The OECD Report on International Private Enforcement

Officially known as ‘Individual and Collective Private Enforcement of Competition Law: Insights for Mexico in 2018’, this Report was prepared with a view to advise Mexico on how to reform its private enforcement regime. The Report can be found here. Advising Mexico in this regard required the pursuit of a comprehensive overview of international experiences with private competition enforcement – with a focus on Europe and North America, but also looking beyond these regions. This project also required the identification of the various elements that comprise private enforcement regimes around the world, the various forms that each of these elements may take, and how these elements relate to one another. I may of course be mistaken, but I think there is no other work like this in the market. As such, I circulate the Report here because I think it can provide a useful reference for anyone working or interested in private enforcement.

Zygimantas Juska ‘The Effectiveness of Antitrust Collective Litigation in the European Union’ (2018) International Review of Intellectual Property and Competition Law 49(1) 633

The article, which can be found here, seeks to assess whether European efforts to promote compensation for anticompetitive harm have been successful. These efforts have focused on promoting compensation, treating deterrence as a goal best promoted through public enforcement. It finds that collective enforcement has not been successful in the EU, particularly by comparison to the US, where the main objective of private enforcement is deterrence. By granting standing to both direct and indirect purchasers without also creating appropriate collective redress mechanisms, the EU system merely ensures that neither direct purchasers nor indirect purchasers can effectively exercise their right to compensation. The paper argues that Europe should adopt a deterrence-enhancing approach to private enforcement that borrows from the US. The paper is structured as follows: Section 2 provides an overview of competition enforcement models in the EU, with an emphasis on private enforcement. It begins by describing how public enforcement prevails in EU competition law, which broadly assumes that fines and…

Joshua P. Davis and Robert H. Lande on ‘Restoring the Legitimacy of Private Antitrust Enforcement’ in A Report to the 45th President of the United States (American Antitrust Institute’s Transition Report on Competition Policy), Chapter 6, page 219

This report, which can be found here, argues against the increasingly prevalent view that class actions are little more than legalised blackmail, and that class action lawyers are ambulance chasers rather than private attorneys general. The paper submits that there is no systematic empirical support for the view that frivolous antitrust litigation is a serious problem, and present a defence of the benefits of private antitrust enforcement. The paper is structured as follows: A first section argues that private antitrust cases are a critical component of effective antitrust enforcement. Government cannot be expected to do all or even most of the necessary competition enforcement. In addition to budgetary constraints, there are a number of reasons for this – including “undue fear of losing cases; lack of awareness of industry conditions; overly suspicious views about complaints by ‘losers’ that they were in fact victims of anticompetitive behavior; higher turnover among government attorneys; and the unfortunate, but undeniable, reality that government enforcement (or…

Maurice Stucke and Marshall Steinbaum ‘The Effective Competition Standard – A New Standard for Antitrust’ (2018) Report for the Roosevelt Institute

This is a report published for the Roosevelt Institute, and can be found here. It builds on the Neo-Brandeisian canon and tries to develop an applicable antitrust standard out of it. According to the authors, the consumer welfare standard is to blame for the role that competition has played in a number of social ills, including increased market concentration. To redress this, the authors advance an alternative standard: the effective competition standard. This framework would restore the primary aim of antitrust, namely to protect competition wherever it has been compromised. This new standard would: 1) protect individuals, purchasers, consumers, and producers; 2) preserve opportunities for competitors; 3) promote individual autonomy and well-being; and 4) disperse and de-concentrate private power. In particular, the effective competition standard would allow enforcement against vertical integration and the adoption of bright-line indicators for anticompetitive behaviour. The paper is structured as follows: It begins with an introduction that describes a number of economic trends, and explains that…

Makam Delrahim (Assistant Attorney General, Antitrust Division, U.S. DoJ) ‘Antitrust Enforcement in the Digital Era’

In these remarks, hich can be found here, AAG Delrahim defends the ‘broad antitrust consensus that still reigns today’ and considers how it might apply to the digital sphere. He begins by outlining the two key components of the current antitrust consensus. The first is the consumer welfare standard, which requires that some business practices should be condemned as unlawful only where they harm competition in such a way that consumers suffer. The second component is “evidence-based enforcement”. Outside the realm of naked horizontal restraints such as price fixing, bid rigging, and market allocation, antitrust demands evidence of harm or likely harm to competition, often weighed against efficiencies or procompetitive justifications. Evidence-based enforcement also requires a readiness to adapt our existing antitrust framework and tools to new or emerging threats to competition. One such threat comes from digital platforms and the increased market concentration they give rise to. AGG Delrahim considers that the antitrust consensus approach is flexible to new business…

Tim Wu ‘After Consumer Welfare, now what? The ‘Protection of Competition’ Standard in Practice (2018) CPI Antitrust Chronicle April

The goal of this short piece, which can be found here, is to address arguments that abandoning the ‘consumer welfare’ standard would make antitrust law too unworkable and indeterminate. The paper argues that there is an alternative standard ‘protection of competition’ that is practicable and at least as predictable as the consumer welfare standard. This standard has the additional advantage of being much truer to the legislative intent underlying US antitrust laws than the consumer welfare standard. The piece is structured as follows The first section provides an overview of the two main criticisms of current antitrust practice. Critics of current antitrust practice are committed to antitrust revival, and broadly opposed to the extremes of the Chicago. However, they then divide as regards their approach to the “consumer welfare” standard. The first group – comprising mainly economist and lawyers – believes that the standard has been abused and misused, but nonetheless retains its utility as the anchor of antitrust law and policy….

Jonathan B. Baker, Jonathan Sallet & Fiona Scott Morton ‘Introduction: Unlocking Antitrust Enforcement’ (2018) Yale Law Journal 127(7) 1916

This piece is the introduction to a special issue by the Yale Law Journal on ‘Antitrust Enforcement’. I shall review a number of these articles in forthcoming posts. In the introduction, the authors begin by describing the context in which this special issue of the Yale Law Journal was published. This context is not dissimilar to that which led to the adoption of antitrust rules in the first place:  there is a market power problem which may contribute to slow economic growth and to widening economic inequality. This issue of the Journal tries to lay the foundation for an overarching enforcement agenda ‘in the long, but receding, shadow of the Chicago School, which brought economic analysis to the forefront of antitrust but failed to fully capture the realities of competition and the private actions that can curb it”. This small piece also explains the basic underpinnings of this new enforcement agenda. In particular, they consider that: “Economic analysis lies at…

Sandeep Vaheesan ‘The Twilight of the Technocrats’ Monopoly on Antitrust?’ (2018) Yale L.J. Forum 127 980

This issue of the Yale Law Journal above has  provoked a reaction, which can be found here.  The article argues, even as they present worthy policy recommendations, the contributions in this issue of the Yale Law Journal are disappointingly modest in scope, particularly in their acceptance of the consumer welfare standard. Rather than contribute to and engage with the growing debate on the suitability of the consumer welfare standard, the contributing scholars write as though consumer welfare antitrust is cast in stone. This is so even though current antitrust doctrine has aided and abetted the concentration of numerous markets. Powerful businesses have used their might to hurt people in myriad ways, and consumer welfare captures at most only a subset of these public harms. Not questioning the goals of antitrust—hardly even acknowledging that these goals, and particularly the consumer welfare standard, are contested—reveals a fixation on the technical trees at the expense of the philosophical forest. At heart, his argument…

Thomas Horton on ‘Rediscovering Antitrust’s Lost Values’ (2018) New Hampshire Law Review 16(2) 179

Antitrust is now widely said to be dedicated to maximizing “consumer welfare” through an intense focus on promoting “allocative efficiency”. This article, which can be found here, seeks to provide evidence of how such a limited goal has no support in legislative history by tracing U.S. Congress’s consistent balancing of social, political, moral, and economic values and objectives over the course of more than a century of antitrust legislation. The paper is structured as follows: Part II reviews antitrust statutes throughout the years, and how they blend fundamental political, social, moral, and economic values. This section begins by reviewing scholarship on the legislative history of the US’ antitrust statutes. This review shows that there are differences in how conservative and progressive scholars have interpreted the relevant statutes. Conservatives traditionally identified mainly economic goals in the law, while Progressives extracted a number of other political and social goals from the relevant legislative acts. Differences regarding the goals found to be present…