Eckart Bueren, Kai Hüschelrath, and Tobias Veith ‘Time is Money–How Much Money is Time? Interest and Inflation in Competition Law Actions for Damages’ (2016) Antitrust Law Journal 81(1) 271

One aspect that is often overlooked, but is of enormous practical importance in competition damages cases, is the way a legal system deals with costs associated with the passage of time, as expressed through interest and inflation. Cartel damages generally are spread over a cartel’s lifespan, which can be long; furthermore, a considerable amount of time often elapses between the incidence of loss and the award of damages. This paper – which can be found here – seeks to address a gap in the literature by describing how major legal systems deal with interest and inflation in the context of antitrust damage claims, what the consequences are of adopting certain approaches to interest and inflation for recoverable damage amounts, and whether these approaches are economically sound. The paper is structured as follows: The first section describes the main economic approaches to address the passage of time on damages awards and for selecting an appropriate interest rate. Four main measures are identified: the…

Suresh Naidu, Eric A. Posner, and E. Glen Weyl ‘Antitrust Remedies for Labor Market Power’ Harvard Law Review (forthcoming)

The paper – which can be found here –  criticises the historic imbalance between product and labour market antitrust enforcement, which has no basis in economic theory: from an economic standpoint, the dangers to public welfare posed by product and labour market power are exactly the same. It is argued that antitrust agencies should take more seriously the danger that mergers may lead to labour market power as well as product market power. The paper is organised as follows: The introduction tries to explain why antitrust has traditionally ignored labour markets. Four explanations are advanced: (i) while economic theory treats product and labour markets similarly, legal theory has placed more emphasis on product markets as a result of a focus on consumer welfare; (ii) it was assumed that labour markets are reasonably competitive, and that labour market power was not an important social problem; (iii) the traditional legal approach to protecting workers, which took place “outside” antitrust law, may have…

Paul Nihoul, Freedom of choice: The emergence of a powerful concept in European competition law, September 2012, Concurrences Review N° 3-2012, Art. N° 48102, pp. 55

This chapter – which can be found here – argues that a number of European Commission and European court decisions bring to the forefront a legal test that has so far merited limited attention—the concept of choice, understood as the possibility, and the right, for customers to choose freely both the products/services best suited to their needs, and the economic partners they want to deal with. This legal test is analysed in this essay, which is divided into three parts: Part II examines cases where this new test is said to emerge more clearly. These are mainly Art. 102 TFEU cases – and the most important one is, arguably, a case regarding predatory pricing of internet services by France Telecom. France Telecom argued that recoupment was necessary for pricing below costs to be anticompetitive. The European Court of Justice dismissed this argument. Even if consumers would benefit from lower prices on aggregate, this would not eliminate all competitive harm: inasmuch…

Ioannis Lianos & Pierre Regibeau “Vexatious”/”Sham” Litigation: When can it Arise and How can it be Reduced?’ (2017) Antitrust Bulletin 62(4) 643-689

It is possible that companies may, through regulatory and litigation processes, be able to exclude or marginalize their competitors from the market and therefore charge higher prices, limit output, maintain the status quo price, or diminish innovation. But while these strategies may offer a cheap mechanism for non-price predation, litigation and regulatory process have been set up to protect public goods regardless of the risk that their use may negatively impact competition. Furthermore: ‘assessing on a case-by-case basis the welfare effects of each use of the regulatory and litigation process through some form of sophisticated cost benefit analysis would be too burdensome and would generate too much uncertainty, chilling the legitimate use of such governmental processes and thus frustrating their aims. For this reason, in practice, the use of the regulatory and/or litigation process stays presumptively outside the scope of competition law, through the operation of some form of antitrust immunity, in both the U.S. and in Europe, this being…

Michael A. Carrier ‘Sharing, Samples, and Generics: An Antitrust Framework’ (2017) Cornell Law Review 103(1) 1

This paper – which you can find here – looks at a specific type of obstacle to generic entry: refusals by originators to share samples of branded medicines. As is often the case in this sector, this practice takes advantage of the existing regulatory scheme, in this case in the US. This strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation, REMS are required when a drug’s risks (such as death or injury) outweigh its rewards. According to the author, brands have used this regime, intended to bring drugs to the market, to block generic competition. The paper is structured as follows: Part I provides a background on REMS, offering a history and overview of these programs before examining the concerns they raise regarding blocking generic entry. The FDA has defined REMS as “required risk management plans that use risk minimization strategies beyond the professional labeling to ensure that the benefits of certain prescription drugs outweigh…

Robin Cooper Feldman ‘Patent and Antitrust – Differing Shades of Meaning’ (2008) Virginia Journal of Law & Technology 13 5

This paper – which can be found here – focuses on how “patent law and antitrust law often use the same concepts and terminology with differing meanings and contexts.” The confusions this gives rise to “threatens any attempt to reconcile the two bodies of law. Most importantly, ignoring asymmetries can lead to both underprotection and overprotection of patent rights, as well as the improper application of antitrust laws”. The paper begins with a history of the relationship between IP and antitrust.  From the beginning, there were tensions between IP and antitrust, given that “patent law encourages monopoly and antitrust law opposes monopolization.” However, this terminology risks confusing things. Competition law “focuses its wrath on companies that try to gain or maintain monopoly power by inappropriately suppressing competition”. Patent law, on the other hand, “grants only a negative right, the right to exclude. That right brings the possibility of obtaining a monopoly in a given market, but a patent is certainly…

Wolfgang Kerber ‘Digital markets, data, and privacy: competition law, consumer law and data protection'(2016) Journal of Intellectual Property Law & Practice 11(11) 856

This is a paper on the economics of privacy that focuses more specifically on the role of privacy in competition law assessments. It can be found here. The paper claims that it is not sufficient to design policy solutions focused on a single field of the law, e.g. competition law or data protection law. Rather, an integrated approach that takes into account different regulatory perspectives is necessary. This paper identifies competition policy, consumer policy, and data protection policy as the three main regulatory perspectives that must be taken into account in order to adequately address privacy concerns. Each area of the law is reviewed in turn, from an economic perspective, in an attempt to discern how policies might remedy market failures concerning privacy rights and how a more integrated regulatory approach can be developed. The paper is structured as follows: Section II provides a brief overview of the economics of privacy. It begins by noting (in line with the article…

Giancarlo Spagnolo and Catarina Marvão ‘Cartels and Leniency: Taking stock of what we learnt’

This paper, available at https://ideas.repec.org/p/hhs/hasite/0039.html, reviews the literature on the incentives of leniency applicants.  It is a really useful piece for anyone doing leniency work, and extremely thorough. It is not possible to  provide a summary of the paper: it reviews too many papers and possible scenarios (the first section looks at economic models, the second at empirical evidence). If there is a basic argument underpinning all of this, it seems to be that incentives to increase cartel enforcement results may not be well-aligned with maximising welfare /  may lead to excessively generous leniency conditions; and that leniency reduces collusion but that the EU is too nice to cartelists and extends leniency to far too many companies.

Joseph Drexl ‘The Transplantability of the EU’s Competition Law Framework into the ASEAN Region’

This paper by Josef Drexl – a chapter on a book on the ‘The Regionalisation of Competition Law and Policy within the ASEAN Economic Community – focuses on the transplantability of competition law systems across regions(in this case, from the EU to ASEAN). Basic argument: some elements of a competition system are transplantable, others are not. A full, successful transplant from the EU to ASEAN must take into consideration the goals of ASEAN competition law, the degree and potential of economic integration of the national economies, the level of economic development of these economies, the development of a competition culture in these countries, the comparative advantages of centralised and decentralised enforcement, and the willingness of ASEAN countries to surrender sovereignty in the field of competition law. In short, transplants depend on socio-economic conditions. I think we can all agree with this article of faith in spirit, even if I’m doubtful that anyone is very good at embracing it in practice –…