“Sure, but they don’t have to carry exactly the same products. It’s not that there was no competition before — we carried some of the same items — but we had matching pricing.”  That’s Shirley Ng, owner of the Country Cheese Coffee Market at 1578 Hopkins Street in Berkeley, CA.  (HT: Marginal Revolution)  The story is about how “friendly spirit of the neighborhood is at stake,” because the owners of the nearby Monterey Market “have begun to deliberately stock items that they specialize in — including certain cheeses, wine and flowers — and they are selling them at predatory prices, which threatens the local merchants’ livelihoods.”

The article ends referencing a meeting between Monterey Market and the group of unhappy specialty merchants:

Meyer said that recently the group had been approached by a representative of Monterey Market to set up a meeting. “That discussion will determine where we go from here,” he said.

Asked what he expected from the Market, Meyer said: “They should talk to their fellow merchants about how they could all flourish.”

No such flourishing for consumers in Berkeley.  Also, I’d probably skip the meeting if I were a merchant in the area.

Good comments in the thread at the original story.

Filed under: antitrust, cartels, economics

Call for Papers Announcement

AALS Section on Antitrust and Economic Regulation

AALS Section on Law & Economics

Behavioral Economics & Antitrust Law

January 5-8, 2012

2012 AALS Annual Meeting

Washington, DC

The AALS Section on Antitrust and Economic Regulation and the Section on Law & Economics will hold a joint program on Behavioral Economics and Antitrust Law during the AALS 2012 Annual Meeting in Washington, DC.  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 antirust law and policy.  Confirmed panelists include Maurice Stucke (University of Tennessee), Steve Salop (Georgetown University), Avishalom Tor (Haifa University), and Josh Wright (George Mason University).  We are looking to add at least one additional panelist through this call for papers.

Submission Procedure:

Those with an interest in the subject are encouraged to submit a draft paper or proposal via email to Bruce H. Kobayashi, at [email protected] by September 1, 2011. 

Eligibility:

Faculty members of AALS member and fee-paid law schools are eligible to submit papers.  Foreign, visiting, and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Registration Fee and Expenses:

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

How will papers be reviewed?

Paper will be selected after review of submissions by members of the Executive Committee of the AALS Section on Antirust and Economic Regulation and the AALS Section on Law & Economics.  This committee consists of Scott Hemphill (Columbia Law School), Bruce H. Kobayashi (George Mason University Law School), Michael A. Carrier (Rutgers University School of Law), Darren Bush (University of Houston Law Center), D. Daniel Sokol (University of Florida Levin College of Law), Daniel A. Crane (University of Michigan Law School), and Hillary Greene (University of Connecticut School of Law).

Will program be published in a Journal? 

Yes, as a symposium in the Journal of Law, Economics & Policy.

Deadline date for submission:

September 1, 2011.  Decisions will be announced by September 30, 2011.

Program Date and Time:

Friday January 6, 2012, 10:30am-12:15pm.

Contact for submission and inquires:

Bruce H. Kobayashi

Chair, AALS Section on Antitrust and Economic Regulation

George Mason Law School

3301 Fairfax Drive

Arlington, VA 22201

703 993-8034

[email protected]

Filed under: antitrust, behavioral economics, legal scholarship

Tom Barnett (Covington & Burling) represents Expedia in, among other things, its efforts to persuade a US antitrust agency to bring a case against Google involving the alleged use of its search engine results to harm competition.  In that role, in a recent piece in Bloomberg, Barnett wrote the following things:

• “The U.S. Justice Department stood up for consumers last month by requiring Google Inc. to submit to significant conditions on its takeover of ITA Software Inc., a company that specializes in organizing airline data.”
• “According to the department, without the judicially monitored restrictions, Google’s control over this key asset “would have substantially lessened competition among providers of comparative flight search websites in the United States, resulting in reduced choice and less innovation for consumers.”
• “Now Google also offers services that compete with other sites to provide specialized “vertical” search services in particular segments (such as books, videos, maps and, soon, travel) and information sought by users (such as hotel and restaurant reviews in Google Places).  So Google now has an incentive to use its control over search traffic to steer users to its own services and to foreclose the visibility of competing websites.”
• “Search Display: Google has led users to expect that the top results it displays are those that its search algorithm indicates are most likely to be relevant to their query. This is why the vast majority of user clicks are on the top three or four results.  Google now steers users to its own pages by inserting links to its services at the top of the search results page, often without disclosing what it has done. If you search for hotels in a particular city, for example, Google frequently inserts links to its Places pages.”
• “All of these activities by Google warrant serious antitrust scrutiny. … It’s important for consumers that antitrust enforcers thoroughly investigate Google’s activities to ensure that competition and innovation on the Internet remain vibrant. The ITA decision is a great win for consumers; even bigger issues and threats remain.”

The themes are fairly straightforward: (1) Google is a dominant search engine, and its size and share of the search market warrants concern, (2) Google is becoming vertically integrated, which also warrants concern, (3) Google uses its search engine results in manner that harms rivals through actions that “warrant serious antitrust scrutiny,” and (4) Barnett appears to applaud judicial monitoring of Google’s contracts involving one of its “key assets.”   Sigh.

The notion of firms “coming full circle” in antitrust, a la Microsoft’s journey from antitrust defendant to complainant, is nothing new.   Neither is it too surprising or noteworthy when an antitrust lawyer, including very good ones like Barnett, say things when representing a client that are at tension with prior statements made when representing other clients.  By itself, that is not really worth a post.  What I think is interesting here is that the prior statements from Barnett about the appropriate scope of antitrust enforcement generally, and monopolization in the specific, were made as Assistant Attorney General for the Antitrust Division — and thus, I think are more likely to reflect Barnett’s actual views on the law, economics, and competition policy than the statements that appear in Bloomberg.  The comments also expose some shortcomings in the current debate over competition policy and the search market.

But lets get to it.  Here is a list of statements that Barnett made in a variety of contexts while at the Antitrust Division.

• “Mere size does not demonstrate competitive harm.”  (Section 2 of the Sherman Act Presentation, June 20, 2006)
• “…if the government is too willing to step in as a regulator, rivals will devote their resources to legal challenges rather than business innovation. This is entirely rational from an individual rival’s perspective: seeking government help to grab a share of your competitor’s profit is likely to be low cost and low risk, whereas innovating on your own is a risky, expensive proposition. But it is entirely irrational as a matter of antitrust policy to encourage such efforts.
  (Interoperability Between Antitrust and Intellectual Property, George Mason University School of Law Symposium, September 13, 2006)
• “Rather, rivals should be encouraged to innovate on their own – to engage in leapfrog or Schumpeterian competition. New innovation expands the pie for rivals and consumers alike. We would do well to heed Justice Scalia’s observation in Trinko, that creating a legal avenue for such challenges can ‘distort investment’ of both the dominant and the rival firms.” (emphasis added)
  (Interoperability Between Antitrust and Intellectual Property, George Mason University School of Law Symposium, September 13, 2006)
• “Because a Section 2 violation hurts competitors, they are often the focus of section 2 remedial efforts.  But competitor well-being, in itself, is not the purpose of our antitrust laws.  The Darwinian process of natural selection described by Judge Easterbrook and Professor Schumpeter cannot drive growth and innovation unless tigers and other denizens of the jungle are forced to survive the crucible of competition.”  (Cite).
• “Implementing a remedy that is too broad runs the risk of distorting markets, impairing competition, and prohibiting perfectly legal and efficient conduct.” (same)
• “Access remedies also raise efficiency and innovation concerns.  By forcing a firm to share the benefits of its investments and relieving its rivals of the incentive to develop comparable assets of their own, access remedies can reduce the competitive vitality of an industry.” (same)
• “The extensively discussed problems with behavioral remedies need not be repeated in detail here.  Suffice it to say that agencies and courts lack the resources and expertise to run businesses in an efficient manner. … [R]emedies that require government entities to make business decisions or that require extensive monitoring or other government activity should be avoided wherever possible.”  (Cite).
• “We need to recognize the incentive created by imposing a duty on a defendant to provide competitors access to its assets.  Such a remedy can undermine the incentive of those other competitors to develop their own assets as well as undermine the incentive for the defendant competitor to develop the assets in the first instance.  If, for example, you compel access to the single bridge across the Missouri River, you might improve competitive options in the short term but harm competition in the longer term by ending up with only one bridge as opposed to two or three.” (same)
• “There seems to be consensus that we should prohibit unilateral conduct only where it is demonstrated through rigorous economic analysis to harm competition and thereby harm consumer welfare.” (same)

I’ll take Barnett (2006-08) over Barnett (2011) in a technical knockout.  Concerns about administrable antitrust remedies, unintended consequences of those remedies, error costs, helping consumers and restoring competition rather than merely giving a handout to rivals, and maintaining the incentive to compete and innovate are all serious issues in the Section 2 context.  Antitrust scholars from Epstein and Posner to Areeda and Hovenkamp and others have all recognized these issues — as did Barnett when he was at the DOJ (and no doubt still).  I do not fault him for the inconsistency.  But on the merits, the current claims about the role of Section 2 in altering competition in the search engine space, and the applause for judicially monitored business activities, runs afoul of the well grounded views on Section 2 and remedies that Barnett espoused while at the DOJ.

Let me end with one illustration that I think drives the point home.   When one compares Barnett’s column in Bloomberg to his speeches at DOJ, there is one difference that jumps off the page and I think is illustrative of a real problem in the search engine antitrust debate.  Barnett’s focus in the Bloomberg piece, as counsel for Expedia, is largely harm to rivals.  Google is big.  Google has engaged in practices that might harm various Internet businesses.  The focus is not consumers, i.e. the users.  They are mentioned here and there — but in the context of Google’s practices that might “steer” users toward their own sites.  As Barnett (2006-08) well knew, and no doubt continues to know, is that vertical integration and vertical contracts with preferential placement of this sort can well be (and often are) pro-competitive.  This is precisely why Barnett (2006-08) counseled requiring hard proof of harm to consumers before he would recommend much less applaud an antitrust remedy tinkering with the way search business is conducted and running the risk of violating the “do no harm” principle.  By way of contrast, Barnett’s speeches at the DOJ frequently made clear that the notion that the antitrust laws “protection competition, not competitors,” was not just a mantra, but a serious core of sensible Section 2 enforcement.

The focus can and should remain upon consumers rather than rivals.  The economic question is whether, when and if Google uses search results to favor its own content, that conduct is efficient and pro-consumer or can plausibly cause antitrust injury.  Those leaping from “harm to rivals” to harm to consumers should proceed with caution.  Neither economic theory nor empirical evidence indicate that the leap is an easy one.  Quite the contrary, the evidence suggests these arrangements are generally pro-consumer and efficient.  On a case-by-case analysis, the facts might suggest a competitive problem in any given case.

Barnett (2006-08) has got Expedia’s antitrust lawyer dead to rights on this one.  Consumers would be better off if the antitrust agencies took the advice of the former and ignored the latter.

Filed under: antitrust, doj, economics, error costs, essential facilities, exclusionary conduct, federal trade commission, google, monopolization, technology

The new Consumer Financial Protection Agency seems designed to be accountable to no one…

Read the full piece here.

The hearing is Wednesday morning.  The Witness List suggests that the hearing will primarily serve as an opportunity for the merging parties, rivals, other interested parties, and lets not forget the Senators, to restate their positions “for the record.”  And while I get where the Committee is going with the “Humpty Dumpty” title, “the T-1000 of corporations” is much funnier (see video).

Here is the hearing notice:

The Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, has scheduled a hearing entitled “The AT&T/T-Mobile Merger: Is Humpty Dumpty Being Put Back Together Again?” for Wednesday, May 11, 2011 at 10:15 a.m. in Room 226 of the Dirksen Senate Office Building.

Chairman Kohl to preside.

By order of the Chairman.

Witness List

Hearing before the
Senate Committee on the Judiciary
Subcommittee on Antitrust, Competition Policy and Consumer Rights

On

“The AT&T/T-Mobile Merger: Is Humpty Dumpty Being Put Back Together Again?”

Wednesday, May 11, 2011
Dirksen Senate Office Building, Room 226
10:15 a.m.

Randall L. Stephenson
President & CEO
AT&T
Dallas, TX

Philipp Humm
President & CEO
T-Mobile USA
Bellevue, WA

Daniel R. Hesse
CEO
Sprint Nextel Corporation
Overland Park, KS

Victor H. “Hu” Meena
President & CEO
Cellular South, Inc.
Ridgeland, MS

Gigi Sohn
President & Co-Founder
Public Knowledge
Washington, DC

Larry Cohen
President
Communications Workers of America
Washington, DC

Filed under: antitrust, merger guidelines, mergers & acquisitions, technology

The Fourth Annual FTC Microeconomics Conference is scheduled for November 3 and 4, 2011.   Here is the call for papers:

The Federal Trade Commission’s Bureau of Economics will host a two day conference to bring together scholars working in areas related to the FTC’s antitrust, consumer protection and public policy missions. Those areas include industrial organization, information economics, privacy, game theory, quantitative marketing, consumer behavior, law and economics, behavioral and experimental economics. Relevant topics include advertising, information disclosure, privacy, mergers, vertical practices, mortgages and credit markets, bundling, loyalty discounts, dynamic demand estimation, business practices and consumer choice, intellectual property, optimal penalties, and cost-benefit analysis in law enforcement. Interested participants should send an abstract or completed paper to [email protected] by July 7, 2011. Note that preference will be given to completed papers. We also welcome suggestions for panel discussions.

The scientific committee for the conference is:

• Mark Armstrong (University College London)
• David Dranove (Northwestern – Kellogg)
• Aviv Nevo (Northwestern)
• Nancy Rose (MIT)

Organizer: Chris Adams (FTC)

The conference will be held at the Federal Trade Commission New Jersey Avenue
Conference Center, 601 New Jersey Avenue NW, Washington, D.C. 20001.

Filed under: economics, federal trade commission

Commissioner Rosch gets off his second shot in against the Department of Justice in just a few weeks in the pages of the Wall Street Journal — this time in a letter to the editor:

Obama’s Political ‘Price-Gouging’

If any doubts existed about whether the Justice Department is just “an arm of the administration,” they were dispelled by the attorney general’s announcement that he is forming, at the president’s request, a new “working group” to investigate “price gouging” at the gas pump (“White House’s Task Force to Probe Oil, Gas Markets,” U.S. News, April 22).  Oddly enough, this “working group” will come under the auspices of the Financial Fraud Enforcement Task Force, which was constituted to prevent fraud in the financial and lending markets. Not only would the group duplicate the functions of existing agencies—namely, the Federal Trade Commission, which through Congress-enacted legislation and its own market manipulationrule, is already empowered to investigate and prevent “price gouging,” and the Commodity Futures Trading Commission, with which the FTC has a memorandum of understanding to implement the rule—but it is blatantly political. It comes on the heels ofthe president’s April 4 announcement that he is running for re-election. By contrast, members of Congress in March sent a bipartisan letter to the FTC asking for a report on its efforts, under its Congress-mandated authority, to investigate “price-gouging” associated with the recent run-up in gas prices. When the FTC issued its “price-gouging” rule in August 2009, Commissioner William Kovacic warned that the rule could andwould be perverted to serve political ends. Lamentably, those of us who voted for it did not heed his warning.

J. Thomas Rosch

Commissioner

Federal Trade Commission

Washington

It was just a few weeks ago when Commissioner Rosch went on the offensive against the DOJ Antitrust Division, describing them as “an arm of the administration” which “can and will enforce the antitrust laws only insofar as that is consistent with administration policy.”  Rosch also took a shot at Assistant Attorney General Christine Varney.  The WSJ reports that Rosch described Varney as  “inclined to take a lenient view because of her prior job as a lawyer representing the American Hospital Association.”

While the shot against Varney’s “apparent conflicts” seems a bit out of line by my lights, Commissioner Rosch is right on point with respect to the politicization of oil prices and price gouging investigations.  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.

Filed under: antitrust, economics, markets, regulation

The Washington Post links to the transcript of the President’s recent remarks at a Palo Alto town hall meeting at Facebook’s headquarters on April 20.  The President talked about recent issues of interest, focusing primarily on the budget, unemployment and health care.  I did see one item that may be of interest to the antitrust community as the President discussed the link between immigration policy and job creation, especially in the high-tech sector:

So what we’ve said is let’s fix the whole system. First of all, let’s make the legal immigration system more fair than it is and more efficient than it is. And that includes by the way something I know that is of great concern here in Silicon Valley, if we’ve got smart people who want to come here and start businesses, and are Ph.D’s in math and science and computer science and — why don’t we want them to stay? Why would we want to send them someplace else?

Those are potential job creators. Those are job generators.  I think about somebody like an Andy Grove of Intel. You know, we want more Andy Groves here in the United States. We don’t want them starting companies. We don’t want them starting Intel in China or starting it in France. We want them starting it here.  So there’s a lot that we can do for making sure that high skilled immigrants who come here, study. We’ve paid for their college degrees. We’ve given them scholarships.  We’ve given them this training. Let’s make sure that if they want to reinvest and make their future here in America that they can.

TOTM readers may recall an item we posted last fall on a speech given by Paul Otellini of Intel which received some significant press coverage at least in part attributable to Otellini’s claim that “the next big thing will not be invented here.”  Otellini was highly critical that the regulatory environment in the United States was imposing a significant burden on economic growth.  Here is CNET’s description of his remarks (and here is the video):

Otellini’s remarks during dinner at the Technology Policy Institute’s Aspen Forum here amounted to a warning to the administration officials and assorted Capitol Hill aides in the audience: unless government policies are altered, he predicted, “the next big thing will not be invented here. Jobs will not be created here.”  Intel CEO Paul Otellini, who warned this week that the U.S. faces a huge tech decline.  The U.S. legal environment has become so hostile to business, Otellini said, that there is likely to be “an inevitable erosion and shift of wealth, much like we’re seeing today in Europe–this is the bitter truth.”  Not long ago, Otellini said, “our research centers were without peer. No country was more attractive for start-up capital…We seemed a generation ahead of the rest of the world in information technology. That simply is no longer the case.”

The role of immigration policy in attracting entrepreneurs is obviously very important.  But it is obviously not the only policy instrument available in this area; and there is an apparent tension in the immigration policy remarks and the concerns raised by Otellini, as well as the recent comments from antitrust regulators in the United States targeting high-tech firms, e.g. Intel, Google, Facebook, Apple, and others.  Overzealous competition policy enforcement in high-tech markets is one way to deter investment in these sectors, as well as innovation.  If we do want the next big thing to be invented here, giving competition policy a seat at the table when discussing “the whole system” makes a lot of sense.

Filed under: antitrust, economics, technology

Well, perhaps not quite the end of an era given all of the intense antitrust scrutiny that continues in the high-tech sector.  But it seems like it should not go without noting that the Microsoft case will officially come to an end on May 12th.  The San Francisco Chronicle observes:

In a final hearing in the case yesterday, Judge Kollar-Kotelly agreed to let the consent decree between Microsoft and the DoJ expire on May 12 as planned.

The judge had already extended the oversight twice — it was originally supposed to expire in 2007, but the judge pushed out the date a year because Microsoft didn’t move quickly enough to release useful documentation about how Windows PCs communicate with other software. In 2009, she extended the date for another two years.

• Europe. The EU has already fined Microsoft billions from a similar investigation that ended in 2004, and has since launched at least one more preliminary investigation into browser choice. Microsoft offered a “browser ballot” in Europe before the second investigation went too far, but competitors are watching for any hint of Microsoft’s old behavior and will run to the EU with a new complaint if they see it.

• Precedent. Although the final settlement between Microsoft and the U.S. government wasn’t that harmful, the case itself set an important precedent: Microsoft was found to have monopoly power in the market for personal computer operating systems. That means it’s still subject to a different standard of behavior than companies who have never been deemed monopolies.

Filed under: antitrust, technology