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"Sokol, D. Daniel"
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Online RPM and MFN Under Antitrust Law and Economics
The legal framing of a firm’s pricing strategy can determine whether it constitutes online resale price maintenance (RPM) or online most favored nation (MFN). Together, cases that involve online RPM and MFN can be viewed as a natural experiment of how antitrust economics and law may adapt to an online world. Thus far, legal theories that have been inconsistent with economic theories have dictated enforcement across jurisdictions, which has led to confusion that thwarts potentially efficient business practices. This paper distinguishes issues of online RPM from traditional RPM and online RPM from online MFN. We apply the economics learning to RPM and analyze the antitrust cases of online RPM and MFN to date in the United States, Europe, and Australia. Finally, we offer policy recommendations that reduce the confusion in current legal doctrine.
Journal Article
Antitrust procedural fairness
\"Much of antitrust law scholarship has focused on substantive legal issues--theories of harm and changing law and policy. Surprisingly, there has been very little work that is comparative, on a fundamental element that is a critical building block to effective policy--procedural fairness. Procedural fairness encompasses issues of transparency and due process. Procedural fairness has been an important issue in global antitrust for some time. The types of due process concerns raised globally often relate to the lack of effective representation, the use of industrial policy by third parties, and procedural tools that do not allow for the most effective advocacy to lead to efficient outcomes. This book focuses on these issues and teases out common problems and distinct issues in particular jurisdictions. This allows for a rethink of creating a more effective system for procedural fairness, an exploration of these issues in each jurisdiction, along with highlights of particular cases in which due process issues have emerged\"--Dust jacket.
Book
The Evolution of U.S. Cartel Enforcement
Antitrust as a whole was transformed owing in large part to Robert Bork inThe Antitrust Paradox.This paper examines what Bork said and did not say about cartel enforcement and offers an examination of how the actual structure of cartel enforcement played out relative to what Bork advocated. To provide some perspective on Bork’s view of cartel enforcement, we compare his views with those of the other major influential antitrust book of the time by Richard Posner. We identify three distinct stages of cartel enforcement. Stage 1 is characterized by a low number of cartels prosecuted along with low fines and jail terms. Consistent with Bork’s vision, stage 2 demonstrates a significant increase in cartels prosecuted, although fines and jail terms remain low. Stage 3 (the current stage) exemplifies a decline in the number of cartels prosecuted relative to stage 2 but with dramatic increases in monetary fines and jail terms.
Journal Article
Antitrust Mergers and Regulatory Uncertainty
Estimating antitrust risk is fundamental to identifying, proposing, and pricing deals. A more informed understanding of what to expect when meeting with agency staff and leadership will help antitrust lawyers, economists, and other consultants anticipate the critical questions and potential paths that should be addressed regarding antitrust merger risk. This article uses practitioner surveys to understand whether and how the change in the Biden administration's antitrust agenda has affected merger review, investments, decision making, and counsel. The surveys also offer antitrust agencies an opportunity to think about the optimal design of the merger control system and various consequences of certain policy choices and institutional design changes. A quantitative online survey was conducted first, followed by qualitative discussions with practice group leadership across top antitrust law firms. Both studies were designed to identify whether respondents perceived any substantive shifts from prior administrations to the Biden administration, the impact of such shifts (if any) on merging parties, and any notable differences between the DOJ and FTC in enforcement and procedures. Our surveys indicate that practitioners have a more critical perception of the DOJ and FTC compared to prior administrations. Both agencies are perceived as less transparent and less fair in their interactions with merging parties. The enforcement process is seen as more demanding in terms of scope of data collected and is reported to take longer to complete. The agencies have also departed from precedent as they increasingly scrutinize labor issues and vertical deals.
Journal Article
THE TRANSFORMATION OF VERTICAL RESTRAINTS: PER SE ILLEGALITY, THE RULE OF REASON, AND PER SE LEGALITY
This essay describes Robert Bork's policy objectives for the antitrust treatment of vertical restraints, explains why Bork had such a disproportionate influence on the subject, and tracks Bork's influence on the development of vertical restraints in three specific areas: maximum resale price maintenance (RPM); vertical territorial restrictions; and Robinson-Patman Act violations. In practice, the shift in the antitrust rules applied to these areas has not been from per se illegality to the rule of reason, but has been a more dramatic shift from per se illegality to presumptive legality under the rule of reason.
Journal Article
Hospital mergers and economic efficiency
This article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This article explores the Saint Alphonsus Medical Center-Nampa Incv. St. Luke's Health System, Ltd (St. Luke's) decision -- proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that the authors hope future courts undertake when analyzing mergers in the health care sector. First, the article addresses the question of how best to frame the acquisition of a physician group by a hospital. Second, the article examines the justification for integration as a way to address countervailing power in health care, the reduction of transaction costs, and potential cost and quality efficiencies. Third, the article applies the economics of these issues to merger case law generally and specifically to the St. Luke's decision.
Journal Article
Competition Law and Policy in Latin America
This book offers an unparalleled analysis of the emerging law and economics of competition policy in Latin America. Nearly all Latin American countries now have competition laws and agencies to enforce them. Yet, these laws and agencies are relatively young. The relative youth of Latin American competition agencies and the institutional and political environment in which they operate limit the ability of agencies to effectively address anti-competitive conduct. Competition policy is a tool to overcome anti-market traditions in Latin America. Effective competition policy is critical to assisting in the growth of Latin American economies, their global competitiveness, and improving the welfare of domestic consumers. This book provides new region specific insights on how to better achieve these aims. This authoritative volume will be of particular interest to competition agencies, academics in law, economics and Latin American Studies, practitioners around the world in the areas of antitrust and competition policy, policymakers, and journalists.
eBook