Antitrust Writing Awards 2019
Antitrust Writing Awards 2019
Several CRA consultants and academic affiliates are 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 will be announced during a gala dinner sponsored by Concurrences Journal and George Washington University Law School Competition Law Center on March 26, 2019 in Washington, DC. For more information on the awards, click here.
Nominee - Best Business Article
Excessive prices: An overview of EU and national case law
Raphaël De Coninck
While excessive prices by a dominant company constitute an antitrust abuse in Europe, enforcement had until recently remained very limited in this respect. This has now changed, with a number of exploitative cases being recently investigated by the European Commission and national competition authorities. This article argues, however, that extreme caution is necessary for such cases. First, how does one establish that a price is excessive? The article explains that consistent benchmark comparisons are essential to establish excessiveness, and that a variety of such benchmark comparisons should be used to reliably reach a conclusion that prices are excessive. Second, and even more fundamentally, the article highlights that the United Brands criteria provide an incomplete test to positively establish an excessive pricing abuse and that such cases can only be justified when a very specific set of market conditions are met.
Nominee - Best Academic Article (Unilateral Conduct)
The as-efficient competitor test: Some practical considerations following the ECJ intel judgment
Competition Law and Policy Debate, 2018
Raphaël De Coninck
While the European Court of Justice’s Intel judgment has made it clear that article 102 TFEU is not meant to protect less efficient competitors, DG Competition appears reluctant to embrace this view and is so far taking a somewhat ambivalent position towards the As-Efficient Competitor test. This article argues that the As-Efficient Competitor test should be seen as a useful input within a coherent exclusionary theory of harm taking into account all circumstances of the case, and provides practical guidance for its application.
Nominees - Best Academic Article (Intellectual Property)
Understanding patient “privateering”: A quantitative assessment
Journal of Empirical Legal Studies, 2018
Anne Layne Farrar with David L. Schwartz and Jay P. Kesan
In this work, we explore three interesting questions: (1) what patent characteristics predict a patent’s acquisition by a hybrid PAE? (2) do hybrid PAEs acquire patents that are more likely to be litigated? and (3) does reassignment to a hybrid PAE affect the time when a patent is first asserted in litigation? We find that hybrid PAEs tend to acquire patents in Information Technology and Surgery & Medical Instrument fields more often than patents in other technology areas. Our analysis suggests that patent privateers appear to be focused on improving the possibility of successful patent monetization by focusing on acquiring higher quality patents with a broader scope of protection. This research is consistent with the law and economics theory that hybrid PAEs acquire valuable patents and not the extortion theory that they acquire weak patents.
This chapter, written with Jorge L. Contreras, is included in The Cambridge Handbook of Technical Standardization Law. The authors consider what non-discrimination pledges imply for SDO member conduct. They review the basic variants of such pledges, how they may be informed by broader legal and economic definitions of discrimination, and recent cases and agency guidance interpreting such commitments.
Nominees - Best Academic Article (Economics)
The unsound theory behind the consumer (and total) welfare goal in antitrust
The Antitrust Bulletin, 2018
This is the first installment of a two-part commentary on the New Brandeis School (the “New Brandeisians”) in Antitrust. In this first part, we examine why the New Brandeisians are correct to reject the consumer welfare standard. Instead of arguing, as the New Brandeisians do, that the consumer welfare standard leads to unacceptable outcomes, the author argues that the consumer or total welfare standard was theoretically flawed and unrigorous from the start. The basic argument is that antitrust law addresses the impact of business strategies in markets where there are winners and losers. Additional problems with the concept of welfare raised by philosophers, psychologists, and experimental economists are also considered. In light of this literature, the New Brandeisians are correct to reject Judge Bork’s original argument for adoption of the consumer welfare standard, but for deeper reasons than they have expressed thus far.
The start and end dates of cartels are often ambiguous, despite competition authorities stating them with precision. The legally established infringement periods from documentary evidence need not coincide with the periods of actual cartel effects. In this paper, the authors show that misdating cartel effects leads to a (weak) overestimation of but-for prices and an underestimation of overcharges. Total overcharges based on comparing but-for prices to actual prices are a (weak) underestimation of the true amount overcharged, irrespective of the type and size of the misdating. The bias in antitrust damage estimation based on predicted cartel prices can have either sign. The authors extend the before-during-and-after method with an empirical cartel dating procedure, which infers structural breaks of unknown number and dates that mark the actual begin and end dates of the collusive effects. Empirical findings in the European Sodium Chlorate cartel corroborate their theoretical results.
Vertical most-favored-nation restraints and credit card no-surcharge rules
The Journal of Law and Economics, 2018
Ralph A. Winter with Dennis W. Carlton
A vertical most-favored-nation (vMFN) restraint prohibits a retailer from charging more for one supplier’s product than for rivals’ products. For credit card services, this restraint takes the form of a no-surcharge rule: the credit card company prohibits the retailer from surcharging transactions using the company’s card. This article develops a theory of vMFN restraints and applies it to credit cards. The vMFN clause harms competition among upstream suppliers, which raises price to a level even greater than the monopoly price. The vMFN clause can also be used to extract surplus from customers of products supplied competitively. Applying the theory to credit card antitrust cases, the authors find that the two-sided nature of the market does not mandate a new set of competition policy principles, contrary to the decision in Ohio v. American Express. Indeed, the economic literature on credit card networks as two-sided platforms rediscovers established principles of price theory.