Enforcement Of Antitrust Laws Research Articles

Role of Cartels in Market Manipulation: Case Studies and Impacts on Consumers

This article provides an overview of how cartels manipulates the market and what are the problems that are being faced by the consumers. Cartels are said to be formed when two or more business enterprises makes an agreement formally or informally to promote their own interest which distorts the free and fair competition in the market by controlling the prices of goods and services. When it comes to the enforcement of anti trust law in India there are certain core areas in the Competition Act, 2002. The Competition Act increases the possibility of dealing successfully with the cartels and any anti- competitive agreement. Although, Competition Commission of India needs further strengthening with the operational and functional guidelines for its activities. The paper begins with an introduction to a cartel after that the authors explores about the origin of the cartels and types of cartels. It is also very important for us to understand a cartel so a chapter is being dedicated to it. The study also highlights the affects of cartelization in the market and an analysis of Competition Act, 2002. Furthermore, we’ve attached few renowned case studies. In conclusion to this paper we have understood that cartel is a very dangerous phenomenon in the business alliance and how CCI has brought a drastic change in last few years in the market

Tying in two‐sided markets with heterogeneous advertising revenues and negative pricing

AbstractWe offer a theory of anticompetitive tying in two‐sided markets when below‐cost or negative pricing is possible. With the coexistence of two consumer groups (one regarding tying and tied goods as complementary and the other as independent), a tying‐good monopolist may face difficulties in extracting rent under separate sales and wish to use tying to directly capture the large advertising revenue created in the complementary segment. We uncover two distinct mechanisms by which tying raises monopoly profits but reduces social welfare. Our theory of tying can be applied to real‐world antitrust law enforcement, such as the Google Android case.

The media coverage of antitrust enforcement: Evidence from Italy

This paper studies the media coverage of the antitrust proceedings completed by the Italian Antitrust Authority between 1994 and 2019. The empirical analysis considers the news on antitrust investigations published in the top Italian newspapers by circulation. The data reveal that the newspapers favor the conclusion (against the start) of proceedings, antitrust cases regarding immaterial services and investigations that establish a violation of antitrust law. In addition, the probability of media coverage increases if foreign firms are involved in cartel proceedings. While the press equally covers cartels and abuses, the imposition of unfair conditions is the most mentioned antitrust offense. These results are important for the public dimension of antitrust law and antitrust enforcement. An unbiased media coverage of antitrust enforcement can in fact foster the crucial collaboration of third parties in reporting alleged antitrust infringements. In addition, policymakers can draw crucial information from completed antitrust investigations and consider the possible regulation, deregulation or re-regulation of industries and companies frequently involved in the antitrust cases.

Antitrust Accountability Delayed: State Antitrust Enforcement and Multidistrict Litigation

State Attorneys General play a crucial role in the enforcement of antitrust laws. Defendants have successfully delayed state enforcement proceedings by centralizing them with private lawsuits in multidistrict litigation. A new venue law has foreclosed that delay tactic, placing State Attorneys General on equal footing with federal antitrust enforcers in deciding where, when, and how to prosecute antitrust cases.

Market Power and Antitrust Law Enforcement: Does the Local Presence of Antitrust Forces Matter?

Market Power and Antitrust Law Enforcement: Does the Local Presence of Antitrust Forces Matter?

On the Impact of Constitutional Short Stories on the Development of Antitrust Regulation and Law Enforcement

The influence of the constitutional novels provided by the Law of the Russian Federation № 1-FKZ on the amendment to the Constitution of the Russian Federation dated March 14th, 2020 on the development of antimonopoly regulation and law enforcement is considered. A change in the official position on the issues of assessing the behavior of economic entities in the field of competition protection was noted, including the rejection of a formal approach in favor of an approach designed to take into account the goals, objectives and specifics of antimonopoly regulation on the basis of the norms of Articles 1–3 of the Law on Protection of Competition. The new approach is reflected, in particular, in paragraph 1 of the Decree № 2 of the Plenum of the Supreme Court of the Russian Federation dated March 4th, 2021.According to the author, part of the general response of our country to the sanctions policy against the Russian economy should be a change in the antimonopoly regulation with new constitutional provisions.

Millionaires Against Billionaires: The Rise and Fall of the Private Plaintiff Antitrust Lawyer, 1946–1976

Abstract This article traces the emergence of private plaintiff antitrust lawyers after World War II and the debates they caused within the legal profession. Private enforcement of antitrust laws increased throughout the 1940s, especially following on government suits that proved conspiracy and price-fixing within major industries. The lawyers behind these cases—most notably after a major price-fixing scandal by electrical manufacturing companies in the 1960s—began to form their own identity and create collaborative networks to work on complex litigation. These attorneys advocated for changes by Congress that could expand the number of lawyers and increase opportunities for small businesses to find representation against the often large corporate defense counsels. But this sudden expansion, as well as the moral panic over new class action laws, created a perception that most plaintiff antitrust lawyers conjured up cases to enrich themselves over their clients. Soon, these debates shifted toward issues of ethics rather than the laws themselves. By the time the Chicago School transformed the way judges and the government approached antitrust, the private plaintiff lawyers found themselves increasingly assisting only a few well-funded clients. As a new age of populist antitrust takes shape in the present, this article investigates the debates that fueled the transformation of access to antitrust law within the context of the rights revolution.

Dilemma and Breakthrough: Review on Substitution Analysis of the Definition of Relevant Markets and Platforms—From the Perspective of Guideline on Anti-Trust Platform Economy by the Anti-Trust Committee of the State Council

The prosperity of platform economy posed new issues for antitrust law enforcement and new challenges to the definition of relevant markets in antitrust investigations. Substitution analysis is not only a traditional method of relevant market definition, but also the underlying logic throughout the process of relevant market definition. It can still be applied to relevant market definition in the context of platform economy. Based on the Guideline of Platform Antitrust, this paper starts with the regulations about the definition of relevant markets in platform economy. It briefly analyzes the dilemmas of traditional methods of defining relevant markets in platform economy. Then, it reviews the limitation and rationality of substitution analysis of relevant market definition.

The Klobuchar Bill: Is Something Rotten in the US Antitrust Legislative Reform?

An intense public debate is currently taking place in the US. The main subject of this debate is tech giants and the antitrust law reform. The fundamental dilemma is whether giant corporations, such as Apple, Google, Amazon, Microsoft, and Facebook, fit the traditional antitrust law or not. Senator Klobuchar proposed the new bill (the Competition and Antitrust Law Enforcement Reform Act) in 2021, and Congress is currently between a rock and a hard place. If Congress decides to support the New Brandeis movement and enact the bill, it could harm the tech giants and make the US start lagging behind China. If it decides otherwise, it could cause considerable dissatisfaction among US voters. This paper analyses the bill in detail and explores the possible outcomes. The conclusions suggest that enactment of the bill could have overwhelmingly adverse economic consequences for the competitiveness of US markets, innovation, and consequently for consumer welfare.

New Characteristics of Competition Harm in Data-driven Mergers and Concept Renovation of Antitrust Remedy

In the era of big data, the competitive value of data is becoming more and more prominent. Digital giants frequently launch data-driven mergers for the purpose of seizing data, with the intention of occupying data on a larger scale and at a deeper level. With the market power and competitive advantages caused by massive data aggregation, digital giants may implement data blockade, create barriers to market entry and cause competition harm. At present, the academic and practical circles have not yet formed a systematic theory on the competition harm in data-driven mergers, and cannot respond to China’s current anti-monopoly practice. The content of competition harm in data-driven mergers mainly includes three aspects: The first is privacy harm, which is mainly manifested in the excessive collection of consumers’ personal data, the loss or difficulty of consumers’ control over personal data, and the reduction of the confidentiality of consumers’ personal data; the second is the limited choice of consumers, which is mainly reflected in the reduction of product diversity, the obstacles faced by consumers in the conversion between products, and the misleading choice of consumers by digital platforms; and the third is innovation harm, which is mainly reflected in preventing competitors from innovation activities, depriving consumers of their innovation benefits, and restricting the free flow of data resources, so that it is unable to provide important support for the innovation and development of digital economy. Different from the competition harm in traditional mergers, the competition harm in data-driven mergers presents many new characteristics, such as “data appearance”“process appearance” and “non-price appearance”. The root cause of them lies in the abuse of data power by the merging party. Moreover, the harm points to the dynamic competitive process and the non-price dimension of competition such as privacy and innovation. In view of these new characteristics of competition harm, antitrust law enforcement agencies should timely adjust the ideas and methods of antitrust remedy on the basis of learning from the beneficial experience of Europe, the United States and other countries, establish new ideas and ideas of antitrust remedy, seek effective strategies to break the data monopoly from the data itself, build a set of behavior remedy scheme system centered on open remedy, and pay attention to the application of open remedy measures such as open data, open platform and open network. At the same time, we can try to explore the possible schemes of structural remedy such as equity divestiture in individual cases, focus on behavior remedy, and treat both structural remedy and behavior remedy together, so as to eliminate potential competition harm and restore competition in the digital market.

Taxing Data-Driven Business: Towards Data Point Pricing

Datafied business models avoid traditional taxation in many respects since data, being among the important value drivers of datafied business, are neither adequately priced nor accounted for in the firm’s accounts. From a tax perspective, ignoring the value of data is inconsistent with the data economy paradigm, where it has been claimed that “data is the new oil”. The stringent legislative response to datafied business models the authors propose herein is to assign a financial value (a “price”) to each data point collected, herein referred to as “data point pricing”. If the raw material (data) is thus priced, its use and transfer can be traced by applying traditional accounting methods. Certainly, data point pricing is no panacea; the inherently political question of who holds taxation rights in a cross-border context remains. Yet, data point pricing would make the locus of an important part of value creation transparent and facilitate the application of traditional tax assessment and transfer pricing methods to data-driven business models. As well as bringing about taxable measures, data point pricing yields beneficial side effects in the fields of antitrust law, financial regulation, data protection, anti-money laundering and criminal enforcement. Data point pricing thus has value even where taxation rights are allocated by way of a multilateral arrangement on the basis of the OECD statement of 1 July 2021.

Can antitrust law enforcement spur innovation? Antitrust regulation of patent consolidation and its impact on follow-on innovations

This study examines the effect of antitrust regulation of patent consolidation on the development of follow-on innovations. Our reconciliation of the various strains of literature hypothesizes that in sectors where cumulative innovation is crucial to firms’ market operations, a firm that consolidates patents for substituting technologies for its already-possessed technologies discourages market competitions and follow-on innovation by competitors. In this case, antitrust regulation of patent consolidation is anticipated to positively affect competitors’ follow-on innovation. We empirically test this hypothesis with the case of the US Department of Justice's regulation of Novell's software patent transfers to four large proprietary software companies (i.e., Microsoft, Oracle, EMC, and Apple) in 2011. Our analyses using US patent, trademark, and copyright data have found evidence corroborating our hypothesis. Our research provides policy and scholarly implications regarding how antitrust law can be a complementary institution to the patent law for promoting innovation.

Competition Law Enforcement and Regulation for Digital Platforms and Ecosystems: Understanding the Issues, Facing the Challenges and Moving Forward

Competition authorities are under severe political pressure to intervene quickly against the digital behemoth for a variety of reasons. Various expert reports have suggested that traditional antitrust or competition law enforcement and merger control are inadequate or insufficient to deal with competition issues in the digital sector. This paper explores the competition issues raised by digital platforms and ecosystems, the extent to which these issues can be dealt with by competition law and whether regulation could be a complement or a substitute to competition law enforcement. The paper is divided into three sections. In the first section we look at the economics of digital platforms and ecosystems and their business models. In the second part, we analyze the main challenges faced by competition authorities when they apply their traditional analytical tools to antitrust or merger control cases in the digital sector. The third part compares the EU Digital Market Act proposal to regulate Gatekeeper platforms and the UK proposal to establish an enforceable code of conduct to govern the behaviour of platforms funded by digital advertising that are designated as having strategic market status (SMS). We conclude with a research agenda to help competition authorities avoid the risks of inadvertently giving in to the political pressure of economic populism or ideology or issuing misguided decisions which may be ineffective or, even worse, restrict competition or innovation in the digital sector.

Value-based Healthcare: The Politics of Value-based Care and its Impact on Orthopaedic Surgery.

Value-based Healthcare: The Politics of Value-based Care and its Impact on Orthopaedic Surgery.

Competition Law and Digital Ecosystems: Learning To Walk Before We Run

Competition authorities are under severe political pressure to intervene quickly against the digital behemoth for a variety of reasons. Various expert reports have suggested that traditional antitrust or competition law enforcement and merger control are inadequate or insufficient to deal with competition issues in the digital sector. In this paper we review a number of issues for which further economic thinking is required before competition authorities can make informed and relevant decisions about competition on digital markets. We review the difference between competition between firms and competition between digital multi-products ecosystems, data and privacy issues, the relationship between competition within ecosystems and competition between ecosystems, the implications of consumer biases on competition in the digital sector, the competition issues raised by gatekeepers, and the trade-offs involved in interoperability and data portability. We also discuss merger control. We conclude with a research agenda to help competition authorities avoid the risks of inadvertently giving in to the political pressure of economic populism or ideology or issuing misguided decisions which may be ineffective or, even worse, restrict competition or innovation in the digital sector

The Indirect Purchaser Rule and Private Enforcement of Antitrust Law: A Reassessment

Abstract Despite broad statutory language authorizing “any person” injured by an antitrust law violation to sue for damages, the Supreme Court of the United States has construed that language to bar antitrust damages claims by indirect purchasers, such as consumers two or more steps removed from antitrust violators. The Court and some scholars have justified the indirect purchaser rule on the ground that assigning direct purchasers exclusive rights to recover antitrust damages increases the likelihood of suit. But this article presents new evidence that the rule reduced private antitrust litigation by twenty percent. It argues that the rule should be abandoned, consistent with the statutory text.

President Biden's Executive Order on Promoting Competition: an Antitrust Analysis

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act: rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (Black, j.).

From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector

Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper “From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector” examines a major root of this problem—the Federal Trade Commission’s (FTC’s) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers—arguably the most effective remedy for fully restoring competition. AAI’s macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC’s policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets “changing hands” from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC’s role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of “industrial planning” rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC’s policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC’s merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.

Unifying Antitrust Enforcement for the Digital Age

As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government’s response to significant national security issues emerging from the interplay of technological competition among private companies and among nation states. Further, dual enforcement hinders government action in the newly critical area of data privacy: The agency responsible, the FTC, suffers a mission overload of enforcing both antitrust and privacy, which can work against each other. The best solution is for the DOJ to become the sole antitrust enforcement agency. First, antitrust decisions, especially in the technology arena, directly affect geopolitical competition and international relations, a province constitutionally assigned to the President. It therefore makes more sense for the DOJ, which, unlike the FTC, is controlled by the President, to direct antitrust enforcement as one piece of a larger foreign policy. Second, consolidating enforcement in the DOJ would also allow the FTC to concentrate on enforcing privacy law, free from its sometimes-conflicting antitrust mandate. Dual enforcement of antitrust law should yield to single agency enforcement, with the FTC enforcing privacy and the DOJ enforcing antitrust.

The Antitrust Regulation on Abuse of Dominant Market Position in the Field of Big Data：From the Perspective of Methodological Improvement

The provision of prohibiting abuse of dominant market position in China’s antitrust law is limited to such types of behavior as “monopoly pricing” and “limited transaction”, which not only narrows the scope of regulation, but also blurs the criteria of regulation. A lot of anti-competitive behaviors in the field of big data are not stipulated by the antitrust law, which may lead to a lack of supervision. Furthermore, the current regulatory methods do not focus on the analysis of big data market behaviors, but use the deductive method from general to individual, tending to assume the type of monopoly behaviors on the basis of law. The double failure of legal provisions and interpretation methods contrasts strongly with the regulatory requirements in the field of big data. To tackle this problem, the traditional regulatory methodology needs to be adjusted in accordance with the characteristics of the big data market from the three aspects: market power identification, abuse behavior screening, and competition damage effect analysis.First of all, we should take the data value chain as the basis, and fully consider the network effect, cross-border competition, dynamic competition and many other characteristics of the big data market, to evaluate the market power. Secondly, with the help of the infringement identification of “exclusionary abuse” and “exploitative abuse”, we may quickly identify and summarize the behavior types of market dominant position abuse in the field of big data. Lastly, we should establish specific identification methods and competitive damage analysis to regulate those anti-competitive behaviors associated with big data such as “restricting interoperability” and “excessive collection and use of data”.As China’s anti-monopoly law is being comprehensively revised and improved, we should take this opportunity to modify the existing provisions and improve the regulatory methodology in view of the development of the digital economy. For one thing, the legislature should summarize special factors according to the characteristics of big data industry in the legal provisions defining relevant markets and evaluating market power. For another thing, China should refer to the legislative model of the EU competition law and determine “exclusionary abuse” and “exploitative abuse” as the basic types of the abuse of dominant market position, so as to expand the scope of application of antitrust laws. In addition, China should issue antitrust law enforcement guidelines, summarize the types of abuses common in the field of big data, and formulate corresponding antitrust law enforcement methods and regulatory measures.