As we did last year, Le Concurrentialiste is pleased to introduce the top 10 of the most downloaded antitrust articles in 2016 (as of December 31, 2016). We based this ranking on all English articles published on SSRN for the first time during the year of 2016. We considered those published in academic law reviews and colloquiums dealing – mostly – with antitrust law issues.
You’ll note that, of course, having (had) a blog about antitrust can help, but it is only a fair return on investment! Also, big data/high-tech markets seem to be very trendy (the same was true last year, click here), so if you’re looking for a theme to write about…
1. On the Notion of Restriction of Competition: What We Know and What We Don’t Know We Know
by Pablo Ibáñez Colomo and Alfonso Lamadrid
in Damien Gerard, Massimo Merola and Bernd Meyring (eds), The Notion of Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement in Europe (Bruylant 2017)
This piece presents systematically the contributions that the EU courts have made to the understanding of the notion of restriction of competition over the years. It examines, first, the issues around which there is consensus among commentators. It is undisputed, for instance, that a restriction cannot be established without considering the economic and legal context of which a practice is part. This assessment comprises the evaluation of the counterfactual. Secondly, the paper focuses on the issues that remain controversial. In this regard, it appears that the case law is more consistent and sophisticated than commonly conceded. In particular, the EU courts have followed a clear line when examining whether a practice is restrictive by object. Similarly, the relevant case law sheds sufficient light about the elements that are relevant in the context of an analysis of effects.
2. The Use of Leniency in EU Cartel Enforcement: An Assessment after Twenty Years
by Wouter P. J. Wils
in World Competition: Law and Economics Review, Vol. 39, No. 3, 2016, King’s College London Law School Research Paper No. 2016-29
Since 1996, the European Commission has been operating a leniency programme, under which companies cooperating with its cartel investigations can obtain immunity from fines or a reduction of fines. Leniency plays a prominent role in EU cartel enforcement today. This paper assesses the positive effects and the possible negative effects of leniency, in the light of twenty years of experience.
3. Does Antitrust Have a Role to Play in Regulating Big Data?
by D. Daniel Sokol and Roisin E. Comerford
in Cambridge Handbook of Antitrust, Intellectual Property and High Tech, Roger D. Blair & D. Daniel Sokol editors, Cambridge University Press, Forthcoming
The collection of user data online has seen enormous growth in recent years. Consumers have benefitted from the growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the debate, and a closer inspection of existing scholarly works reveals a dearth of thorough study of the issue. Commentators generally split into two camps: one in favor of more proactive antitrust enforcement in the Big Data realm, and one opposing such intervention, considering antitrust inappropriate for regulation of Big Data. The academic case for the former has not, as yet, been fully developed, and is relatively light at present. Meanwhile, policy-focused work by academics practitioners in this arena suggests that antitrust intervention in Big Data would be premature and misguided, especially considering the myriad pro-competitive benefits offered by Big Data.
4. Private Enforcement of EU Competition Law: A Comparison with, and Lessons from, the US
by Alison Jones
in M Bergström, M Iacovides, M Strand (eds), Harmonising EU Competition Litigation: The New Directive and Beyond (Hart Publishing, 2016), TLI Think! Paper 10/2016
This paper examines the core features of the EU reform package designed to encourage greater volumes of private enforcement of the EU competition rules, particularly the Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. Its principal objective is not, however, to scrutinize these provisions in detail. Rather, its purpose is to reflect on the questions of why, especially when compared with the position in the US, it has proved so difficult for a culture of antitrust litigation to develop in the EU, why the Commission believed that EU measures were necessary to kindle it and to consider, against that backdrop, whether the EU package is likely to achieve its stated goals.
5. Multisided Platforms, Dynamic Competition, and the Assessment of Market Power for Internet-Based Firms
by David S. Evans
in University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 753
Market power on each side of a multisided platform, whether in the form of increasing prices or decreasing quality, is constrained by the risk of losing sales on the other sides. That tends to weaken market power on each side and encourages platforms to keep prices lower and quality higher than they would absent these feedback effects. In some cases the nature of the business model, and competition, result in the platform allowing one type of customers to participate in the platform for free or even to subsidize their participation. Non-price methods of attracting customers are especially important in this case, particularly when the business model adopted by the industry makes it difficult for platforms to move from free participation.
To provide a reliable assessment of competitive constraints, market power analysis must consider the interdependencies in demand by the participants on the platform as well as have heightened focus on non-price competition when the participation for one group is free. Market shares should be used cautiously in assessing market power for multi-sided platforms, especially when they reflect only one side of the platform, and therefore do not account for the interdependent customer groups, or concern a free platform side where there is no monetary measure of value.
Finally, dynamic competition makes the analysis of market power complex because it results in feature competition, and potentially drastic innovation, on one side of a platform that has feedback effects on the other side of the platform. The courts and authorities have recognized these points in Qihoo 360 v. Tencent, Cartes Bancaires v. European Commission, the Facebook/WhatsApp merger, and the Microsoft/Skype merger. These principals should become part of the standard analysis of multi-sided platforms by courts and competition authorities globally. These concerns are illustrated in the context of multi-sided platforms that offer online services where free services and dynamic competition are especially important.
6. The Untold EpiPen Story: How Mylan Hiked Prices by Blocking Rivals
by Michael A. Carrier and Carl J. Minniti III
in 102 Cornell Law Review Online __ (2016 Forthcoming)
In the summer of 2016, Mylan found itself under fire for high EpiPen prices. Between 2009 and 2016, Mylan raised the price of this life-saving device, which delivers epinephrine to treat anaphylaxis shock, 15 times, resulting in an increase of more than 400%. The medicine in an EpiPen costs only pennies per dose. But a pack of two, which needs to be replaced each year, costs more than $600. Many reasons have been offered for the price hike: a slow-moving FDA approval process, broken healthcare system, and convoluted distribution chain, for starters. But missing in this debate has been Mylan’s role in clearing the field of present and future competitors. Piecing together this stealth campaign in outlining a potential antitrust case is the goal of this Essay. After providing a history of the product, it investigates Mylan’s blocking of future competitors, most notably Teva, through an entry-delaying settlement and a questionable citizen petition. It then examines Mylan’s blocking of present competitors, including Adrenaclick and Auvi-Q, by requiring schools to agree not to stock their products. Mylan’s full range of behavior raises significant antitrust concerns and deserves a thorough investigation. Given the consequences of a $600 treatment for a life-saving device and an array of conduct that exploited the litigation process through settlement, the administrative process through FDA citizen petitions, and the auto-injector school laws through exclusive dealing, the public deserves no less.
7. Antitrust and Regulating Big Data
by D. Daniel Sokol and Roisin E. Comerford
in 23 George Mason Law Review 119 (2016) , University of Florida Levin College of Law Research Paper No. 16-40
The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection of existing scholarly works reveals a dearth of thorough study of the issue. Commentators generally are split into two camps: one in favor of more proactive antitrust enforcement in the Big Data realm, and one opposing such intervention, considering antitrust inappropriate for regulation of Big Data. The academic case for the former has not, as yet, been fully developed, and is relatively light at present. Meanwhile, policy-focused work by academics and practitioners in this arena suggests that antitrust intervention in Big Data would be premature and misguided, especially considering the myriad pro-competitive benefits offered by Big Data.
8. A Proposal to Limit the Anti-Competitive Power of Institutional Investors
by Eric A. Posner, Fiona M. Scott Morton and E. Glen Weyl
Recent scholarship has shown that mutual funds and other institutional investors may cause softer competition among product market rivals because of their significant ownership stakes in competing firms in concentrated industries. While recent calls for litigation against them under Section 7 of the Clayton Act are understandable, private or indiscriminate government litigation could also cause significant disruption to equity markets because of its inherent unpredictability and would fail to eliminate most of the harms from common ownership. To minimize this disruption while achieving competitive conditions in oligopolistic markets, the Department of Justice and the Federal Trade Commission should take the lead by adopting a public enforcement policy of the Clayton Act against institutional investors. We outline such a policy in this article. Investors in firms in well-defined oligopolistic industries must choose either to limit their holdings of an industry to a small stake (no more than 1% of the total size of the industry) or to hold the shares of only a single “effective firm” per industry. Investors that violate this rule face government litigation. Using simulations based on empirical evidence, we show that under broad assumptions this rule would generate large competitive gains while having minimal negative effects on diversification and other values. The rule would also improve corporate governance by institutional investors.
9. Technology Giants, the Moligopoly Hypothezis and Holistic Competition: A Primer
by Nicolas Petit
This paper shows that the technology giants that antitrust agencies tend to characterize as entrenched monopolists can also be seen as firms engaged in a process of vibrant oligopolistic competition. Those firms – we refer to them as “moligopolists” – compete against the non-consumption in search of new and low-end market footholds. The failure of the antitrust structure to see that rivalry – its intensity may vary from one company to another – originates both in mainstream economics and applied competition theory. We believe those defects can be cured with a rechanneling of antitrust policy towards certain types of restraints, in certain types of market settings.
10. The Advocate General’s Opinion in Intel v Commission: Eight Points of Common Sense for Consideration by the CJEU
by Nicolas Petit
in Concurrences Review, No. 1, Forthcoming
The Opinion delivered by Advocate General Wahl in Intel v Commission (“the Opinion”) invites the Court of Justice of the EU (“CJEU”) to “refine its case-law relating to the abuse of a dominant position” under Article 102 of the Treaty on the Functioning of the EU (“TFEU”). In essence, the Opinion invites the CJEU to return to first principles and inject common sense into the law of Article 102 TFEU, in the wake of the evolution started by Post Danmark I and Post Danmark II. This can be understood through eight key points, the common thread of which is a concern to ensure legal coherence and economic reason in the application of Article 102 TFEU. This brief commentary highlights those eight points, and suggests that some should be taken even further than AG Wahl proposes.