Antitrust Writing Awards 2018

Antitrust Writing Awards 2018

15 CRA consultants and academic affiliates were nominated for Antitrust Writing Awards. The awards aim to promote antitrust scholarship and competition advocacy by recognizing and awarding the best articles published in antitrust law and the law and economics fields over the last 12 months. The winners were announced during a gala dinner sponsored by Concurrences Journal and George Washington University Law School Competition Law Center on April 10, 2018 in Washington, DC. For more information on the awards, click here.  

Winner - Best Academic Article - General Antitrust 

Antitrust in a Time of Populism
International Journal of Industrial Organization, Forthcoming 2018
Carl Shapiro

This article discusses how to move antitrust enforcement forward in a constructive manner during a time of widespread and growing concern over the political and economic power of large corporations in the United States.

Academic articles

Category: Unilateral Conduct

A Comparative and Economic Analysis of the U.S. FTC’s Complaint and the Korea FTC’s Decision Against Qualcomm 
Competition Policy International
Anne Layne-Farrar with Koren W. Wong-Ervin, Douglas H. Ginsburg, Scott Robbins, and Ariel Slonim

This article provides a legal and economic comparative analysis of the FTC’s complaint against Qualcomm Incorporated and the Korean Fair Trade Commission’s decision, highlighting the fundamental differences between the two and setting forth some of the main economic and legal problems with each.

Vexatious/“Sham” Litigation in EU and US Antitrust Law: A Mechanism in Design Approach
Antitrust Bulletin
Pierre Regibeau with Ioannis Lianos

In both the US and the EU, the antitrust category of “sham litigation” (in the US) or “vexatious litigation” (in the EU) enables a plaintiff, or a defendant in case this action forms part of a counterclaim, to argue that the introduction of litigation may constitute, under certain conditions, an infringement of competition law. The paper examines the intellectual underpinnings of this form of abusive/anticompetitive conduct and puts forward a “mechanism design approach” with the aim to reduce the occurrence of sham litigation

Category: Mergers 

Horizontal Mergers, Market Structure, and Burdens of Proof
Yale Law Journal, Forthcoming
Carl Shapiro with Herbert J. Hovenkamp 
 
The bulk of this essay examines and defends the role of structural presumptions in the present legal world where protection of consumer welfare is the point of merger enforcement. The authors also consider a legislative proposal that could be seen as departing from this norm, offering some guidance concerning how this proposal could be improved so as to strengthen merger enforcement, in part by making it easier for the government to establish its prima facie case.

Yale Law Journal, Forthcoming
Fiona Scott Morton with Herbert J. Hovenkamp 
 
This article considers how the antitrust laws might be applied to horizontal shareholding, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. It also briefly discusses special problems of private plaintiff challenges.
 
Invigorating Vertical Merger Enforcement
Yale Law Journal, Forthcoming
Steven C. Salop
 
This short symposium article explains why and how vertical merger enforcement can and should be invigorated. It reviews this history, explains the economic flaws in the Chicago-School theories and presents a more balanced approach to the potential competitive effects of vertical mergers. The article also suggests how enforcement might be modernized. 
 
The decision to investigate mergers in the UK’s voluntary regime
Journal of Competition Law & Economics, 2017
Simon Chisholm with Tom Heideman
 
As merging parties can choose whether to notify their transaction in the UK, the competition authority has a well-developed procedure for capturing those that are not notified but may raise concerns. This article provides an overview of how the decision to investigate is taken, an overview of the decision-making process, and an assessment of recent reforms to the process.
 
Category: Economics 

Can Institutional Investors Soften Downstream Market Competition?

CPI Chronicle 
John Woodbury 
 
Recently, a number of papers have noted the dramatic increase in the extent to which institutional investors account for the ownership of publicly-traded stock, including holding ownership stakes in multiple market rivals. Indeed, two papers have developed evidence of reduced rivalry in the airline and banking industries resulting from such common ownership. This paper considers the original conclusions of these two papers and reviews the potential conceptual and empirical flaws in the analysis. Nonetheless, the results are sufficiently intriguing that further research should be pursued.

Excessive pricing cases in the pharmaceutical industry: Economic considerations and practical pitfalls
Concurrences Review
Raphaël De ConinckElina Koustoumpardi
 
This article highlights the main conceptual difficulties with excessive pricing cases, and argues that such cases should be limited to truly exceptional circumstances. The authors discuss the numerous practical difficulties in determining whether a price can be considered as excessive, and the main pitfalls to avoid.
 
Market Definition in Merger Analysis
Antitrust Economics for Lawyers, (LexisNexis), Chapter 1
Serge MoresiJohn R. WoodburySteven C. Salop
 
In this article, the authors explain the “hypothetical monopolist test” that has become the standard methodology for identifying relevant antitrust markets in merger cases, and discuss two approaches to implementing the test. The authors then focus on the implementation of the test when firms offer multiple products or services, either inside or outside the candidate market, and discuss the “hypothetical cartel test” introduced in the 2010 U.S. Merger Guidelines.
 
The Raising Rivals’ Cost Foreclosure Paradigm, Conditional Pricing Practices and the Flawed Incremental Price-Cost Test
Antitrust Law Journal 
Steven C. Salop
 
In this article, Steven Salop summarizes the two antitrust paradigms for exclusionary conduct and their properties in order to understand which legal framework is more appropriate for analyzing competitive effects under particular fact situations. The article then applies the analysis to conditional pricing practices.

Business articles

Category: Economics 

Antitrust Compliance Programs from an Economic Perspective
ABA Section of Antitrust Law Cartel and Criminal Practice Committee Newsletter, Issue 3
Isabel TecuYajing JiangStephanie Riche

This article, published in the ABA's Cartel & Criminal Practice Committee Newsletter, analyzes the economic principles and trade-offs of Antitrust Compliance Programs (ATCPs). The authors look at three “big picture” questions: (1) how can ATCPs solve compliance problems within the firm? (2) How much should a firm invest into ATCPs? And (3) should the government encourage firms to establish ATCPs by granting fine reductions?

Key Takeaways from the Advocate-Northshore Merger Litigation
CPI Antitrust Chronicle
Steven Tenn
 
This article describes the FTC’s approach in a recent litigation, FTC v. Advocate Health Care Network, where the FTC successfully challenged a proposed merger of two healthcare systems with hospitals in the northern suburbs of Chicago. The author discusses the case from his perspective as the FTC’s economic expert in that matter.

Regarding the Optimality of Cartel Fines
Cartel & Criminal Practice Committee Newsletter
Michelle Burtis with Bruce H. Kobayashi
 
This article analyzes, from an economic perspective, the relationship between cartel fines imposed by the US DOJ and harm-based optimal penalties, as described in economic literature. The authors find that under certain conditions, the DOJ fines are consistent with optimal fines when the multiplier used in setting the fine is at its minimum.