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…

Sebastian Peyer ‘Private antitrust enforcement in England and Wales after the EU Damages Directives: Where are we heading?’ in Pier Luigi Parcu, Giorgio Monti & Marco Botta (eds.) Private Enforcement of EU Competition Law: the Impact of the Damages Directive (2018, Elgar)

This paper, which can be found here, provides an overview of recent developments, and offers an insight into the functioning of private enforcement of competition law in England and Wales. It is structured as follows: The first section provides an overview of the legal framework for competition damages actions in the UK. Compensation claims for the infringement of UK or EU competition law are normally based on a breach of statutory duty. Claimants have sought to establish other causes of action in competition law, but their attempts to rely on unjust enrichment (restitution) or economic (intentional) torts have been unsuccessful so far. Economic torts, such as intentionally interfering with business by unlawful means and conspiracy to injure using unlawful means, require proof of intention to injure the claimant. Courts have found that this element is absent in competition infringements, at least in follow-on claims, since the intention to make an (illegal) profit through a cartel is not the same as…

Matthijs Kuijpers, Tommi Palumbo, Elaine Whiteford and Thomas B Paul on ‘Actions for Damages in the Netherlands, the United Kingdom and Germany’ (2018) Journal of European Competition Law & Practice 9(1) 55

This article – which can be found here –  provides an overview of private competition enforcement developments during the past year in the three EU jurisdictions where most such actions are brought. The paper is quite straightforward. Section 2 discusses the legislative developments in each of these jurisdictions, with a focus on the implementation of the EU Damages Directive and on collective redress (i.e. class actions). This section also discusses other recurring topics in follow-on damages litigation, such as the passing-on defence, access to evidence, standard of proof and limitation periods. Section 3 discusses stand-alone damages claims. It concludes that stand-alone claims are rarely successful – with the potential exception of ‘quasi-follow’ on claims, i.e. claims that reflect infringement decisions but which are not addressed to the infringing parties sanctioned by competition authorities, such as in the various instances of credit card litigation I described in previous emails. It further finds that abuse actions (i.e. complaints against powerful companies) are more common…

Ariel Ezrachi on ‘EU Competition Law Goals and The Digital Economy’ (2018) Report for BEUC – The European Consumer Organisation

This paper – which can be found here – remarks that questions regarding whether certain conducts pose competition problems have become increasingly common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. It argues that answers can only be provided by taking into account the goals and legal framework of specific competition regimes. The author focuses on the EU. The paper thus outlines the goals and values of European Competition law, and looks at how they apply to digital markets. The report is structured as follows: The paper begins with an introduction to the constitutional foundations of European Competition law. Competition policy is one of several instruments used to advance the goals of the European Treaties. In this context, competition rules must be interpreted in the light of the wider normative values of the EU. These are not limited to economic goals such as promoting consumer welfare, but…

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…