Vertical Merger Guidelines
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Antitrust Enforcement and the Consumer
Many consumers have never heard of antitrust laws, but when these laws are effectively and responsibly enforced, they can save consumers millions and even billions of dollars a year in illegal overcharges. Most States have antitrust laws, and so does the Federal Government. Essentially, these laws prohibit business practices that unreasonably deprive consumers of the benefits of competition, U.S. Department of Justice resulting in higher prices for inferior Washington, DC 20530 products and services. This pamphlet was prepared to alert consumers to the existence and importance of antitrust laws and to explain what you can do for antitrust enforcement and for yourself. 1. What Do the Antitrust Laws Do for the Consumer? Antitrust Antitrust laws protect competition. Free and open competition benefits consumers Enforcement by ensuring lower prices and new and better products. In a freely competitive and the market, each competing business generally Consumer will try to attract consumers by cutting its prices and increasing the quality of its products or services. Competition and the profit opportunities it brings also stimulate businesses to find new, innovative, and more efficient methods of production. Consumers benefit from competition through lower prices and better products and services. Companies that fail to understand or react to consumer needs may soon find themselves losing out in the competitive battle. When competitors agree to fix prices, rig bids, or allocate (divide up) customers, consumers lose the benefits of competition. The prices that result when competitors agree in these ways are artificially high; such prices do not accurately reflect cost and therefore distort the allocation of society’s resources. -
Market Definition and the Merger Guidelines
ISSN 1936-5349 (print) ISSN 1936-5357 (online) HARVARD JOHN M. OLIN CENTER FOR LAW, ECONOMICS, AND BUSINESS MARKET DEFINITION AND THE MERGER GUIDELINES Louis Kaplow Discussion Paper No. 695 05/2011 Harvard Law School Cambridge, MA 02138 This paper can be downloaded without charge from: The Harvard John M. Olin Discussion Paper Series: http://www.law.harvard.edu/programs/olin_center/ The Social Science Research Network Electronic Paper Collection: http://ssrn.com/ JEL Classes: D42, K21, L40 Market Definition and the Merger Guidelines Louis Kaplow* Abstract The recently issued revision of the U.S. Horizontal Merger Guidelines, like its predecessors and mirrored by similar guidelines throughout the world, devotes substantial attention to the market definition process and the implications of market shares in the market that is selected. Nevertheless, some controversy concerning the revised Guidelines questions their increased openness toward more direct, economically based methods of predicting the competitive effects of mergers. This article suggests that, as a matter of economic logic, the Guidelines revision can only be criticized for its timidity. Indeed, economic principles unambiguously favor elimination of the market definition process altogether. Accordingly, the 2010 revision is best viewed as a moderate, incremental, pragmatic step toward rationality, its caution being plausible only because of legal systems’ resistance to sharp change. Forthcoming, Review of Industrial Organization *Harvard University and National Bureau of Economic Research. I am grateful to the John M. Olin Center for Law, Economics, and Business at Harvard University for financial support. This article draws on Kaplow (2010, 2011). Market Definition and the Merger Guidelines Louis Kaplow © Louis Kaplow. -
Competition and Consumer Protection Implications of Algorithms, Artificial
Competition and Consumer Protection Implications of Algorithms, Artificial Intelligence, and Predictive Analytics Remarks at Competition and Consumer Protection in the 21st Century November 14, 2018 D. Bruce Hoffman Director, Bureau of Competition, U.S. Federal Trade Commission Introduction Good morning and welcome to the seventh FTC hearing on competition and consumer protection in the 21st century. This is an incredibly important series of events, and we have fantastic panelists who have important and interesting things to say. It will help us create a record that will be useful for a long time to come. Let me start by giving a couple of disclaimers. First, everything I say today in this brief introductory speech will be only my personal remarks, not necessarily the views of the Federal Trade Commission or any Commissioner. I also want to thank Howard Law School for hosting this event—it’s a pleasure to be here. The other disclaimer I need to give is that this event is being photographed and webcast. It will be posted to the FTC website, and by participating in this event, you consent to these terms. I thought I would start by talking briefly about why we are holding hearings on competition and consumer protection in the 21st century, and why we are doing a hearing on artificial intelligence. I know Professor Gavil mentioned this yesterday, and I’d like to echo the important educational purpose of these hearings. At the Federal Trade Commission, we are very much in study and learning mode on the issue of antitrust and its application to modern and developing technologies. -
The FTC and the Law of Monopolization
George Mason University School of Law Law and Economics Research Papers Series Working Paper No. 00-34 2000 The FTC and the Law of Monopolization Timothy J. Muris As published in Antitrust Law Journal, Vol. 67, No. 3, 2000 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=235403 The FTC and the Law of Monopolization by Timothy J. Muris Although Microsoft has attracted much more attention, recent developments at the FTC may have a greater impact on the law of monopolization. From recent pronouncements, the agency appears to believe that in monopolization cases government proof of anticompetitive effect is unnecessary. In one case, the Commission staff argued that defendants should not even be permitted to argue that its conduct lacks an anticompetitive impact. This article argues that the FTC's position is wrong on the law, on policy, and on the facts. Courts have traditionally required full analysis, including consideration of whether the practice in fact has an anticompetitive impact. Even with such analysis, the courts have condemned practices that in retrospect appear not to have been anticompetitive. Given our ignorance about the sources of a firm's success, monopolization cases must necessarily be wide-ranging in their search for whether the conduct at issue in fact created, enhanced, or preserved monopoly power, whether efficiency justifications explain such behavior, and all other relevant issues. THE FTC AND THE LAW OF MONOPOLIZATION Timothy J. Muris* I. INTRODUCTION Most government antitrust cases involve collaborative activity. Collabo- ration between competitors, whether aimed at sti¯ing some aspect of rivalry, such as ®xing prices, or ending competition entirely via merger, is the lifeblood of antitrust. -
Hearing on Oligopoly Markets
Unclassified DAF/COMP/WD(2015)45 Organisation de Cooperation et de Developpement Economiques Organisation for Economic Co-operation and Development 12-Jun-2015 English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE HEARING ON OLIGOPOLY MARKETS -- Note by the United States -- 16-18 June 2015 This document reproduces a written contribution from the United States submitted for Item 5 of the 123rd meeting oft he OECD Competition Committee on 16-1 8 June 2015. More documents related to this discussion can be found at www.oecdorg/dajlcompetitionloligopoly-markets.htm. JT03378438 Complete document available on OLIS in its original format This document and any map included herein are with out prejudice to the status ofor sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name ofan y territory, city or area DAF/COMP/WD(2015)45 UNITED STATES 1. Following on our submissions to previous OECD roundtables on oligopolies, notably the 1999 submission of the U.S. Department of Justice and the U.S. Federal Trade Commission on Oligopoly (describing the theoretical and economic underpinnings of U.S. enforcement policy with regard to oligopolistic behavior),1 and the 2007 U.S. submission on facilitating practices in oligopolies,2 this submission focuses on certain approaches taken by the Federal Trade Commission ("FTC") and the U.S. Department of Justice Antitrust Division ("DOJ'') (together, "the Agencies") to prevent the accumulation of unwarranted market power and address oligopoly issues. 2. Pursuant to U.S. competition policy, the Agencies can address the welfare-reducing effects of oligopoly behavior through enforcement as well as other means. -
Hearing on Oligopoly Markets, Note by the United States Submitted To
Unclassified DAF/COMP/WD(2015)45 Organisation de Coopération et de Développement Économiques Organisation for Economic Co-operation and Development 12-Jun-2015 ___________________________________________________________________________________________ _____________ English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Unclassified DAF/COMP/WD(2015)45 HEARING ON OLIGOPOLY MARKETS -- Note by the United States -- 16-18 June 2015 This document reproduces a written contribution from the United States submitted for Item 5 of the 123rd meeting of the OECD Competition Committee on 16-18 June 2015. More documents related to this discussion can be found at www.oecd.org/daf/competition/oligopoly-markets.htm. English English JT03378438 Complete document available on OLIS in its original format - This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of English Or. international frontiers and boundaries and to the name of any territory, city or area. DAF/COMP/WD(2015)45 UNITED STATES 1. Following on our submissions to previous OECD roundtables on oligopolies, notably the 1999 submission of the U.S. Department of Justice and the U.S. Federal Trade Commission on Oligopoly (describing the theoretical and economic underpinnings of U.S. enforcement policy with regard to oligopolistic behavior),1 and the 2007 U.S. submission on facilitating practices in oligopolies,2 this submission focuses on certain approaches taken by the Federal Trade Commission (“FTC”) and the U.S. Department of Justice Antitrust Division (“DOJ”) (together, “the Agencies”) to prevent the accumulation of unwarranted market power and address oligopoly issues. 2. Pursuant to U.S. -
Resale Price Maintenance in China – an Increasingly Economic Question
Resale Price Maintenance in China – an increasingly economic question Three recent decisions in China suggest that Resale Specifically, the Court was clear that since RPM was Price Maintenance cases will not be decided solely on a defined in the law as a “monopoly agreement”, it must be legal consideration but will also turn on the economic expected to have the impact of eliminating or restricting context of the agreements in question. competition in order to be found illegal. To determine whether the agreement had the impact of eliminating or Resale Price Maintenance (RPM) is a contractual restricting competition, the Court proposed four constituent commitment imposed by a supplier on its distributors not to economic questions: sell its product for less (or more) than a given price. It is very 1. Is competition in the relevant market “sufficient”? common in distribution contracts throughout the world, 2. Does the defendant have a “very strong” market especially in China because of the control that RPM position? provides over resale quality and the distribution chain. 3. What was the motive behind the RPM agreements? RPM is a particularly contentious area of competition law 4. What was the competitive effect of the RPM? since RPM clauses can be both beneficial and harmful to competition depending on the context in which they are implemented. For example, RPM may facilitate unlawful Specifically, the Court suggested that if competition in the collusion between suppliers by allowing them to control and market was sufficient then it would not have found the RPM monitor the final retail price. RPM may also be forced on agreement illegal. -
Mini-Roundtable on Oligopoly
For Official Use DAFFE/CLP/WD(99)13 Organisation de Coopération et de Développement Economiques OLIS : 30-Apr-1999 Organisation for Economic Co-operation and Development Dist. : 03-May-1999 __________________________________________________________________________________________ English text only DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AFFAIRS For Official Use DAFFE/CLP/WD(99)13 COMMITTEE ON COMPETITION LAW AND POLICY Cancels & replaces the same document: distributed 03-May-1999 MINI-ROUNDTABLE ON OLIGOPOLY -- Note by the US Department of Justice and the US Federal Trade Commission -- This note is submitted by the US Delegation to the Committee on Competition Law and Policy FOR DISCUSSION at its forthcoming meeting on 6-7 May 1999. English text only 77497 Document complet disponible sur OLIS dans son format d'origine Complete document available on OLIS in its original format DAFFE/CLP/WD(99)13 OVERVIEW OF THE APPLICATION OF THE US ANTITRUST LAWS TO OLIGOPOLY BEHAVIOR I. Introduction and Background 1. Since the passage of the Sherman Act in 1890 the United States has sought to minimize the welfare-reducing effects of oligopoly behavior. While early enforcement efforts under the Act focused on eradicating the formal cartels that were commonplace in American industry in the late 19th and early 20th centuries, enforcement officials have devoted considerable resources during the past 50 years toward uncovering and eliminating more covert forms of anticompetitive coordination (both express and tacit) as well as toward analyzing the potential effects of mergers in concentrated industries. The passage of the Federal Trade Commission and Clayton Acts in 1914 added significant dimensions to the enforcement scheme. -
Federal Trade Commission Volume Decision
FEDERAL TRADE COMMISSION DECISIONS Findings, Opinions and Orders IN THE MATTER OF RUSSELL STOVER CANDIES, INC. FINAL ORDER, OPINION, ETC. , IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9140. Complaint, July 1980-Final Order, July , 1982 This order requires a Kansas City, Mo. manufacturer, seller and distributor of candy products to cease, among other things, entering into, maintaining, or enforcing any ageement, understanding or arrangement to fix resale prices for its products; suggesting resale prices, by any means, without clearly stating that they are merely suggested; and seeking information relating to recalcitrant retailers. The respondent is prohibited from terminating, sus pending or taking any other adverse action against retailers who fail to conform to company s suggested prices; and required to reinstate those retailers who had been terminated for non-conformance to designated prices. The order additionally requires respondent to pay for a survey to ascertain what percentage of its products is sold at manufacturer-designated prices, and to cease suggesting resale prices if that percentae exceeds 87. 4%. Appearances For the Commission: Eugene Kaplan, Jayma M. Meyer and Warren Josephson. For the respondent: Lawrence R. Brown and David Everson, Stinson, Mag Fizzell Kansas City, Mo. and Tom Franklin, in- house counsel, Kansas City, Mo. COMPLAINT Pursuant to the provisions of the Federal Trade Commission Act as amended, and by virtue of the authority vested in it by said Act the Federal Trade Commission, having reason to believe that Russell Stover Candies, Inc. , a corporation, hereinafter referred to as respondent, has violated the provisions of said Act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint stating its charges in that respect as follows: FEDERAL TRADE COMMISSION DECISIONS Initial Decision 100 F. -
Mergers and Acquisitions
Mergers and Acquisitions Antitrust Eric E. Johnson ericejohnson.com Konomark Most rights sharable Kinds of mergers • Horizontal mergers • Vertical mergers • Conglomerate mergers 1 Potential benefits of mergers • All kinds of efficiencies • Economies of scale • Preserving firms that would fail • The list is endless ... Potential problems with mergers • Unilateral effects – market/monopoly power of the merged firm • Oligopoly effects – concentration of a market that can cause prices to increase, either through: • purely self-interested/independent decision- making of firms, or • oligopolistic coordination (e.g., legal “conscious parallelism”) • According to research, five significant firms in a market tends to be enough to prevent oligopolistic coordination 2 Potential problems with mergers • Unilateral effects – market/monopoly power of the merged firm • Oligopoly effects – concentration of a market that can cause prices to increase, either through: • purely self-interested/independent decision- making of firms, or • oligopolisticis a coordinationmagic number (e.g., legal ... 5“conscious parallelism”) • According to research, five significant firms in a market tends to be enough to prevent oligopolistic coordination Applicable law • Mergers and acquisitions can be challenged under Sherman Act 1 or 2, or FTC Act 5, but generally they are challenged under the Clayton Act 7. • Clayton Act 7 allows the blocking of mergers and acquisitions where “the effect of such ... may be to substantially lessen competition, or tend to create a monopoly.” 3 Hart-Scott-Rodino Act 15 USC 18a Pre-merger filing with DOJ/FTC is required where: • the stock acquisition value exceeds $50M and the acquirer and target have assets or annual sales in excess of $10M for one and $100M for the other (either way), OR • the stock acquisition value exceeds $200M Amounts are in 2004 dollars. -
The United States Has a Market Concentration Problem Reviewing Concentration Estimates in Antitrust Markets, 2000-Present
THE UNITED STATES HAS A MARKET CONCENTRATION PROBLEM REVIEWING CONCENTRATION ESTIMATES IN ANTITRUST MARKETS, 2000-PRESENT ISSUE BRIEF BY ADIL ABDELA AND MARSHALL STEINBAUM1 | SEPTEMBER 2018 Since the 1970s, America’s antitrust policy regime has been weakening and market power has been on the rise. High market concentration—in which few firms compete in a given market—is one indicator of market power. From 1985 to 2017, the number of mergers completed annually rose from 2,308 to 15,361 (IMAA 2017). Recently, policymakers, academics, and journalists have questioned whether the ongoing merger wave, and lax antitrust enforcement more generally, is indeed contributing to rising concentration, and in turn, whether concentration really portends a market power crisis in the economy. In this issue brief, we review the estimates of market concentration that have been conducted in a number of industries since 2000 as part of merger retrospectives and other empirical investigations. The result of that survey is clear: market concentration in the U.S. economy is high, according to the thresholds adopted by the antitrust agencies themselves in the Horizontal Merger Guidelines. By way of background, recent studies of industry concentration conclude that it is both high and rising over time. For example, Grullon, Larkin, and Michaely conclude that concentration increased in 75% of industries from 1997 to 2012. In response to these and similar studies, the antitrust enforcement agencies recently declared that their findings are not relevant to the question of whether market concentration has increased because they study industrial sectors, not antitrust markets. Specifically, they wrote, “The U.S. -
Guidelines for Merger Analysis
Guidelines for Merger Analysis Adopted by the Competition and Consumer Protection Commission on 31 October 2014 Merger Guidelines_CCPC TABLE OF CONTENTS 1. Elements of Merger Review ............................................................. 1 Introduction .......................................................................................... 1 Substantial Lessening of Competition ........................................................ 1 The Counterfactual ................................................................................. 3 Actual and Potential Competition .............................................................. 3 Market Definition .................................................................................... 4 Evidence ............................................................................................... 4 2. Market Definition ........................................................................... 6 Introduction .......................................................................................... 6 Product Market Definition ........................................................................ 7 Demand-side Substitution ....................................................................... 7 Supply-side Substitution ......................................................................... 9 Geographic Market Definition .................................................................. 10 3. Market Concentration .................................................................... 12