Wednesday, May 6, 2020
Dennis Weisman, Kansas State University - Department of Economics explores Complementarities as an Antitrust Defense.
ABSTRACT: We employ a Cournot model with interdependent demands to explore the interaction between demand and cost complementarities in mitigating upward pricing pressure, post-merger. The analysis reveals that even substantial increases in the HHI post-merger need not raise competitive concerns when output is redistributed from single-market to multi-market providers. Furthermore, the numerical simulations indicate that there is a wide range of demand and cost complementarity parameters over which even monopolization of the market would not be expected to result in higher prices. These findings may constructively inform merger policy and provide useful context for application of the DOJ/FTC horizontal merger guidelines in an increasingly digitalized economy.
Tuesday, May 5, 2020
John Kwoka’s Controlling Mergers and Market Power: A Program for Reviving Antitrust in America is an important and timely contribution from a prominent antitrust economist and policy advisor.
It has been many decades since questions about antitrust enforcement have been so prominent in political, economic, and scholarly debate. Mergers in countless industries, rising concentration throughout the economy, and the dominance of tech giants have brought renewed attention to the role and the responsibility of antitrust policy.
But scholarly analysis of these issues, which Professor Kwoka has already contributed to in many ways, is not by itself enough. Once the underlying problems have been identified and documented, commentators and policymakers need to take the next step and provide sensible, enforceable, and economically rational proposals to address them.
The purpose of this book is to do just that. Controlling Mergers and Market Power sets out a comprehensive, detailed, and rigorous program to revive antitrust, and merger control in particular, in the U.S. It analyzes the specific failures and weaknesses of current policy.
Then, drawing on contemporary economic research and experience, it develops a series of specific proposals for reforming and revitalizing antitrust policy. Collectively, these reforms would reverse the trend toward a narrow, permissive antitrust policy, and strengthen competition in the economy.
Few are better positioned to set out a program for reforming antitrust. Professor Kwoka’s earlier work on merger policy has been credited for its insights and for prompting renewed attention to the issues. In this new breakthrough contribution, he takes us through the next and necessary steps to revive antitrust in America.
John Kwoka is the Neal F. Finnegan Distinguished Professor of Economics at Northeastern University. He has previously taught at several other universities and served in various capacities at the Federal Trade Commission, the Antitrust Division of the Justice Department, and the Federal Communications Commission. He is the author and editor of several books and numerous articles in professional journals, has lectured and consulted widely on the subject of competition and competition policy, and is regularly quoted in the media.
Table of Contents
The Eroding State of Competition in the U.S. Economy
The Erosion of Merger Control
Re-establishing Market Structure:
Merger Guidelines and the Structural Presumption
Rethinking “Plus and Minus” Factors:
Efficiencies, Entry, and Potential Competition
Revisiting Other Merger Issues:
Nonprice Effects, Monopsony, and Remedies
Reviewing Broader Issues:
Vertical Mergers, Common Ownership, and Tech
Reforming the Merger Control Process:
Retrospectives, Resources, and the Judiciary
A Summing Up
Comments on FTC Remedies Study
Jorge Contreras, Utah asks Is Biopharma Ready for the Standards Wars?
ABSTRACT: This symposium contribution sheds new light on Momenta v. Amphastar, a recent federal case in which issues relating to standardization and patent disclosure that have previously been observed in the semiconductor, computing and telecommunications sectors found their way into a dispute between two biosimilar manufacturers. One such manufacturer, Momenta, participated in the development of a standard for testing the purity of generic enoxaparin under the auspices of the United States Pharmacopeial Convention, but failed to disclose that it had applied for a patent on the testing method. When Momenta later sued Amphastar for infringement based on its use of that testing method, Amphastar raised defenses of waiver and equitable estoppel, then brought antitrust claims against Momenta and its distribution partner Sandoz. Amphastar prevailed at the district court on all three theories, obtaining a ruling that Momenta's patent was unenforceable. This case demonstrates that issues surrounding the acquisition and disclosure of patents on standardized technologies have more salience in the biopharma sector than commonly believed. As such, standards organizations operating in this sector should ensure that their policies and procedures are robust enough to delineate clearly the obligations of participants with respect to patents covering standardized technologies, and organizations that participate in biopharma standards-development should heed the valuable lessons offered by more than three decades of litigation and policy making in the technology sector.
The ‘Custom And Practice’ Of Wall Street Banks Keeping “Proprietary” Fees Charged To Public Corporations Off Of The SEC “Edgar” Site And Otherwise Confidential: Impact On Price? Unlawful Conspiracy?
Thomas Willcox has a new article on The ‘Custom And Practice’ Of Wall Street Banks Keeping “Proprietary” Fees Charged To Public Corporations Off Of The SEC “Edgar” Site And Otherwise Confidential: Impact On Price? Unlawful Conspiracy?
Vertical Information Restraints: Pro- and Anticompetitive Impacts of Minimum-Advertised-Price Restrictions
John Asker, University of California, Los Angeles and Heski Bar-Isaac, University of Toronto analyze Vertical Information Restraints: Pro- and Anticompetitive Impacts of Minimum-Advertised-Price Restrictions. Worth reading!
ABSTRACT: We consider vertical contracts in which the retail market may involve search frictions. Minimum-advertised-price (MAP) restrictions act as a restraint on customers’ information and can therefore increase search frictions in the retail sector. Such restraints thereby soften retail competition—an impact also generated by resale price maintenance (RPM). However, by accommodating (consumer or retailer) heterogeneity, MAP restrictions can allow for higher manufacturer profits than RPM. We show that these restrictions can do so through facilitating price discrimination among consumers, encouraging service provision, and facilitating manufacturer collusion. Thus, welfare effects may be positive or negative compared with RPM or with the absence of such restrictions.
Konstantinos Stylianou, University of Leeds - School of Law asks Can Common Business Practices Ever Be Anticompetitive? Redefining Monopolization.
ABSTRACT: For most of its modern history, antitrust law distinguished between normal competition and monopolization by looking for merit, legitimate business justifications, or efficiencies in the challenged business conduct. These proxies were seen as appropriate because they served antitrust law’s welfare objectives well. However, the universal adoption of these proxies has overshadowed significant disadvantages, chief among them being that firms do not think in terms of legitimate business justifications or efficiencies, but rather in terms of long-term sustainability and appropriation of value. As a result, antitrust law becomes detached from the very subjects it purports to regulate. Against the backdrop of the recent resurgence of enforcement activity, particularly involving tech giants,this article attempts a conceptualization of monopolization that does not revolve around merit in any form or function. Instead it introduces the proxy of commonness of business practices to determine their legality. This helps highlight the importance of considering “how things are done” in the relevant market, and can enhance the heuristic mechanism of distinguishing between normal and anticompetitive practices. To prove this point the article develops an error test framework, through which it compares current tests with the proposed test in terms of their error footprint, and concludes that the integration of the commonness parameter delivers better results. Ultimately, the inquiry undertaken herein is not only about constructing a conception of normal competition different from the only standard we currently have, that is, variants of merit, but also about shifting the conversation from how to fine-tune existing standards to how to capture a more complete conception of competition.
Monday, May 4, 2020
Steven C. Salop, Georgetown University Law Center explains The 2020 Vertical Merger Guidelines: A Suggested Revision.
ABSTRACT: The FTC and DOJ requested comments on their draft Vertical Merger Guidelines in January 2020. This article is a complete alternative set of suggested Vertical Merger Guidelines that reflects and supplements the approach explained in the comments submitted by the author along with Jonathan. Baker, Nancy Rose and Fiona Scott Morton, as well as their other comments, and might be read in conjunction with those comments. This suggested revision of the Agencies’ draft expands the list of potential competition harms and provides illustrative examples. It expands and unifies the discussion and treatment of potential competitive benefits. It deletes the quasi-safe harbor and suggests the circumstances under which competitive harms raise lessened concerns on the one hand and heightened concerns on the other.
Javier García-Verdugo, Carlos Merino Troncoso, Ane M Martin offer Probability of Cartel Detection in Spain: An Assessment.
Cartels are among the most harmful anticompetitive practices for society. For this reason, competition authorities attempt to detect and dismantle as many cartels as possible, and to impose dissuasive penalties on them. For penalties to be deterrent, the expected profit for firms that are considering joining a cartel—or are already part of one—must be lower than the amount of the expected fine. In other words, a dissuasive fine is one that makes the formation or continuation of a cartel unprofitable, because the conduct would generate more losses than profits for the firms involved.
In addition to the illicit profit deriving from the anticompetitive conduct, the other key factor that must be considered in determining the amount of dissuasive penalties is the probability of detection and sanction, in other words, the likelihood that competition authorities will discover the cartel and impose the appropriate penalties on the firms involved. The greater this probability is, the greater the anticipated profit must be for companies to decide to participate in the anticompetitive agreement, and therefore, the greater the dissuasive power of a certain amount of penalty will be. From a different point of view, for a given anticipated illicit profit, a lower probability of detection requires imposing a higher fine to achieve the same deterrent objective.
Access to the Commission File and Confidentiality of Information under European Competition Law in the Context of Antitrust Damages Claims
The European Commission is entitled to publish a non-confidential version of a cartel decision pending an action for annulment before the European courts.
Applications for interim measures before the General Court aimed at preventing the publication of confidential information in a European Commission cartel decision must furnish prima facie evidence that the disclosure of the decision may cause serious and irreparable damages and that the court order is urgent to avoid such serious and irreparable harm.
Written communications between the European Commission and a party under cartel investigation made in the context of settlement discussions do not benefit from a presumption of confidentiality and may be disclosed to addressees of a statement of objections (SO) who have not requested settlement.
In UK damages litigation, confidential information in the European Commission’s file disclosed within a confidentiality ring may be reclassified as non-confidential and therefore disclosed outside the confidentiality ring without the need to consult with the European Commission or the UK Competition and Markets Authority.
In French damages litigation, all defendants may be requested to disclose to the claimants the European Commission’s SO as well as documents referred to in the Commission’s non-confidential decision.
The new paradigm introduced by behavioural studies changes the traditional approach of the incitement to break the law. This article aims to demonstrate three crucial points.
First, from a deterrence perspective, it is necessary to differentiate the value of behavioural theory as a science that allows public authorities to save costs from the value of this theory for the legislator who needs to enact a system of law that must be upheld.
Second, behavioural theory is very useful in terms of preventive-deterrence by encouraging ‘soft’ regulation.
Third, despite its value, behavioural theory remains limited in ensuring a better deterrence of anticompetitive practices.
Francisco Costa-Cabral, Tilburg Law and Economics Center (TILEC), Leigh Hancher, Tilburg Law and Economics Center (TILEC), Giorgio Monti, Tilburg Law and Economics Center (TILEC), Alexandre Ruiz Feases, Tilburg Law and Economics Center (TILEC), analyze EU Competition Law and COVID-19.
ABSTRACT: This paper explores how EU competition law enforcement might be affected by the COVID-19 pandemic. Each section of this paper reviews how various components of EU competition law are impacted. The paper evaluates the state of play and, where relevant, it makes policy proposals for how competition law might develop. It suggests that the Commission’s state aid policy is unprecedentedly lax but more tightening up might be welcomed to ensure state funds are not misspent. In the field of antitrust it recommends that competition authorities should be watchful of excessive prices and price discrimination, using interim measures more boldly. Collusion should remain an enforcement priority but a procedural pathway to review agreements that may be in the public interest is proposed, drawing on practices developed in the US in the aftermath of major natural disasters. In merger control, the Commission’s strict interpretation of the failing firm defense is appropriate but, in general, a more skeptical attitude towards mergers may be warranted during this period. Advocacy plays a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason.
Friday, May 1, 2020
Koren Wong-Ervin, Antitrust Partner at Axinn, Veltrop, & Harkrider LLP, Anne Layne-Farrar, Charles River Associates; Northwestern University, and James Moore, Axinn Veltrop & Harkrider, LLP discuss The Risks of Radicalism: Exacerbating Harms from Type I Errors.
ABSTRACT: Calls to radically change U.S. antitrust law continue to be a focus of law and policy makers. According to proponents of the proposed changes, drastic legislative amendments are necessary to remedy the (perceived) failures of current antitrust standards to prohibit anticompetitive conduct, in particular in high-technology markets. While efforts to address market failures are certainly worthy of discussion, the various legislative proposals risk serious adverse consequences, including higher prices for consumers and reduced innovation and consumer choice.
This article begins with a brief discussion of the economic basis for regulation, followed by a summary of recently proposed legislation from Senator Elizabeth Warren and Representative David Cicilline and from Senator Amy Klobuchar. The main part of this article is an exploration of the risks posed by these draft bills through a retrospective examination of market developments following past interventions by antitrust agencies.
Collaborative Platforms and Data Pools for Smart Urban Societies and Mobility as a Service (MaaS) from a Competition Law Perspective
Bjorn Lundqvist, Stockholm University - Faculty of Law and Erion Murati, University of Hamburg suggest Collaborative Platforms and Data Pools for Smart Urban Societies and Mobility as a Service (MaaS) from a Competition Law Perspective.
ABSTRACT: In the Smart Urban society all devices and service providers will monitor, collect data and exchange data, whilst the device producers and service providers will store, distribute, analyse and re-use data on a grand scale. If firms would like to combine data, they need to give each other access either by sharing, trading, or pooling the data. On the one hand, industry-wide pooling of data could increase efficiency of certain services, and contribute to the innovation of other services, e.g., think about self-driven cars or even creating whole networks for transport available on one platform, i.e. Mobility as a Service (MaaS). On the other hand, firms combining business data may use the data, not to advance their services or products, but to collude, to exclude competitors or to abuse their market position. Indeed, by combining their data and collaborate they can gain market power, and, hence, the ability to violate competition law. We also see platforms hoarding data and designing the data architecture so to become system leaders in vertical value chains, exclusively obtain all data from various sources creating a silo or ecosystem. This paper will discuss a new platform configuration being developed regarding transport services. The new idea for a transport platform is being developed and discussed under the notion of MaaS. MaaS is a new transport paradigm that integrates existing and new mobility services, public and private transport services such as subway and e-scooters, into one single digital platform, providing customised door-to-door transport and offering personalised trip planning and payment options. The development of integrated multimodal information systems and integrated payment solutions have enabled the unfolding of the MaaS concept. We will analyse the MaaS concept from a competition law perspective, and whether the concept might be in violation of EU Competition Law, specifically Articles 101 and 102 TFEU, respectively.
Eran Fish and Michal Gal (Haifa) ask Echo Chambers and Competition Law: Should Algorithmic Choices be Respected?
ABSTRACT: Algorithms are employed by a growing number of firms in order to make choices for users. One prominent example involves news and views consumption through media platforms, which is increasingly mediated by algorithmic personalization. Rather than engaging with the rich variety of ideas on the web, many online users are exposed primarily to content chosen by algorithms, which generally attempts to fit each user’s pre-existing views. This raises questions regarding competition law’s responsibility and ability to protect the free exchange of ideas in the marketplace. We argue that while competition law can be used to protect the diversity of content in the market, the protection of a diversity of exposure is much more challenging. An interference that is aimed at exposing users to diverse ideas need not conflict with the goals of antitrust. In particular, we argue that even if algorithmic choices attempt to cater to users’ preferences, they need not conflict with the ideals of consumer sovereignty, autonomy and choice on which competition law is based. Yet competition laws do not possesses the right tools to tackle this problem, and therefore doing so may best be left to other mechanisms. The discussion has implications for other algorithmic choices which may seem to cater to users’ preferences.
Thursday, April 30, 2020
The University of Florida Levin College of Law, University of Florida Competition Policy Initiative and University of Florida Digital Markets Initiative present
Summer 2020 Zoom Antitrust Law Workshop Series
All times are Thursday, 12pm EST. The series is open to faculty and graduate students and none of the workshops will be recorded. Feel free to share details with others who might be interested in attending. Abstract and slides or paper will be sent out the week of the presentation. If you would like to join the mailing list, email here.
May 7 Scott Hemphill (NYU) & Tim Wu (Columbia)
May 14 Daniel Sokol (Florida)
May 21 Louis Kaplow (Harvard)
May 28 Rebecca Allensworth (Vaderbilt)
June 4 Abe Wickelgren (Texas)
June 11 Eleanor Fox (NYU)
June 18 Barak Orbach (Arizona)
June 25 Christopher Leslie (UC Irvine)
July 2 Erik Hovenkamp (USC) & Steve Salop (Georgetown)
July 9 Dan Crane (Michigan)
July 16 Bill Kovacic (George Washington)
July 23 Alan Meese (William & Mary)
July 30 Hiba Hafiz (Boston College)
August 6 Spencer Waller (Chicago Loyola)
Wednesday, April 29, 2020
|By:||Kahn, Matthew E. (Johns Hopkins University); Tracy, Joseph (Federal Reserve Bank of Dallas)|
|Abstract:||An emerging labor economics literature studies the consequences of firms exercising market power in local labor markets. These monopsony models have implications for trends in earnings inequality. The extent of this market power is likely to vary across local labor markets. In choosing what market to live and work in, workers trade off wages, rents and local amenities. Building on the Rosen/Roback spatial equilibrium model, we investigate how the existence of local monopsony power affects the cross-sectional spatial distribution of wages and rents across cities. We find an employment-weighted elasticity of land prices to concentration of –0.034—similar to Rinz (2018)’s reported elasticity of compensation to concentration. This finding has implications for who bears the economic incidence of labor market power. We present two extensions of the model focusing on the role of migration costs and worker skill heterogeneity.|
|Keywords:||monopsony; wages; housing costs|
|By:||Simplice A. Asongu (Yaoundé/Cameroon); Rexon T. Nting (London, UK); Joseph Nnanna (The Development Bank of Nigeria, Abuja, Nigeria)|
|Abstract:||Purpose- In this study, we test the so-called ‘Quiet Life Hypothesis’ (QLH) which postulates that banks with market power are less efficient. Design/methodology/approach- We employ instrumental variable Ordinary Least Squares, Fixed Effects, Tobit and Logistic regressions. The empirical evidence is based on a panel of 162 banks consisting of 42 African countries for the period 2001-2011. There is a two-step analytical procedure. First, we estimate Lerner indices and cost efficiency scores. Then, we regress cost efficiency scores on Lerner indices contingent on bank characteristics, market features and the unobserved heterogeneity. Findings- The empirical evidence does not support the QLH because market power is positively associated with cost efficiency. Originality/value- Owing to data availability constraints, this is one of the few studies to test the QLH in African banking.|
|Keywords:||Finance; Savings banks; Competition; Efficiency; Quiet life hypothesis|
|JEL:||E42 E52 E58 G21 G28|
The tribute book is now out.
With contributions from Avinash Amanarth, Andrea Appella, David Bailey, Rachel Brandenburger, Paul Castlo, Carter Chim, Manish Das, Kyriakos Fountoukakos, Peter Freeman, Mara Ghiorghies, Massimiliano Kadar, Šarūnas Keserauskas, Ilkka Leppihalme, Munesh Mahtani, Adrian Majumdar, Norman Manoim, Samantha Mobley, Matteo Montecchi, Okeoghene Odudu, Burton Ong, Harikumar Pillay, Lip Hang Poh, Anne Riley, Vivien Rose, Peter Roth, Miguel Sousa Ferro, Han Li Toh, Pablo Trevisán, Andrea Usai, Iestyn Williams and Mario Ybar.
Richard deserves tremendous credit for building out the competition law program at Kings College, which remains the top global program for education and also has a strong set of scholars.
|By:||Aimene, Louise; Jeanjean, Francois; Liang, Julienne|
|Abstract:||We evaluate the impact of mobile operators merger on unitary price of data and voice by using country-level observations on data retail revenue, cellular data traffic, voice retail revenue, outgoing voice minutes. Using difference-in-differences estimation strategy, we estimate the effect of 4-to-3 operators merger by comparing the difference between the no-merging countries and the merging countries before and after the introduction of 4-to-3 operators merger. In accordance with the theoretical prediction provided in this paper, we find that mergers from four to three mobile operators tend to decrease data unitary price and increase voice unitary price|