Agricultural and Biotech Mergers: Implications for Antitrust Law and Economics in Innovative Industries

Agricultural and Biotech Mergers: Implications for Antitrust Law and Economics in Innovative Industries

March 30, March 31, and April 3, 2017

On March 27, 2017, the European Commission cleared the merger of Dow and DuPont, subject to conditions including divestiture of DuPont’s “global R&D organisation.” As the Commission noted:

The Commission had concerns that the merger as notified would have reduced competition on price and choice in a number of markets for existing pesticides. Furthermore, the merger would have reduced innovation. Innovation, both to improve existing products and to develop new active ingredients, is a key element of competition between companies in the pest control industry, where only five players are globally active throughout the entire research & development (R&D) process.

In addition to the traditional focus on price effects, the merger’s presumed effect on innovation loomed large in the EC’s consideration of the Dow/DuPont merger — as it is sure to in its consideration of the other two pending mergers in the agricultural biotech and chemicals industries between Bayer and Monsanto and ChemChina and Syngenta. Innovation effects are sure to take center stage in the US reviews of the mergers, as well.

What is less clear is exactly how antitrust agencies evaluate — and how they should evaluate — mergers like these in rapidly evolving, high-tech industries.

These proposed mergers present a host of fascinating and important issues, many of which go to the core of modern merger enforcement — and antitrust law and economics more generally. Among other things, they raise issues of:

• The incorporation of innovation effects in antitrust analysis;
• The relationship between technological and organizational change;
• The role of non-economic considerations in merger review;
• The continued relevance (or irrelevance) of the Structure-Conduct-Performance paradigm;
• Market definition in high-tech markets; and
• The patent-antitrust interface

This symposium brought together a stellar lineup of scholars to consider these and related issues.

Participants:

• Allen Gibby, Senior Fellow for Law & Economics, International Center for Law & Economics
• Shubha Ghosh, Crandall Melvin Professor of Law and Director of the Technology Commercialization Law Program, Syracuse University College of Law
• Ioannis Lianos,  Chair of Global Competition Law and Public Policy, Faculty of Laws, University College London
• John E. Lopatka, A. Robert Noll Distinguished Professor of Law, Penn State Law School
• Geoffrey A. Manne, Executive Director, International Center for Law & Economics
• Diana L. Moss, President, American Antitrust Institute
• Nicolas Petit, Professor of Law, Faculty of Law, and Co-director, Liege Competition and Innovation Institute, University of Liege
• Levi A. Russell, Assistant Professor, Agricultural & Applied Economics, University of Georgia
• Joanna M. Shepherd, Professor of Law, Emory University School of Law
• Michael Sykuta, Associate Professor, Agricultural and Applied Economics, and Director, Contracting Organizations Research Institute, University of Missouri

• Symposium Introduction

• Understanding innovation markets in antitrust analysis (Joanna Shepherd)

• Conglomerate effects and the incentive to deal reasonably with other providers of complementary products (Allen Gibby)

• Contestability theory in the real world (Levi Russell)

• Patents and mergers (Shubha Ghosh)

• Innovation trends in agriculture and their implications for M & A Analysis (Mike Sykuta)

• Mergers, innovation, and agricultural biotechnology: Putting the squeeze on growers and consumers? (Diana Moss)

• Effects of gene editing on ag-biotech antitrust (Levi Russell)

• Finding your way in the seeds/agro-chem mergers labyrinth (Ioannis Lianos)

• Antitrust review of ag-biotech mergers: Appropriability versus cannibalization (Nicolas Petit)

• Innovation-driven market structure in the ag-biotech industry (Geoffrey Manne)

• Innovation as a shield and a club in the agribusiness mergers (John Lopatka)

• Symposium Wrap-up