Harry First and Stephen Webber Wallace ‘Pairing Public and Private Antitrust Remedies’ in Albert A. Foer Liber Amicorum, Concurrences (Forthcoming)

Discussions on private competition remedies most often deal with questions of optimal deterrence and effectiveness. Lost in conversation is the basic idea that antitrust violations cause economic harm, and that those victimised by that harm should be entitled to damages from those who have violated the law. This is the underappreciated compensatory function of antitrust. Section 4A of the Clayton Act is a powerful, yet historically underused enforcement tool that empowers the United States to obtain treble damages for anticompetitive conduct when the government is itself the victim. The paper, which can be found here, focuses on whether the US government should not only pursue public enforcement activities, but also engage in private enforcement claims to be compensated for losses as a result of anticompetitive conduct. It examines the limited use of Section 4A, and discusses some possibilities for future cooperation between public and private plaintiffs that could advance the compensatory goal of antitrust. It is structured as follows: Section I looks…

Miriam C. Buitem ‘The Ambivalent Effect of Antitrust Damages on Deterrence’ (2019) CPI Antitrust Chronicle Ju

The possible undermining effect of damages actions on leniency programs has been hotly debated. The concern is that the prospect of damages claims may discourage colluding firms from applying for leniency, since the leniency program only shields them from public fines, not from civil damages. Civil damages may contribute to the goal of preventing cartels by increasing the expected costs of starting a cartel. However, civil damages may not enhance antitrust deterrence if colluding firms believe it to be unlikely that competition authorities will detect their cartel. For leniency programs to put cartel members in a prisoners’ dilemma, confessing must be more attractive than staying quiet. If civil damages are substantial, leniency may not sufficiently improve a colluding firms’ position as compared to their non-reporting co-conspirators, and hence their incentive to apply for leniency will decrease, together with the overall odds of cartel detection. This note, available here, discusses the ambivalent effect of antitrust damages actions on deterrence. It considers how fines…

Nicole Rosenboom and Daan in ’t Veld ‘The Interaction of Public and Private Cartel Enforcement’ (2019) World Competition 42(1) 87

Despite its broad title, this article – available here – investigates mainly the interaction between leniency programmes and civil damages claims.  Most competition authorities have adopted leniency programmes to uncover cartels. To increase the overall deterrent effect of competition law, many jurisdictions have also introduced private competition enforcement, which increases the total potential financial exposure of cartel members. The impact of private competition enforcement – and particularly the concomitant increase in the liability of potential leniency applicants – on leniency programmes has been discussed in the literature, but there is an absence of empirical studies. This article tries to fill this gap by studying the empirical impact of private competition enforcement on leniency. It uses two methods: surveys of Dutch firms and competition lawyers, and econometric conjoint analysis. The authors conclude that firms’ decisions to apply for leniency are affected by the magnitude of the personal penalty to which directors are subject and the amount of fine reduction following a successful leniency application….

OECD work on Crisis Cartels (2009)

The OECD background paper on this topic was written by Professor Simon J. Evenett in 2011, and can be found here. The purpose of this paper is to consider whether changes in policies towards cartel formation are merited during economic crises and associated recoveries. The paper is structured as follows: Sections two defines crisis cartels. The term crisis cartel is used to refer to a cartel that was formed during a severe sectoral, national, or global economic downturn. Such cartels can occur without state permission or legal sanction, which may trigger enforcement; or they may be permitted, even fostered, by a government, which may trigger advocacy. The impact of a crisis on the incentive of firms to cartelise will depend on the nature of the crisis, be it sectoral, national, or international. In thinking through the impact of each type of crisis on the behaviour of cartel members, one must identify the ways in which the crisis affects the business…

Peter Georg Picht and Gaspare Tazio Loderer on ‘Framing Algorithms: Competition Law and (Other) Regulatory Tools’ (2019) World Competition 42(3) 391

Algorithmic market conduct, and intervene where algorithms risk distorting competition. In effect, the collusive potential of algorithms and algorithm-driven resale pricing have already been the subject of enforcement. However, it is still not clear whether competition law has, in its present form, the necessary tools and techniques adequately to control algorithms. This article, available here, looks at what other areas of the law, which are more advanced in this respect, can teach competition law. Its second section looks at how financial markets regulation and data protection law deal with algorithm-based market activity. Financial markets were among the first to deploy algorithms broadly and intensely. As a result, financial market regulation developed a comparatively detailed set of rules on algorithmic trading early on. European data protection law is another area that already has in place certain elements of a legal framework for algorithmic (market) activity. This includes the General Data Protection Regulation (GDPR) and the ePrivacy Regulation. These two regulatory regimes share…

Angela Huyue Zhang ‘Strategic Comity’ (2019) Yale Journal of International Law 44(2)

The extent to which US courts should enforce antitrust laws against state-led export cartels has been the subject of intense debate among academics, courts and policymakers for decades. While defendants often invoke the state compulsion defence, which is based on comity and respect for foreign sovereigns, these doctrines have long been criticised for their ambiguity and inconsistent application. The recent Supreme Court decision regarding the Chinese state-led Vitamin C cartel – reviewed here – highlights a number of challenges with the way these doctrines have been applied in the US. The author’s argument in this paper, available here, is that the application of both comity and foreign state compulsion defences are susceptible to political considerations, and that the Supreme Court decision is a good example of this. The author argues that the Supreme Court proactively solicited the opinion of the executive branch before hearing its case, and its final ruling is exactly in line with the opinions and suggestions proposed…

Pieter J. F. Huizing ‘Comparing territorial limits to EU and US public enforcement of the LCD cartel’ (2018) Journal of Antitrust Enforcement 6 231

This article, available here, describes the US and EU positions on the territorial scope of public cartel enforcement – i.e. how far outside their territories can competition authorities reach to punish cartel conduct committed abroad by foreign undertakings – by reference to the LCD cartel. Cartelised LCD panels were manufactured by a number of Asian producers with varying levels of direct and indirect imports into the EU and the USA. Both the European Commission (Commission) and the U.S. Department of Justice (DOJ) had to determine the territorial limits to their enforcement in respect of this international cartel, and to then defend their approach in court. In both jurisdictions, it is accepted that competition authorities benefit from long territorial reach and wide discretion in determining the amount of fines. It is submitted that the legal precedents created by decisions regarding this cartel are a cause for concern in view of the increasingly crowded global cartel enforcement arena. This argument is developed…

Omar Shah, Christina Renner and Leonidas Theodosiou ‘Intel, iiyama, Power Cables: A Revolution in the Treatment of Territoriality and Jurisdiction in EU Competition Law?’ (2019) Journal of European Competition Law & Practice

Important recent decisions by the EU and national courts – in Intel, iiyama and Power Cables – have set the stage for a potential increase in public enforcement and private litigation of business conduct which has effects on competition in the EU internal market despite not being implemented there. This paper, available here, addresses the potential changes to EU and national law wrought by these decisions, and considers the extent to which limiting principles may emerge to address potential conflicts of law, multiplicity of proceedings and double jeopardy. It is structured as follows: Section 2 describes the evolution of EU law on the jurisdictional reach of its competition provisions. The EU Courts have had to delimit the jurisdictional scope of EU law, typically in the context of judicial review of decisions of the European Commission (‘Commission’) in which the Commission had exercised enforcement jurisdiction over conduct whose territorial links to the EU were susceptible to challenge. Early on, the Court…

Javier Garcia-Verdugo, Carlos Merino Troncoso and Lorena Gomez Cruz ‘An Economic Assessment of Antitrust Fines in Spain’ (2018) World Competition Law and Economics Review 41(3) 335

This article, available here, tries to quantify the deterrent power of fines imposed by the Spanish competition authority from 2011 to 2015. Despite being authored by senior staff at the Spanish competition authority, the paper concludes that most of the fines imposed by the Spanish competition authority during this period were under deterrent. The argument is structured as follows: Section II sets out how to quantify cartel gains. A deterrent optimal fine can be defined as a fine that deters a company from participating in a cartel. Such an outcome is achieved when there is no expected net gain from participating in the cartel in the first place, i.e. when the expected illicit gain of entering into a cartel is lower than the expected loss from being sanctioned for cartel participation. Therefore, the reference value for an optimal fine should be determined by reference to an estimate of the illicit gain (also known as excess profit) flowing from cartel membership. This illicit…

Dagmar Schiek and Andrea Gideon on ‘Outsmarting the gig-economy through collective bargaining – EU competition law as a barrier?’ (2018) International Review of Law, Computers & Technology 32(2-3) 275

While the use of information technology can enhance personal self-determination, its use in the context of the gig-economy also creates the risk of entrenching casual, precarious and exploitative working conditions. A crucial question that arises is how far gig-workers are able to shape their work conditions. Within the sphere of employment law, the right of workers to organise collectively provides the opportunity to achieve just that. This paper, available here, aims to analyse the barriers posed by EU competition law to collective labour rights of gig-workers. It argues that EU competition law, as currently interpreted by the Court of Justice, would hinder collective organisation of those serving the gig-economy. It also advances an interpretation of the competition provisions which would allow EU competition law to adapt to recent developments in labour markets. It is structured as follows: A first section sketches the basic features of the gig-economy. The gig-economy is mainly characterised by the extensive use of IT for the distribution, allocation,…