we implement a Hypothetical Monopolist Test in two steps. In the first step, the aggregate price elasticity of demand for the premium segment is estimated econometrically by using a nested logit demand model. This model tests whether products in the same group are closer substitutes than products in different groups. We conclude that the correlation of beers within the same group is not statistically significant. Since the data in our study are obtained at the retail level, the price elasticity of demand at the brewer level is derived from the estimate at the retailer level by using very conservative assumptions with regard to the pass-through rates. In the second step, the hypothetical monopolist test is implemented by using the critical elasticity which is calculated by using the profit margins for the premium beer segment at brewer/supplier level under both 5 percent and 10 percent SSNIP. It is seen that the actual elasticity of demand for the premium segment is larger than the critical elasticity (in absolute value) under both scenarios. These findings show that the relevant product market regarding beer brands in Turkey must be wider than the premium segment.
Whither evidence (Act) based reasoning?: towards an effects-based approach in Indian competition jurisprudence
Rahul Singh, National Law University Bangalore asks Whither evidence (Act) based reasoning?: towards an effects-based approach in Indian competition jurisprudence.
ABSTRACT: India has a nascent competition enactment. But it has an old evidence law—the Indian Evidence Act—of 1872 vintage. The competition commission has shown scepticism towards the applicability of the evidence law to competition proceedings. This article argues that such scepticism is mistaken. Based upon an intrinsic reasoning (ie arguments from the autonomous discipline of law) and two ‘instrumental’ reasonings (ie arguments emphasizing the consequences of the counterfactual), this article underscores that the competition commission ought to develop fidelity towards the Indian Evidence Act. Such fidelity (rather than scepticism) would move the needle of competition jurisprudence towards an effects-based approach in decision-making.
Victor Aguirregabiria, University of Toronto - Department of Economics and Margaret Slade, University of British Columbia (UBC) offer Empirical Models of Firms and Industries.
ABSTRACT: We review important developments in Empirical Industrial Organization (IO) over the last three decades. The paper is organized around six topics: collusion, demand, productivity, industry dynamics, inter-firm contracts, and auctions. We present models that are workhorses in empirical IO, and describe applications. For each topic, we discuss at least one empirical application using Canadian data.
What Can the FTC's Section 6(b) PAE Study Teach Us? A Practical Review of the Study's Methodology, Results, and Policy Recommendations
ABSTRACT: On October 6, 2016, the Federal Trade Commission (FTC) released its survey of patent assertion entities (PAEs) and certain licensing and manufacturing firms. The study, conducted under authority of Section 6(b) of the FTC Act, aimed to move past the limited information that can be gleaned from litigation records—an important goal given that over 90 percent of patent enforcement activity occurs outside the courtroom. By compiling and publishing nonpublic data on licensing agreements and patent acquisition practices from 2009 through 2013, the study provides new insight into how certain PAEs operate. The empirical approach the FTC took, however, does impose constraints on the study's reported results. And importantly, the report presents case studies that cannot be generalized, calling into question the policy recommendations that would apply to all patent infringement suits. This article summarizes the key findings reported by the FTC and explains how the study's methodology limits its conclusions and is disconnected from its policy recommendations. The study provides interesting case studies of certain PAE practices, particularly in terms of litigation. In regards to licensing practices, the study's design restricts its ability to provide definitive information, but does offer some intriguing hints at different types of PAEs and should inspire additional empirical research. The study results, however, do not provide empirical support for the stated policy proposals, and moreover the proposals would impact more than PAEs.
Save the Date and Call for Submissions: 5th Biennial NYU School of Law/American Bar Association, Section of Antitrust Law Next Generation of Antitrust Scholars Conference, January 26, 2018
January 26, 2018
NYU School of Law
This is a call for papers the 5th Biennial NYU School of Law/American Bar Association, Section of Antitrust Law Next Generation of Antitrust Scholars Conference. The purpose of this day-long conference is to provide an opportunity for antitrust/competition law professors who began their full time professorial tenure track career in or after 2010 to present their latest research. Senior antitrust scholars and practitioners in the field will comment on the papers (due September 15, 2017). We have lively discussion and we encourage audience participation. Please submit papers to [email protected].
Participants pay their own way but we provide free breakfast, coffee and lunch.
Ned Cavanagh, St. John's
Harry First, NYU
D. Daniel Sokol, University of Florida