ANALYSIS OF COMPETITION LAW AND ENFORCEMENT ACROSS COUNTRIES:

Transcription

1 ANALYSIS OF COMPETITION LAW AND ENFORCEMENT ACROSS COUNTRIES: A Project Course for the Global Network for Advanced Management Proposed Schedule: September December 2013 Project Faculty: to be drawn from Yale School of Management, Yale Law School and other GNAM schools Coordination: Ted Snyder, Fiona Scott-Morton and Pierre Cremieux Eligibility Any current MBA or equivalent degree student at a Global Network for Advanced Management school can apply to join the course. To do so, please send an to Kate Kopriva (kate.kopriva@yale.edu) with your CV and a short statement of interest/motivation before June 30. The selected students will be notified by July 15. Yale School of Management will certify each student s participation but the question whether to award academic credit and if so how much rests with a student s home institution. About the faculty coordinators: Ted Snyder is Dean and William S. Beinecke Professor of Economics and Management at the Yale School of Management. As Dean, he has overall responsibility for the school s academic programs, for enhancing its reputation, and for strengthening its finances. The school s objectives are to become and become known as: (i) the business school that best leverages its home university eminent and purposeful Yale University; (ii) the most global U.S. business school; and (iii) the best source of elevated leaders for escalating complexity in all sectors. Mr. Snyder began his professional career as an economist with the U.S. Department of Justice s Antitrust Division. He earned a PhD in Economics and an MA in Public Policy from the University of Chicago. He began his academic career at the University of Michigan where he developed programs in Central Europe, China, India, and Russia. His research and teaching is focused on industrial organization, antitrust economics, law and economics, and financial

2 institutions. Most recently, Mr. Snyder was the Dean and George Shultz Professor of Economics at the University of Chicago Booth School of Business. While Dean he co-taught Economic Analysis of Major Policy Issues with Gary Becker and Kevin Murphy. Fiona Scott Morton is Professor of Economics at Yale School of Management. An expert in competitive strategy, Professor Scott Morton came to Yale SOM having previously taught at the Graduate Schools of Business at the University of Chicago and Stanford University. Her research focuses on empirical studies of competition among firms in areas such as pricing, entry, and product differentiation. Her articles are published widely, in journals including the Journal of Economics and Management Strategy, the RAND Journal of Economics, the Journal of Econometrics, the Journal of Industrial Economics, the International Journal of Industrial Organization, and the Quarterly Journal of Economics. Professor Scott Morton teaches the core perspective The Competitor, in which she introduces students to the dynamics of competition using tools from economics and integrating techniques from marketing, OB, accounting, and other disciplines. In 2007, she was chosen by students to receive the Yale SOM Alumni Association Teaching Award, an honor which is given to one professor each year. She is a frequent speaker at academic research seminars and conferences across the United States and Europe. She holds a BA from Yale University and a PhD from MIT. Pierre Y. Cremieux is Managing Principal at Analysis Group, which provided economic, financial, and business strategy consulting to law firms, corporations, and government agencies. Dr. Cremieux has a broad range of expertise in health economics, antitrust, statistics, and labor economics. He has consulted to numerous clients in the United States and Canada and testified in bench and jury trials, arbitrations, and administrative proceedings. Dr. Cremieux has served as an expert and supported other experts in both litigation and non-litigation matters on antitrust issues, generic product entry, product liability and mass tort, analysis of clinical trials, and general commercial claims as well as a variety of labor-related matters. He has assessed the evaluation of damages on a class-wide basis in some of the largest class actions matters in recent years. In health and labor economics, he has published extensively on the value of pharmaceuticals, hospital performance, quality and cost of care, drug cost-effectiveness, medical and workplace costs of various illnesses, and litigation strategy. His scientific research, which also includes topics in antitrust economics, class certification, and statistics, has been published in numerous

3 journals including the George Mason Law Review, the American Bar Association Economics Committee Newsletter, the Review of Economics and Statistics, the Journal of Health Economics, Industrial and Labor Relations Review, the Journal of Clinical Oncology, and the American Journal of Managed Care. His research has been cited in leading media outlets including the Wall Street Journal and Forbes. Dr. Cremieux is an adjunct professor at Yale School of Management and the University of Quebec at Montreal. He received his Ph.D. and M.A.in economics from the University of California, Berkeley, and a B.A. in economics from the University of Maryland. Background: Competition policy and enforcement is now a global phenomenon. Over one hundred countries now have competition laws. Competition and antitrust authorities across the world have been increasingly active in i. prosecuting transnational pricing-fixing conspiracies, e.g., Vitamin, DRAM, Copper; ii. challenging mergers that span multiple countries, e.g. Google-Motorola, UTC- Goodrich, the joint venture between BHP Billington and Rio Tinto iii. challenging various practices by large firms across the world, e.g., Intel, Google, and Microsoft While the U.S. and the EU have long traditions of enforcement with multiple investigations each year that generate billions ($US) in fines and significant divestitures and other relief, many other countries, including several in Asia and Latin America, have only recently become actively engaged in competition law enforcement. Many of the newer agencies and standards are modeled after the US and/or EU frameworks. Nonetheless, the laws in these countries are usually somewhat different from US/EU law, and enforcement priorities are different. Competition policy has, therefore, become an important part of the landscape of global business and highly relevant to senior leadership teams. An understanding of competition policy and enforcement across countries and regions requires an appreciation of what is common in competition policy as well as what is different across regions. The fundamental goal of competition laws is the protection of consumers. The overall objectives, design, and actual enforcement practices in any given country may also be affected by other factors, including the protection of domestic industry from foreign competition, concerns about the strength of particular industries, desire for policy consistency across countries, and overall experience with market economies.

4 Course Description, Team Structures, Deliverables, and Audiences: Course Description: Analysis of Competition Law and Enforcement Accross Countries will be comprised of a combination of classes and research projects. The first series of four classes will provide a common framework for all students in the class upon which they can build the research projects. The remainder of the course will be devoted to the realization of a research project under the supervision of project faculty and its presentation to various stakeholders as described below. Common Analytical Framework and logistics: This portion of the course will be comprised of four 3-hour classes. 1. The first 3-hour class will be divided into two portions. Logistics: The first half of the class will be devoted to introductions, a discussion of expectations and logistics including the description and use of relevant technologies. Teams of students from different countries will be created. Economic framework: The second 1.5 hours will provide a basic framework in the economics of competition policy, a subject that is common across jurisdictions. This will be taught by faculty from the Yale School of Management (SOM) and will be focused on general concepts such as consumer welfare, efficiency, incentives for innovation, public v private enforcement, etc. To the extent this first lecture must draw on specific examples, it will be largely focused on the most extensive and oldest competition agencies in the U.S. and the EU. 2. The second 3-hour class will be divided into two portions. Collusion: The first half of class will be a lecture on the harms from cartel behavior, containing both economic analysis but also legal issues such as the per se standard and criminal penalties. Problems in international harmonization of cartel enforcement will be discussed (e.g. ICN, overlapping fines, extraterritorial enforcement, extradition) International differences: The second half of class will consist of a lecture that provides a survey of competition enforcement in four world regions, Asia, South America, North America, and Europe, with a focus on specific countries of interest. A student exercise will accompany this module. 3. The third 3 hour class will comprise the following: Horizontal mergers: The first part of the class will be focused on horizontal merger analysis. The content here will include both the economics involved in analyzing a merger such as market definition and substitution patterns, and also practical legal issues for managers concerning documents, strategy, and witnesses. Vertical restraints: The lecture will cover vertical contracting and vertical mergers including topics such as inter/intra-brand competition, efficiency defenses, and double-marginalization. At the end of this class each team will engage in a merger exercise. The instructors will provide a specific filing on a merger project and have the team review documents to answer a set of specific questions concerning enforcement in a particular jurisdiction. Teams will trade projects

5 (daisy-chain) and comment on another team s analysis with a particular focus on the differences between the two enforcement regimes. 4. The fourth class will comprise Unilateral conduct: The first part of the class will include a discussion of unilateral conduct and what actions, including predatory pricing, bundling, tying, and foreclosure, may violate antitrust laws in various jurisdictions. The economic theories underlying unilateral conduct will be discussed as well as the legal standard of proof. Logistics: The last section of the 4 th class will be devoted to final logistics including the selection of topics and pairing with faculty. The remaining portion of the course will be devoted to multiple directed research projects (one per student team), supervised by Project Faculty from Yale SOM, Yale Law School and other GNAM schools. Each team will analyze real-time issues and cases within the realm of competition law and enforcement across countries and regions of interest including Brazil, Chile, the European Union, Indonesia, Japan, S. Korea, and the U.S. Research Projects: Each group of students will choose a research project examining a current ore recent antitrust regulatory effort focused on a specific company under scrutiny for monopolization/unilateral conduct or a group of companies under scrutiny for potential pricefixing behavior. The choices will comprise: Google (FTC, EC) AUO Optronics (DOJ, XXX) The research project could include investigations of the following set of issues 1. A review of the company (ies) being investigated or sued and their business model and competitive strategies. Do(es) the business model(s) have the potential to harm consumers? 2. An analysis of the strategic focus and positioning of at least three enforcement agencies with respect to the international unilateral conduct or cartel matter. a. Leader v. follower role relative to other agencies b. Reliance on public as opposed to private enforcement c. Focus on structural remedies versus behavioral remedies and financial penalties 3. An analysis of the investigation and enforcement including a. A review of the enforcement action and whether the agencies involved are seeking an appropriate remedy b. A review of the differences across jurisdictions in the enforcement action for the same matter

6 Team Structure: Project teams of approximately five to six students will be drawn from a subset of schools in the GNAM. A given team may include Masters-level students from different schools. 1 Up to 10 project teams will be supervised by project faculty for a maximum of 50 students. Each team will be composed of students from multiple jurisdictions and will be assigned a home jurisdiction to use as the reference point from which to examine enforcement actions from other jurisdictions. The analysis will be based on interviews, data analysis, and review of relevant business and academic literature. Students will meet using Skype/FaceTime once a week with project faculty in addition to communicating regularly through various means including . Deliverables and Audience Each team will be expected to complete the first two assignments: an international exercise and a merger exercise. In addition, each team will make a high quality presentation based on a short research paper (15-20 pages) and a PowerPoint presentation of their final topic. Potential audiences include business executives, policy leaders, government leaders, and senior leaders of various competition agencies, as well as faculty members of GNAM schools. Individuals currently or formerly associated with the ABA Antitrust Section s International Cartel Task Force, the FTC and the DOJ as well as faculty with expertise in antitrust enforcement at prominent universities may be asked to review and comment on the papers and presentations. 1 Yale SOM students in the MBA program and the Master of Advanced Management Degree program may be eligible for this course.