Antitrust & Competition Policy Blog

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

Thursday, January 10, 2019

An invitation for European industrial policy instead of competition?

One of the biggest lamentations I have from Brexit is that it pushed the moderate Brits out of EC decision-making.  The following headline just appeared from the CPI feed:

European Commission Vice-President Jyrki Katainen told journalists on Tuesday, January 8, that he would be “open” to consider changes to update competition law in order to cope with the strong competition of US and China firms, but discarded the idea of reforming antitrust rules “entirely” as they worked “well.”

Katainen, who is in charge of Jobs, Growth, and Investment, said that he understood member states’ demands to review EU antitrust rules, given the fierce competition they faced from abroad.

France is one of the most vocal countries in this crusade to change EU’s antitrust rules.

Basically, Katainen is pushing for more industrial policy and decoupling competition law from the rigorous economic effects-based analysis that we should see in this discipline (overall, I give DG Competition high marks on merger analysis - Carles Esteva Mosso and his team are very strong).  Industrial policy is a mistake within competition law, as I have written elsewhere.  The best way to compete... is to actually compete on price, quality, and innovation.  We don't need more industrial policy seeping into DG Competition or any other competition authority.

 

January 10, 2019 | Permalink | Comments (0)

Antitrust Writing Awards: Voting is Open

WHAT ARE THE ANTITRUST WRITING AWARDS ?

The aim of the Antitrust Writing Awards is to promote competition scholarship and to contribute to competition advocacy. The 2019 Antitrust Writing Awards Jury contributes to this achievement by selecting the best writings published in 2018. The 2019 Antitrust Writing Awards consist of :

- “Best Articles” : Awards for the best articles published in academic and professional publications by individual authors 
- “Best Soft Laws” : Selection of the most innovative non-enforcement tools published by competition agencies such as guidelines, market studies, white papers, etc. 
- “Best NewsLetters” : Ranking of the best law firms antitrust newsletters.

A Board and two Steering Committees, composed of leading enforcers, academics and counsels, participate impartially in this selection and seek to reward the most meaningful antitrust publications of 2018. In order to ensure impartiality, members of the Board cannot vote for their own articles, and the Steering Committees and Editorial Committee are not eligible to compete.

The 2019 edition of the Awards Gala Dinner will take place on March 26, 2019 in Washington DC.

BEST ARTICLES

The "Best Articles" selection aims to reward writing, scholarship, originality, practical relevance and the contribution they make to competition advocacy. "Best Articles" are divided into "Academic" (long articles accepted for publication, published, or released in print or electronic format in academic peer-reviewed journals, chapters of academic books or student journals…) and "Business" (short articles accepted for publication, published, or released in print or electronic format in professional publications, such as non-peer reviewed journals, briefs, memoranda, blogs...).

BEST SOFT LAWS

The “Best Soft Law” selection aims to contribute to developing antitrust culture and awareness. Alongside the ICN’s work, it seeks to support international antitrust advocacy by drawing attention towards the most meaningful competition agency practices. It aims at singling out some of the most interesting administration practices that could be usefully applied more generally.

BEST NEWSLETTERS

While the Best Articles Awards reward individual articles, the Best Newsletters Ranking rewards antitrust newsletters and related free access professional publications considered overall. The Best Newsletters Ranking’s goal is to promote competition advocacy by selecting the best of these publications so that counsels can know what they should read first, depending on the subject matter.

RULES

See full rules here.

AWARDS GALA DINNER

The Antitrust Writing Awards results will be made public at the Gala Dinner on March 26, 2019 - the day before the ABA Antitrust Spring Meeting - in Washington DC.

ORGANIZERS

Concurrences Review and George Washington University Law School Competition Law Center, are organizing the Antitrust Writing Awards with the support of partners.

January 10, 2019 | Permalink | Comments (0)

Collusion and Combines in Canada, 1880–1890

Vincent Geloso, Bates College discusses Collusion and Combines in Canada, 1880–1890.

ABSTRACT: It is a little-known fact that Canada adopted its own antitrust laws one year before the landmark Sherman Antitrust Act of 1890. The Anti-Combines Act of 1889 was adopted after a decade in which ‘combines’ (the Canadian equivalent of ‘trusts’) grew more numerous. From their numbers, Canadian historians, legal scholars and economists inferred that consume welfare was hindered. However, price and output evidence has never been marshalled to provide even a first step towards assessing the veracity of this claim. This paper undertakes that task. I highlight that the output from industries accused of collusion increased faster than national output in the decade before the passage of the Act and that their prices accordingly fell faster than the national price index. I argue that these findings militate for the position that the origins of Canada’s Anti-Combines Act were rooted in rent-seeking processes similar to those that American scholars have found driving the Sherman Antitrust Act of 1890.

January 10, 2019 | Permalink | Comments (0)

Wednesday, January 9, 2019

Monopsony and Industrial Development in Nineteenth Century Quebec: The Impact of Seigneurial Tenure

Vincent Geloso, Bates College Vadim Kufenko, University of Hohenheim - Institute of Economics, and Alex Arsenault Morin, Queen's University (Canada), Faculty of Arts & Science, Department of Economics, have a new paper on Monopsony and Industrial Development in Nineteenth Century Quebec: The Impact of Seigneurial Tenure.

ABSTRACT: We argue that the system of seigneurial tenure used in the province of Quebec until the mid-nineteenth century -- a system which allowed significant market power in the establishment of plants, factories and mills, combined with restrictions on the mobility of the labor force within each seigneurial estate -- is best understood as a system of regionalized monopsonies in the non-farm sector. Seigneurs had incentives to reduce their employment in those sectors to reduce wage rates. We use the fact that later, with the Constitutional Act of 1791, all new settled lands had to be settled under a different system (British land laws). This fact lends itself efficiently to a regression discontinuity design. Using wages contained in the 1831 census, we find strong evidence that the monopsonist features of seigneurial tenure depressed wages and industrial development.

January 9, 2019 | Permalink | Comments (0)

Antitrust in the Pharmaceutical Sector: An Overview of U.S. Case Law

Michael Carrier, Rutgers has written on Antitrust in the Pharmaceutical Sector: An Overview of U.S. Case Law.

ABSTRACT: In this overview, I summarize pharmaceutical antitrust law in the US and EU on settlements, product hopping, sample denials, citizen petitions, and rebates/bundling.

January 9, 2019 | Permalink | Comments (0)

Bitcoin and Blockchain: What We Know and What Questions are Still Open

Hanna Halaburda, Bank of Canada; New York University (NYU); CESifo (Center for Economic Studies and Ifo Institute) and Guillaume Haeringer, City University of New York, Baruch College - Zicklin School of Business - Department of Economics and Finance have a literature review on Bitcoin and Blockchain: What We Know and What Questions are Still Open.

ABSTRACT: In this paper, we survey (current) nascent academic literature on Bitcoin, cryptocurrencies and blockchain technologies.

January 9, 2019 | Permalink | Comments (0)

Rhetoric Aside: What the Data Actually Say About Broadband Deployment

George S. Ford, Phoenix Center for Advanced Legal & Economic Public Policy Studiestells us Rhetoric Aside: What the Data Actually Say About Broadband Deployment.

ABSTRACT: In this PERSPECTIVE, I analyze the FCC’s Form 477 data from 2015 and 2016 to contribute to a more informed and less impassioned take on rural broadband deployment and single provider markets. Three empirical facts emerge. First, single-provider areas have the same prices as multiple-provider areas. Second, the deployment of cable broadband services between 2015 and 2016 is disproportionately focused on rural markets. Third, despite claims that the larger broadband providers seek to minimize competition between them, the vast majority of their service territories include another large provider of broadband.

January 9, 2019 | Permalink | Comments (0)

Tuesday, January 8, 2019

Platform, Anonymity, and Illegal Actors: Evidence of Whac-a-Mole Enforcement From Airbnb

Jian Jia, Illinois Institute of Technology - Stuart School of Business and Liad Wagman, Illinois Institute of Technology - Stuart School of Business, IIT have written on Platform, Anonymity, and Illegal Actors: Evidence of Whac-a-Mole Enforcement From Airbnb.

ABSTRACT: Airbnb, a prominent sharing-economy platform, offers dwellings for short-term rent. Despite restrictions, some sellers illegally offer their accommodations, taking advantage of a degree of anonymity proffered by the platform to hide from potential enforcement. We study the extent to which enforcement works in Manhattan, one of the most active short-term rental markets, by testing the effects of two recent enforcement events. We demonstrate that prices of entire-home listings in Manhattan increase and vacancies decrease following each enforcement event, suggesting that illegal entire-home listings are being withdrawn from the market, with these effects varying depending on neighborhood characteristics. We further demonstrate that a significant portion of withdrawn listings re-enter the market under the less-enforced listing category of private rooms.

January 8, 2019 | Permalink | Comments (0)

How Much Is Too Much?: Defining the Metes and Bounds of Excessive Pricing in the Pharmaceutical Sector

Behrang Kianzad, University of Copenhagen - Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) and Timo Minssen, University of Copenhagen - Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) - Faculty of Law ask How Much Is Too Much?: Defining the Metes and Bounds of Excessive Pricing in the Pharmaceutical Sector.

ABSTRACT: Excessive pharmaceutical pricing represents one of the most contentious issues in legal and political discourse and has recently gained renewed attention by courts, competition authorities and political forces on both sides of the Atlantic. Balancing the public demand for affordable and accessible health-care with the need for sufficient incentives and a sustainable innovation system in the field of medicines also attracts a great deal of media and scholarly attention. Facing what seems to be a revival of competition law enforcement in this highly sensitive and complex environment it is of vital importance to keep up to date with the most recent developments. It is further crucial that the necessary debates are taking place within a well-informed and transparent environment that takes into account multiple factors, interests, responsibilities and concerns. This entails inter alia to consider various types of diseases (rare, neglected or blockbuster) treatment outcomes (cure or long dependency), as well as the economic complexities of successful innovation systems and higher societal goals such as sustainability, solidarity and fairness . Only then, will it be possible to devise well-balanced policies that allow relevant stakeholders to align their policies in order to achieve what society expects from the pharmaceutical innovation system: life-saving new therapies that are safe, efficient and accessible. This article depicts and discusses some of the latest cases and the underlying legal-economic and policy considerations.

January 8, 2019 | Permalink | Comments (0)

Cooperative Enterprise as an Antimonopoly Strategy

Sandeep Vaheesan, Open Markets Institute and Nathan Schneider, University of Colorado Boulder suggest Cooperative Enterprise as an Antimonopoly Strategy.

ABSTRACT: After decades of neglect, antitrust is once again a topic of public debate. Proponents of reviving antitrust have called for abandoning the narrow consumer welfare model and embracing a broader set of objectives. One essential element that has been overlooked thus far is the ownership structure of the firm itself. The dominant model of investor-owned business and associated philosophy of shareholder wealth maximization exacerbate the pernicious effects of market power. In contrast, cooperative ownership models can mitigate the effects of monopoly and oligopoly and advance the interests of consumers, workers, small business owners, and citizens. The promotion of competition among large firms should be paired with support for democratic cooperation within firms.

Antitrust law has had a complicated history and relationship with cooperative enterprise. Corporations threatened by cooperatives have used the antitrust laws to frustrate the growth of these alternative businesses. To insulate cooperatives from the antitrust threat, Congress has enacted exemptions to protect cooperative entities, notably a general immunity for farm cooperatives in the 1922 Capper-Volstead Act. As part of an agenda to tame corporate monopoly, all three branches of the federal government and the states should revisit these ideas and seek to protect and enable the cooperative model across the economy. While protections that farmers fought for a century ago may seem obsolete in an era of big-box retail and online platforms, matters of ownership design have at least as much relevance today and should be a part of the antimonopoly arsenal.

January 8, 2019 | Permalink | Comments (0)

GCR Live 8th Annual Antitrust Law Leaders Forum Friday, 01 February 2019 to Saturday, 02 February 2019

GCR Live 8th Annual Antitrust Law Leaders Forum

 

 

Friday-Saturday, 1-2 February 2019, W South Beach, Miami

Chaired by

 

 
 

Margaret Sanderson

Vice President

Charles River Associates

(Toronto)

 

 
 

Jason Gudofsky

Partner

McCarthy Tétrault LLP

(Toronto)

 

Register now to save over 10%

 

Keynote speakers

 
 

Alexandre Barreto de Souza

President

Administrative Council for Economic Defense (CADE)

(Brasília)

 
 

Martin Coleman

Non-Executive Director & Panel Chair,

Competition and Markets Authority (London)

 
 

Christine Wilson

Commissioner

Federal Trade Commission

(Washington, DC)

 

 

Speakers

Maria Cecília Andrade, Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)

Olivier Antoine, Crowell & Moring LLP (New York)

Andrea Appella, Deputy General Counsel, Europe & Asia, 21st Century Fox (London)

Antonio Bavasso, Allen & Overy LLP (London)

Matthew Bennett, Charles River Associates (London)

Marin Boney, Kirkland & Ellis LLP (Washington, DC)

Cristina Caffarra, Charles River Associates (Brussels and London)

George Cary, Cleary Gottlieb Steen & Hamilton (Washington, DC)

Étienne Chantrel, Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)

Alastair Chapman, Freshfields Bruckhaus Deringer LLP (London & Brussels)

Maria Coppola, Counsel for European Affairs, Federal Trade Commission (Washington, DC)

Eric Cramer, Berger Montague (Philadelphia)

Bruno de Luca Drago, Demarest (São Paulo)

Miguel del Pino, Marval, O'Farrell & Mairal (Buenos Aires)

Jessica Delbaum, Shearman & Sterling LLP (New York)

Adam Di Vincenzo, Gibson, Dunn & Crutcher LLP (Washington, DC)

Jordan Ellison, Slaughter and May (Brussels)

Rebecca Farrington, White & Case LLP (Washington, DC)

Adam Fanaki, Davies Ward Phillips & Vineberg LLP (Toronto)

Debbie Feinstein, Arnold & Porter LLP (Washington, DC)

Thomas Funke, Osborne Clarke (Cologne & Brussels)

Mark Hamer, Baker McKenzie LLP (Washington, DC)

Ted Hassi, Debevoise & Plimpton (Washington, DC)

Renata Hesse, Sullivan & Cromwell LLP (Washington, DC)

Moritz Holm-Hadulla, Gleiss Lutz (Stuttgart)

Pierre Honoré, Bredin Prat (Paris)

Donald Houston, McCarthy Tétrault LLP (Toronto)

Anne-Claire Hoyng, Senior Manager, Competition Policy, Booking.com (Amsterdam)

Paul Johnson, T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)

Gabrielle Kohlmeier, Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)

Oliver Latham, Charles River Associates (London)

Eric Lipman, Senior Counsel, Litigation and Global Competition, Uber (San Francisco)

Cecilio Madero Villarejo, Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)

Philip Marsden, Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)

Preston McAfee, Charles River Associates (Los Angeles)

Deirdre McEvoy-Cappock, Lead US Antitrust & Regulatory Counsel, Siemens (New York)

Diana Moss, President, American Antitrust Institute (Washington, DC)

Kristina Nordlander, Sidley Austin LLP (Brussels & London)

Julie North, Cravath, Swaine & Moore LLP (New York)

Edith Ramirez, Hogan Lovells (Washington, DC & Los Angeles)

Barbara Rosenberg, Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)

Marc Rysman, Professor of Economics, Department of Economics, Boston University (Boston)

Yianis Sarafidis, Charles River Associates (Washington, DC)

Carl Shapiro, Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley)

D. Daniel Sokol, Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville)

Joshua Soven, Wilson Sonsini Goodrich & Rosati (Washington, DC)

Marguerite Sullivan, Latham & Watkins LLP (Washington, DC)

Isabel Tecu, Charles River Associates (Washington, DC)

Gerwin Van Gerven, Linklaters LLP (Brussels)

David Vann, Simpson Thacher & Bartlett LLP (London)

Faustine Viala, Willkie Farr & Gallagher LLP (Paris)

Michael Vita, Deputy Director, Federal Trade Commission (Washington, DC)

Suzanne Wachsstock, Vice President and Chief Antitrust Counsel, American Express (Washington, DC)

Craig Waldman, Jones Day (San Francisco & Silicon Valley)

David Wales, Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)

Stephen Weissman, Baker Botts LLP (Washington, DC)

James Wilson, Vorys, Sater, Seymour and Pease LLP (Columbus)

Thomas Wollmann, Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

Hans Zenger, Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)

 

Programme

Thursday, 31 January 2019

 

7.00pm - 9.00pm: Welcome reception - sponsored by McCarthy Tétrault LLP

 

Friday, 1 February 2019

 

7.30am - 8.30am: Registration / light breakfast

 

8.30am - 8.45am: Chairpersons' opening remarks

 

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

 

8.45am - 9.15am: Keynote address

 

Christine Wilson, Commissioner, Federal Trade Commission (Washington, DC)

 

9.15am - 10.45am: Plenary: Multi-sided platforms: Clarity, or confusion?

 

Multi-sided platforms were front and centre at the FTC hearings in the fall, and have raised a host of questions on how antitrust is applied to markets with multiple sides. Earlier in 2018, the US Supreme Court decision in American Express’ “anti-steering” rules of credit card networks has left many wondering what happens next when addressing competitive effects in markets with multiple sides. Is the emphasis on market definition warranted for cases involving exclusionary conduct?   

  • How will differing effects on multiple sides of a platform be weighed? What does economics teach us about the potential trade-offs?
  • Does the Amex decision create an insurmountable burden of proof for plaintiffs in US antitrust cases involving multi-sided platforms? 
  • How is the Court’s decision expected to affect other important platforms such as those in industries involving e-commerce, ride-sharing, social media, and search engines
  • Will the Supreme Court’s ruling create even greater divergence between US and European review of exclusionary practices and vertical restraints?

 

Moderator:
Mark Hamer, Baker McKenzie LLP (Washington, DC)

 

Panel:
Cristina Caffarra, Charles River Associates (Brussels and London)
Eric Lipman, Senior Counsel, Litigation and Global Competition, Uber (San Francisco)
Kristina Nordlander, Sidley Austin LLP (Brussels & London)
Marc Rysman, Professor of Economics, Department of Economics, Boston University (Boston)
Suzanne Wachsstock, Vice President and Chief Antitrust Counsel, American Express (Washington, DC)
James Wilson, Vorys, Sater, Seymour and Pease LLP (Columbus)

 

10.45am - 11.15am: Coffee break

 

11.15am - 12.30pm: (Concurrent sessions)

 

Mergers: Merger review and economics: The next frontier 

 

Decades ago merger review was all about critical loss analysis. Since the release of the latest merger guidelines, the focus has been on upward pricing pressure indices. Margins and diversion ratios have been important throughout. Extensive data is now routinely available, allowing for quantifications that were not possible previously. But econometric analysis is based on past practice, and many merger concerns today are about removing nascent competition and foreclosure. Bargaining models are the latest de rigour economic analysis. This panel will discuss “the best of the best” economic models to use in merger review and how these are used effectively in various jurisdictions.

  • What is the best economic model to deploy in particular cases? Will this be the same economic model in all jurisdictions?
  • Does available data always lead to an econometric analysis?
  • How are bargaining models used when addressing horizontal effects, vertical foreclosure concerns?

 

Moderator:
Rebecca Farrington, White & Case LLP (Washington, DC)

 

Panel:
Andrea Appella, Deputy General Counsel, Europe & Asia, 21st Century Fox (London)
Marin Boney, Kirkland & Ellis LLP (Washington, DC)
Paul Johnson, T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)
Yianis Sarafidis, Charles River Associates (Washington, DC) 
David Vann, Simpson Thacher & Bartlett LLP (London)

 

Antitrust: Is Europe setting the antitrust enforcement agenda today?

 

Europe has been marching ahead of the world with antitrust enforcement action on multiple fronts in respect of unilateral conduct and vertical restraints. While there has been less enforcement by US federal agencies, the FTC hearings have considered a wide range of unilateral conduct covering vertical restraints, predatory pricing and exclusionary conduct. This panel will review recent developments in the treatment of unilateral conduct and vertical restraints.

 

  • What are the practical implications of the discussions at the FTC hearings for future antitrust enforcement actions related to unilateral conduct?
  • What are the implications of the EC Final Report on E-Commerce for treatment of vertical restraints in Europe?
  • In the US, did the earlier lens focused on contracts that reference rivals lead to any different enforcement actions?
  • How should companies deal with allegations of excessive pricing given the different approaches in Europe and the US?
  • What are the implications of the Qualcomm decision for abuse of dominance cases?

 

Moderator:
Debbie Feinstein, Arnold & Porter LLP (Washington, DC)

 

Panel:
Maria Coppola, Counsel for European Affairs, Federal Trade Commission (Washington, DC)
Jordan Ellison, Slaughter and May (Brussels)
Oliver Latham, Charles River Associates (London)
Cecilio Madero Villarejo, Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)
Joshua Soven, Wilson Sonsini Goodrich & Rosati (Washington, DC)

 

12.30pm - 2.00pm: Networking lunch and lunchtime keynote address

 

Alexandre Barreto de Souza, President, Administrative Council for Economic Defense (CADE) (Brasília)

 

Introducer:
Bruno de Luca Drago, Demarest (São Paulo)

 

2.00pm - 3.15pm: (Concurrent sessions)

 

Mergers: Mergers in the digital economy

 

Antitrust practitioners believe we have a modern merger review process, but the popular press is concerned that tech companies are too big. What does this mean for future acquisitions? The FTC hearings are considering whether different analytical or procedural frameworks are needed to address nascent competition. Are our approaches for addressing the removal of potential competition effective in today’s modern era? Are efficiencies more or less important in such circumstances? This panel will consider merger review in the digital economy.

  • Should different standards apply to notification thresholds and enforcement competencies for digital companies, or just the big ones?
  • What standards will apply to entry and efficiencies in nascent competition or prevent cases?
  • Does the DOJ’s challenge of the AT&T/Time Warner transaction indicate greater convergence among agencies on vertical issues that may be a more prevalent concern in the digital economy?
  • Will merger remedies in the digital age be oriented toward easing entry and switching costs as opposed to structural remedies?

 

Moderator:
Olivier Antoine, Crowell & Moring LLP (New York)

 

Panel:
Antonio Bavasso, Allen & Overy LLP (London)
Matthew Bennett, Charles River Associates (London)
Étienne Chantrel, Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)
Gabrielle Kohlmeier, Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)
Edith Ramirez, Hogan Lovells (Washington, DC & Los Angeles)

 

Antitrust: Platform regulation and antitrust

 

The rise of platforms such as Amazon and Google have changed the way that consumers obtain goods and suppliers supply them. Regulators worldwide are grappling with how to assess the impact of mega-platforms through antitrust law. In the United States, at least one FTC Commissioner has argued for increased regulation of platforms through rulemaking, but as recent cases have shown, courts remain sceptical of the dangers of below-cost pricing and vertical integration. In Europe, there is extensive discussion going on and legislative proposals have been made not only by the European Commission but also at the member state level to issue platform-specific regulation, including a proposed EC regulation that addresses issues like transparency on algorithms, preferential treatment of own services or MFN practices regardless of dominance/market power. This panel will debate the efficacy and ability of antitrust law to address platform competition. 

 

  • Does the traditional consumer welfare analysis apply to antitrust issues involving companies like Google, Facebook and Amazon?
  • Should antitrust be used to address labour monopsony, privacy and other concerns involving tech?
  • With operations spanning the globe, how would regulation apply?
  • Where antitrust laws are violated, but remedies are ineffective, is there any other option except regulation?

 

Moderator:
Stephen Weissman, Baker Botts LLP (Washington, DC)

 

Panel:
Moritz Holm-Hadulla, Gleiss Lutz (Stuttgart)
Anne-Claire Hoyng, Senior Manager, Competition Policy, Booking.com (Amsterdam)
Philip Marsden, Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)
Preston McAfee, Charles River Associates (Los Angeles)
Craig Waldman, Jones Day (San Francisco & Silicon Valley)

 

3.15pm - 3.45pm: Coffee break

 

3.45pm - 5.00pm: (Concurrent sessions)

 

Mergers: Minority interests and institutional investors 

 

It has been a well-established tenet of antitrust law that a firm’s partial ownership of a competitor may raise competition issues. With increased concentration in industry generally, institutional investors and private equity investors may hold interests in several competitors, which some have argued softens rivalry leading to higher corporate mark-ups overall.

  • Where such investment is implemented through numerous unaffiliated funds, should such minority investments be treated in the same way as minority interests, and can they truly raise competition issues? 
  • From an economic perspective, what is the theory of harm and what is the threshold at which multiple minority interests will become an antitrust risk?

 

Moderator:
Adam Di Vincenzo, Gibson, Dunn & Crutcher LLP (Washington, DC)

 

Panel:
George Cary, Cleary Gottlieb Steen & Hamilton (Washington, DC)
Alastair Chapman, Freshfields Bruckhaus Deringer LLP (London & Brussels)
Adam Fanaki, Davies Ward Phillips & Vineberg LLP (Toronto)
Barbara Rosenberg, Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)
Isabel Tecu, Charles River Associates (Washington, DC)

 

Antitrust: “Oh no! We got nailed” – compliance after the worst case scenario

 

How do you create an effective compliance program and deal with follow on litigation as part of ongoing compliance after a cartel infringement? This panel will discuss what happens when your company falls on the wrong side of competition law, and how to develop a robust compliance program to keep the worst from happening. What happens when the antitrust violation becomes fraud and corruption charges?

  • How have global changes affected company compliance and strategies before agencies in the case of an investigation?
  • What is the current landscape with respect to discounts or “credits” for an effective compliance program? How can in-house counsel leverage an existing compliance program and a desire to “do better” to mitigate penalties should an investigation be initiated?
  • What are the key compliance issues facing in-house counsel today? What monitoring tools are recommended for creating an effective in-house compliance program?
  • What are the costs and benefits of these types of compliance systems and how can you determine which compliance safeguards are appropriate for your business?

 

Moderator:
Jessica Delbaum, Shearman & Sterling LLP (New York)

 

Panel:
Maria Cecilia Andrade, Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)
Miguel del Pino, Marval, O'Farrell & Mairal (Buenos Aires)
Pierre Honoré, Bredin Prat (Paris)
Deirdre McEvoy-Cappock, Lead US Antitrust & Regulatory Counsel, Siemens (New York)
Marguerite Sullivan, Latham & Watkins LLP (Washington, DC)

 

5.00pm: Conclusion of day one

 

Evening: All delegates are invited to attend an all-conference dinner at The Forge Restaurant sponsored by Charles River Associates, followed by an after-party sponsored by Shearman & Sterling.

 

Saturday, 2 February 2019

 

7.30am - 8.30am: Registration / light breakfast

 

8.30am - 9.00am: Keynote address

 

Martin Coleman, Non-Executive Director and Panel Chair, Competition and Markets Authority (London)

 

9.00am - 10.15am: (Concurrent sessions)

 

Mergers: Under-enforcement or ineffective remedies?

 

Rising corporate mark-ups are being linked to negative macro-economic effects including increasing inequality. Weak antitrust is cited as one cause. But would blocking more mergers change anything? Are there other remedies that might be more effective, assuming there is a problem to solve? What remedies have been used in other jurisdictions or in other regulatory proceedings? The remedy debate outside mergers is that fines are ineffective in correcting conduct which suggests it may be all the more important to get merger review right before industries become too concentrated.

  • Is the skepticism on behavioural remedies in mergers ill-placed?
  • How do we know if we are blocking the right “amount of mergers”?
  • Would reform of our remedies in respect of dominant firm conduct take some of the pressure off merger review?

 

Moderator:
Renata Hesse, Sullivan & Cromwell LLP (Washington, DC)

 

Panel:
Gerwin van Gerven, Linklaters LLP (Brussels)
Diana Moss, President, American Antitrust Institute (Washington, DC)
Faustine Viala, Willkie Farr & Gallagher LLP (Paris)
David Wales, Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)
Thomas Wollmann, Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

 

Antitrust: Civil litigation: A multijurisdictional view

 

Civil litigation issues are more prominent now that we are seeing active plaintiffs in Europe, the US, and Canada. This panel will provide a comparative view on class certification issues, private antitrust damages and other issues, including economic views.

  • Has the rejection of multiple damage awards resulted in a slower development of private damage recoveries and antitrust litigation in Europe and elsewhere?
  • What lessons can be learned from significant multijurisdictional litigation such as the Air Cargo case?
  • How does damages litigation elsewhere in the world compare to the US and Europe?
  • Is greater private enforcement making companies less likely to apply for immunity/leniency?

 

Moderator:
Ted Hassi, Debevoise & Plimpton LLP (Washington, DC)

 

Panel:
Eric Cramer, Berger Montague (Philadelphia)
Donald Houston, McCarthy Tétrault LLP (Toronto)
Thomas Funke, Osborne Clarke (Cologne & Brussels)
Julie North, Cravath, Swaine & Moore LLP (New York)

 

10.15am - 10.45am: Coffee break

 

10.45am - 12.15pm: Plenary: Economist plenary

 

Moderator:
D. Daniel Sokol, Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville) 

 

Panel:
Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Carl Shapiro, Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley) 
Hans Zenger, Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)
Michael Vita, Deputy Director, Federal Trade Commission (Washington, DC)

 

12.15pm: Chairpersons' closing remarks

 

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

 

12.30pm onwards: Close of conference and networking lunch

 

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Early 

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January 8, 2019 | Permalink | Comments (0)

Collusion, Mergers and Antitrust Policy

Filomena Garcia, Indiana University; ISEG - Technical University of Lisbon; UECE - Research Unit in Economics and Complexity, Jose Manuel Paz y Miño, Indiana University Bloomington, Gustavo Torrens, Indiana University study Collusion, Mergers and Antitrust Policy.

ABSTRACT: This paper develops a model that formalizes several connections between mergers, collusion and antitrust policy. In equilibrium, firms may merge to make collusion sustainable when it cannot be sustained with the original set of firms. A rise in the probability of detecting and prosecuting collusion could induce a wave of mergers, so firms can sustain collusion again. Indeed, mergers could fully neutralize the pro-competitive effect of an improvement in collusion detection and prosecution. From a normative perspective, we show that merger policy is crucial when cost synergies are small (or nonexistent) and the competition authority can only deter collusion by restricting mergers. Finally, we highlight that mergers could be more harmful (less beneficial) than expected if the impact that mergers have on the competition regime is properly considered, which suggests a formal definition for the notions of unilateral and coordinated effects associated with mergers.

January 8, 2019 | Permalink | Comments (0)

Monday, January 7, 2019

Airline Alliances and Service Quality

Jan K. Brueckner, University of California, Irvine - Department of Economics; CESifo (Center for Economic Studies and Ifo Institute) and Ricardo Flores-Fillol, Universitat Rovira i Virgili (URV) offer thoughts on Airline Alliances and Service Quality.

ABSTRACT:  Abstract: Convenient scheduling, characterized by adequate flight frequency, is the main quality attribute for airline services. However, the effect of airline alliances on this important dimension of service quality has received almost no attention in the literature. This paper fills this gap by providing such an analysis in a model where flight frequency affects schedule delay and connecting layover time. While an alliance raises service quality when layover time has zero cost, the reverse occurs when layover time is costly. The source of this surprising result is that costly layovers eliminate the additive structure of the full trip price, which consists of the sum of the subfares plus the weighted sum of the reciprocal flight frequencies when layover cost is zero. The paper also shows that nonaligned carriers adjust frequencies to suit passenger preferences in business and leisure markets, while an alliance is less responsive to such preference differences. With hub-airport congestion, greater internalization by allied carriers tends to reduce frequency, but this force is not enough to overturn the positive alliance effect in the low-cost layover case.

January 7, 2019 | Permalink | Comments (0)

Legal Professional Privilege in EU Antitrust Enforcement: Law, Policy & Procedure

Wouter P. J. Wils, King's College London – The Dickson Poon School of Law; European Union - European Commission Legal describes Professional Privilege in EU Antitrust Enforcement: Law, Policy & ProcedureThis is an important topic.

ABSTRACT: This paper discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.

January 7, 2019 | Permalink | Comments (0)

GCR LIVE 8TH ANNUAL ANTITRUST LAW LEADERS FORUM FRIDAY, 01 FEBRUARY 2019 TO SATURDAY, 02 FEBRUARY 2019

Friday-Saturday, 1-2 February 2019, W South Beach, 2201 Collins Avenue, Miami Beach, FL, 33139, United States

 

Global Competition Review is pleased to present a premier one and a half day international conference, to be held at W South Beach, Miami on 1-2 February 2019. 

Preferential room rate

Global Competition Review has a preferential booking rate available at the W South Beach, for the nights of 31 January – 2 February (inclusive). Once you have purchased your ticket, please contact Elizabeth.Barrett@lbresearch.com for further information on how to obtain this rate

E-mail Tel: +44 20 3780 4137

CHAIRS

Margaret Sanderson

Vice President, Charles River Associates (Toronto)

Margaret F. Sanderson has in-depth experience analyzing the economic issues inherent in a wide range of mergers, antitrust/competition, class certification, damages, finance, energy, and telecommunications projects.

Jason Gudofsky

Partner, McCarthy Tétrault (Toronto)

Clients look to Jason to provide legal advice, devise strategies and offer creative solutions to achieve their business goals, whether it involves complex business transactions or governmental investigations, and he does so efficiently and responsively, always putting his clients’ needs first.

KEYNOTE SPEAKERS

Alexandre Barreto de Souza

President, Administrative Council for Economic Defense (CADE) (Brasília)

Nominated to be CADE’s President until June 21st, 2021, Alexandre Barreto holds a Master degree in Management, a specialization in Public Management and a Bachelor degree in Management from the University of Brasília (UnB). He is a Federal Auditor of External Control of the Brazilian Federal Court of Accounts (TCU). At TCU, he worked as Chief of Staff of the Minister and was the Director responsible for the monitoring of state-owned financial institutions and the Director of the areas responsible for the control over public bids and contracts. His work involved rationalization of the procedures, fraud prevention and fight against bid rigging.

Martin Coleman

Non-Executive Director and Panel Chair, Competition and Markets Authority (London)

Martin Coleman was appointed Panel Chair and Panel Inquiry Chair of the Competition and Markets Authority on 19 September 2018 and has been a Non-Executive Director of the Board since 1 October 2017. He is also a member of the Remuneration Committee. Martin currently serves as Deputy Chair of the Office for Students, the regulator for higher education in England, and a trustee of Police Now, whose mission is to transform communities, reduce crime and increase the public’s confidence in policing. Martin is a Fellow of Hughes Hall, University of Cambridge.

Christine Wilson

Commissioner, Federal Trade Commission (Washington, DC)

Christine Wilson was sworn in on September 26, 2018 as a Commissioner of the Federal Trade Commission. President Donald J. Trump named Wilson to a term that expires on Sept. 25, 2025. Christine previously served at the FTC as Chairman Tim Muris’ Chief of Staff during the George W. Bush Administration, and as a law clerk in the Bureau of Competition while attending Georgetown University Law Center.

SPEAKERS

Maria Cecília Andrade

Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)

Olivier Antoine

Crowell & Moring LLP (New York)

Andrea Appella

Deputy General Counsel, Europe & Asia, 21st Century Fox (London)

Antonio Bavasso

Allen & Overy LLP (London)

Matthew Bennett

Charles River Associates (London)

Marin Boney

Kirkland & Ellis LLP (Washington, DC)

Cristina Caffarra

Charles River Associates (Brussels and London)

George Cary

Cleary Gottlieb Steen & Hamilton (Washington, DC)

Étienne Chantrel

Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)

Alastair Chapman

Freshfields Bruckhaus Deringer LLP (London & Brussels)

Maria Coppola

Counsel for European Affairs, Federal Trade Commission (Washington, DC)

Eric Cramer

Berger Montague (Philadelphia)

Bruno de Luca Drago

Demarest (São Paulo)

Miguel del Pino

Marval, O'Farrell & Mairal (Buenos Aires)

Jessica Delbaum

Shearman & Sterling LLP (New York)

Adam Di Vincenzo

Gibson, Dunn & Crutcher LLP (Washington, DC)

Jordan Ellison

Slaughter and May (Brussels)

Rebecca Farrington

White & Case LLP (Washington, DC)

Adam Fanaki

Davies Ward Phillips & Vineberg LLP (Toronto)

Debbie Feinstein

Arnold & Porter LLP (Washington, DC)

Thomas Funke

Osborne Clarke (Cologne & Brussels)

Mark Hamer

Baker McKenzie LLP (Washington, DC)

Ted Hassi

Debevoise & Plimpton (Washington, DC)

Renata Hesse

Sullivan & Cromwell LLP (Washington, DC)

Moritz Holm-Hadulla

Gleiss Lutz (Stuttgart)

Pierre Honoré

Bredin Prat (Paris)

Donald Houston

McCarthy Tétrault LLP (Toronto)

Anne-Claire Hoyng

Senior Manager, Competition Policy, Booking.com (Amsterdam)

Paul Johnson

T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)

Gabrielle Kohlmeier

Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)

Oliver Latham

Charles River Associates (London)

Eric Lipman

Senior Counsel, Litigation and Global Competition, Uber (San Francisco)

Cecilio Madero Villarejo

Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)

Philip Marsden

Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)

Preston McAfee

Charles River Associates (Los Angeles)

Deirdre McEvoy-Cappock

Lead US Antitrust & Regulatory Counsel, Siemens (New York)

Diana Moss

President, American Antitrust Institute (Washington, DC)

Kristina Nordlander

Sidley Austin LLP (Brussels & London)

Julie North

Cravath, Swaine & Moore LLP (New York)

Edith Ramirez

Hogan Lovells (Washington, DC & Los Angeles)

Barbara Rosenberg

Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)

Marc Rysman

Professor of Economics, Department of Economics, Boston University (Boston)

Yianis Sarafidis

Charles River Associates (Washington, DC)

Carl Shapiro

Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley)

D. Daniel Sokol

Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville)

Joshua Soven

Wilson Sonsini Goodrich & Rosati (Washington, DC)

Marguerite Sullivan

Latham & Watkins LLP (Washington, DC)

Isabel Tecu

Charles River Associates (Washington, DC)

Gerwin Van Gerven

Linklaters LLP (Brussels)

David Vann

Simpson Thacher & Bartlett LLP (London)

Faustine Viala

Willkie Farr & Gallagher LLP (Paris)

Michael Vita

Deputy Director, Federal Trade Commission (Washington, DC)

Suzanne Wachsstock

Vice President and Chief Antitrust Counsel, American Express (Washington, DC)

Craig Waldman

Jones Day (San Francisco & Silicon Valley)

David Wales

Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)

Stephen Weissman

Baker Botts LLP (Washington, DC)

James Wilson

Vorys, Sater, Seymour and Pease LLP (Columbus)

Thomas Wollmann

Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

Hans Zenger

Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)

PROGRAMME

Thursday, 31 January 2019

7.00pm - 9.00pm: Welcome reception - sponsored by McCarthy Tétrault LLP

 

Friday, 1 February 2019

7.30am - 8.30am: Registration / light breakfast

8.30am - 8.45am: Chairpersons' opening remarks

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

8.45am - 9.15am: Keynote address

Christine Wilson, Commissioner, Federal Trade Commission (Washington, DC)

9.15am - 10.45am: PlenaryMulti-sided platforms: Clarity, or confusion?

Multi-sided platforms were front and centre at the FTC hearings in the fall, and have raised a host of questions on how antitrust is applied to markets with multiple sides. Earlier in 2018, the US Supreme Court decision in American Express’ “anti-steering” rules of credit card networks has left many wondering what happens next when addressing competitive effects in markets with multiple sides. Is the emphasis on market definition warranted for cases involving exclusionary conduct?   

  • How will differing effects on multiple sides of a platform be weighed? What does economics teach us about the potential trade-offs?
  • Does the Amex decision create an insurmountable burden of proof for plaintiffs in US antitrust cases involving multi-sided platforms? 
  • How is the Court’s decision expected to affect other important platforms such as those in industries involving e-commerce, ride-sharing, social media, and search engines
  • Will the Supreme Court’s ruling create even greater divergence between US and European review of exclusionary practices and vertical restraints?

Moderator:
Mark Hamer, Baker McKenzie LLP (Washington, DC)

Panel:
Cristina Caffarra, Charles River Associates (Brussels and London)
Eric Lipman, Senior Counsel, Litigation and Global Competition, Uber (San Francisco)
Kristina Nordlander, Sidley Austin LLP (Brussels & London)
Marc Rysman, Professor of Economics, Department of Economics, Boston University (Boston)
Suzanne Wachsstock, Vice President and Chief Antitrust Counsel, American Express (Washington, DC)
James Wilson, Vorys, Sater, Seymour and Pease LLP (Columbus)

10.45am - 11.15am: Coffee break

11.15am - 12.30pm: (Concurrent sessions)

Mergers: Merger review and economics: The next frontier 

Decades ago merger review was all about critical loss analysis. Since the release of the latest merger guidelines, the focus has been on upward pricing pressure indices. Margins and diversion ratios have been important throughout. Extensive data is now routinely available, allowing for quantifications that were not possible previously. But econometric analysis is based on past practice, and many merger concerns today are about removing nascent competition and foreclosure. Bargaining models are the latest de rigour economic analysis. This panel will discuss “the best of the best” economic models to use in merger review and how these are used effectively in various jurisdictions.

  • What is the best economic model to deploy in particular cases? Will this be the same economic model in all jurisdictions?
  • Does available data always lead to an econometric analysis?
  • How are bargaining models used when addressing horizontal effects, vertical foreclosure concerns?

Moderator:
Rebecca Farrington, White & Case LLP (Washington, DC)

Panel:
Andrea Appella, Deputy General Counsel, Europe & Asia, 21st Century Fox (London)
Marin Boney, Kirkland & Ellis LLP (Washington, DC)
Paul Johnson, T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)
Yianis Sarafidis, Charles River Associates (Washington, DC) 
David Vann, Simpson Thacher & Bartlett LLP (London)

Antitrust: Is Europe setting the antitrust enforcement agenda today?

Europe has been marching ahead of the world with antitrust enforcement action on multiple fronts in respect of unilateral conduct and vertical restraints. While there has been less enforcement by US federal agencies, the FTC hearings have considered a wide range of unilateral conduct covering vertical restraints, predatory pricing and exclusionary conduct. This panel will review recent developments in the treatment of unilateral conduct and vertical restraints.

  • What are the practical implications of the discussions at the FTC hearings for future antitrust enforcement actions related to unilateral conduct?
  • What are the implications of the EC Final Report on E-Commerce for treatment of vertical restraints in Europe?
  • In the US, did the earlier lens focused on contracts that reference rivals lead to any different enforcement actions?
  • How should companies deal with allegations of excessive pricing given the different approaches in Europe and the US?
  • What are the implications of the Qualcomm decision for abuse of dominance cases?

Moderator:
Debbie Feinstein, Arnold & Porter LLP (Washington, DC)

Panel:
Maria Coppola, Counsel for European Affairs, Federal Trade Commission (Washington, DC)
Jordan Ellison, Slaughter and May (Brussels)
Oliver Latham, Charles River Associates (London)
Cecilio Madero Villarejo, Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)
Joshua Soven, Wilson Sonsini Goodrich & Rosati (Washington, DC)

12.30pm - 2.00pm: Networking lunch and lunchtime keynote address

Alexandre Barreto de Souza, President, Administrative Council for Economic Defense (CADE) (Brasília)

Introducer:
Bruno de Luca Drago, Demarest (São Paulo)

2.00pm - 3.15pm: (Concurrent sessions)

Mergers: Mergers in the digital economy

Antitrust practitioners believe we have a modern merger review process, but the popular press is concerned that tech companies are too big. What does this mean for future acquisitions? The FTC hearings are considering whether different analytical or procedural frameworks are needed to address nascent competition. Are our approaches for addressing the removal of potential competition effective in today’s modern era? Are efficiencies more or less important in such circumstances? This panel will consider merger review in the digital economy.

  • Should different standards apply to notification thresholds and enforcement competencies for digital companies, or just the big ones?
  • What standards will apply to entry and efficiencies in nascent competition or prevent cases?
  • Does the DOJ’s challenge of the AT&T/Time Warner transaction indicate greater convergence among agencies on vertical issues that may be a more prevalent concern in the digital economy?
  • Will merger remedies in the digital age be oriented toward easing entry and switching costs as opposed to structural remedies?

Moderator:
Olivier Antoine, Crowell & Moring LLP (New York)

Panel:
Antonio Bavasso, Allen & Overy LLP (London)
Matthew Bennett, Charles River Associates (London)
Étienne Chantrel, Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)
Gabrielle Kohlmeier, Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)
Edith Ramirez, Hogan Lovells (Washington, DC & Los Angeles)

Antitrust: Platform regulation and antitrust

The rise of platforms such as Amazon and Google have changed the way that consumers obtain goods and suppliers supply them. Regulators worldwide are grappling with how to assess the impact of mega-platforms through antitrust law. In the United States, at least one FTC Commissioner has argued for increased regulation of platforms through rulemaking, but as recent cases have shown, courts remain sceptical of the dangers of below-cost pricing and vertical integration. In Europe, there is extensive discussion going on and legislative proposals have been made not only by the European Commission but also at the member state level to issue platform-specific regulation, including a proposed EC regulation that addresses issues like transparency on algorithms, preferential treatment of own services or MFN practices regardless of dominance/market power. This panel will debate the efficacy and ability of antitrust law to address platform competition. 

  • Does the traditional consumer welfare analysis apply to antitrust issues involving companies like Google, Facebook and Amazon?
  • Should antitrust be used to address labour monopsony, privacy and other concerns involving tech?
  • With operations spanning the globe, how would regulation apply?
  • Where antitrust laws are violated, but remedies are ineffective, is there any other option except regulation?

Moderator:
Stephen Weissman, Baker Botts LLP (Washington, DC)

Panel:
Moritz Holm-Hadulla, Gleiss Lutz (Stuttgart)
Anne-Claire Hoyng, Senior Manager, Competition Policy, Booking.com (Amsterdam)
Philip Marsden, Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)
Preston McAfee, Charles River Associates (Los Angeles)
Craig Waldman, Jones Day (San Francisco & Silicon Valley)

3.15pm - 3.45pm: Coffee break

3.45pm - 5.00pm: (Concurrent sessions)

Mergers: Minority interests and institutional investors 

It has been a well-established tenet of antitrust law that a firm’s partial ownership of a competitor may raise competition issues. With increased concentration in industry generally, institutional investors and private equity investors may hold interests in several competitors, which some have argued softens rivalry leading to higher corporate mark-ups overall.

  • Where such investment is implemented through numerous unaffiliated funds, should such minority investments be treated in the same way as minority interests, and can they truly raise competition issues? 
  • From an economic perspective, what is the theory of harm and what is the threshold at which multiple minority interests will become an antitrust risk?

Moderator:
Adam Di Vincenzo, Gibson, Dunn & Crutcher LLP (Washington, DC)

Panel:
George Cary, Cleary Gottlieb Steen & Hamilton (Washington, DC)
Alastair Chapman, Freshfields Bruckhaus Deringer LLP (London & Brussels)
Adam Fanaki, Davies Ward Phillips & Vineberg LLP (Toronto)
Barbara Rosenberg, Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)
Isabel Tecu, Charles River Associates (Washington, DC)

Antitrust: “Oh no! We got nailed” – compliance after the worst case scenario

How do you create an effective compliance program and deal with follow on litigation as part of ongoing compliance after a cartel infringement? This panel will discuss what happens when your company falls on the wrong side of competition law, and how to develop a robust compliance program to keep the worst from happening. What happens when the antitrust violation becomes fraud and corruption charges?

  • How have global changes affected company compliance and strategies before agencies in the case of an investigation?
  • What is the current landscape with respect to discounts or “credits” for an effective compliance program? How can in-house counsel leverage an existing compliance program and a desire to “do better” to mitigate penalties should an investigation be initiated?
  • What are the key compliance issues facing in-house counsel today? What monitoring tools are recommended for creating an effective in-house compliance program?
  • What are the costs and benefits of these types of compliance systems and how can you determine which compliance safeguards are appropriate for your business?

Moderator:
Jessica Delbaum, Shearman & Sterling LLP (New York)

Panel:
Maria Cecilia Andrade, Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)
Miguel del Pino, Marval, O'Farrell & Mairal (Buenos Aires)
Pierre Honoré, Bredin Prat (Paris)
Deirdre McEvoy-Cappock, Lead US Antitrust & Regulatory Counsel, Siemens (New York)
Marguerite Sullivan, Latham & Watkins LLP (Washington, DC)

5.00pm: Conclusion of day one

Evening: All delegates are invited to attend an all-conference dinner at The Forge Restaurant sponsored by Charles River Associates, followed by an after-party sponsored by Shearman & Sterling.

 

Saturday, 2 February 2019

7.30am - 8.30am: Registration / light breakfast

8.30am - 9.00am: Keynote address

Martin Coleman, Non-Executive Director and Panel Chair, Competition and Markets Authority (London)

9.00am - 10.15am: (Concurrent sessions)

Mergers: Under-enforcement or ineffective remedies?

Rising corporate mark-ups are being linked to negative macro-economic effects including increasing inequality. Weak antitrust is cited as one cause. But would blocking more mergers change anything? Are there other remedies that might be more effective, assuming there is a problem to solve? What remedies have been used in other jurisdictions or in other regulatory proceedings? The remedy debate outside mergers is that fines are ineffective in correcting conduct which suggests it may be all the more important to get merger review right before industries become too concentrated.

  • Is the skepticism on behavioural remedies in mergers ill-placed?
  • How do we know if we are blocking the right “amount of mergers”?
  • Would reform of our remedies in respect of dominant firm conduct take some of the pressure off merger review?

Moderator:
Renata Hesse, Sullivan & Cromwell LLP (Washington, DC)

Panel:
Gerwin van Gerven, Linklaters LLP (Brussels)
Diana Moss, President, American Antitrust Institute (Washington, DC)
Faustine Viala, Willkie Farr & Gallagher LLP (Paris)
David Wales, Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)
Thomas Wollmann, Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

Antitrust: Civil litigation: A multijurisdictional view

Civil litigation issues are more prominent now that we are seeing active plaintiffs in Europe, the US, and Canada. This panel will provide a comparative view on class certification issues, private antitrust damages and other issues, including economic views.

  • Has the rejection of multiple damage awards resulted in a slower development of private damage recoveries and antitrust litigation in Europe and elsewhere?
  • What lessons can be learned from significant multijurisdictional litigation such as the Air Cargo case?
  • How does damages litigation elsewhere in the world compare to the US and Europe?
  • Is greater private enforcement making companies less likely to apply for immunity/leniency?

Moderator:
Ted Hassi, Debevoise & Plimpton LLP (Washington, DC)

Panel:
Eric Cramer, Berger Montague (Philadelphia)
Donald Houston, McCarthy Tétrault LLP (Toronto)
Thomas Funke, Osborne Clarke (Cologne & Brussels)
Julie North, Cravath, Swaine & Moore LLP (New York)

10.15am - 10.45am: Coffee break

10.45am - 12.15pm: Plenary: Economist plenary

Moderator:
D. Daniel Sokol, Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville) 

Panel:
Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Carl Shapiro, Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley) 
Hans Zenger, Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)
Michael Vita, Deputy Director, Federal Trade Commission (Washington, DC)

12.15pm: Chairpersons' closing remarks

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

12.30pm onwards: Close of conference and networking lunch

VENUE

W South Beach, 2201 Collins Avenue, Miami Beach, FL, 33139, United States

TESTIMONIALS

  • "I found it very interesting for law firms and lawyers both EU & US. As a Colombian lawyer it was good to be updated on antitrust issues in other countries"

  • "Learned a lot that I can immediately apply in practice."

  • "A very strong event" 

TICKET PRICES

PRIVATE PRACTITIONER
Type Price Until
Super Early $1,525  21 December 2018
Early $1,725 18 January 2019
Standard $1,950 2 February 2019

 

IN-HOUSE/GOVERNMENT REPRESENTATIVES
Type Price
Standard Complimentary

 

January 7, 2019 | Permalink | Comments (0)

Access to Digital Car Data and Competition in Aftersales Services

Bertin Martens, Joint Research Centre and Frank Mueller-Langer, European Commission, Joint Research Center; Max Planck Institute for Innovation and Competition ponder Access to Digital Car Data and Competition in Aftersales Services.

ABSTRACT: This study looks at car data markets from an economic perspective. We start from several options for the technical characteristics of data access points that have been discussed among stakeholders in the automotive industry. We examine the structure of data markets that are likely to emerge from these characteristics and the implications for the welfare of manufacturers, aftermarket service providers and drivers. Car manufacturers face competition in car markets and aftersales services. However, they can design the car data architecture to ensure their exclusive access to the data. That would give them a monopoly in the market for car data from their brand. They can use this to increase their leverage on aftersales services markets. Our baseline scenario is the Extended Vehicle proposal that manufacturers prefer. This ensures their data access monopoly and enables them to maximize revenue from data and data-driven aftersales services. It reduces welfare for drivers and aftersales service providers. Two technical variations on the baseline scenario reduce manufacturers' leverage over data server governance and their monopolistic power. That could reduce social welfare losses and transfer more surplus to drivers and service providers, compared to the baseline scenario. Other scenarios examine alternative data access gateways, for instance by keeping the OBD plug open and by applying real time data portability under the GDPR. These scenarios may offer some scope for regulators if they wish to keep alternative data access channels open in order to stimulate competition in aftersales services markets. However, they entail additional hardware and switching costs for consumers, compared to the baseline and are therefore partial and imperfect substitutes. In two final scenarios we examine the market position of B2B data marketplaces and consumer media services platforms. The potential for data aggregation across car brands and other sources creates some possibilities for these platforms to provide a counterweight to monopolistic behaviour by the manufacturers. However, manufacturers' control over the data supply and access to the in-car human interface ensures that they retain substantial leverage over these platforms. Regulators may consider creating the conditions for a more level playing field between OEM services and third-party aftersales service providers.

January 7, 2019 | Permalink | Comments (0)

Convergence, Divergence or Disturbance – How Major Economic Powers Approach International Antitrust

Michael Ristaniemi, University of Turku, Faculty of Law has written Convergence, Divergence or Disturbance – How Major Economic Powers Approach International Antitrust.

ABSTRACT: This article attempts to understand how the driving forces of the global economy—the European Union, the United States, and China—view and approach international antitrust. This will be done by analysing recent stances that they have taken as well as longer trends in their actions and inactions in terms of international cooperation on competition issues, whether at the level of political rhetoric, legislative action or by a shift in legal praxis. Reasons for underlying differences are analysed and potential areas for deeper cooperation are identified. The article concludes by suggesting possible developments for future global cooperation in international antitrust. Findings will aid in forecasting the future path for international antitrust.

January 7, 2019 | Permalink | Comments (0)

Sunday, January 6, 2019

Buyouts Lead to Less Innovation, New Research Shows

Antitrust law and economics scholars don't pay enough attention to literatures outside of law and economics (finance, management, information systems, supply chain management, marketing).  This much was clear from the FTC hearings, where a number of panelists from practice (and some from the legal academy) made uninformed points about mergers and conduct where there is a significant extant literature across fields.  One new working paper should raise some concern regarding private equity acquisitions.  See below. 

Douglas J. Cumming, Florida Atlantic University, Rejo Peter, York University - Schulich School of Business, Monika Tarsalewska, University of Exeter Business School, identify issues in Public-to-Private Buyouts and Innovation.

Abstract: We study the effect of public-to-private buyout transactions on investments in innovation using an international sample from thirty-six countries over the 1997-2017 period. We use patent counts and citations to proxy for the quantity, quality, and economic importance of innovation. Our results are based on time analysis and matched sample regressions. The data indicate that buyouts are associated with a significant reduction in patents and patent citations, including a reduction of radical (i.e., more scientific) patents. When we split the sample into institutional and management buyouts, the negative effect of buyouts is confirmed only for institutional buyouts, suggesting that highly leveraged transactions prevent target firms from adopting long-term investments. This finding is confirmed by reductions in innovator employment and innovation efficiency subsequent to going private. Moreover, the data indicate that the negative effect is mostly prevalent for transactions where the cost of the deal’s debt financing is higher than the post-buyout cost of the debt. For deals financed only with private equity, this effect is aggravated in the post-2006 period, suggesting that the nature of deals has worsened innovation over time. We rule out alternative explanations for these findings, including but not limited to outliers, truncation bias, and endogeneity.

 

 

 

January 6, 2019 | Permalink | Comments (0)

Most downloaded Antitrust Law papers in 2018 on SSRN

Thibault Schrepel offers a list here. One of the papers is about privacy rather than about antitrust so really it is the top 9. Some of the papers are surprising and some are not. Economics papers did not make the list. There were lots of papers on the list that focus on digital issues. I am not surprised as these topics have the most cross-selling value outside of the field (as also would be the case with corporate or IP cross-over papers). Perhaps surprising in a good way are the number of downloads involving a paper on Robinson Patman and some of the lessons to be learned from enforcement of this unfortunate statute.

January 6, 2019 | Permalink | Comments (0)

Friday, January 4, 2019

IIM-A study allays government fears on e-commerce FDI

See here for details.

January 4, 2019 | Permalink | Comments (0)