Journal of Competition Law and Economics - recent issues

CONSUMER COORDINATION IN THE SMALL AND IN THE LARGE: IMPLICATIONS FOR ANTITRUST IN MARKETS WITH NETWORK EFFECTS

Spulber, D. F. — 2008-06-09

Network effects occur in markets when consumers receive mutual benefits from consuming the same good. Markets with network effects that have generated particular policy concerns include the information and communications technology and electronics (ICTE) industries. Many economists and legal scholars argue that the presence of network effects creates a form of market failure known as "network externalities" and recommend new forms of antitrust and regulation targeted at particular firms in the ICTE industries. The debate over network effects is likely to have major consequences for these industries, with effects comparable to landmark antitrust cases involving IBM, AT&T, and Microsoft. This article provides a comprehensive examination of network effects that addresses the legal, economic, and technological basis for this phenomenon. The article develops a general framework for examining consumer coordination in markets with network effects. The discussion demonstrates that consumers can coordinate their consumption decisions to obtain the benefits of network effects. When there are small numbers of consumers, as Coase argued, low transaction costs allow the formation of informal agreements and formal contracts that are economically efficient. When there are large numbers of consumers, the market offers many mechanisms of spontaneous order in the sense of Hayek. The article refers to Coasian negotiation as "coordination in the small," and to Hayekian spontaneous order as "coordination in the large." The discussion demonstrates that consumer coordination, both in the small and in the large, results in efficient consumption of network goods and adoption of new technologies. Market institutions are fully capable of addressing network effects. Antitrust policy based on correcting market failure due to "network externalities" is likely to impact both competition and innovation adversely. Network effects do not provide a sound basis for antitrust policy.

THE SSNIP TEST AND MARKET DEFINITION WITH THE AGGREGATE DIVERSION RATIO: A REPLY TO KATZ AND SHAPIRO

Daljord, O., Sorgard, L., Thomassen, O. — 2008-06-09

The Hypothetical Monopolist or Small but Significant Non-transitory Increase in Prices (SSNIP) test defines the relevant market by determining whether a given increase in product prices would be profitable for a monopolist in the candidate market. The U.S. Merger Guidelines do not specify whether the SSNIP test should be performed with an increase in one price, some prices, or all prices in the candidate market. We argue that this should depend on characteristics of the market: if there are asymmetries between products, increasing only one price might be the best way to identify competitive constraints. Katz and Shapiro derive a one-price test criterion of critical loss in terms of the aggregate diversion ratio. Unfortunately, the derivation is incorrect. We show what the correct criterion should be.

SHOULD "PRICE SQUEEZE" BE A RECOGNIZED FORM OF ANTICOMPETITIVE CONDUCT?

Carlton, D. W. — 2008-06-09

Should a "price squeeze" constitute anticompetitive conduct requiring investigation under the antitrust laws? A price squeeze occurs when a vertically integrated firm supplies an input to its downstream competitors at a price that generates a profit margin so low that the competitors exit the downstream market. I ask whether it is sensible to try to use antitrust laws to prevent such conduct or whether such an attempt would create more harm than benefit. The current case, linkLine Communications, Inc. v. SBC California, Inc., raises this exact question.

ABOLISHING THE PRICE SQUEEZE AS A THEORY OF ANTITRUST LIABILITY

Sidak, J. G. — 2008-06-09

A "price squeeze," or "margin squeeze," is a theory of antitrust liability under section 2 of the Sherman Act that concerns a vertically integrated monopolist that sells its upstream bottleneck input to firms that compete with the monopolist's production of a downstream product sold to end users. At issue is the size of the margin between the monopolist's input price and its retail price. Recent antitrust price-squeeze cases have split the U.S. Courts of Appeals. The D.C. Circuit has concluded that, because a vertically integrated monopolist may refuse to provide its upstream inputs to its downstream competitors, it may raise the price of its upstream inputs without incurring antitrust liability. On the other hand, the Ninth Circuit's 2007 linkLine decision rejected such reasoning, notwithstanding Trinko. Predicated on Judge Learned Hand's opinion in Alcoa, linkLine subordinates the protection of consumers to the protection of competitors. It requires access-pricing analysis that more resembles the work of a public utilities commission than that of a federal judge in an antitrust case. Further, the antitrust laws are concerned with the competitive process, not its end results. The inability of a single firm to stay in business is irrelevant as a matter of antitrust law unless the behavior inducing that firm to exit the market also harms the competitive process. The Supreme Court should reverse linkLine and resolve the circuit split. It should revisit Alcoa and explain why alleging a price squeeze neither states a claim in American antitrust law nor justifies deviation from the principles announced in Brooke Group and Trinko.

CONCEPTUAL PROBLEMS WITH THE HYPOTHETICAL MONOPOLIST TEST IN EX-ANTE REGULATION OF COMMUNICATIONS UNDER THE NEW REGULATORY FRAMEWORK

Briglauer, W. — 2008-06-09

Under the new European regulatory communications framework that was enacted in 2002, market definitions are subject to a different and much more analytical scope. With regards to market definition, the new regulatory ex-ante framework explicitly adopts the so-called "Hypothetical Monopolist Test" (HMT), which has long been the state of the art in ex-post competition law. Direct empirical implementation based on rigorous statistical grounds is found to be exceedingly difficult. The very fact that the HMT is endorsed in ex-ante as well as ex-post jurisdictions, but rarely implemented directly in practice, underlines this point. Therefore, a proper understanding of the conceptual framework is of particular importance because this makes clear what the individual factors determining the outcome of the HMT are. Such understanding will serve as a valuable guidance in the decision-making process in line with the conceptual framework. This article discusses those aspects and gives applications from sector-specific communications markets. Doing this also illustrates that the HMT is, in principle, designed to be applied alongside all relevant market definition dimensions. Any methodological deviations from the HMT have therefore to be justified analytically.

BUNDLED REBATES AS EXCLUSION RATHER THAN PREDATION

Brennan, T. J. — 2008-06-09

Prevailing tests for whether bundled rebate programs are anticompetitive, including the recent Antitrust Modernization Commission Recommendation 17, are based on whether some incremental or total price in the rebate program is less than some appropriate incremental cost. This test presumes that rebate programs, and exclusionary conduct more generally, should be treated like predation cases. It errs in treating the buyers as end users rather than competing complement providers, as they are in all of the leading U.S. and Canadian cases. Rebate programs should be assessed on the basis of whether they raise the price of a complement, such as retailing or distribution. This suggests a different two-prong test: Does the rebate cover a competitively significant share of a complement market? If so, what effect does the rebate have on the price that rivals have to pay to obtain the complement? This test allows the use of merger guideline approaches, ignores (for the most part) cost comparisons, and does not require prior dominance in the primary market. An assessment of this approach examines when practices are exclusionary, compares rebates to exclusive dealing, distinguishes exclusionary from predatory rebates, critiques "profit sacrifice" approaches to exclusion, and proposes share-based remedies to recognize vertical efficiencies.

THE ANTITRUST ASSESSMENT OF LOYALTY DISCOUNTS AND REBATES

Faella, G. — 2008-06-09

Loyalty discounts lie at the heart of the debate on single-firm conduct, probably the most controversial issue in contemporary antitrust practice. Under particular conditions, loyalty discounts may have an exclusionary effect. However, they constitute a classical form of price competition, an effective commercial tool, and a way to solve coordination problems in the production chain. In the United States, the fear of lessening price competition has led to a very strong presumption of legality of discounts, provided that they are not predatory or bundled. In the EU, the tendency to induce loyalty, if not a mere intent to exclude rivals, is traditionally deemed to be enough to justify the prohibition of the practice. In the paper, it is submitted that the opposite (almost) per se rules prevailing on the two sides of the Atlantic should be set aside. A detailed analysis, based on a suitable price–cost test and a careful assessment of the impact of the practice on the competitive capacity of minor rivals and on the overall degree of competition in the market concerned, would allow intervention in cases of seriously exclusionary discount policies, while limiting the unnecessary prohibition of effective forms of price competition.

THE USE OF CUSTOMER SURVEYS FOR MARKET DEFINITION AND THE COMPETITIVE ASSESSMENT OF HORIZONTAL MERGERS

Reynolds, G., Walters, C. — 2008-06-09

In this paper, we discuss the U.K. Competition Commission's (CC) extensive use of customer surveys in merger control. We point out how the U.K.'s "phase two" merger regime compels the CC to decide upon, design, and commission a customer survey almost as soon as its merger investigation begins. We highlight the effect that this has on two areas of the CC's merger control process that use customer surveys—definition of the relevant market and assessment of the competitive effects of a merger in the relevant market. We illustrate how to avoid seven consequential pitfalls in using customer surveys with case-study examples from two recent CC horizontal merger inquiries. We suggest that customer surveys, carefully done, have provided useful insights for the CC, but the complications of doing them have meant that they always have been considered in the context of other evidence.

THE PRICE EFFECTS OF HORIZONTAL MERGERS

Weinberg, M. — 2008-06-09

This paper surveys the literature on the price effects of horizontal mergers. Most mergers examined in the nine studies conducted over the past 22 years resulted in increased prices for both the merging parties and rival firms, at least in the short run. There is some evidence that product prices increase after mergers are announced, but before they are consummated. Recent evidence from consumer product markets suggests that a stricter merger policy is needed to protect consumer welfare.

LEVERAGING OF MARKET POWER IN EMERGING MARKETS: A REVIEW OF CASES, LITERATURE, AND A SUGGESTED FRAMEWORK

Crocioni, P. — 2008-06-09

Leveraging of market power is a complex and controversial area. When it takes place in emerging markets the analysis is further complicated. This article attempts to provide some guidance by examining the relevant literature, cases, and factors in these cases. It provides a general framework for assessing whether and under what circumstances such concerns may be relevant. It also puts forward some practical suggestions on how the analysis of the various steps in a competition law case—market definition, dominance, abuse, consumer harm, and remedies—may be affected and may need to be modified accordingly.

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.

HOW MUCH COLLUSION? A META-ANALYSIS OF OLIGOPOLY EXPERIMENTS

Engel, C. — 2007-11-26

Oligopoly has been among the first topics in experimental economics. Over half a century, some 150 papers have been published. Each individual paper was interested in demonstrating one effect, but in order to do so, experimenters had to specify many more parameters. Thus they have generated a huge body of evidence, untapped so far. This meta-analysis makes this evidence available. More than 100 of the papers lend themselves to calculating an index of collusion. The database behind this paper covers some 500 different settings. The experimental results may be normalized as a percentage of the span between the Walrasian and the Pareto outcomes. In the same way, results may be expressed as a percentage of the distance between the Nash and the Pareto outcomes. For each and every one of the parameters, these two indices make it possible to answer two questions: How far is the market outcome away from the competitive equilibrium? And how good is the Nash prediction? Most importantly, however, the meta-analysis sheds light on how features of the experimental setting interact with each other. Most main effects and many interaction effects are indeed statistically significant.

THE CUSTOMER IS SOMETIMES RIGHT: THE ROLE OF CUSTOMER VIEWS IN MERGER INVESTIGATIONS

Tucker, D. S., Reiter, S. L., Yingling, K. L. — 2007-11-26

Antitrust enforcement officials and practitioners generally agree that customers should have a prominent role in the merger review process. The question of the appropriate level of reliance that competition authorities and courts should give to customer testimony has been the subject of considerable debate since the Arch Coal and Oracle decisions. This paper contains a comprehensive discussion of the use of customer testimony throughout the U.S. merger review process, from the initial merger notification filing to injunction proceedings in federal court. We discuss the benefits from and problems with the use of customer testimony, including how these problems have led to litigation losses for the U.S. antitrust authorities. What is the appropriate role of customer testimony and when is it most probative? We contend that customers can provide investigators and judges with information regarding several relevant issues in an acquisition, including industry structure, geographic and product demand substitution, and acceptance of potential market entrants. In contrast, customers will have considerably less information relevant to the likelihood of entry, the extent of any merger-specific efficiencies, and the validity of a failing firm defense. They will almost never be qualified to offer legal conclusions, such as the proper market definition or likely competitive effects of a proposed merger. We conclude that courts have generally remained consistent in their reliance on customer testimony, including in the Arch Coal and Oracle cases, and that customer testimony, despite its limitations, should and will continue to be important at each stage of the merger review process.

ENTRY, PRODUCT LINE EXPANSION, AND PREDATION

Denicolo, V., Polo, M., Zanchettin, P. — 2007-11-26

In the Tourist-Caronte case in Italy, the incumbent, Tourist-Caronte, reacted to entry by entrant Diano by starting to supply a "damaged good" in the sense theorized by Deneckere and McAfee in 1996. We argue that in principle this strategy can be predatory, but it can also be an innocent response to entry. Specifically, the strategy of damaging the good leads to fiercer competition in the low segment of the market, which reduces the rents that the incumbent earns in the high segment, but may allow the incumbent to steal some of the entrant's rents. If this business stealing effect in the low segment of the market is sufficiently strong, the incumbent may find it profitable to expand its product line after entry, even if it does not have any predatory intent. We discuss the welfare effects of this strategy, and we contrast it with predation.

COMMERCIAL AGENCY AGREEMENTS, VERTICAL RESTRAINTS, AND THE LIMITS OF ARTICLE 81(1) EC: BETWEEN HIERARCHIES AND NETWORKS

Lianos, I. — 2007-11-26

Commercial agency agreements benefit from a specific competition law regime with regards to the application of Article 81 of the Treaty of the European Communities (hereinafter Article 81). Although they may contain clauses that can produce anticompetitive effects, such as minimum price fixing, these are generally found outside the scope of Article 81 paragraph 1 [hereinafter Article 81(1)]. In comparison, if a franchise or selective distribution agreement contains resale price maintenance clauses, Article 81(1) may apply. The existence of a distinct competition law regime for commercial agency agreements constitutes a paradox, as from an allocative efficiency perspective it makes no sense to distinguish between the two situations. By adopting a new-institutional economics perspective, this study will provide a justification for this specific competition law regime. The agency agreements exception will be considered as a specific form of the single entity defense that operates in situations of hierarchy. Other vertical restraints are mainly organizational mechanisms used in situations of network forms of organization. The distinction established between these agreements could thus be theoretically defended. More generally, the comparative institutional analysis of vertical restraints will provide a useful insight to delimit the boundaries of Article 81(1).

COMPETITION IN FREIGHT RAILWAYS: "ABOVE-THE-RAIL" OPERATORS IN CENTRAL EUROPE AND RUSSIA

Pittman, R., Diaconu, O., Sip, E., Tomova, A., Wronka, J. — 2007-11-26

The railways of Russia and the Central and Eastern European countries are in the process of restructuring. In most cases, the "vertical separation" reform model is being pursued, and reformers are seeking to introduce competition among freight train operators through the provision of "open access" to the monopoly infrastructure. This paper shows that, in two countries, Poland and Romania, a good deal of competition has been created by the entry of new freight operators, many of them either large shippers integrating upstream or former freight forwarders. However, in other countries, the incumbent freight operators retain virtually 100 percent of the market. In particular, Russia has taken only the very first steps toward creating competition in this sector, and new freight train operators face significant barriers to competing with the incumbent.

USING RETAIL DATA FOR UPSTREAM MERGER ANALYSIS

Villas-Boas, S. B. — 2007-11-26

The typical situation that antitrust authorities face is to analyze a proposed manufacturer merger using scanner data at retail level. I start with a benchmark model of manufacturers' and retailers' sequential pricing behavior. Then I perform counterfactual experiments to explore the relationship between downstream retailer pricing models and the resulting estimates of upstream mergers, in the absence of wholesale prices. Looking at scanner data for the ground coffee category sold at several retail chains in Germany, I find that not considering retail pricing explicitly when analyzing the potential consequences of an upstream merger results in simulated changes in welfare that are significantly different given the underlying model of retail pricing behavior. These findings are relevant for competition policy, and authorities should consider incorporating the role of retailers in upstream merger analyses, especially in the presence of increasingly consolidated retail food markets.