Keith N. Hylton ‘Oligopoly Pricing and Richard Posner’ (2018) Antitrust Source

Oligopoly pricing cases are sometimes called “circumstantial-evidence conspiracies”, because they typically involve a charge of conspiracy and an absence of direct evidence of agreement.  What makes these cases special, however, is the type of circumstantial evidence brought to court, such as that of parallel behaviour, and the difficulty of determining whether the evidence justifies a finding of conspiracy. Over nearly 50 years, Richard Posner’s ideas have loomed large over the subject of oligopoly pricing and antitrust. However, by 2015 his approach seemed to have little to do with his ideas in 1969. This paper, , available here, explores this evolution, and how it reflects changes in how we think about oligopoly and collusion. Section I discusses the text messaging litigation and the reasoning behind Posner’s changing approach to oligopoly pricing. In 2015, judge Posner wrote the opinion In re Text Messaging. The case arose from the consolidation of several class actions accusing major wireless network providers (T-Mobile USA Inc., Sprint…

Stefan Thomas ‘Harmful Signals: Cartel Prohibition and Oligopoly Theory in the Age of Machine Learning’ (2019) Journal of Competition Law & Economics 15 (2-3) 159

Information can be used by competitors to collude or to compete, and the challenge for competition law is to spot the differences. Signalling and any other type of informational exchange outside the scope of cartels are an emanation of tacit collusion. Tacit collusion, however, is generally considered unobjectionable, because firms are deemed to have the right to adapt intelligently to their rivals’ conduct. The law puts different labels on what is ultimately the same economic phenomenon, that is, conduct that leads to supra-competitive outcomes. The traditional legal approach for distinguishing between illicit collusion and legitimate oligopoly conduct is to rely on criteria that relate to the means and form of how rivals interact, such as elements of “practical cooperation” or findings of anticompetitive intent. This article, available here, contends that, outside the scope of classic cartel agreements, it is not possible to properly distinguish between illicit collusion and legitimate independent conduct by relying on proxies such as elements of practical…

Competition and Markets Authority ‘Regulation and Competition – A Review of the Evidence’ (2020)

It is well established that effective competition is a key mechanism for improving outcomes for consumers. There is a concern that regulation can have the effect of stifling competition, and thereby deprive customers of these benefits, for example through raising barriers to entry. At the same time, different forms of regulation have an important role to play in supporting competition, for example by providing the legal and economic frameworks within which competition takes place. It is therefore important to take into account the benefits as well as the costs when considering the impact of regulation. The purpose of this report, available here, is to summarise existing evidence about the impact of regulation on competition, both in terms of the academic research and the way in which regulation is designed and implemented in practice. It does so as follows: Section 2 introduces the topic. Competition and regulation are sometimes portrayed as mutually exclusive; for instance, either you have competition policy to…

Howard Shelanski ‘Antitrust and Deregulation’ (2019) Yale Law Journal 127 1922

The relationship between antitrust enforcement and regulation depends on policy choices which must answer a question: how should antitrust enforcement and regulation relate to each other? This paper, which is available here, looks at this question in the context of deregulated industries. It argues that antitrust enforcement should run countercyclical to regulation, especially during strongly deregulatory cycles. The comparative importance of countering deregulatory shifts arises because, while increased regulation can keep antitrust enforcement out of regulated markets, reduced regulation triggers no such mechanism for pushing antitrust back into deregulated markets. It is argued that good reasons for antitrust enforcement to run counter to deregulation can be found in economics, legal doctrine, and current debates over competition policy. Part I discusses why deregulation can lead to enforcement gaps. A variety of institutions can govern economic competition. Decentralised, capitalist economies generally rely on markets to provide the incentives and discipline necessary to keep prices low, output high, and innovation moving forward. When…

Niamh Dunne ‘Dispensing with Indispensability’ (2020) Journal of Competition Law & Economics 16(1) 74

‘Indispensability’ is the central concept underpinning the treatment of refusal to deal claims under EU competition law. Firms can normally refuse to share their infrastructure with would-be competitors, to supply an input, or to licence their intellectual property. Where the requested access is, however, deemed indispensable to effective competition in an adjacent market—an exceptional circumstance—dominant undertakings may find their default market freedom constrained, the rationale being that control of such an essential facility renders any refusal to deal disproportionately harmful. However, the conventional wisdom that instances of refusal to deal constitute an abuse only in the presence of indispensability has been challenged from multiple directions. This article, available here, surveys the departures from the orthodoxy that can be found in the jurisprudence. Section II introduces refusal to supply as an antitrust theory of harm. It has long been acknowledged that Article 102 TFEU may, in certain instances, proscribe refusals to contract with rivals by dominant undertakings. Yet refusal to deal…

Roman Inderst and Stefan Thomas ‘Common Ownership and Mergers between Portfolio Companies’ (2019) World Competition 42(4) 551

The debate on the competitive risks of common ownership has focused on whether passive index investments soften competition among portfolio companies. If this were the case, it would raise the question how it would impact the analysis of horizontal mergers between portfolio companies. The European Commission has, in Dow/DuPont and in Bayer/Monsanto, allowed the possibility that the mere existence of common ownership can contribute to a competitive impediment emerging from a horizontal merger between portfolio companies. This paper, available here, argues that it should not be presumed that common ownership in itself increases anticompetitive effects of a merger between portfolio companies. Instead, this would depend on the facts of the case – from both a price and innovation perspective. Even if it were to be assumed that common ownership has an inherent propensity to impede competition, it cannot be concluded from this that a merger between commonly owned portfolio companies has a larger detrimental effect on prices or innovation activity…

Alec Burnside and Adam Kidane ‘Common Ownership: A EU Perspective’ (2020) Journal of Antitrust Enforcement 8 456

This article, available here, examines common ownership through a European lens. The article considers whether the theory of harm flowing from common ownership is sufficiently robust to provide a basis for enforcement, and (if so) whether current European Union competition law tools could be used to that end. The authors argue that it is premature to draw any conclusions as to whether common ownership concerns justify competition enforcement. In any event, levels of common ownership seem to be lower in Europe than in the US, so it is unclear whether intervention would be justified in the EU even if it were in the US. Until a better understanding of the underlying facts and a broad academic consensus emerge, reform prescriptions that have been advanced will remain a solution in search of a problem. Section II describes the common ownership theory of harm. The authors begin by distinguishing between cross-shareholding and common ownership. Cross-ownership arises where one firm acquires a non-controlling…

Eric Posner ‘Policy Implications of the Common Ownership Debate’ (2021) University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 922

The debate over common ownership has raised questions about what, if any, policy responses are appropriate when common owners reduce competition in product markets. This paper, available here, reviews the literature on policy responses and evaluates various reform proposals in light of recent empirical and theoretical developments. A first section frames the discussion. Common ownership theories of harm have attracted their fair share of criticisms. One group of criticisms centred around the question of “mechanism”: what was the mechanism with which institutional investors compelled portfolio firms to raise prices and reduce output? Moreover, some researchers have found statistical or anecdotal evidence that common ownership produces social benefits by internalising positive externalities across firms, like those that are due to research. Policymakers must therefore confront three questions. First, is the time ripe for intervention or should they wait for more academic work to create a larger consensus among independent academics about the empirical effects of common ownership? Second, if or when…

Einer Elhauge ‘How Horizontal Shareholding Harms Our Economy—And Why Antitrust Law Can Fix It’ (2020) 10 Harvard Business Law Review 10(2) 207

This article, available here, argues that new economic proofs and empirical evidence show that horizontal shareholding in concentrated markets often has anticompetitive effect. The piece also develops new legal theories for tackling the problem of horizontal shareholding. When horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. Anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102. Part I describes how new proofs and empirical evidence have confirmed that high levels of horizontal shareholding in concentrated product markets can have anticompetitive effects, even when each individual horizontal shareholder has a minority stake. The last few years have seen a deluge of studies – involving economic modelling and empirical research – demonstrating how overlapping horizontal shareholding can lead to anticompetitive effect, even when each individual horizontal shareholder has a minority stake and without…

Anna Tzanaki ‘Varieties and Mechanisms of Common Ownership: A Calibration Exercise for Competition Policy’ (forthcoming)

Minority shareholdings have been on the regulatory agenda of competition authorities for some time. Recent empirical studies, however, draw attention to a new, thought provoking theory of harm: common ownership by institutional investors holding small, parallel equity positions in several competing firms within concentrated industries. The European Commission has already made use of the common ownership theory in its merger enforcement practice, while the US antitrust agencies have proposed amending their merger control reporting thresholds to account for aggregate institutional holdings. This paper, available here, reviews common ownership from the perspective of merger control. It starts with a novel distinction between two types of common ownership – ‘concentrated’, which broadly fits within existing concepts in merger control; and ‘diffuse’, which broadly encompasses the instances of common ownership that avoid merger scrutiny in jurisdictions that rely on control-based thresholds. It is this latter form of common ownership that preoccupies the contemporary debate, and falls through the gaps of competition law. The…