Antitrust & Competition Policy Blog

REJECTED! ANTITRUST ECONOMISTS AS EXPERT WITNESSES IN THE POST-DAUBERT WORLD

Nicola Giocoli has written REJECTED! ANTITRUST ECONOMISTS AS EXPERT WITNESSES IN THE POST-DAUBERT WORLD.

ABSTRACT: Economists regularly appear as expert witnesses in antitrust litigations. This paper analyzes how their models and methodologies have performed vis-à-vis the standards of relevance and reliability affirmed by the US Supreme Court in Daubert and its progeny. Some explanations for the economists’ troubles when facing a Daubert challenge in antitrust cases are provided.

Department of Justice And Federal Trade Commission Issue New Vertical Merger Guidelines

The Department of Justice and Federal Trade Commission issued today new Vertical Merger Guidelines that outline how the federal antitrust agencies evaluate the likely competitive impact of mergers and whether those mergers comply with U.S. antitrust law. These new Vertical Merger Guidelines mark the first time the Department and the FTC have issued joint guidelines on vertical mergers, and represent the first major revision to guidance on vertical mergers since the Department’s 1984 Non-Horizontal Merger Guidelines, which the Department withdrew in January of this year.

Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement

Elyse Dorsey, Government of the United States of America - Department of Justice, Geoffrey A. Manne, International Center for Law & Economics (ICLE), Jan Rybnicek, Freshfields Bruckhaus Deringer LLP, Kristian Stout, International Center for Law & Economics (ICLE), and Joshua D. Wright, George Mason University - Antonin Scalia Law School, Faculty have written Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement.

ABSTRACT: Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to rising income inequality, declining wages, and increasing economic and political concentration. Seizing on Americans’ fears about changes to the modern US economy, proponents of populist antitrust policies assert the need to fundamentally reshape how we apply our nation’s competition laws in order to implement a variety of prescriptions necessary to remedy these perceived social ills. The proposals are varied and expansive but have the unifying theme of returning antitrust to the “big-is-bad” enforcement era prevalent in the first half of the twentieth century.

But the criticisms populist antitrust proponents raise are generally unsupported and often dramatized, and the resulting policy proposals are, accordingly, fatally flawed. There is sparse evidence today suggesting that the underlying trends these critics purportedly identify are real or in any way linked to lax antitrust enforcement. Ironically, populist antitrust proponents ignore that antitrust law debated over 50 years ago the same proposals that they are raising anew today. At that time, leading jurists, economists, enforcers, and practitioners from across the political spectrum rejected the use of liability standards that seek to evaluate a variety of vague and often contradictory socio-political goals or that condemn conduct based simply on the size of a company. They recognized that these tests led to incoherent and paradoxical results that often did more to hinder than to promote competition by undermining the rule of law and fostering corporate welfare. Instead, antitrust evolved the elegant “consumer welfare standard” that simplified the core issue of what constitutes harm to competition into a straightforward question: does the conduct at issue harm consumers?

Today, the consumer welfare standard offers a rigorous, objective, and evidence-based framework for antitrust analysis. It leverages developments in modern economics more reliably to predict when conduct is likely to harm consumers as a result of harm to competition. It offers a tractable test that is broad enough to contemplate a variety of evidence related to consumer welfare but also sufficiently objective and clear to cabin discretion and honor the principle of the rule of law. Perhaps most significantly, it is inherently an economic approach to antitrust that benefits from new economic learning and is capable of evaluating an evolving set of commercial practices and business models. These virtues are precisely the target of the new populist antitrust movement, which seeks to reject economics in favor of mere supposition.

This Article makes the case in support of the current consumer welfare standard and against a sweeping set of unsupported populist antitrust reforms. There is significant room for debate within the consumer welfare model for what types of conduct should face antitrust scrutiny, what evidence is relevant, and where liability standards should be drawn. Such debate is healthy and to the benefit of antitrust enforcement. But it does not require abandoning decades of experience and economic learning that would turn back the hands of time and return us to an era where antitrust enforcement was incoherent and deleterious.

Glory Days: Do the Anticompetitive Risks of Standards-Essential Patent Pools Outweigh Their Procompetitive Benefits?

John ("Jay") Jurata, Jr., Orrick Herrington & Sutcliffe LLP and Emily Luken, Orrick, Herrington & Sutcliffe, LLP ask Glory Days: Do the Anticompetitive Risks of Standards-Essential Patent Pools Outweigh Their Procompetitive Benefits?

ABSTRACT: Patent pools—licensing arrangements in which multiple patent owners agree to license their intellectual property to each other and/or third parties—have existed in some form for nearly two centuries. During that time, courts and competition agencies have noted both the benefits and risks associated with pools. On the one hand, patent pools can reduce transaction costs, clear blocking positions, and enable parties to avoid costly infringement litigation. On the other hand, patent pools can serve as a vehicle for collusion, charge for unnecessary patents, and include exclusionary licensing terms. Nonetheless, the consensus for more than twenty years has been that the procompetitive benefits of patent pools outweigh their anticompetitive effects.

But the current assessment of patent pools may be influenced by the nostalgia of events long past. Developments over the past two decades warrant revisiting some of the assumptions regarding the procompetitive nature of patent pools. Creativity and increasingly aggressive licensing behavior also are amplifying the anticompetitive effects of certain pools. As a result, the promise of using certain types of patent pools to resolve licensing issues for standards-essential patents (“SEPs”) may be as yet another unrealized dream from glory days gone by.

This article proceeds as follows. First, it provides an overview of necessary background principles to understand the interaction between patent pools, commitments to license SEPS on terms that are fair, reasonable and non-discriminatory (“FRAND”), and competition law. Second, it explores how competition law principles traditionally have been applied to SEP patent pools. Third, it critically examines how some of the assumptions underlying the procompetitive nature of patent pools no longer are true in today’s SEP assertion environment. Fourth, it assesses how the anticompetitive risks of certain SEP pools likely eclipse their alleged procompetitive justifications. Finally, this article concludes by providing specific recommendations to restore SEP patent pools to a position where an appropriate balance is struck between competition risks and benefits.

Spatial Differentiation and Market Power in Input Procurement: Evidence from the Corn Market

Spatial Differentiation and Market Power in Input Procurement: Evidence from the Corn Market

By:	Jung, Jinho; Sasmero, Juan; Siebert, Ralph
Abstract:	We estimate the degree of spatial differentiation among downstream firms that buy corn from upstream farmers and examine whether such differentiation confers market power upon buyers, defined as the ability to pay a price for corn that is below its marginal value product. We estimate a structural model of spatial competition using corn procurement data from the U.S. State of Indiana over 2004-2014. We adopt a strategy that allows us to estimate firmlevel structural parameters while using aggregate data. Our results return a transportation cost of 0.12 cents per bushel per mile (5% of the corn price under average distance traveled), which provides evidence of spatial differentiation among buyers. The estimated average markdown is $0.80 per bushel (16% of average corn price in the sample), of which $0.35 is explained by spatial differentiation and the rest by the fact that firms operated under binding capacity constraints. We also find that corn prices paid to farmers at the mill gate are independent of distance between the plant and the farm, indicating that firms do not engage spatial price discrimination. Finally, we evaluate the effect of a hypothetical merger on input markets and farm surplus. A merger between nearby ethanol producers eases competition and increases markdowns by $0.14 or 20% and triggers a sizable reduction in farm surplus. In contrast, a merger between distant procurers has little effect on competition and markdowns.
URL:	http://d.repec.org/n?u=RePEc:ags:assa20:296669&r=com

Market Structure and Organizational Form

Market Structure and Organizational Form

By:	Zhou, Haiwen
Abstract:	This paper studies the determinants of a firm’s organizational form in the context of an imperfectly competitive industry. There are two kinds of organizational forms: the multi-divisional form (M-form) and the unitary form (U-form). An M-form firm suffers from ignorance of demand externalities among different products and double marginalization is eliminated. In contrast, in a U-form firm, demand externalities are taken into consideration and double marginalization exists. A firm’s optimal choice of organizational form depends on the market structure.
URL:	http://d.repec.org/n?u=RePEc:pra:mprapa:96882&r=com

Cards on the table: efficiency and welfare effects of the no-surcharge rule

Cards on the table: efficiency and welfare effects of the no-surcharge rule

By:	Henriques, David
Abstract:	In Electronic Payment Networks (EPNs), the No-Surcharge Rule (NSR) requires that merchants charge at most the same amount for a payment card transaction as for cash. In this paper, I use a three-party model (consumers, local monopolistic merchants, and a proprietary EPN) with endogenous transaction volumes, heterogeneous card use benefits for merchants and network externalities of card-accepting merchants on cardholders to assess the efficiency and welfare effects of the NSR. I show that the NSR: (i) promotes retail price efficiency for cardholders, and (ii) inefficiently reduces card acceptance among merchants. The NSR can enhance social welfare and improve payment efficiency by shifting output from cash payers to cardholders. However, if network externalities are sufficiently strong, the reduction of card payment acceptance affects cardholders negatively and, with the exception of the EPN, all agents will be worse off under the NSR. This paper also suggests that the NSR may be an instrument to decrease cash usage, but the social optimal policy on the NSR may depend on the competitive conditions in each market.
URL:	http://d.repec.org/n?u=RePEc:ehl:lserod:90664&r=com

Using textual analysis to identify merger participants: Evidence from the U.S. banking industry

1. Using textual analysis to identify merger participants: Evidence from the U.S. banking industry

   By:	Katsafados, Apostolos G.; Androutsopoulos, Ion; Chalkidis, Ilias; Fergadiotis, Emmanouel; Leledakis, George N.; Pyrgiotakis, Emmanouil G.
   Abstract:	In this paper, we use the sentiment of annual reports to gauge the likelihood of a bank to participate in a merger transaction. We conduct our analysis on a sample of annual reports of listed U.S. banks over the period 1997 to 2015, using the Loughran and McDonald’s lists of positive and negative words for our textual analysis. We find that a higher frequency of positive (negative) words in a bank’s annual report relates to a higher probability of becoming a bidder (target). Our results remain robust to the inclusion of bank-specific control variables in our logistic regressions.
   URL:	http://d.repec.org/n?u=RePEc:pra:mprapa:96893&r=com

Market Power and Labor Share

1. Market Power and Labor Share

   By:	Arthur Bauer (CREST - Centre de Recherche en Économie et Statistique - ENSAI - Ecole Nationale de la Statistique et de l'Analyse de l'Information [Bruz] - X - École polytechnique - ENSAE ParisTech - École Nationale de la Statistique et de l'Administration Économique - CNRS - Centre National de la Recherche Scientifique); Jocelyn Boussard (CREST - Centre de Recherche en Économie et Statistique - ENSAI - Ecole Nationale de la Statistique et de l'Analyse de l'Information [Bruz] - X - École polytechnique - ENSAE ParisTech - École Nationale de la Statistique et de l'Administration Économique - CNRS - Centre National de la Recherche Scientifique, Directorate General for Economic and Financial Affairs (DG ECFIN) - European Commission)
   Abstract:	This paper leverages a novel and comprehensive database on French firms from 1966 to 2016 to document important facts about secular trends in market power and labor shares, especially the role of market power in explaining variations of the aggregate labor share, as opposed to other technological factors. To do so, we follow the literature and rely on measures of industry concentration and firm level markups as proxies of market power. We find first that concentration has increased since the beginning of the 1980s in France, that the distribution of labor shares shifted upwards and that those two facts are correlated at the industry level. Second, aggregate markups increased slightly, but firm level markups decreased markedly. We find that the rise of concentration is correlated with a downward shift of the markup distribution, suggesting that the two measures might imperfectly capture different dimensions of market power. Third, larger firms have higher markups and lower labor shares. To sum up, larger firms with lower labor shares and higher markups gained market shares, even more so in industries where firm level labor shares increased and markups decreased most. From a macro point of view, the relative stability of the aggregate labor share in France can be decomposed into a small negative contribution of the aggregate markup, and a small positive contribution of aggregate technology, but from a micro point of view, reallocation contributed negatively, firm level markups contributed positively, and the contribution of technology was negligible.
   URL:	http://d.repec.org/n?u=RePEc:hal:wpaper:hal-02353137&r=com

Output and Welfare Implications of Oligopolistic Third-Degree Price Discrimination

Output and Welfare Implications of Oligopolistic Third-Degree Price Discrimination

By:	Takanori Adachi; Michal Fabinger
Abstract:	Using estimable concepts, this paper provides sufficient conditions for third-degree price discrimination to raise or lower aggregate output, social welfare, and consumer surplus under differentiated oligopoly when all discriminatory markets are open even without price discrimination. Specifically, we permit general demand functions and cost differences across separate markets, and show that our sufficient conditions entail a cross-market comparison of multiplications of two or three of the following key endogenous variables with economic interpretation:pass-through value,market power index, and markup value. Notably, our results based on these "sufficient statistics" can readily be extended to allow heterogeneous firms, suggesting that they would be used as a building block for empirical study of third-degree price discrimination and welfare.
URL:	http://d.repec.org/n?u=RePEc:tcr:wpaper:e139&r=com

Breaking the Vicious Cycle: Establishing a Gold Standard for Efficiencies

Christine Wilson (FTC) gave a blockbuster speech on Breaking the Vicious Cycle: Establishing a Gold Standard for Efficiencies.

Product Differentiation, Oligopoly, and Resource Allocation

Product Differentiation, Oligopoly, and Resource Allocation

By:	Bruno Pellegrino
Abstract:	Industry concentration and profit rates have increased significantly in the United States over the past two decades. There is growing concern that oligopolies are coming to dominate the American economy. I investigate the welfare implications of the consolidation in U.S. industries, introducing a general equilibrium model with oligopolistic competition, differentiated products, and hedonic demand. I take the model to the data for every year between 1997 and 2017, using a data set of bilateral measures of product similarity that covers all publicly traded firms in the United States. The model yields a new metric of concentrationâbased on network centralityâthat varies by firm. This measure strongly predicts markups, even after narrow industry controls are applied. I estimate that oligopolistic behavior causes a deadweight loss of about 13% of the surplus produced by publicly traded corporations. This loss has increased by over one-third since 1997, as has the share of surplus that accrues to producers. I also show that these trends can be accounted for by the secular decline of IPOs and the dramatic rise in the number of takeovers of venture-capital-backed startups. My findings provide empirical support for the hypothesis that increased consolidation in U.S. industries, particularly in innovative sectors, has resulted in sizable welfare losses to the consumer.
URL:	http://d.repec.org/n?u=RePEc:jmp:jm2019:ppe860&r=com

Market power and welfare loss

Market power and welfare loss

By:	Merino Troncoso, Carlos
Abstract:	I estimate welfare loss of market power using consumer loss variation. I estimate demand elasticity of certain goods known to suffer monopolistic power. Based in Urzúa's study I employ data from household expenditure survey of Spain and Deaton ́s methodology to estimate elasticities of demand using expenditure of households. We finally obtain distributive effects of market power in selected sectors.
URL:	http://d.repec.org/n?u=RePEc:pra:mprapa:96902&r=com

Optimal certification policy, entry, and investment in the presence of public signals

2. Optimal certification policy, entry, and investment in the presence of public signals

   By:	Choi, Jay Pil (Michigan State University, Department of Economics); Mukherjee, Arijit (Michigan State University, Department of Economics)
   Abstract:	We explore the optimal disclosure policy of a certification intermediary in an environment where (i) the seller's decision on entry and investment in product quality are endogenous and (ii) the buyers observe an additional public signal on quality. The intermediary mutes the seller's entry incentives but enhances investment incentives following entry, and the optimal policy maximizes rent extraction from the seller in the face of this trade-off. We identify conditions under which full, partial or no disclosure can be optimal. The intermediary's report becomes noisier as the public signal gets more precise, but if the public signal becomes too precise, the intermediary resorts to full disclosure. In the presence of an intermediary, a more precise public signal may also lead to lower social welfare.
   URL:	http://d.repec.org/n?u=RePEc:ris:msuecw:2019_006&r=com

Can market competition reduce anomalous behaviours

Can market competition reduce anomalous behaviours

By:	Choo, Lawrence; Zhou, Xiaoyu
Abstract:	We use an experiment to study whether market competition can reduce anomalous behaviour in games. In different treatments, we employ two alternative mechanisms, the random mechanism and the auction mechanism, to allocate the participation rights to the red hat puzzle game, a well-known logical reasoning problem. Compared to the random mechanism, the auction mechanism significantly reduces deviations from the equilibrium play in the red hat puzzle game. Our findings show that under careful conditions, market competition can indeed reduce anomalous behaviour in games.
URL:	http://d.repec.org/n?u=RePEc:zbw:iwqwdp:082019&r=com

Incentives of Low-Quality Sellers to Disclose Negative Information

Incentives of Low-Quality Sellers to Disclose Negative Information

By:	Dmitry Shapiro; Seung Huh
Abstract:	The paper studies incentives of low-quality sellers to disclose negative information about their product. We develop a model where one¡¯s quality can be communicated via cheap-talk messages only. This setting limits ability of high-quality sellers to separate as any communication strategy they pursue can be costlessly imitated by low-quality sellers. Two factors that can incentivize low-quality sellers to communicate their quality are buyers¡¯ risk-attitude and competition. Quality disclosure reduces buyers¡¯ risk thereby increasing their willingness to pay. It also introduces product differentiation softening the competition. We show that equilibria where low-quality sellers separate exist under monopoly and duopoly. Even though low-quality sellers can costlessly imitate high-quality sellers, equilibria where high-quality sellers separate can also exist but under duopoly only.
Date:	2019–03
URL:	http://d.repec.org/n?u=RePEc:snu:ioerwp:no101&r=com

Market concentration, supply, quality and prices paid by local authorities in the English care home market

Market concentration, supply, quality and prices paid by local authorities in the English care home market

By:	Pujol, Ferran Espuny; Hancock, Ruth; Hviid, Morten; Morciano, Marcello; Pudney, Stephen
Abstract:	We investigate the impact of exogenous local conditions which favour high market concentration on supply, price and quality in local markets for care homes for older people in England. We extend the existing literature in: (i) considering supply capacity as a market outcome alongside price and quality; (ii) taking account of the chain structure of care home supply and differences between the nursing home and residential care home sectors; (iii) introducing a new econometric approach based on reduced form relationships that treats market concentration as a jointly-determined outcome of a complex contested market. We find that areas susceptible to a high degree of market concentration tend to have greatly restricted supply of care home places and (to a lesser extent) a higher average public cost, than areas susceptible to low degree of market concentration. There is no significant evidence that conditions favouring high market concentration affect average care home quality.
URL:	http://d.repec.org/n?u=RePEc:ese:iserwp:2019-10&r=com

Price disclosure by two-sided platforms

Price disclosure by two-sided platforms

By:

BELLEFLAMME Paul, (CORE, UCLouvain); PEITZ Martin, (Universität Mannheim)

Abstract:

We consider two-sided platforms with the feature that some users on one or both sides of the market lack information about the price charged to participants on the other side of the market. With positive cross-group external effects, such lack of pricie information makes demand less elastic. A monopoly platform does not benefit from opaqueness and optimality reveals price information. By contrast, in a two-sided singlehoming duopoly, platforms benefit from opaqueness and, thus, do not have an incentive to disclose price information. In competitive bottleneck markets, results are more nuanced: if one side is fully informed (for exogenous reasons), plaltforms may decide to inform users on the other side either fully, partially or not at all, depending on the strength of cross-group external effects and hte degree of horizontal differentiation.

Superstars in two-sided markets: exclusives or not?

Superstars in two-sided markets: exclusives or not?

By:	Leonardo Madio; Carroni, Elias; Shekhar, Shiva
Abstract:	This article studies incentives for a premium provider (Superstar) to offer exclusive contracts to competing platforms mediating the interactions between consumers and firms. When platform competition is intense, more consumers affiliate with the platform favored by Superstar exclusivity. This mechanism is self-reinforcing as firms follow consumer decisions and some join the favored platform only. Exclusivity always benefits firms and might eventually benefit consumers. A vertical merger (platform-Superstar) makes non-exclusivity more likely than if the Superstar was independent. The analysis provides novel insights for managers and policymakers and it is robust to several variations and extensions.
URL:	http://d.repec.org/n?u=RePEc:jmp:jm2019:pma2756&r=com

Non-performing loans in the euro area: does market power matter?

1. Non-performing loans in the euro area: does market power matter?

   By:	Maria Karadima (Athens University of Economics and Business); Helen Louri (Athens University of Economics and Business and London School of Economics HO/EI)
   Abstract:	As consolidation in the banking sector has increased impressively in the wake of the global financial crisis, the question of the impact of market power on bank risk has become topical again. In this study we investigate empirically the impact of market power as evidenced by concentration (CR5 and HHI) and (lack of) competition (Lerner indices) on the change in NPL ratios (ÄNPL). We use an unbalanced panel dataset of 646 euro area banks over the period 2005-2017. Since the distribution of ÄNPL is found not to be normal but positively skewed, we employ a penalized quantile regression model for dynamic panel data. We find conflicting results which are in line with the argument that more concentration does not always imply less competition. The results suggest that competition supports stability when NPLs increase but concentration enhances faster NPL reduction. In addition, we find that the effect of bank concentration is stronger in periphery euro area countries while the effect of competition is enhanced in banking sectors with higher foreign bank presence. Finally, bank competition is more beneficial for commercial banks in reducing NPLs than for savings and mortgage banks, while commercial banks are more prone to creating NPLs than the other two bank types. A tentative conclusion of our study could be that post-crisis consolidation facilitates the faster reduction of NPLs, while as the situation normalizes competition discourages the growth of new NPLs. Policy makers should take such findings into account by encouraging consolidation especially in periphery countries but also inserting competition in the banking sector through either regulating anti-competitive behavior or inviting new and/or foreign entrants.
   URL:	http://d.repec.org/n?u=RePEc:bog:wpaper:271&r=com