1 1 UNITED STATES FEDERAL TRADE COMMISSION 2 3 4 5 UNILATERAL EFFECTS ANALYSIS 6 AND LITIGATION WORKSHOP 7 8 9 10 11 U.S. Federal Trade Commission 12 601 New Jersey Avenue, N.W. 13 Conference Center 14 Washington, D.C. 20001 15 16 Tuesday, February 12, 2008 17 9:00 a.m. to 5:00 p.m. 18 19 20 21 22 23 24 25 Reported by: Susanne Bergling, RMR-CLR For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 2 1 PARTICIPANTS 2 3 Introductory Remarks: 4 Deborah Platt Majoras 5 Panel 1: 6 Andrew I. Gavil Janet L. McDavid 7 Robert Willig David P. Wales, Moderator 8 Panel 2: 9 Jonathan B. Baker 10 Kathryn M. Fenton Richard G. Parker 11 Daniel M. Wall Jeffrey Schmidt, Moderator 12 Panel 3: 13 Hon. Douglas Ginsburg 14 Hon. Diane Wood Michael J. Bloom 15 Richard Liebeskind William E. Kovacic, Moderator 16 Panel 4: 17 William Baer 18 Susan Creighton Richard Rapp 19 Constance Robinson J. Thomas Rosch, Moderator 20 Panel 5: 21 Orley Ashenfelter 22 Dennis Carlton Carl Shapiro 23 Joseph Simons Michael R. Baye, Moderator 24 25 For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 3 1 CONTENTS 2 3 Introductory Remarks............................. 5 4 Deborah Platt Majoras............................ 7 5 6 Panel 1.......................................... 19 7 Andrew I. Gavil.................................. 22 8 Janet L. McDavid................................. 39 9 Robert Willig.................................... 29 10 Discussion....................................... 46 11 12 Panel 2.......................................... 66 13 Jonathan B. Baker................................ 69 14 Kathryn M. Fenton................................ 76 15 Richard G. Parker................................ 84 16 Daniel M. Wall................................... 91 17 Discussion....................................... 107 18 19 Panel 3.......................................... 129 20 Michael J. Bloom.................................130/157 21 Richard Liebeskind............................... 143 22 Discussion....................................... 167 23 24 Panel 4.......................................... 178 25 Discussion....................................... 181 For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 4 1 Panel 5.......................................... 227 2 Orley Ashenfelter................................ 244 3 Dennis Carlton................................... 231 4 Carl Shapiro..................................... 237 5 Joseph Simons.................................... 254 6 Discussion....................................... 258 7 8 Conclusion....................................... 284 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 5 1 P R O C E E D I N G S 2 - - - - - 3 INTRODUCTION 4 5 MR. SCHMIDT: Good morning. I think we are 6 going to try to start the program. Welcome to the FTC's 7 Workshop on Unilateral Effects. I am Jeff Schmidt, the 8 Director of the Bureau of Competition, and we are very 9 glad to have you here today. We are really excited 10 about this program. As some of you may know, this 11 workshop is the brainchild of Chairman Majoras, and it 12 represents the best of the FTC in trying to better 13 understand some of the important competition policy 14 issues that we face. 15 I have the chore of doing a couple housekeeping 16 tasks here, so if you will indulge me as I go through 17 this to make sure that I have covered the requirements. 18 I think the -- let's see, the first thing is I have been 19 asked to remind you that the agenda today is a full one, 20 so that if you can try to be back in your seats by the 21 time lunch is over with and breaks are over with, we can 22 hopefully stay on schedule. 23 And I have also been asked to ask you to use the 24 side doors instead of the center doors, for reasons that 25 are not particularly clear to me. For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 6 1 Secondly, if you will turn off the ringers on 2 your cell phones, BlackBerries, pagers, and the like, 3 and I will do likewise when I get down from here. 4 And third, the restrooms are out the glass 5 doors, past the security desk, and then behind the 6 elevator bank to the left. Both the men's and women's 7 restrooms are located there. 8 And then fourth, if you do leave the building 9 during the day, unfortunately, for those of you who are 10 not FTC employees, you will need to go through security 11 again. So, if you can be sure to give yourselves a 12 couple extra minutes to do that. 13 And then finally, as a federal government 14 agency, we do practice certain safety measures. 15 Probably the most important thing for you to know is -- 16 obviously you know the one exit that you came in through 17 -- if you need to leave the building in the event of an 18 emergency. There is also an exit immediately behind us. 19 There will be FTC people who will also be obviously here 20 and are on site in the event that we have any problems, 21 but, of course, we are not anticipating that. 22 So, with that, I'd like to welcome the Chairman 23 of the Federal Trade Commission, Deborah Platt Majoras, 24 to open our workshop. 25 (Applause.) For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 7 1 2 OPENING REMARKS 3 4 CHAIRMAN MAJORAS: Well, thank you very much, 5 everyone. It is always good to see a robust crowd in 6 the morning in Washington, especially on election day. 7 I welcome you to this workshop at the FTC. As 8 many of you know, the FTC has found that when we are 9 working through particular policy issues, we often find 10 it very valuable to bring in experts from the outside 11 who can then, in a public forum, communicate their views 12 and help us think through the issue. Our public 13 discussions can take whatever form or length is required 14 for the issue. 15 Just last week, for example, we held a one-day 16 round table with DOJ to explore our Joint Technical 17 Assistance Program in the international arena. Just 18 about a year ago this week, we had a two-day forum on 19 the broadband access issue, which has been dubbed Net 20 Neutrality. And then, as many of you know, over the 21 past 18 months, we and DOJ have hosted 29 sessions of 22 experts discussing the appropriate application of 23 Section 2 of the Sherman Act to business conduct. 24 So, today, you have been good enough to join us 25 as we gather to discuss unilateral effects analysis in For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 8 1 merger review and in the litigation context, and I am 2 pleased to say that we have gathered really a highly 3 knowledgeable and thoughtful group of panelists, and I 4 am very grateful to all of you for agreeing to lend your 5 views. 6 Back in February of 2004, the FTC and DOJ held a 7 merger enforcement workshop, which focused on whether 8 the analytical framework set forth in the 1992 9 Guidelines, which, of course, had its roots in the 1982 10 Guidelines, was adequately serving the dual purposes of 11 leading to the correct decisions in horizontal merger 12 review and providing reasonably clear guidance to 13 businesses and their counselors. 14 The workshop participants generally agreed that, 15 in fact, the Guidelines framework was serving those 16 purposes. So, borne out of that workshop, then, was not 17 a reworking of the Guidelines, but rather, the agencies' 18 commentary on the Horizontal Merger Guidelines, through 19 which we explained, by reference to specific cases, 20 including cases where we had closed the investigation, 21 how we have applied the Guidelines to actual mergers. 22 If you reviewed the section on unilateral 23 effects, it shows a large number of enforcement actions, 24 most of which resulted in consent decrees. There can be 25 little doubt, I think, among antitrust practitioners For The Record, Inc. (301) 870-8025 - www.ftrinc.net - (800) 921-5555 9 1 that unilateral effects is recognized as a central 2 antitrust concern, and that the Government has a record 3 of success in obtaining relief in these cases. 4 Of course, the record is not perfect. In 5 litigated matters, both the FTC and DOJ have suffered 6 some losses in differentiated products cases under a 7 unilateral effects theory. Most recently, for the FTC, 8 in the Whole Foods case, the district court did not 9 grant the preliminary injunction that the FTC sought, 10 and before that, DOJ lost the SunGard and Oracle 11 challenges. Even when the Government has prevailed in 12 cases in which a unilateral effects theory of harm has 13 been alleged, as in Staples, Swedish Match, and Libbey, 14 the courts' decisions have really not expressly 15 discussed the application of unilateral effects theory. 16 Now, there may, of course, be no meaningful 17 pattern in these losses. If we are doing our jobs, we 18 likely will lose some cases over time, as only the 19 toughest cases result in litigation; and try as we do, 20 we cannot determine with absolute precision on which 21 side of the line a close case will fall according to a 22 court. Still, we cannot shy away from the tough cases 23 if we believe that we have the evidence to support our 24 position that a merger is likely to be anticompetitive. 25 Clearly, though, if you look at the cases and For The Record, Inc.