A Congressional Bill proposing a “Reasonable Profits Board” so that profits on the sale of oil and gas in excess of what is “reasonable” can be subjected to a windfall tax.  A brief description:

According to the bill, a windfall tax of 50 percent would be applied when the sale of oil or gas leads to a profit of between 100 percent and 102 percent of a reasonable profit. The windfall tax would jump to 75 percent when the profit is between 102 and 105 percent of a reasonable profit, and above that, the windfall tax would be 100 percent. The bill also specifies that the oil-and-gas companies, as the seller, would have to pay this tax.

We have a long archives of posts here at TOTM on a variety of forms of price gouging legislation in oil and gas.   Most recently, in discussing a White House Task Force aimed to detect price gouging and usurping jurisdiction from the Federal Trade Commission, I wrote:

One need only read the FTC’s 222 page report on gasoline prices post-Katrina and Rita to appreciate the Commission’s expertise in this area.  But perhaps most importantly, and undoubtedly related to the appointment of a working group outside the Commission, is that the Commission understands the relevant economics.  Indeed, as I noted just recently, then Bureau of Economics Director Michael Salinger gets it right when he observed  “as unpleasant as high-priced gasoline is, running out will be even worse.”  Further, it was the Commission Report that found not only scant evidence of what might be described as “gouging” — but did find examples of gas stations that shut down rather than risk a suit under a state price gouging law.  “Price Gouging Helps Consumers” doesn’t make for much of an election slogan, so perhaps this is all to be expected.  But nobody should be fooled into believing that enforcement of existing state price gouging laws, or a new federal task force devoted investigate “price gouging,” are going to make consumers better off.

The criticisms against price gouging laws become even stronger against a “Reasonable Profits Board,” which is even more blatantly political, even more likely to harm consumers, and even more likely to waste social resources than enforcement of state price gouging laws.

Filed under: economics, federal trade commission

I am very pleased to pass along this information about the 15th Annual Symposium on Antitrust Law on January 26th, 2012 sponsored by the George Mason Law Review, GMU Law & Economics Center, and Kelley Drye & Warren LLP.

The George Mason Law Review, in partnership with the George Mason University Law & Economics Center and sponsor Kelley Drye & Warren LLP, is pleased to present its 15^th Annual Symposium on Antitrust Law on January 26, 2012. The symposium, entitled “Antitrust in High-Tech Industries,” will be held in the Founders Hall Auditorium at George Mason University School of Law, located at 3301 Fairfax Drive, Arlington, Virginia.

The program will focus on the proper role of antitrust in high technology industries, including the extent to which current competition policy is adequate to address dynamic competition concerns that are prevalent in rapidly evolving sectors.  Specifically, panels will explore the application of antitrust laws to social media, mergers, online search, and online advertising.

The Keynote Address will be delivered by William Kovacic, former Chairman of the US Federal Trade Commission.

Please join us on January 26, 2012! To register, click here.

For a detailed description of the Symposium Panels, click here.

Fees:
General Admission: $150.00
Government/Academic: $50.00
Student: $50.00

Note: 5.5 CLE credit hours from the Virginia Bar Association are available for program attendees.

For more information, contact Katie Brown at [email protected] or call (703) 375-9529.

15th Annual Symposium Brochure

Speakers and Agenda:

8:00 – 8:30am            Registration and Continental Breakfast

8:30 – 8:35am             Welcome and Introduction

8:35 – 10:00am          Panel 1: Perspectives on High-Tech Antitrust

Howard Shelanski, Georgetown University Law Center

Herbert Hovenkamp, University of Iowa College of Law

George L. Priest, Yale Law School

Keith Hylton, Boston University School of Law

10:15 – 11:45pm        Panel 2: Social Media

Catherine E. Tucker, MIT Sloan School of Management

Spencer W. Waller, Loyola University, Chicago School of Law

Frank Pasquale, Seton Hall Law School

11:45 – 1:45pm          Luncheon and Keynote Address

William E. Kovacic, The George Washington University Law School

1:45 – 3:15pm             Panel 3: Mergers

Luke M. Froeb, Vanderbilt University

Thomas W. Hazlett, George Mason University School of Law

Jonathan B. Baker, American University Washington College of Law

3:30 – 4:45pm           Panel 4: Search and Online Advertising

William C. MacLeod, Kelly Drye & Warren LLP

Joshua D. Wright, George Mason University School of Law

Daniel Crane, University of Michigan Law School

Scott A. Sher, Wilson Sonsini Goodrich & Rosati

4:45 – 5:00pm           Closing Remarks

5:00 – 6:00pm           Refreshments/ Reception

Location:
George Mason University School of Law
Founders Hall Auditorium
3301 Fairfax Drive
Arlington, VA 22201

For directions, click here.

Filed under: antitrust, george mason university school of law

The web is all abuzz about possible antitrust implications concerning Google’s new personalized search (see, e.g., here and here), integrating search with Google Plus.  Here is Google’s description of “Search, plus Your World”:

We’re transforming Google into a search engine that understands not only content, but also people and relationships. We began this transformation with Social Search, and today we’re taking another big step in this direction by introducing three new features:

1. Personal Results, which enable you to find information just for you, such as Google+ photos and posts—both your own and those shared specifically with you, that only you will be able to see on your results page;
2. Profiles in Search, both in autocomplete and results, which enable you to immediately find people you’re close to or might be interested in following; and,
3. People and Pages, which help you find people profiles and Google+ pages related to a specific topic or area of interest, and enable you to follow them with just a few clicks. Because behind most every query is a community.

The linked articles raising antitrust concerns largely talk about things like leveraging monopoly power in search into social networks and so forth.  The usual arguments.  For example:

By making Google+ such a large part of search — as well as Picasa — Google certainly is toeing the line of a company using monopoly to extend its reach into adjacent markets. Consider Microsoft’s moves with Internet Explorer, which was bundled with Windows starting in 1998. Microsoft used its monopoly on PC operating systems to nudge into the browser market, where Netscape had overwhelming market share lead. How is what Google is doing different?

Let’s start with the obvious differences: (1) the DOJ had to prove anticompetitive effects in Microsoft; (2) Microsoft was unable to muster up an efficiency justification.  Discussions of antitrust implications of any business practice that don’t focus on competitive effects and efficiency justifications are non-starters.

So let’s start with the most obvious thing that should come to mind when watching the integration of general search with Google Plus.   Integration!  Personalizing search results makes (at least some!) users better off.  Users that prefer non-personalized results can have them too.  But the trend toward providing a deeper, better, and different forms of answers to questions posed in search queries is not a Google-specific thing.  Its an industry thing driven by consumer preferences on the web.  When Google or Facebook or Twitter is able to integrate functions of search and social networking to create something different and demanded by consumers, that consumers enjoy and derive surplus from, this is a competitive benefit.  Competitive benefits count in antitrust because they make consumers better off.  This is very basic. But worth repeating.

The antitrust question is whether, despite these obvious efficiencies, there is plausible evidence of anticompetitive harm — that is, harm to competition rather than individual rivals like Bing, Twitter, or Facebook.  My personal view — which I’ve written about at great length here, here, and here — is that there is no such evidence.  But for now, the critical point is that antitrust analysis counts the integration of these functions in a manner satisfying consumer preferences — and it seems obvious that this integration produces results that consumers want — as an important consumer benefit.  This is a feature and not a bug of antitrust law.   Antitrust law that ignores or is biased against the efficiencies of vertical integration, or the introduction of new products integrating previously separate functions (like personalized search, or improved search results with maps), is at significant tension with economic theory and is simply not compatible with a consumer-welfare based competition regime.

Filed under: antitrust, google, Internet search, technology

Judge Ginsburg and I are working on a project for an upcoming festschrift in honor of Bill Kovacic.  The project involves the role of settlements in the pursuit of the goals of antitrust.  In particular, we are looking for examples of antitrust settlements between competition agencies and private parties — in the U.S. or internationally — involving conditions either: (1) clearly antithetical to consumer welfare, or (2) that arguably disserve consumer welfare.  In the former category, examples might include conditions requiring firms to make employment commitments.  The second category might include conditions placing the agency in an ongoing regulatory role or restricting the firm’s ability to engage in consumer-welfare increasing price or non-price competition.

I turn to our learned TOTM readership for help.  Please feel free to leave examples in the comments here — or email me.  Cites and links appreciated.

Filed under: antitrust, doj, federal trade commission, scholarship, settlements

As in, “If the SEC doesn’t pull up its socks and do a serious cost-benefit analysis, it may discover that Business Roundtable has become a verb. As in, the court Business Roundtabled yet another SEC rule.”

Here.

Filed under: business, disclosure regulation

Tomorrow morning at 10:30 I’ll be on a panel at AALS discussing behavioral economics and antitrust law and policy.

The panel includes: James Cooper, Bruce Kobayashi, William Kovacic, Steve Salop, Maurice Stucke, Avishalom Tor and myself.  Its a really good group and I’m looking forward to the discussion.  Here are the session details:

The program will focus on the influence of Behavioral Economics on Antitrust Law and Policy.  Behavioral economics, which examines how individual and market behavior are affected by deviations from the rationality assumptions underlying conventional economics, has generated significant attention from both academics and policy makers. The program will feature presentations by leading scholars who have addressed how behavioral economics impacts antitrust law and policy.

In my presentation I’ll be discussing my work on the topic (co-authored with Judd Stone) and some extensions of that work.

See you there.

Filed under: antitrust, behavioral economics

Danny Sokol posted some nominations for best Antitrust Article from a variety of antitrust experts.  I was supposed to include my nomination for that list but missed the deadline.  Turns out my draft list doesn’t have much overlap with the articles nominated over there, so I figured I’d share my whole list here with all of the normal caveats (i.e., I’m sure I’ve forgotten some very important articles!).  Alas, I’ve been giving some thought to the best, most influential, most enjoyable, or most important antitrust articles and books (and in one case, press article) over the past year and came up with the following list of my favorites:

• Louis Kaplow, An Economic Approach to Price Fixing, 77 Antitrust Law Journal, 343 (2011)
• Daniel Crane, The Institutional Structure of Antitrust Enforcement (Oxford University Press 2011) (I reviewed Crane’s book here)
• Michael Baye & Joshua D. Wright, Is Antitrust to Complicated for Generalist Judges? The Impact of Economic Complexity and Judicial Training on Appeals, 50 J. L. & Econ. 1 (2011) (SSRN version available here; reviewed by John Woodbury in the Antitrust Source here)
• Geoffrey A. Manne & Joshua D. Wright, Competition Policy and Patent Law Under Uncertainty: Regulating Innovation (Cambridge University Press 2011)
• James Keyte & Kenneth B. Schwartz, Tally -Ho!: UPP and the 2010 Horizontal Merger Guidelines, 77(2) Antitrust Law Journal 587 (2011)
• Joseph Farrell, Fox or Dangerous Hedgehog?  A Reply to Keyte and Schwartz, 77(2) Antitrust Law Journal, 661 (2011)
• Keith N. Hylton, Brown Shoe Versus the Horizontal Merger Guidelines, 39 Review of Industrial Organization 95 (2011)
• Herbert Hovenkamp, Innovation and Competition Policy (2011)
• Avi Goldfarb & Catherine Tucker, Substitution Between Offline and Online Markets, Journal of Competition Law & Economics (2011)
• Thomas Catan, This Takeover Battle Pits Bureaucrat v. Bureaucrat, Wall Street Journal (April 12, 2011)

Happy New Year TOTM Readers.

Filed under: antitrust

In the wake of the announcement that AT&T and T-Mobile are walking away from their proposed merger, there will be ample time to discuss whether the deal would have passed muster in federal court, and to review the various strategic maneuvers by the parties, the DOJ, and the FCC.  But now is a good time to take a look at what the market is predicting — and what that has to say about the various theories offered concerning the merger.  In prior blog posts, we’ve examined the stock market reaction to various events surrounding the merger — and in particular, the announcement that the DOJ would challenge it in federal court.

For a brief review, there are two primary theories that the merger would reduce competition and harm consumers.  Horizontal theories predict that the post-merger firm would gain market power, raise market prices and reduce output.  On these theories, Sprint and other rivals’ stock prices should increase in response to the merger; thus, if the DOJ announcement to challenge the merger reduces the probability of the post-merger acquisition of market power, Sprint stock should fall in response.  We know that it didn’t.  It surged.   That is consistent with a procompetitive merger because the challenge increases the probability that the rival will not face more intense competition post-merger.  Thus, Sprint’s surge in reaction to the DOJ announcement is consistent with the simple explanation that the merger was procompetitive and the market anticipated more intense competition post-merger.

Of course, as AAI and others have pointed out, Sprint’s stock price surge in response to the merger challenge was also consistent with “exclusionary” theories of the merger that posit that the post-merger firm would be able to foreclose Sprint from access to critical inputs (in particular, handsets) required to compete.  Richard Brunell (AAI) made this point in the comments to our earlier blog post, relying upon the fact that Verizon’s stock fell 1.2% (compared to market drop of .7%) to emphasize the applicability of the exclusion theory.   The importance of Verizon’s stock price reaction, the argument goes, is that while Sprint has to fear exclusion by a combined ATT/TMo, Verizon does not.  Thus, proponents of the exclusion theories assert, the combined surge in Sprint stock with Verizon’s relative non-movement is consistent with that anticompetitive theory.

Not so fast.  As I’ve pointed out, this conclusion relies upon an incomplete exposition of the economics of exclusion and one that should be difficult to square with your intuition.  If Verizon has nothing to fear from the post-merger firm excluding Sprint, it should greatly benefit from the merger!   Consider that if the exclusion theories are correct, Verizon gets the benefit of free-riding upon AT&T’s $39 billion investment in eliminating or weakening one of its rivals.   Surely, the $39 billion investment to exclude Sprint and other smaller rivals — as the exclusion proponents argue is the motive for merger here — provides considerable benefits to Verizon who doesn’t pay a dime.  Thus, rather than holding constant, Verizon’s stock price should fall significantly in response to the lost opportunity to appropriate these exclusionary gains for free.  Verizon’s stock non-reaction to the announcement that DOJ would challenge the merger was, in my view, inconsistent with the exclusion theories.   In sum, the market did not appear to anticipate the acquisition of market power as a result of the merger.

We now have a new event to use to evaluate the market’s reaction: AT&T and T-Mobile abandoning the merger.   It appears that, once again, Sprint’s stock price surged in reaction to the news (and now up about 8% in the last 24 hours).  Again, Verizon doesn’t move much at all.

Stock market reactions and event studies — and I’m not claiming I’ve done a full blown event study here,  just a simple comparison of stock price reactions to the market trends — produce valuable information.  They are obviously not dispositive.  The market can be wrong.  But so can regulators.  And as my colleague Bruce Kobayashi said in an interview (which I cannot find online) in Fortune Magazine evaluating the market reaction to the Staples-Office Depot merger in light of the FTC’s challenge: “It boils down to whether you trust the agencies or the stock market. I’ll take the stock market any day.”

Markets provide information.  The information provided here gives no reason to celebrate the withdraw on the behalf of consumers, or even the ever-present “public interest.”  Celebratory announcements to the contrary should be read with at least a healthy dose of skepticism in light of information above (and see also Hal’s excellent post) that the market did not anticipate the merger to facilitate the acquisition of market power via the combination of AT&T and T-Mobile or through the exclusion of Sprint.   Media reports that the merger was a “slam-dunk” in terms of the economics or that this is a tale of dispassionate economic analysis defeating the monopolist lobbying machine are misleading at best.   More importantly for the future, abandoning this merger does not repeal the spectrum capacity constraints facing the wireless industry, the ever-increasing demand for data, or the dearth of alternative options (despite the FCC’s claims that non-merger alternatives abound) for acquiring spectrum efficiently.

This will be a very interesting space to watch as the agencies deal with what will undoubtedly be other attempts to consolidate spectrum assets — especially in light of the FCC Report and the framework it lays down for evaluating future mergers.

Filed under: antitrust, doj, economics, federal communications commission, wireless

The NCAA recently denied Todd O’Brien’s appeal to make use of the Grad Student Transfer Exception — which would allow O’Brien, who graduated St. Joseph’s with a degree in economics, to continue playing basketball while pursuing a graduate degree in Public Administration at University of Alabama-Birmingham.  St. Joe’s, apparently at the behest of a college basketball coach who appears to have has lost sight the purpose of college athletics, refused to allow O’Brien the exemption.  Its permission is required (and has apparently never been withheld in these circumstances).

O’Brien tells his story in a recent column at CNN-Sports Illustrated:

My name is Todd O’Brien. I’m 22 years old. In 2007, I became the first person from Garden Spot High (located in Lancaster County in New Holland, Pa.) to earn a Division I basketball scholarship. I attended Bucknell University from 2007 to 2008, where I made the Patriot League All-Rookie team. After the season, I decided the school and its basketball program weren’t the right fit for me. I wanted to follow the footsteps of my uncle Bruce Frank, a former Penn player, and play in the Big 5. I transferred and was given a full scholarship to play basketball at St. Joe’s for coach Phil Martelli. After sitting out in 2008-2009, I earned the starting center spot for the 2009-2010 season. Though our team struggled, I was able to start 28 games and led the team in rebounding. I also was the recipient of the team’s Academic Achievement award for my work in the classroom.

Entering the next season, I had aspirations of keeping my starting role, increasing my productivity on the court, and most importantly — winning more games. Off the court my goal was to continue getting good grades and to position myself to earn my degree studying Economics.

As the season went on things did not improve much, but on a brighter note I entered my last semester as an undergrad. On top of my regular classes, I had picked up an independent study internship at the Delaware County Municipal Building, where the focus of my study was on local economics.Though I still needed to pass three summer courses to officially earn my degree, I was allowed to walk in graduation that May. At the urging of my parents, my Economics advisor and other family friends, I began looking at graduate programs for the fall semester.

I met with Coach Martelli to inform him that I would not be returning. I had hoped he would be understanding; just a few weeks before, we had stood next to each other at graduation as my parents snapped photo. Unfortunately, he did not take it well. After calling me a few choice words, he informed me that he would make some calls so that I would be dropped from my summer class and would no longer graduate. He also said that he was going to sue me. When he asked if I still planned on leaving, I was at a loss for words. He calmed down a bit and said we should think this over then meet again in a few days. I left his office angry and worried he would make me drop the classes.

A few days later I again met with Coach Martelli. This time I stopped by athletic director Don DiJulia’s office beforehand to inform him of my decision. I told him I would be applying to grad schools elsewhere. He was very nice and understanding. He wished me the best of luck and said to keep in touch. Relieved that Mr. DiJulia had taken the news well, I went to Coach Martelli’s office. I told him that my mind had not changed, and that I planned on enrolling in grad school elsewhere. I recall his words vividly: “Regardless of what the rule is I’ll never release you. If you’re not playing basketball at St. Joe’s next year, you won’t be playing anywhere.”

With no movement on Saint Joseph’s end, my faith was left in the hands of a five-member NCAA committee. I pleaded my case, stating how St Joe’s was acting in a vindictive manner and how the NCAA must protect its student-athletes. When it was my turn to speak, I talked about how much it would hurt to lose my final season of college basketball, not just for me but for my parents, sisters and all of my relatives who take pride in watching me play. To work so hard for something, waking up at 6 a.m. to run miles on a track, spending countless hours spent in the gym shooting, and to have it all taken away because a head coach felt disrespected that I left in order to further pursue academics? It’s just not right.

Later that day the NCAA contacted UAB to inform the school that my waiver had been denied. The rules state that I needed my release from St. Joe’s, and I didn’t have it. I am the first person to be denied this waiver based on a school’s refusal. I was crestfallen. The NCAA has done a lot for me in life — I’ve gotten a free education, I’ve traveled the country playing basketball, and for all of this I am thankful. But in this instance I think they really dropped the ball. To deny a grad student eligibility to play based on the bitter opinion of a coach? You can’t be afraid to set precedent if it means doing the right thing.

My lawyer continues to plead to St Joe’s to release me, but the school no longer will discuss the issue. When my parents try to contact Coach Martelli, Don Dijulia, or President Smithson, they hide behind their legal counsel. When we try to contact the legal counsel, they hide behind the NCAA. A simple e-mail from any one of them saying they no longer object to me playing would have me suited up in uniform tomorrow, yet they refuse.

So here I am, several states away from home, practicing with the team every day, working hard on the court, in the weight room and in the classroom. I keep the faith that one day (soon, I hope) somebody from St. Joe’s will step up and do the right thing, so if that day comes I’ll be ready. I just finished my first semester of grad classes, and I enjoy it a lot. When somebody asked if I would be leaving to try to play overseas now that I’ve been denied the ability to play here, I said no. I said it before and I’m sticking to it — I’m here to get a graduate degree.

Whenever I get frustrated about the situation, I think back to something my mother told me on the phone one day. “This isn’t the end of basketball. Basketball ends when you want it to, whether that’s next year, in five years, or in 50 years. You control your relationship with the game, and nobody, not St. Joe’s, not the NCAA, can take that away from you.”

But right now, they sure are trying to.

Filed under: cartels, economics, sports