Journal of Competition Law and Economics - current issue

FORENSIC ECONOMICS IN COMPETITION LAW ENFORCEMENT

Schinkel, M. P. — 2008-03-10

This paper delineates the specialty field of forensic industrial organization (IO) as the application of theoretical and empirical industrial organization economics in the legal process of competition law enforcement. Four stages of that process that can benefit from forensic IO techniques are distinguished: detection and investigation; case development; decision-making and litigation; and remedies, sanctions, and damages. We survey the use of economics in such aspects as identifying potential forms of anticompetitive behavior, screening markets for competition law violations, determining causality, advising on appropriate remedies, and assessing antitrust damages. The paper discusses the role of expert economic witnesses in competition cases. It calls for an organization of forensic IO within the context of existing forensic institutes.

FORENSIC ECONOMICS: AN INTRODUCTION WITH SPECIAL EMPHASIS ON PRICE FIXING

Connor, J. M. — 2008-03-10

This paper aims at explaining accepted methods of forensic analysis and how forensic economics is used in the context of competition-law enforcement. Illustrations are drawn from ancient and modern antitrust cases involving price-fixing allegations. The stated goal of antitrust laws of most nations is deterrence. Optimal deterrence requires that cartel penalties be based on multiples of economic injuries. Yet, antitrust authorities are typically reluctant to calculate fines on the basis of damages because of perceived analytical challenges or because the fact-finders lack needed economic education. However, reasonable estimates of damages can often be quickly prepared using simpler methods than econometric modeling. More often than not, alternative estimates of cartel overcharges tend to be mutually supportive. The reluctance of antitrust authorities to base fines on damages seems to indicate an abundance of caution.

THE GENESIS OF CARTEL INVESTIGATIONS: SOME INSIGHTS FROM EXAMINING THE DYNAMIC INTERRELATIONSHIPS BETWEEN U.S. CIVIL AND CRIMINAL ANTITRUST INVESTIGATIONS

Ghosal, V. — 2008-03-10

The U.S. Department of Justice has prosecuted over 1600 criminal antitrust (price-fixing and related) cases since 1970. Yet we know precious little about the true genesis of these investigations. This paper uses the vector-autoregression methodology to examine the dynamic interrelationships between the various criminal and civil antitrust enforcement variables. A key result is that the number of criminal prosecutions increases in the years immediately following an increase in the number of civil cases, suggesting that merger reviews and other civil investigations may alert the antitrust authorities to criminal antitrust activities. To the best of my knowledge, this is the first econometric analysis that demonstrates the quantitative size of this effect and the time lags in the relationship. Other findings include important dynamic interrelationships between grand jury investigations, the number of individuals and corporations prosecuted, and criminal cases, indicating that information unearthed during a given criminal investigation and prosecution often reveals information about other conspiracies leading to future investigations and prosecutions. Finally, the number of criminal cases prosecuted increases following an economic downturn. We relate this increase to the literature, which points to cartel instability during economic downturns.

TRIGGERING INSPECTIONS EX OFFICIO: MOVING BEYOND A PASSIVE EU CARTEL POLICY

Friederiszick, H. W., Maier-Rigaud, F. P. — 2008-03-10

The implementation of leniency programs is considered a success both at a EU Community level and in individual member states. The paper discusses the value of ex officio investigations for cartel detection in light of leniency and complaint-based cases. Are ex officio investigations still needed? Should a competition authority concentrate its scarce resources exclusively on the prosecution of leniency or complaint-based cases or follow a proactive market monitoring policy? It is argued that investigations triggered ex officio are an important complementary enforcement tool to the other passive instruments available to a competition authority. A bottom-up methodology for triggering inspections based on economic criteria is presented allowing for a more proactive cartel policy.

ON THE ALLEGEDLY INVISIBLE DUTCH CONSTRUCTION SECTOR CARTEL

van Bergeijk, P. A.G. — 2008-03-10

This paper considers an extensive cartel contamination of markets in the Dutch construction sector. Overwhelming legal evidence of bid rigging in this sector was obtained in 486 leniency applications in which complete secret accounts were submitted. I offer a case study and a broadly based post mortem of methodologies that were applied earlier to detect malfunctioning markets in the Netherlands, but failed to identify the construction sector as problematic. It is concluded that these studies were seriously flawed. Theoretical and empirical economic forensics (if properly applied) creates value for antitrust authorities in detection of antitrust violations directly, or by informing them where to look for direct evidence.

ECONOMIC ANALYSIS AND "BRIGHT-LINE" TESTS

Fisher, F. M. — 2008-03-10

Economists testifying in antitrust cases often encounter the demand by attorneys and judges for "bright-line" tests – simple rules supposedly based on economic analysis. This paper argues that, although such tests can have their uses, they are very likely to lead to error without a clear understanding of the purposes of the tests and the economics behind them. Issues discussed include: market definition, market share, the role of profits, and, especially, anti-competitive conduct (including the Areeda-Turner) test for predatory pricing. Examples are drawn from actual court cases (mostly in the U.S.), in many of which the author was an expert witness. The best known of these was the U.S. case against Microsoft, but there are many others.

MEASURING THE RATE OF RETURN FOR COMPETITION LAW

Grout, P. A., Zalewska, A. — 2008-03-10

This paper focuses on the application and interpretation of measures of rate of return for competition law. Amongst other results, we analyse how outsourcing and similar arrangements impact the rate of profitability and show that the measurement is more volatile the greater the rate of profit (suggesting that the measures are most problematic when they are most needed). We identify and interpret the outsourcing arrangements that provide the lowest rate of profit and show that these arrangements have a close relationship to net present value. Finally, we provide suggestions to make profitability measures more informative for competition law.

THE CHALLENGES OF ECONOMIC PROOF IN A DECENTRALIZED AND PRIVATIZED EUROPEAN COMPETITION POLICY SYSTEM: LESSONS FROM THE AMERICAN EXPERIENCE

Gavil, A. I. — 2008-03-10

Since the announcement in late 2002 of the Modernization Plan, and continuing in 2005 with the release of the Green Paper on damages actions, the European Commission has been committed to a significant restructuring of the EU's approach to enforcing competition laws. Under the revised system as envisioned by the Commission, national competition authorities and private parties will assume a far greater role in supplementing the work of the Commission, which for 50 years has been the predominant competition policy enforcer in Europe. The goal is not only to produce a system of shared enforcement authority, but to promote the continued evolution in Europe of a "culture of competition," while avoiding the creation of a "culture of litigation." If national competition authorities and private parties accept this invitation, however, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases. This paper asks whether national level enforcers, public and private, will have the procedural and evidentiary tools necessary to respond to demands for such economic proof. Drawing on the Commission's recent experiences, as well as lessons from the U.S. experience, it asks whether the Green Paper's treatment of economic evidence is adequate given the importance that economic proof plays today in competition law cases. It then urges the Commission to devote additional attention to identifying and advocating reforms that will more actively facilitate the disclosure, development, and presentation of economic evidence. This paper particularly questions the Green Paper's preference for the use of court-appointed experts in lieu of party-secured expert witnesses. It argues that party and court-appointed experts can perform very different functions in competition law cases and should not be viewed as substitutes. Moreover, it suggests that the Green Paper may significantly underestimate the degree to which party-secured expert economic witnesses will be necessary if national level enforcers—public and private—are to be adequately equipped to meet the burdens of proof they will face. If national enforcers systematically find that they lack the procedural tools necessary to develop the economic evidence they need to meet those burdens, they will reduce or abandon their efforts to initiate competition law actions and it will be less likely that the promise of decentralization and privatization can be realized.