Antitrust & Competition Policy Blog

Asymmetric Cartels: Who Gains, Who Defects, and Some Unintended Consequences of Anti-Trust Policies

Asymmetric Cartels: Who Gains, Who Defects, and Some Unintended Consequences of Anti-Trust Policies

 

Kebin Ma

University of Warwick - Finance Group

Lucy White

Centre for Economic Policy Research (CEPR); Boston University - Department of Finance & Economics

 

Abstract

We investigate how colluding asymmetric firms divide markets. We provide conditions under which, contrary to conventional wisdom, the efficient firm gains more from collusion, while the inefficient firm is more tempted to defect. Both anti-trust investigations and leniency policies have the intended effect of deterring some cartels, but also have unintended consequences for surviving cartels. The introduction of leniency moves surviving cartels towards a more inefficient distribution of output, worsening allocative and productive efficiency. Traditional investigation improves the efficiency of surviving symmetric cartels but may worsen the efficiency of more asymmetric surviving cartels.

Public-private Collusion

Public-private Collusion

 

Filipa Mota

Católica Porto Business School

Joao Correia‐da‐Silva

Universidade do Porto

Joana Pinho

Catholic University of Portugal (UCP) - Católica Porto Business School

 

Abstract

We study collusion between a public firm and a private firm, characterizing the outcome (market shares, profits, and consumer surplus) that results from Nash bargaining between the two firms relative to the non-cooperative outcome. We find that if the public firm’s preference for consumer surplus is mild, both firms reduce output (as in a private duopoly). If it is intermediate, while the public firm reduces output, the private firm expands output to such an extent that total output increases. If it is strong, the output expansion by the private firm does not compensate for the output contraction by the public firm, and thus total output decreases. We also assess the impact of relative bargaining power and study collusion sustainability. Our results suggest that collusion reduces the productive inefficiency caused by the public firm being more expansionary, and may lead to higher profits and consumer surplus.

Multinationals, Inequality, and a Competition Law Response: Lessons From the East India Company

Multinationals, Inequality, and a Competition Law Response: Lessons From the East India Company

 

Amber Darr

University of Manchester; University College London - Faculty of Laws

Abstract

Inequality in different forms has existed throughout history, however, with the passage of time, there is increasing awareness of its human cost even when there is little agreement on the causes of inequality or the strategies that may be adopted to address it. This chapter focuses on factors contributing to the endemic inequality in developing countries, particularly in India and Pakistan, and argues that inequality between countries exacerbates inequality within countries. The chapter begins with the premise that economic inequality between India and Pakistan and their developed counterparts, attracts large multinationals to them. Both countries welcome multinationals for their promise of growth and economic development and encourage them through legislative protections and contractual incentives. The chapter notes, however, that their benefits notwithstanding, these multinationals also have the potential to aggravate and embed pre-existing structural inequalities in these countries by exercising their superior bargaining power. It proposes competition law as an appropriate instrument for creating conditions for checking the damaging practices of multinationals and thereby generating a more equitable distribution of resources not only in India and Pakistan but also all developing host economies, and thereby bolster the relative position of these countries in the global economy.

Insurance Monopoly and Imperfect Competition when Insurers Affect Risk

Insurance Monopoly and Imperfect Competition when Insurers Affect Risk

Ronen Avraham Tel Aviv University - Buchmann Faculty of Law; University of Texas at Austin - School of Law

David Gilo Tel Aviv University - Buchmann Faculty of Law

Abstract

We study insurers’ behavior under monopoly and Cournot duopoly when they can affect the probability or magnitude of harm from accidents. The way consumers’ risk aversion changes with wealth and the way risk affects the slope of the demand function determine whether Cournot duopolists increase risk more, or less, than a monopoly insurer or a collusive industry. When consumers’ risk aversion is not too decreasing in wealth, so that the slope of the demand function is steep enough, or when harm is large enough, insurers prefer to use the probability of accidents as a tool to increase market power and raise the probability of accidents to a level exceeding that which maximizes demand. If the increase in the probability of accidents moderately diminishes the slope of the demand function, a duopoly insurer may increase the probability of accidents more than a monopolist, so as to relax competition. If the slope of the demand function is moderate and harm is small, a monopolist raises the probability of accidents to a level below that which maximizes demand, and a duopolist raises this probability less than a monopolist would. Insurers do not raise the risk from accidents when initial risk is negligible and insurers’ ability to raise risk is limited. Joint lobbying increases the risk of accidents advocated for compared to separate lobbying. Joint lobbying could either increase or reduce prices compared to separate lobbying, depending on the slope of the demand function and on how increased risk of accidents affects this slope.

The Concentration of Digital Markets: How To Preserve the Conditions for Effective and Undistorted Competition?

The Concentration of Digital Markets: How To Preserve the Conditions for Effective and Undistorted Competition?

Frédéric M. Marty

Research Group on Law, Economics and Management (UMR CNRS 7321 GREDEG) / Université Nice Sophia Antipolis; OFCE; Center for Interuniversity Research and Analysis on Organization (CIRANO)

Abstract

The policy initiatives announced on both sides of the Atlantic to complement competition rules focus on two key dimensions: the contestability of markets on the one hand and fairness in their functioning on the other. The underlying idea is that the market positions of Big Tech would be inexpugnable - insofar as high barriers to entry protect them from self-regulating competition and insofar as they would have regulatory power over their respective ecosystems. Competition for the market would no longer be free, and competition in the market would be distorted. Our purpose in this working paper is to discuss these two dimensions. Are digital markets still contestable, and is the competition in them still competition on the merits? Finally, we discuss the remedies proposed to address these two alleged phenomena.

Who Killed the Radio Star? How Music Blanket Licensing Distorts the Production of Creative Content in Radio

Who Killed the Radio Star? How Music Blanket Licensing Distorts the Production of Creative Content in Radio

 

Ariel Katz

University of Toronto - Faculty of Law

Eden Sarid

University of Essex - School of Law

Abstract

According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, CMOs’ blanket licensing drives commercial radio stations to dedicate a larger portion of their programming to the broadcasting of recorded songs and to reduce the time and resources spent on producing or procuring other content.

This Article makes three main contributions to three fields: competition law and policy; copyright law and policy; and cultural history. For competition law and policy, this Article reveals that the analysis of blanket licenses should not be limited to their static effects (i.e., the trade-off between lower transaction costs and supra-competitive pricing), but should also include the dynamic effect of blanket licensing on the type and quality of content production. This dynamic effect also poses a challenge for copyright law and policy: while collective licensing may be beneficial to one class of copyright holders, it may hinder the production of other content and harm creators of such content, by depriving them of important opportunities for market and cultural participation. Regarding cultural history, our Article provides a novel explanation for the well-documented phenomenon of the “death” of the radio star and re-evaluates some of the existing explanations. Finally, we discuss some alternative models for music licensing that can mitigate the distortion created by blanket licenses.

Intersection of Competition and Regulation in Abuse of Dominance and Monopolization

Intersection of Competition and Regulation in Abuse of Dominance and Monopolization

 

Kati Cseres

University of Amsterdam - Amsterdam Centre for European Law and Governance and Amsterdam Center for Law & Economics

Abstract

As markets change due to new technologies, shifts in consumer preferences or other conditions, the legal and policy framework need to adjust, too. The dilemma legislators and policy makers face when such changes take place is whether and how to intervene in such market situations and if they intervene, what respective roles regulation and competition law should play.

There is a renewed interest in discussing and even reconceptualizing this relationship in light of current challenges such as the financial crisis, climate and health crisis, digitalization and rising corporate and political power. This chapter analyses how market power is controlled at the intersection between competition law and regulation in EU competition law and in US antitrust law. It traces back how this complex interplay has evolved in these two jurisdictions as well as look forward how this interface is changing in current law and policy making processes.

'Hipster Antitrust' Rules Are Dangerous, Summers Says

See his interview here.

Mergers Involving Nascent Competition

Mergers Involving Nascent Competition

 

 

A. Douglas Melamed

Stanford Law School

 

Abstract

Mergers involving nascent competition are a hot topic in antitrust circles, especially in light of the pending FTC case against Facebook; but the thinking about the topic is nascent, too. This paper is intended to contribute to that thinking and to discuss a variety of questions that have not previously been discussed together. It explains that, while the vast majority of such mergers are likely to be benign or procompetitive, some might be very harmful to competition and economic welfare. It argues that the latter can in principle be prohibited under existing Section 2 law, suggests criteria for doing so, and addresses policy concerns about merger efficiencies, error costs, the impact of heighted scrutiny of such mergers on venture capital investment, and post-acquisition challenges to such mergers.

Competition and Concentration: Charting the Faultlines

Competition and Concentration: Charting the Faultlines

 

Stephen Davies

University of East Anglia (UEA)

 

Abstract

This work addresses the widespread concern that the forces of competition are weakening worldwide. Much of the evidence for this comes from traditional concentration indices which are notoriously flawed: conceptually they derive from static theory and cannot discriminate between efficiency and market power; empirically, they employ over-aggregate market definitions and ignore international competition. This paper is the first in a programme of research with the objective of resolving some of these problems. The first part of the paper provides a succinct picture of the facts on the HHI index for over 300 UK industries at the 4-digit-level; given data constraints, these refer to producer concentration, ignoring imports and exports. We find that, on average, concentration rose steadily 1998-2011 and remained high thereafter, 2011-2018. About 30% of industries, defined at the 4-digit level, can be classified as “concentrated” or “highly concentrated” using traditional competition authority definitions. In the second part, we provide some indications of how this picture will likely change if we could recompute concentration indices at the more appropriate Anti-Trust Market level and incorporating information on trade competition and exports. High concentration is likely to be even more prevalent at the ATM level, but results might look very different for the sub-set of trade-intensive industries, if we could incorporate trade data into the concentration measures. In the third part, we turn to the major conceptual problem: how to measure competition avoiding the identification problems associated with concentration indices and incorporating a richer dynamic vision of competition as a process. Using an admittedly primitive measure (based on the persistence of leadership rankings within an industry), our early results suggest an increasing tendency for the largest firms to retain their leadership positions over this period. This points to reduced churn in market shares and weakening competition, especially as leadership persistence is found to be more pronounced in more concentrated industries.

Bank Competition, Local Labor Markets, and the Racial Employment Gap

Bank Competition, Local Labor Markets, and the Racial Employment Gap

Robert Mann

University of Rochester - Simon Business School

 

Abstract

This paper shows that a decrease in bank competition negatively affects local labor markets. Using bank mergers and anti-trust policy to obtain quasi-exogenous variation, I find that a 5% increase in county level bank concentration leads to a 6% decrease in small business lending, followed by a 0.4% drop in local employment and 1.4% decline in wages. These findings are stronger for areas with a larger fraction of black population. This race differential cannot be explained by differences in income or economic growth, but is consistent with theories predicting increase in lending discrimination following a drop in competitive pressures.

How To Hide A Price-Fixing Conspiracy: Denial, Deception, and Destruction of Evidence

How To Hide A Price-Fixing Conspiracy: Denial, Deception, and Destruction of Evidence

 

 

Christopher R. Leslie

University of California, Irvine School of Law

Abstract

Price-fixing conspiracies overcharge consumers by billions of dollars every year. Although such collusion violates antitrust law, hundreds of price-fixing cartels continue to operate unimpeded because they successfully conceal their illegal collusion. Using examples from over 50 price-fixing conspiracies, this is the first scholarship to identify and catalog the various concealment measures that actual price fixers employ to hide their collusion.

When engaging in price fixing, respectable business executives use code names and encrypted messages; they register in hotels using aliases; they rendezvous secretly in seedy locations; they create fake trade associations; they hide or destroy incriminating documents; and they falsify their travel documents and expense reports. And if they are ever accused of collusion, they deny the charges and profess that they are reputable businesspeople who would never countenance illegal conduct. Then they tell false cover stories that they have coordinated in advance.

This Article explains how federal courts have unwittingly rewarded the various concealment methods commonly employed by price-fixing conspirators. For example, judges treat defendants’ documents as inherently accurate, even though price-fixing conspirators routinely fabricate exculpatory documents. Because they do not understand cartel concealment methods, many federal judges are too quick to dismiss price-fixing claims or grant summary judgment to price-fixing defendants. This Article analyzes dozens of cases, across most federal circuits, in which judges have been fooled by – or have failed to appreciate the significance of – cartel concealment methods.

The Article concludes by proposing changes to antitrust doctrine and antitrust enforcement that would better serve the twin goals of holding price-fixing conspirators accountable while protecting innocent firms against improper findings of antitrust liability. Such changes are warranted because the current judicial deference to price-fixing defendants undermines deterrence and thwarts the goal of compensating victims of illegal price fixing.

Common Ownership, Executive Compensation, and Product Market Competition

Common Ownership, Executive Compensation, and Product Market Competition

 

 

Matthew J. Bloomfield

The Wharton School of the University of Pennsylvania

Henry L. Friedman

University of California, Los Angeles (UCLA) - Anderson School of Management

Hwa Young Kim

University of California-Los Angeles, Anderson School of Management

 

Abstract

The negative effects of common ownership on competition have received significant attention, but many proposed mechanisms for institutional investor influence seem implausible. We develop and test an analytical model of optimal compensation in an oligopoly with common ownership, focusing on revenue-based pay as a plausible channel through which institutional investors might influence competition. Our model implies a negative effect of common ownership on firms' use of revenue-based pay. Using both associative analyses and an event study difference-in-differences design based on plausibly exogenous institutional mergers, we find that common ownership has zero (or a marginally positive) effect on the use of revenue-based pay. Results involving relative performance incentives are similar. Collectively, our results provide no support for the notion that cross-owning block-holders influence compensation contracts in order to soften executives' incentives to compete aggressively.

Measuring Market Power: Macro and Micro Evidence from Italy

Measuring Market Power: Macro and Micro Evidence from Italy

 

 

Emanuela Ciapanna

Bank of Italy

Sara Formai

Bank of Italy

Andrea Linarello

Bank of Italy

Gabriele Rovigatti

Bank of Italy

 

Abstract

In this paper, we provide an assessment of the evolution of markups in Italy in the last twenty years. To this aim, we resort to both macro and micro data and estimation techniques, namely reduced forms accounting measures (price-cost margins) and production function model-based indicators. When using aggregate data, we adopt a comparative approach and analyse markup dynamics in the four main euro area countries, whereas the micro-level analysis is focused on Italy. According to our findings i) markups have shown flat/slightly decreasing dynamics in the last decades in the major EU countries, settling on average in level at 1.1; ii) aggregate dynamics hide substantial across sector and firms heterogeneity in markups patterns; iii) the micro-level analysis for Italy indicates the within-firms component as the most relevant in explaining markups behavior; iv) no top firms-driven dynamics emerge; v) our evidence conflicts with the results obtained in De Loecker and Eeckhout (2018) because the latter suffers of two main sources of bias: a strong sample selection, and the assumption of a common technology parameter across countries. Finally, we propose an encompassing measure of market power, summarizing the several indices investigated in a principal component framework. This synthetic indicator describes the markups evolution for the Italian economy and we confirm its effectiveness based on a set of validation variables.

Competition and Co-Operation When Consumers' Sustainability Preferences Depend on Social Norms

Competition and Co-Operation When Consumers' Sustainability Preferences Depend on Social Norms

 

 

Roman Inderst

Goethe University Frankfurt

Eftichios Sartzetakis

University of Macedonia

Anastasios Xepapadeas

Athens University of Economics and Business; University of Bologna - School of Economics, Management, and Statistics

 

Abstract

We posit that consumers' preferences for more sustainable products depend on the perceived social norm, which in turn is shaped by average consumption in society. We explore the implications of such preferences for firms' incentives to introduce more sustainable products and to co-operate in order to either foster or forestall their introduction. Our main motivation lies in the increasing pressure put on antitrust authorities to exert more leniency towards horizontal agreements that are motivated by sustainability considerations.

Discriminatory Antitrust in the Realm of Potential and Nascent Competition

Discriminatory Antitrust in the Realm of Potential and Nascent Competition

 

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty

 

Abstract

How should competition agencies and courts consider acquisitions by “big tech” (that is, Amazon, Apple, Google, Facebook, and Microsoft) of smaller, startup companies? There are several competing visions. On one end of the spectrum is the view that these companies have strong incentives to engage in anticompetitive acquisitions of nascent and potential competitors; consequently, agencies and courts should implement strong presumptions of harm. On the other end of the spectrum is the view that there is little reason to change current merger presumptions or to treat acquisitions by big tech companies differently than “medium tech” or “small tech” companies.

To inform the issue, this Article reviews a recent FTC report on acquisitions by the largest technology platforms. While the report is largely descriptive using aggregated data and, therefore, offers modest insights, there is little in the findings that raise alarms. As a point of contrast, the Article examines several recent acquisitions by Spotify, a technology company that sits outside of the “big tech” classification. Specifically, Spotify has expanded beyond its core music streaming business through a series of startup acquisitions—namely, into podcasts and audiobooks. Interestingly, these acquisitions have not raised concerns from agencies, practitioners, or academics. Consequently, if Spotify’s recent series of acquisitions can reasonably be considered procompetitive, then why is the same not true for Apple and Amazon, who are chasing Spotify in music streaming services and podcasts? Administering antitrust laws based on the mere identity or market capitalization of a company—rather than on specific market factors—is engaging in what could be called “discriminatory antitrust.”

USC Global Competition Law Thought Leadership Conference, Friday, June 3rd, 2022 - Saturday, June 4th, 2022

USC Global Competition Law Thought Leadership Conference

 

Friday, June 3rd - Saturday, June 4th, 2022

University of Southern California, UPC
665 West Exposition Blvd.
Los Angeles, CA 90089

 

Please join us for our inaugural two-day USC Global Competition Law Thought Leadership Conference, with a particular focus on issues related to the state of play in Asia-Pacific and the US West Coast antitrust and competition issues.

In collaboration with our friends at Analysis Group, we have developed an impressive agenda, with several notable antitrust experts, including government officials, practitioners and academics.

To request an invitation/register for this program

Register Now

 

Agenda

Friday, June 3, 2022

7:30 - 8:30 AM
	Registration and Breakfast

8:30 - 8:45 AM
	Welcome and Opening Remarks by Co-Chairs Marissa Ginn (Analysis Group) D. Daniel Sokol (USC)

8:45 - 9:15 AM
	Morning Keynote Address by Richard A. Powers, Deputy Assistant Attorney General, Department of Justice

9:15 - 10:45 AM
	Global Mergers: Where Do We Go From Here? (Session I) Michele C. Lee (Deputy General Counsel, Pinterest) - Moderator Elizabeth Avery (Gilbert & Tobin) David Emanuelson (Associate General Counsel, Antitrust and Commercial Litigation Group, Intel) Youngjin Jung (Kim & Chang) Rebecca Kirk Fair (Analysis Group) Shweta Shroff Chopra (Shardul Amarchand Mangaldas)

10:45 - 11:15 AM
	Coffee Break

11:15 - 12:45 PM
	Cartels (Session II) Eric P. Enson (Jones Day) - Moderator Beatriz Mejia (Cooley) Heather S. Nyong'o (Cleary Gottlieb) Brent Snyder (Wilson Sonsini) Michael Tubach (O'Melveny) Aaron Yeater (Analysis Group)

12:45 - 2:00 PM
	Lunch and Afternoon Keynote Address by Andy Chen, Vice Chairperson, Taiwan Fair Trade Commission

2:00 - 3:15 PM
	The Current State and Future of Antitrust IP Issues (Session III) James Kress (Baker Botts) - Moderator Kirti Gupta (Vice President, Economic Strategy | Chief Economist, Qualcomm) Dina Kallay (Head of Antitrust IPR, Americas & Asia-Pacific, Ericsson) Lauren R. Kindler (Analysis Group) Alexander Okuliar (Morrison Foerster)

3:15 - 3:45 PM
	Coffee Break

3:45 - 5:00 PM
	Digital Platforms: Recent Antitrust Cases and Proposed/Enacted Legislation (Session IV) Rosanna Garza Lipscomb (Director, Google) - Moderator Kojiro Fujii (Nishimura & Asahi) Belinda S. Lee (Latham & Watkins) Greg McCurdy (Director, Litigation and Global Competition Law, Uber) Steve Tadelis (UC Berkeley) Adam Wolfson (Quinn Emanuel)

5:00 - 5:30 PM
	BREAK

5:30 - 6:00 PM
	Cocktail/Networking Reception

6:00 PM
	Dinner

Saturday, June 4, 2022

7:30 - 8:30 AM
	Registration and Breakfast

8:30 - 9:45 AM
	The Intersection of Antitrust Issues and Politics (Session V) Yasir Elbiali (Associate General Counsel, Antitrust Director, Western Digital) - Moderator Julie Carlson (Associate Director for Antitrust and Innovation Policy, Information Technology & Innovation Foundation) Fernando Carreno (Von Wobeser y Sierra) Caio Mario S. Pereira Neto (FGV Sao Paolo Law School) Rachel S. Brass (Gibson Dunn)

9:45 - 11:00 AM
	Competition in the Media Space (Session VI) Douglas Rathbun (Meta) - Moderator John H. Choi (Shin & Kim) Christopher Knittel (MIT) Randy Long (Senior Director, Competition & Consumer Protection Policy, Microsoft) Kathryn Jordan Mims (White & Case)

11:30 AM
	Optional Group Activity

 

 

Can the UK be start-up nation 2.0? Kings College Thu, 26 May 2022 12:30 – 14:00 BST

Can the UK be start-up nation 2.0?
Kings College
Thu, 26 May 2022 12:30 – 14:00 BST

About this event

This is a in person seminar that will discuss empirical research and policy options concerning the acquisition of start-ups in the digital and tech sector and the challenges and opportunities for the UK when looking at possible interventions in this area.

Chair:

• Professor Renato Nazzini, King’s College London

Speaker:

• Professor D. Daniel Sokol, Carolyn Craig Franklin Chair in Law, USC Gould School of Law

Discussants:

• Nicholas Levy, Partner, Clearly Gottlieb Steen & Hamilton LLP
• Nicole Kar, Partner, Linklaters
• Claire Jeffs, Partner, Slaughter and May

The Role of Intent in Abuse of Dominance and Monopolization

The Role of Intent in Abuse of Dominance and Monopolization

 

 

Mariateresa Maggiolino

Bocconi University - Department of Legal Studies; Ask Research Center

 

Abstract

Under Section 2 of the Sherman Act and Article 102 TFEU, antitrust decision-makers use firms’ intent for evidentiary purposes, i.e., to understand if the conduct under their scrutiny is likely to harm competition. This practice raises two main concerns. First, one can question – as the international community has often done – if the analysis of firms’ intent may actually reveal the competitive impact of a given behaviour. Second, one may discuss – and this is the original contribution that the chapter offers – if and why antitrust decision-makers should ever be permitted to use firms’ intent to prove the occurrence of a conduct capable of harming competition under Section 2 and Article 102. The chapter answers these questions, while giving food for thought for future research.

Prospective Welfare Analysis - Extending Willingness-to-Pay Assessment to Embrace Sustainability

Prospective Welfare Analysis - Extending Willingness-to-Pay Assessment to Embrace Sustainability

 

Roman Inderst

Goethe University Frankfurt

Stefan Thomas

University of Tuebingen - Faculty of Law

Abstract

In this paper, we outline how a future change in consumers' willingness-to-pay can be accounted for in a consumer welfare effects analysis in antitrust. Key to our solution is the prediction of preferences of new consumers and changing preferences of existing consumers in the future. The dimension of time is inextricably linked with that of sustainability. Taking into account the welfare of future cohorts of consumers, concerns for sustainability can therefore be integrated into the consumer welfare paradigm to a greater extent. As we argue in this paper, it is expedient to consider changes in consumers' willingness-to-pay, in particular if society undergoes profound changes in such preferences, for example, caused by an increase in generally available information on environmental effects of consumption, and a rising societal awareness about how consumption can have irreversible impacts on the environment. We offer suggestions on how to conceptionalize and operationalize the projection of such consumers' changing preferences in a "prospective welfare analysis." This increases the scope of the consumer welfare paradigm and can help to solve conceptual issues regarding the integration of sustainability into antitrust enforcement while keeping consumer surplus as a quantitative gauge.