Should Private Exchanges of List Price Information Be Presumed to Be Anticompetitive?

32 Pages Posted: 13 Jul 2022 Last revised: 8 Mar 2023

See all articles by Timo Klein

Timo Klein

Oxera Consulting LLP; Utrecht University School of Economics

Bertram Neurohr

Oxera Consulting LLP

Date Written: February 28, 2023

Abstract

Harrington (2022) provides a novel theory that explains how a private information exchange involving gross list prices can lead to higher transaction prices. On this basis he considers that private list price exchanges between competitors should be presumed to harm competition. The theory, which has received much attention in the context of the EU trucks cartel case, was recently referred to by the UK Competition Appeal Tribunal as a ‘unilateral effects’ theory, given that it involves no coordination once list prices have been exchanged. Unlike conventional collusion, the theory does not rely on a monitoring and retaliation mechanism. Given its novelty and relevance for recent competition cases, we consider it useful to explore its potential limitations. We show that both the scope for and magnitude of harm are sensitive to key modelling parameters such as the number of firms, the degree of product substitutability, and the level of marginal cost—sometimes in opposite directions. We also show that there may be no scope for the anticompetitive effect when firms are capacity constrained. Finally, we discuss several additional qualitative aspects that may undermine the theory of harm: the adaptability of internal pricing processes over time, the lack of verifiability of exchanged list price information (especially when the exchange is private), and possible procompetitive or competitively neutral reasons for the conduct. We conclude that, although Harrington provides an insightful addition to the wider literature on the competitive effects of information exchanges, the effects of list price exchanges are not sufficiently unambiguous to justify a general presumption of competitive harm.

Keywords: Information Exchange, List Prices, Collusion, Capacity Constraints

JEL Classification: K21, L13, L41

Suggested Citation

Klein, Timo and Klein, Timo and Neurohr, Bertram, Should Private Exchanges of List Price Information Be Presumed to Be Anticompetitive? (February 28, 2023). Available at SSRN: https://ssrn.com/abstract=4153700 or http://dx.doi.org/10.2139/ssrn.4153700

Timo Klein (Contact Author)

Oxera Consulting LLP ( email )

Alfred Street
Oxford OX1 4EH
United States

Utrecht University School of Economics ( email )

Vredenburg 138
Utrecht, 3511 BG
Netherlands

Bertram Neurohr

Oxera Consulting LLP ( email )

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