Antitrust & Competition Policy Blog

Antitrust in Life Sciences - 23 March 2020, New York

Concurrences is pleased to invite you to the inaugural Antitrust in Life Sciences conference on 23 March 2020 at Fordham Law School. This event brings together leading practitioners of antitrust in the life sciences field, including federal and state enforcers, in-house counsel, lawyers, economists, and academics. See below the full Program and Register for free. PROGRAM WELCOME REMARKS James KEYTE Director Fordham Competition Law Institute, New York OPENING KEYNOTE DISCUSSION: US/EU, A TRANSATLANTIC GAP? Noah Joshua PHILLIPS Commissioner US Federal Trade Commission, Washington DC Discussant: Lisa CAMERON Principal The Brattle Group, Boston Paul CSISZÁR Director, Antitrust Unit Pharma and Health services European Commission - DG COMP, Brussels PANEL 1: GENERICS EXCLUSION: WHAT CONDUCT CROSSES THE LINES? - PRODUCT HOPING, PATENT SETTLEMENT, CLASS CERTIFICATION... Elinor HOFFMANN Deputy Chief, Antitrust Bureau Office of the NY State Attorney General, New York Eric STOCK Partner Gibson Dunn, New York Jeffrey BANK Partner Wilson Sonsini Goodrich & Rosati, Washington DC Mark GIDLEY* Partner White & Case, Washington DC George GORDON* Partner, Dechert, Philadelphia Christine SIEGWARTH MEYER Managing Director NERA Economic Consulting, White Plains Moderator: Martin GAYNOR Professor of Economics & Health Policy Carnegie Mellon University, Pittsburgh PANEL 2: DO PHARMACEUTICAL MERGERS HARM CONSUMERS? Max MILLER Assistant Attorney General, Antitrust Office of the Iowa State Attorney General, Des Moines Marc BROTMAN VP & Assistant General Counsel, Chief Antitrust Counsel Pfizer, New York Patricia DANZON Professor of Healthcare Management The Wharton School, University of Pennsylvania, Philadelphia George ROZANSKI Partner Bates White, Washington, DC Moderator: Robert WILLIG Professor of Economics and Public Affairs Princeton University PANEL 3: THE COUNSEL’S PERSPECTIVE: HOW TO ENSURE ANTITRUST COMPLIANCE? Ryan FOLEY Sr. Corporate Counsel, Antitrust Americas Novartis, New York Brian SAVAGE General Counsel, US Generics Teva Pharmaceuticals, Parsippany Anne PAPIN DI POMPEO* Vice President Government Affairs EU Merck, Brussels Florence “Flo” DI BENEDETTO* Senior Vice President and General Counsel Sutter Health, San Francisco Moderator: Paul GREENBERG* Managing Principal Analysis Group, Boston CLOSING KEYNOTE DISCUSSION Gail LEVINE Deputy Director, Bureau of Competition US Federal Trade Commission, Washington, DC Scott HEMPHILL Professor of Law New York University School of Law, New York *To Be Confirmed. FREE REGISTRATION

Submit now to the NYSBA Section of Antitrust Law Annual Law Student Writing Competition 2019-2020 $5,000 cash prize for the winning paper

Antitrust Law Students:

Submit now to the NYSBA Section of Antitrust Law

Annual Law Student Writing Competition

2019-2020

$5,000 cash prize for the winning paper

How to Enter:

 

1.)   Eligible papers must be written by a currently- enrolled or graduating student at a New York State Law School or by a New York State resident at any ABA-accredited law school outside of New York State.

2.)   Eligible  papers include notes, comments and articles and should generally be 20-30 pages in length, with footnotes. In no event may papers exceed 50 pages, with footnotes.

3.)   Eligible  papers may address any topic of general interest to the antitrust law community, including topics relating to civil and criminal antitrust law, competition policy, consumer protection and international competition law.

4.)  Jointly prepared papers are  not eligible.

 

5.)  Go to the Antitrust Section on the NYSBA website and click on the "Young Lawyers and Law Students" section and download an Entry Form. Submit an electronic copy of the paper, along with a completed Entry Form, by April 30, 2020 to:

Professor Edward D. Cavanagh

St. John’s University School of Law

8000 Utopia Parkway Queens, NY  11439 [email protected]

Winners and Awards:   

The winner will be announced in July 2020. The first place winner will receive a check for $5,000.

If you have questions, contact Prof. Edward D. Cavanagh at 718 990-6621 or at [email protected]

 

Applying Economics to the Internet: Can Regulators and Competition Authorities Keep Pace?

Oliver Bethell, Google, and Alexander Waksman, Cleary Gottlieb Steen & Hamilton LLP ask Applying Economics to the Internet: Can Regulators and Competition Authorities Keep Pace?

ABSTRACT: This article is based on the text of a speech delivered by Oliver Bethell on 13 November 2019 at the Econolex Beesley lecture series, held in partnership with the Institute of Economic Affairs and the Centre for Competition and Regulatory Policy at City, University of London.

Excessive Pricing

Robert O'Donoghue, Brick Court Chambers and Jorge Padilla, Compass Lexecon address Excessive Pricing.

ABSTRACT: Issues of “unfair” or excessive pricing traverse a number of potential abuses under Article 102 TFEU. Many refusal to deal cases involve situations in which a dominant firm insists on access terms that are uneconomic. Margin squeeze cases can also involve a wholesale price that is excessive in relation to the retail price. Tying and bundling allegations may also involve issues of excessive pricing. Price discrimination abuses, by which a dominant firm applies dissimilar conditions to equivalent transactions, may also raise excessive pricing concerns for the party paying the higher price. The concern regarding excessive prices under Article 102(a) is, however, narrower in scope. A firm with market power violates Article 102(a) if it “directly or indirectly” imposes “unfair purchase or selling prices or other unfair trading conditions.” Such practices are regarded as an “exploitative” abuse, since they result in a direct loss of consumer welfare. In economic terms, the dominant firm takes advantage of its market power to “extract” rents from customers that could not have been obtained by a non-dominant firm.

Cartel Damages Actions in German Courts: What the Statistics Tell Us

Lukas Rengier discusses Cartel Damages Actions in German Courts: What the Statistics Tell Us.

Price Pressure Indices, Innovation, and Mergers Between Commonly Owned Firms

Roman Inderst and Stefan Thomas identify Price Pressure Indices, Innovation, and Mergers Between Commonly Owned Firms.

 

Public Goods Provision by a Private Cartel

Maarten Pieter Schinkel, University of Amsterdam - Department of Economics; Tinbergen Institute and Lukáš Tóth, University of Amsterdam - Amsterdam Center for Law & Economics (ACLE) address Public Goods Provision by a Private Cartel.

ABSTRACT: To stimulate companies to take corporate social responsibility collectively, for example for fair trade or the environment, their agreements may be exempted from cartel law. To qualify, the public interest must be advanced enough to compensate consumers for anticompetitive price effects. We study the balancing involved in assessing a public interest-cartel. The required compensating public good level decreases in each consumer's willingness to pay, which is contrary to the Samuelson condition. The cartel will provide minimal public good for maximal overcharges. Nevertheless it is typically not sustainable, since those consumers that are damaged most by the cartel price increase, by self-selection also have the lowest appreciation for the public good. The information necessary to tell the rare genuine public interest-defense from cartel greenwashing allows government to provide first-best.

Competitive Imperfect Price Discrimination and Market Power"

PAUL BELLEFLAMME, CORE and Louvain School of Management, UCL (Université Catholique de Louvain), CESifo (Center for Economic Studies and Ifo Institute), WING MAN WYNNE LAM, University of East Anglia (UEA) - Norwich Business School, and WOUTER VERGOTE, Facultés Universitaires Saint Louis à Bruxelles - CEREC, Catholic University of Louvain (UCL) - Center for Operations Research and Econometrics (CORE), study Competitive Imperfect Price Discrimination and Market Power.

Two duopolists compete in price on the market for a homogeneous product. They can 'profile' consumers, i.e., identify their valuations with some probability. If both firms can profile consumers but with different abilities, then they achieve positive expected profits at equilibrium. This provides a rationale for firms to (partially and unequally) share data about consumers, or for data brokers to sell different customer analytics to competing firms. Consumers prefer that both firms profile exactly the same set of consumers, or that only one firm profiles consumers, as this entails marginal cost pricing (so does a policy requiring list prices to be public). Otherwise, more protective privacy regulations have ambiguous effects on consumer surplus.

The Application of Article 102 TFEU by the European Commission and the European Courts

Romano Subiotto QC, David R Little, Romi Lepetska discuss The Application of Article 102 TFEU by the European Commission and the European Courts.

ABSTRACT:

• 2018 was a particularly active enforcement year in which the Commission adopted six decisions.

• In its most high-profile Article 102 TFEU decision of the year, Google Android, the Commission imposed a €4.34 billion fine—the highest fine to date on a single undertaking—finding that Google committed an abuse by imposing anticompetitive restrictions on Android device manufacturers and mobile network operators.

• In Servier, the GC clarified relevant factors for market definition, annulling the Commission’s entire dominance assessment and revoking the €41.27 million fine separately imposed for the Article 102 TFEU infringement.

INDUSTRY IMPACT OF CARTELS: EVIDENCE FROM THE STOCK MARKET

Iwan Bos, Wilko Letterie, Nina Scherl identify the INDUSTRY IMPACT OF CARTELS: EVIDENCE FROM THE STOCK MARKET.

ABSTRACT: This paper conducts an event study analysis to empirically assess the industry-wide impact of cartels. Using a sample of recent European cartel cases, we estimate the effect of the surprise inspection and final decision on the stock market value of cartel and noncartel firms. The overall effect of both events is negative for cartel members and statistically insignificant for noncartel members. However, the impact of the inspection is significantly negative for European noncartel suppliers and for noncartel suppliers in nonchemicals industries. This is consistent with the theory that cartels can create additional damages through positively affecting the performance of their competitors.

 

First Principles for Antitrust Review of Long-Consummated Mergers

Timothy J. Muris, George Mason University, Antonin Scalia Law School and Jonathan E. Nuechterlein, Sidley Austin LLP describe First Principles for Antitrust Review of Long-Consummated Mergers.

ABSTRACT: Antitrust populists increasingly call on the government to “break up big tech.” But antitrust enforcers would face heavy evidentiary burdens if they sought to break a company up on the premise that a long-consummated merger was unlawful from the outset and should have been blocked years ago. Specifically, they would have to prove (1) that the but-for world would likely be more competitive than the actual world; (2) that their basis for unwinding the merger was sufficiently foreseeable at the time of consummation that the merger could have been challenged then: and (3) that the prospective benefits of unwinding the merger outweigh the prospective harms, including the costs and inefficiencies that often arise from such de-integration.

The combination of these burdens would be difficult for antitrust authorities to meet, and for good reason. It should be hard for the government to unwind any merger that it reviewed before consummation (or shortly thereafter) and elected not to challenge then. Mergers present a complex mix of potential costs and benefits. The antitrust laws empower enforcement authorities to review those costs and benefits promptly and give them appropriate incentives to bring any enforcement action without delay, often before consummation. Those incentives would be weakened if antitrust enforcers could lie in wait while mergers are consummated in hopes of securing more favorable litigation burdens years later.

GCR Global 100 Law Firms is Out (20th Edition)

The rankings are out.  See here.

 

The top firms globally have changed since last year.  Upward moves from last year are in bold. To put this in long term perspective, I also include the 2010 rankings. 

 

2020 Ranking	2019 Ranking	2010 Raking
Cleary Gottlieb Steen & Hamilton Freshfields Bruckhaus Deringer Allen & Overy Linklaters Gibson Dunn & Crutcher White & Case Baker McKenzie Latham & Watkins Norton Rose Fulbright Baker Botts Jones Day Wilson Sonsini Goodrich & Rosati Ashurst Herbert Smith Freehills Arnold & Porter Covington & Burling Wilmer Cutler Pickering Hale and Dorr Dentons Dechert Mayer Brown Shearman & Sterling Slaughter and May Sullivan & Cromwell O'Melveny & Myers	Freshfields Bruckhaus Deringer Cleary Gottlieb Steen & Hamilton Allen & Overy Hogan Lovells Baker McKenzie Linklaters Jones Day Latham & Watkins White & Case Clifford Chance Norton Rose Fulbright Gibson Dunn & Crutcher Ashurst Baker Botts Wilson Sonsini Goodrich & Rosati Arnold & Porter Wilmer Cutler Pickering Hale and Dorr Dentons Herbert Smith Freehills Covington & Burling Dechert Shearman & Sterling Mayer Brown McDermott Will & Emery Slaughter and May	Freshfields Bruckhaus Deringer LLP Cleary Gottlieb Steen & Hamilton LLP Howrey LLP Linklaters LLP Wilmer Cutler Pickering Hale & Dorr LLP Arnold & Porter LLP Jones Day Clifford Chance LLP Latham & Watkins LLP Allen & Overy LLP Gibson Dunn & Crutcher LLP Skadden Arps Slate Meagher & Flom LLP Slaughter and May Baker & McKenzie Weil Gotshal & Manges LLP White & Case LLP Herbert Smith LLP Lovells LLP Kirkland & Ellis LLP Simpson Thacher & Bartlett LLP

Section 2 Mangled: FTC v Qualcomm on the Duty to Deal, Price Squeezes, and Exclusive Dealing

Lindsey M Edwards, Douglas H Ginsburg, and Joshua D Wright describe Section 2 Mangled: FTC v Qualcomm on the Duty to Deal, Price Squeezes, and Exclusive Dealing.

ABSTRACT: Judge Koh handed down a sweeping opinion in May 2019 condemning as antitrust violations many of Qualcomm’s licensing practices related to its patented chips and standard-essential technology used in mobile devices. The district court opinion significantly expands the scope of liability for refusals to deal and for non-predatory pricing, further eroding the longstanding symmetrical approach to antitrust enforcement regardless of the kind of property involved. We find three glaring errors in the district court opinion. First, the court expands the exception to the general rule permitting refusals to deal, as laid out in Aspen Skiing, well beyond the outer boundary of Section 2 by inappropriately inferring a prior course of dealing and erroneously finding a willingness to sacrifice profits. Secondly, the district court accepted a price squeeze theory—characterized by the FTC as a ‘tax’ on OEMs transacting with Qualcomm’s rivals—directly contrary to the Supreme Court’s holding in linkLine. Thirdly, the court erroneously concluded that Qualcomm’s exclusive dealing arrangements with Apple violate the Sherman Act, despite a glaring failure by the FTC to prove substantial foreclosure, contrary to modern antitrust precedent and economic theory. The district court’s inappropriate extension of antitrust liability in three separate areas of well-settled antitrust doctrine is remarkable and threatens to upend important precedent that has successfully guided business conduct for many years. Further, the remedy transforms the role of antitrust courts from adjudicators to central planners, a role for which the Trinko Court expressly stated they are ill suited. The decision invites plaintiffs to use the Sherman Act to reach conduct that has been generally shielded from antitrust liability. That invitation is ill advised and should be rejected by the Ninth Circuit, and if necessary, the Supreme Court.

 

Competition Law Under Fire: Responding to Competing Demands for Change in the Case of Price Parity Clauses and Loyalty Rebates

Chris Pike, Organization for Economic Co-Operation and Development (OECD) - Competition Division and Gabriele Carovano, Organization for Economic Co-Operation and Development (OECD) - Competition Division study Competition Law Under Fire: Responding to Competing Demands for Change in the Case of Price Parity Clauses and Loyalty Rebates.

ABSTRACT: Competition law is under attack. On the one hand, globalization and the digital revolution have greatly benefited the owners of firms, and particularly the wealthiest 1 percent, while delivering fewer benefits to consumers and workers. This has led to calls for a fundamental rethinking of the principles and purpose of competition law and policy. One area where competition law is particularly under the microscope concerns its ability to ensure that consumers obtain a larger share of the benefits generated by the rise of so-called tech giants and the digital economy. Some commentators have made the case that in order to better protect the interests of consumers and workers a fundamental rethink is not required, but that competition enforcement does need to re-examine the balance of risks that it is prepared to take. Specifically, enforcers should consider accepting a greater risk of inefficiencies and “false positives” (over-enforcement) in order to prioritize the protection of competition and the delivery of fewer “false negatives” (under-enforcement) (n.1).

State Aid Implications of Public Investment in Land Development & Social Housing

Phedon Nicolaides discusses State Aid Implications of Public Investment in Land Development & Social Housing.

Conglomerate Mergers: Developments and a Call for Caution

Eliana Garcés and Daniel Gaynor offer Conglomerate Mergers: Developments and a Call for Caution.

Competition Concerns in Labour Markets

Cristina Volpin, Organization for Economic Co-Operation and Development (OECD); Queen Mary University of London and Chris Pike, Organization for Economic Co-Operation and Development (OECD) - Competition Division address Competition Concerns in Labour Markets.

ABSTRACT: A recent fall in the labour share of income in some countries has stirred a debate on monopsony and the market power of employers to reduce workers’ wages or working conditions below competitive levels. The debate focused attention on the role that competition agencies may have to help ensure efficient labour input markets. This paper sets out the economic drivers and effects of employer monopsony power in labour markets. It analyses when the exercise of monopsony power by employers may infringe competition law and identifies the cases where competition enforcement can effectively address monopsony power in such markets. The paper also looks at how monopsony power is exercised in digital markets, examining how the intermediation power of some big platforms may negatively affect wages and working conditions of self-employed platform workers. The paper finds that, whilst competition law enforcement has been so far limited, it may have an increased role to play in labour input markets, particularly in addressing anticompetitive agreements that artificially creates monopsony power, abuses of monopsony power and merger transactions leading to increased buyer power on the labour demand side. The paper looks at some practical and analytical challenges to the application of the traditional tools of competition enforcement analysis in these markets. It then discusses ways to overcome such challenges and proposed adjustments to these tools suggested in the recent literature, as well as competition advocacy solutions to address monopsony power in these markets.

The Surprising Hybrid Pedigree of Measures of Diversity and Economic Concentration.

Paolo M. Adajar, Ernst R. Berndt, and Rena M. Cont study The Surprising Hybrid Pedigree of Measures of Diversity and Economic Concentration.

Abstract: Measures of economic concentration, such as the k-firm concentration index and the Hirschman-Herfindahl Index (HHI) are commonly used to ascertain the competitiveness of a product market. Within a Cournot model industry equilibrium, it is known a relationship exists between the HHI and the gap between industry price and marginal cost, but the economic theory foundations and intuition underlying the HHI formula are seemingly arbitrary. Here we document that there are indeed powerful and intuitive theoretical foundations to the HHI, but those foundations emanate from outside economics, namely, ecology, where the HHI is known as Simpson’s Diversity Index. We discuss the origins of the HHI and Simpson’s Diversity Index, summarize other measures of concentration, and link them to common measures of inequality. Based on a priori reasoning, we conclude there is little on which to base a choice between the HHI and non-HHI measures of market concentration. We empirically ill! ustrate the implementation of the HHI and other concentration indexes as the statin drug LipitorTM lost patent protection and faced generic competition in 2012; we find very similar empirical trends and high correlations among them. Our research provides support for the continued use of HHI as a measure of concentration, provided one recognizes its link to market power is equivocal.

The Impact of E-Commerce on Relative Prices and Consumer Welfare

Yoon J. Jo, Misaki Matsumura, David E. Weinstein examine The Impact of E-Commerce on Relative Prices and Consumer Welfare.

ABSTRACT: This paper examines the impact of e-commerce on pricing behavior and welfare. Using Japanese data, we find that the entry of e-commerce firms significantly raised the rate of intercity price convergence for goods sold intensively online, but not for other goods. E-commerce also lowered relative inflation rates for goods sold intensively online. We overcome data challenges using long data series and historical catalog sales as an instrument for e-commerce sales intensity. We estimate that reductions in price dispersion raised welfare by 0.3 percent. E-commerce also lowered variety-adjusted prices on average by 0.9 percent, and more in cities with highly educated populations.

Advocacy Versus Enforcement in Antitrust Compliance Programs

Hung-Hao Chang, National Taiwan University and D. Daniel Sokol University of Florida explore Advocacy Versus Enforcement in Antitrust Compliance Programs.

ABSTRACT: We focus on the question of why firms self-regulate to avoid more severe public regulation in the area of
antitrust compliance. We distinguish the effects of an antitrust authority’s outreach and enforcement on firms'
adoption of antitrust compliance programs. Furthermore, we examine the mechanism that may drive an antitrust
authority’s actions on firms' decisions to adopt compliance programs. Using a two-year survey of 432 firms
drawn from the top three hundred Taiwanese enterprises and applying mediation analysis, we find that
“voluntary” self-regulation actions, encouraged by the antitrust authority to promote compliance programs via
advocacy, significantly increase the creation of antitrust compliance programs. Moreover, “coercive” actions of
the antitrust authority in terms of enforcement are less effective than voluntary actions for firms’ compliance
programs creation. Within “coercive” actions, large fines are more likely to lead to the adoption of antitrust
compliance programs relative to other forms of government prosecution.