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Abstract:
This paper explains how basic microeconomics can be used to assess lost profits from patent infringement. The main suggested analysis is an adaptation of merger simulation. Observed prices and quantities are combined with estimated demand parameters to calibrate a model of the industry with infringement. Lost profits are then estimated by calculating an equilibrium without the infringing product(s). Simulation calculates the sales diversion, price erosion, and "quantity accretion" components of lost profits, and avoids the patent law analog to antitrust market delineation. Simulation provides a satisfactory methodology for assessing lost profits damages even in the presence of acceptable noninfringing substitutes. The facts of leading cases form the basis of illustrations.

Abstract:
This paper explains how basic microeconomics can be used to assess lost profits from patent infringement. The main suggested analysis is an adaptation of merger simulation. Observed prices and quantities are combined with estimated demand parameters to calibrate a model of the industry with infringement. Lost profits are then estimated by calculating an equilibrium without the infringing product(s). Simulation calculates the sales diversion, price erosion, and "quantity accretion" components of lost profits, and avoids the patent law analog to antitrust market delineation. Simulation provides a satisfactory methodology for assessing lost profits damages even in the presence of acceptable noninfringing substitutes. The facts of leading cases form the basis of illustrations.

Abstract:
This chapter first reviews the economic theory underlying the unilateral competitive effects of mergers, focusing on the Cournot model, commonly applied to homogeneous products; the Bertrand model, commonly applied to differentiated consumer products; and models of auctions and bargaining, commonly applied when a bidding process or negotiations are used to set prices. This chapter then reviews two classes of empirical methods used to make quantitative predictions of the unilateral effects of proposed mergers.

antitrust, mergers, unilateral effects

Abstract:
In recent years divergence between United States ("US") and European Union ("EU") competition policy has garnered a lot of attention. One particular area where these differences are evident is the treatment of vertical restraints. In the USA, an antitrust plaintiff must show that a vertical agreement is likely to harm competition - that is, reduce economic welfare. EU competition law, on the other hand, places a lower burden on the European Commission ("EC"). The EC recently has promulgated a block exemption regulation ("BER") that defines circumstances under which vertical arrangements are automatically exempted under Article ("Art.") 81(3); still, European competition law condemns many more vertical agreements than does US antitrust law. "Dominant" firms entering into vertical agreements receive even harsher treatment under EU competition law. Because the Guidelines to the BER explicitly exclude dominant firms from exemption under Art. 81(3), it appears that Art. 81 proscribes dominant firms from entering into vertical agreements that restrict the behavior of the contracting parties. Additionally, Art. 82 discourages dominant firms from entering into vertical agreements.

This paper uses a Bayesian framework to analyze the disparate treatment of vertical arrangements in the USA and EU. The practice of antitrust is the problem of inferring the competitive consequences of various types of market conduct. We argue that an optimal enforcement estimator would minimize an expected social loss function, where the expectation is taken over the posterior probability that a given practice is anticompetitive, given evidence in a particular case. Empirical literature informs priors, whereas theory informs the likelihood. We show how differences in antitrust treatment of vertical practices can be explained by different loss functions, even when each jurisdiction shares the same beliefs regarding the theoretical and empirical effects of vertical restraints.

Abstract:
The advantage of the adversarial regime of judicial decision-making is the superior information of the parties while the advantage of an idealized inquisitorial regime is its neutrality. We model the tradeoff by characterizing the properties of costly estimators used by each regime. The adversarial regime uses an ?extremal? estimator that is based on the difference between the most favorable pieces of evidence produced by each party. The inquisitorial regime uses the sample mean. We find that neither regime dominates the other.

Abstract:
Defending a challenged merger on the basis of synergies requires an analysis of the likely pass through to consumers of associated marginal cost reductions. This paper explores the nature and extent of that pass though with differentiated consumer products. Pass-through rates are shown to depend on demand curvature and idiosyncratic properties of particular demand functions. The marginal cost reductions necessary to fully compensate for the price-increasing effects of a merger, however, do not depend on these things. This implies a close relationship between pass-through rates and the price effects of mergers absent synergies and indicates that pass through should not be addressed as a discrete issue in merger cases. Finally, the paper examines ways in which the degree of competition can affect the three pass through effects; contrary to persistent contentions, greater competition easily may result in less pass through.

Abstract:
We investigate the relationship between the price effects of mergers in Bertrand oligopoly and the rates at which merger synergies are passed through to consumers in the form of lower prices. Our main conclusion is that pass-through rates and price effects are closely related. In particular, when a merger would cause large price increases absent synergies, the pass-through rate is high. This close relationship implies that pass-through and price effects should not be addressed independently in any phase of a merger investigation. We show that in a leading merger case, the low estimated pass-through rate and the relatively large predicted merger effect most likely were inconsistent.

Pass-through, merger, efficiencies, Bertrand, antitrust

Abstract:
The legality of nonprice vertical practices in the U.S. is determined by their likely competitive effects. An optimal enforcement rule combines evidence with theory to update prior beliefs, and specifies a decision that minimizes the expected loss. Because the welfare effects of vertical practices are theoretically ambiguous, optimal decisions depend heavily on prior beliefs, which should be guided by empirical evidence. Empirically, vertical restraints appear to reduce price and/or increase output. Thus, absent a good natural experiment to evaluate a particular restraint's effect, an optimal policy places a heavy burden on plaintiffs to show that a restraint is anticompetitive.

Abstract:
The legality of nonprice vertical practices in the U.S. is determined by their likely competitive effects. An optimal enforcement rule combines evidence with theory to update prior beliefs, and specifies a decision that minimizes the expected loss. Because the welfare effects of vertical practices are theoretically ambiguous, optimal decisions depend heavily on prior beliefs, which should be guided by empirical evidence. Empirically, vertical restraints appear to reduce price and/or increase output. Thus, absent a good natural experiment to evaluate a particular restraint's effect, an optimal policy places a heavy burden on plaintiffs to show that a restraint is anticompetitive.

Abstract:
In the competitive analysis of mergers, "calibrated economic models" are standard, formal models, particularly monopoly and oligopoly models, in which the values of the key parameters are set on the basis of observable features of the industry under review. Calibrated economic models offer three advantages in merger analysis: (1) They bring key issues into sharper focus by making assumptions explicit and identifying which factors are critical and precisely how they matter. (2) They add accuracy by quantifying issues of importance and relying on calculations rather than intuition. (3) They enhance persuasiveness in a judicial proceeding by making the analysis more concrete and better grounded in both the facts of case and economic theory. The paper illustrates these advantages in market delineation and in the prediction of price and other effects of mergers through the use of simulation.

Abstract:
This paper analyzes the effects of mergers between firms competing by simultaneously choosing price and location. Products combined by a merger are repositioned away from each other to reduce cannibalization, and non-merging substitutes are, in response, repositioned between the merged products. This repositioning greatly reduces the merged firm's incentive to raise prices and thus substantially mitigates the anticompetitive effects of the merger. Computation of, and selection among, equilibria is done with a novel technique known as the stochastic response dynamic, which does not require the computation of first-order conditions.

Abstract:
We study mergers among firms that compete by simultaneously choosing price and location. The merged firm moves its two products away from each other to reduce cannibalization, and the non-merging firms move their products in between the merging firm's products. Post-merger repositioning increases product variety, which benefits consumers, but repositioning also affects post-merger prices in two ways: There is upward pressure on price as products spread out, but the merged firm's incentive to raise prices is reduced as its products are moved away from each other. Either effect can dominate, although the latter is likely to be the more important. We use a novel technique known as the stochastic response dynamic to find equilibria, which does not require the computation of first-order conditions.

antitrust, game theory, economic modeling

Abstract:
Theories of vertical restraints have shown that vertical practices have the potential to harm competition. Although (or because) they are based on more realistic market structures and account explicitly for strategic interactions among competitions, the predictions of these models are necessarily more fragile than those of the earlier models. Practitioners who rely mainly on economic theory to assess the competitive impact of vertical restraints in any given setting face a formidable inferential problem: Not only must they decide which model best applies to the particular factual circumstances in which the restraint has been adopted, they also must then determine whether the model chosen has the particular combination of parameters that would result in an anticompetitive equilibrium. The theory of vertical control tells us that anticompetitive effects are possible, but until theory can be used to determine how likely it is that a restraint will lead to an anticompetitive outcome, decision makers will be left with a considerable amount of uncertainty. In this world, enforcement decisions should be guided by prior beliefs and loss functions. The authors' review of the existing empirical evidence - which informs their priors - suggests that vertical restraints are likely to be benign or welfare-enhancing.

Abstract:
This is an entry in the International Encyclopedia of the Social Sciences, 2nd Edition, Willam Darity (ed.), McMillan Reference USA, forthcoming.

economics of information, law & economics, economics of advertising, economics of regulation, benefit-cost analysis, behavioral economics

Abstract:
In this paper, we derive estimators of, and closed-form (non-integral) expressions for, the distribution of bids in an extreme value, asymmetric, second-price, private-values auction. In equilibrium, prices (winning bids) and shares (winning probabilities) have a simple monotonic relationship--higher-value firms win more frequently and at better prices than lower-value firms. Since the extreme value distribution is closed under the maximum function, the value of the merged coalition also has an extreme value distribution and thus lies on the same price/share curve. Consequently, merger price effects can be computed as a movement along the price/share curve, from the average pre-merger share to the post-merger aggregate share. The parameter determining how much winning prices change is the standard deviation of the extreme value component. Merger efficiency claims can be benchmarked against the marginal cost reductions necessary to offset merger price effects.

Abstract:
When the winner of one auction gains a cost advantage in the next, bids reflect not only the value of winning the auction, but also the value of gaining an incumbent advantage in future auctions. If a larger firm's advantage derives from a cost or product advantage, it has a greater chance of holding onto incumbency status which, in turn, increases the value it places on gaining incumbency. As a consequence, larger firms bid more aggressively than their smaller rivals, where "size" is measured by the probability of winning. In this environment, mergers eliminate competition among the merged firms but they also change bidding behavior by both merging and non-merging firms. Computational experiments suggest that the scope for pro-competitive mergers is much wider than in auctions without an incumbent advantage. In particular, mergers among smaller firms are likely to be pro-competitive because they tend to create better losers, i.e., firms who bid more aggressively but still lose a large part of the time.

dynamic game, auction, incumbent advantage, switching cost, antitrust

Abstract:
Contrary to the suggestion of Williamson (1968), a merger enhancing total social welfare through the creation of substantial efficiencies nevertheless may violate current antitrust law in the United States, which considers only the effects of mergers on consumers. To avoid violating antitrust laws, merging firms could contract with a third party in a manner that offsets the incentive created by a merger to raise price or restrict output.

antitrust, merger, Nash Equilibrium, merger remedy, oligopoly

Abstract:
Enforcement agencies have a relatively good understanding of how to measure the loss of price competition caused by merger. However, when firms compete in multiple dimensions, merger effects are not well understood. In this paper, we study mergers in industries where firms compete by setting both price and promotion, and ask what happens if we mistakenly assume that price is the only dimension of competition. To answer the question, we build a structural model of the super-premium ice cream industry, where a 2003 merger between Häagen-Dazs and Dreyer's was challenged by the Federal Trade Commission. A structural merger model that ignores promotional competition under-predicts the price effects of a merger in this industry (5% instead of 12%). About three-fourths of the difference can be attributed to estimation bias (estimated demand is too elastic), with the remainder due to extrapolation bias from assuming post-merger promotional activity stays constant (instead it declines by 31%).

merger, antitrust, FTC, ice cream, promotion, competition, scanner data

Abstract:
The downstream effects of mergers between manufacturers of differentiated consumer products are partly determined by the relationship between the merging manufacturers and retailers. That relationship may be such that the retail price effects of the merger are exactly those if the manufacturers sold directly to consumers, and that relationship may be such that the merger produces similar effects with subtle differences, including the possibility of price decreases for non-merging products. Alternatively, that relationship may be such that consumer prices do not change following a merger, which instead shifts profits to the merged firm.

vertical restraints, pass-through, mergers, retailing

Abstract:
In this paper, we examine price movements over time around the collapse of a bid-rigging conspiracy. While the mean decreased by sixteen percent, the standard deviation increased by over two hundred percent. We hypothesize that conspiracies in other industries would exhibit similar characteristics and search for "pockets" of low price variation as indicators of collusion in the retail gasoline industry in Louisville. We observe no such areas around Louisville in 1996-2002.

Collusion, Price Fixing, Firms, Firm

Abstract:
Individual Federal Trade Commission (FTC) cases invariably raise broad questions about consumers, markets, and effective enforcement policy. Recent consumer protection cases raise questions about information regulation. Horizontal merger enforcement has recently focused on retrospective analysis of mergers, and the role of the retail sector in predicting the effects of manufacturer mergers. In this paper, we describe research by the FTC's Bureau of Economics that addresses these three areas. We argue that such research is well worth the agency's relatively small resource investment because it demonstrably contributes to more thoughtful policy analysis and better policy outcomes.

FTC, Consumer Protection, Retailing, Mergers, Information, Marketing

Abstract:
After downstream manufacturers make relationship-specific investments to develop products using upstream patented technology, they can be "held-up" by patentees, sometimes called "patent ambush." If manufacturers anticipate hold-up, they will be reluctant to make relationship-specific investments which, in turn, reduces the innovator's incentive to create patented technology. Offering manufacturers access to antitrust courts to address the problem of hold-up can improve welfare. However, in contrast to the default rules provided by contract law, parties are unable to contract around mandatory laws like antitrust. This raises the possibility that antitrust would disrupt other, more efficient contractual and organizational solutions to the problem of hold-up. In this paper, we analyze the equilibrium bargaining that occurs between the creators and users of patented technology and find that antitrust does displace more efficient simple contracts, i.e., ones that give innovators the incentive to innovate and manufacturers the incentive to develop products using patented technology.

Antitrust, Patent ambush, Post-contractual hold-up, Incomplete contracts, Price commitment, Bargaining

Abstract:
The organizational form of a competition agency affects its decision making. Functional organizations produce higher quality analysis but integrating the analysis into the decision-making process is more difficult than with a divisional form, organized around a specific sector or industry. This paper analyzes the tradeoff, with a particular focus on the role of economists in competition agencies around the world. We conclude that an effective functional organization requires strong horizontal links across the legal and economic bureaus and that an effective divisional organization requires separate economic and attorney recommendations, as well as managers who possess functional expertise in both economics and the law.

Antitrust Enforcement, Antitrust Division, FTC, European Commission, Economists, Functional Organization, Divisional Organization

Abstract:
In differentiated products industries, the extent of the pass through of merger-specific marginal-cost reductions is determined largely by the curvature of demand and idiosyncratic properties of particular functional forms for demand. Thus, addressing pass through as a separate and distinct component of merger analysis is likely to be unproductive. An alternative approach is to determine whether merger-specific marginal-cost reductions are sufficient to offset entirely the price-increasing effects of a merger. In addition, pass-through rates are closely linked to the price-increasing effects of mergers; demand properties that lead to large price increases from mergers absent cost reductions also lead to high pass-through rates. This implies the existence of simple and practical consistency checks on price increase and pass-through predictions.

mergers, efficiencies, pass through

Abstract:
We analyze a class of parametric second-price auction models where asymmetry is modeled by allowing bidders to take different numbers of draws from the same distribution. We compute the closed-form distribution of price and construct likelihood and method-of-moments estimators to recover the underlying value distribution from observed prices. We derive a Herfindahl-like formula that predicts merger effects and find that merger effects depend on the shares of the merging bidders, the variance, and the "shape" of the distribution. We generalize the model by allowing bidders to mix over power-related distributions. The dominant strategy equilibrium implies that an auction among bidders who mix over distributions can be expressed as a mixture of auctions. This implies that an auction among bidders with potentially correlated values can be expressed as a mixture over independent power-related auctions.

Second-price, private-values auctions, merger, antitrust

Abstract:
Horizontal mergers give rise to unilateral anticompetitive effects if they cause the merged firm to act less intensely competitive than the merging firms, while non-merging rivals do not alter their competitive strategies. This chapter describes the economic theory underlying unilateral competitive effects from mergers when prices are set through an auction or bargaining process. In the auction context, this chapter also describes the quantitative application of this theory in predicting the unilateral price effects of proposed mergers.

mergers, auctions, bargaining

Abstract:
The "parallel behavior is enough" standard cannot assist the courts in distinguishing horizontal agreements to restrain trade from normal competition. It would very likely impose significant costs on the economy by distorting competitive incentives and encouraging meritless litigation designed mainly to induce financial settlements.

Twombly, Bell Atlantic, Bell Atlantic v Twombly, Amici Curiae, Sherman Section 1

Abstract:
A difference estimator of the standard error for the difference in variances of paired time series is proposed. The difference estimator uses the independence of periodogram ordinates to remove nuisance parameters. The difference estimator is easier to compute than one centered on the smoothed periodogram, but shares the same small sample shortcomings for non-normal series.

spectral analysis, variance estimator, difference estimator