Corporate & Securities Law

More Details on the OFT’s Botched Prosecution of British Airways

Posted on May 12, 2010
Here (HT: Danny Sokol).   The post by Andreas Stephan implies that the OFT’s mistakes in the BA prosecution threaten to undermine the effectiveness of cartel enforcement in the UK generally and predicts that the OFT will not bring more criminal prosecutions in the near future...

Implicit Compensation

Posted on May 12, 2010
The expansive executive compensation literature has two camps: one camp believes markets generally work; the other that they don’t. I am in the former camp, but believe markets and individuals that comprise them make mistakes and that those with power can sometimes use that power to serve their own, selfish ends...

Implicit Compensation

Posted on May 12, 2010
The expansive executive compensation literature has two camps: one camp believes markets generally work; the other that they don’t. I am in the former camp, but believe markets and individuals that comprise them make mistakes and that those with power can sometimes use that power to serve their own, selfish ends...

More Details on the OFT’s Botched Prosecution of British Airways

Posted on May 12, 2010
Here (HT: Danny Sokol).   The post by Andreas Stephan implies that the OFT’s mistakes in the BA prosecution threaten to undermine the effectiveness of cartel enforcement in the UK generally and predicts that the OFT will not bring more criminal prosecutions in the near future...

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Some Links

Posted on May 11, 2010
Facebook hires recent Kirkpatrick Award winner Tim Muris to manage their antitrust and consumer protection business at the Federal Trade Commission (or did they?) My colleague Neomi Rao in the WSJ on the Kagan nomination The UK British Airways price-fixing trial implodes after the OFT didn’t turn over evidence (Businessweek) The FTC has, to its credit, extended the deadline for comments on the proposed Merger Guidelines (the new deadline is June 4th — see here for details) Papers for the FTC/ Northwestern Microeconomics conference are due July 7th Printposted in announcements by Josh Wright Leave A Comment

Some Links

Posted on May 11, 2010
Facebook hires recent Kirkpatrick Award winner Tim Muris to manage their antitrust and consumer protection business at the Federal Trade Commission (or did they?) My colleague Neomi Rao in the WSJ on the Kagan nomination The UK British Airways price-fixing trial implodes after the OFT didn’t turn over evidence (Businessweek) The FTC has, to its [...

Controlling ATM Fees: Competition Versus Political Fiat

Posted on May 07, 2010
Taking a page from Rahm Emanuel’s never let a serious crisis go to waste playbook, our esteemed senators are loading the pending financial reform legislation, ostensibly aimed at preventing future financial meltdowns, with all sorts of wish-list items that have nothing to do with financial crises...

Controlling ATM Fees: Competition Versus Political Fiat

Posted on May 07, 2010
Taking a page from Rahm Emanuel’s never let a serious crisis go to waste playbook, our esteemed senators are loading the pending financial reform legislation, ostensibly aimed at preventing future financial meltdowns, with all sorts of wish-list items that have nothing to do with financial crises...

The Specter of Liability: Ribstein and Verret team up on Capitol Hill

Posted on May 06, 2010
I was privileged to testify yesterday with TOTM’s blog neighbor Professor Larry Ribstein on the issue of imposing fiduciary duties on securities brokers.  Senator Specter chaired the hearing, which you can watch in full.  Senator Specter’s proposal was to require not only that securities brokers be held to fiduciary duties to their clients, but that those duties should be enforced criminally...

The Proposed Merger Guidelines: How Much of a Shift?

Posted on May 06, 2010
The proposed Horizontal Merger Guidelines (HMGs) have been treated by some as a major shift in enforcement approach away from a tight structure that begins with market definition to a more flexible and open-ended competitive effects approach.  Some of the specific concerns that have been raised are that the proposed HMGs dramatically change enforcement policy by (i) downplaying or ignoring the role of market definition in favor of a more holistic approach to competitive effects; (ii) defining overly narrow relevant markets; (iii) defining whatever market ?works? to show anticompetitive effect; (iv) ignoring market definition and concentration in unilateral effects analysis; (v) creating a presumption of anticompetitive unilateral effects in every merger with differentiated products, and failing to have a safe harbor; (vi) fearing unilateral effects among firms that are not closest substitutes; (vii) overemphasizing diversion ratios among the merging parties and ignoring competition from non-merging products; and (viii) ignoring the competitive constraints from the potential for repositioning...

The Proposed Merger Guidelines: How Much of a Shift?

Posted on May 06, 2010
The proposed Horizontal Merger Guidelines (HMGs) have been treated by some as a major shift in enforcement approach away from a tight structure that begins with market definition to a more flexible and open-ended competitive effects approach.  Some of the specific concerns that have been raised are that the proposed HMGs dramatically change enforcement policy [...

Apologies and comments

Posted on May 05, 2010
Dear readers:  Apologies for our site’s absence yesterday.  Apparently we were the target of a Russian spam attack.  We’re back up, but we’ve had to close comments for the time being (except from the TOTM authors and previous guests who may login to post a comment)...

What’s the Best Way to Pop a Bubble?

Posted on May 05, 2010
[NOTE: I was drafting this post when Henry Manne posted his open letter to Fama and French. I'm hesitant to post over Henry's important letter, particularly since TOTM was down yesterday and lots of folks may not have seen the letter. I'm doing so only because this post is a good follow-up to Henry's points about trading and market efficiency...

Timothy Muris Wins FTC’s Kirkpatrick Award

Posted on May 05, 2010
Congratulations to Former Chairman and current George Mason Professor Muris for taking home the Federal Trade Commission’s prestigious Miles W. Kirkpatrick Award for Lifetime FTC Achievement.   As Chairman Leibowitz notes in the press release, ?Tim Muris provided inspired service to the Federal Trade Commission and to the American public...

The Specter of Liability: Ribstein and Verret team up on Capitol Hill

Posted on May 05, 2010
I was privileged to testify yesterday with TOTM’s blog neighbor Professor Larry Ribstein on the issue of imposing fiduciary duties on securities brokers.  Senator Specter chaired the hearing, which you can watch in full.  Senator Specter’s proposal was to require not only that securities brokers be held to fiduciary duties to their clients, but that [...

An open letter on insider trading to Gene Fama and Ken French

Posted on May 03, 2010
Dear Gene and Ken: I must say that I was totally flabbergasted when I read your recent blog posting on insider trading.  I know that your usual posts on investments, which I often cite to friends, are well-informed and empirically-supported; your work over the years on these topics is important and influential?and rightly so...

Some Good Reading in the Weekend Papers

Posted on May 02, 2010
1. The New York Times’ Gretchen Morgenson gets it right (seriously!) on this shameful GM ad. The ad is misleading and, given that many folks are refusing to buy a car from a company on government life-support, materially so. My bet is that if GM weren’t a government-controlled company, and if the Treasury hadn’t aided and abetted the campaign of deception (”We are encouraged that G...

A first principles approach to antitrust enforcement in the agricultural industry

Posted on April 30, 2010
Like Mike, we also have a short article in the latest issue of the CPI Antitrust Chronicle.  Also available on SSRN, for those without a CPI subscription. Here’s our stab at an abstract: There are very few industries that can attract the attention of Congress, multiple federal and state agencies, consumer groups, economists, antitrust lawyers, the business community, farmers, ranchers, and academics as the agriculture workshops have...

Ag Antitrust and the Packers & Stockyards Act

Posted on April 29, 2010
The theme of the newest issue of the CPI Antitrust Chronicle focuses on agriculture and antitrust. The issue includes a paper by yours truly on the difficulties of effectively using the Packers & Stockyards Act of 1921 as an alternate means for enforcing competition policy in the agriculture sector (see here; also available at SSRN here)...

Section 5, Collateral Consequences, and Counting Unicorns

Posted on April 29, 2010
Judge Frank Easterbrook once opined that observing predatory pricing was a bit like seeing a unicorn —  in the sense that it was a phenomena around which there was much lore but not much empirical evidence.  The debate over the current expansion of Section 5 liability increasingly has become about the search for a different sort of “unicorn” — follow-on actions...

Financial Regulation Career Advice

Posted on April 26, 2010
The worst vice is advice, but then again I have so many vices why stop here.  I recently put together an email for my securities regulation students to share what little I know that might be useful to their careers, and thought I would offer it to the TOTM community...

A Follow Up on the Cato Unbound Conversation on New Paternalism

Posted on April 25, 2010
Two weeks ago I highlighted the promising looking Cato Unbound forum on the new paternalism kicked off by Glen Whitman, with follow up posts and responses from the King (or co-King along with Cass Sunstein) of Nudge, Richard Thaler, along with Jonathan Klick and Shane Frederick...

Market Definition and Margins in the New Guidelines

Posted on April 25, 2010
I’m still working through the 2010 Horizontal Merger Guidelines, and like Dan, I find myself puzzling over some of the revisions, and in favor of others.  I wanted to start with some first impressions.  The big movement here, is that the new HMGs repudiate the market definition requirement in the new Section 4 and in Section 6 on Unilateral Effects...

Harvard Law Review Smacks Around FTC Blogging Rules

Posted on April 24, 2010
See here (HT: Overlawyered): Recently, the Federal Trade Commission (FTC) revised their Endorsement and Testimonial Guides (Guides) to cover ?consumer generated media? such as blogs and other internet media forms.1 In the interest of providing consumers with full disclosure, the Guides require bloggers to disclose any ?material connection[s]? they have with producers of any products that they ?endorse? on their blogs...

Whoa There, Big Fellows!

Posted on April 21, 2010
The DoJ/FTC revised merger guidelines, released as a draft for public comment yesterday, have me scratching my head. I need to spend more time with them before I come to any strong views, but the obvious issue-spotter is the elimination of market definition as a necessary step in the analysis...

Antitrust Litigation Over Time

Posted on April 20, 2010
posted in antitrust by Josh Wright Leave A Comment

Proposed Merger Guidelines Released

Posted on April 20, 2010
The FTC/ DOJ have released the new proposed horizontal merger guidelines.  The public comment period with the Commission ends May 20th.  There is a lot to evaluate here.  On a quick read through, here are a few of my noted as either changes or interesting as I went through: “Market definition is not an end in itself: it is one of the tools the Agencies use to assess whether a merger is likely to lessen competition...

Investor’s Bill of Rights

Posted on April 19, 2010
This week the Senate is scheduled to hear debate over the latest financial regulation reform bill (also known as the Dodd Bill).  Part of the Dodd Bill incorporated aspects from a bill from Senator Schumer introduced last summer, against which I testified, called the “Shareholder’s Bill of Rights...

In Defense of Twombly/ Iqbal

Posted on April 19, 2010
See here (Drug & Device Law Blog).  There is a ton there, including a discussion of the cases and secondary literature criticizing Twombly/ Iqbal.  Here’s a taste: On the question of Twombly/Iqbal, we?re litigators, not professors, so we don?t have the time or inclination to create fancy theoretical constructs such as ?plaintiff neutrality principles...

Some Warnings for Modern Pigovians (from Pigou Himself)

Posted on April 19, 2010
We live in a time of optimism about government’s ability to improve upon the unregulated state of affairs. From health insurance to financial markets to the types of fats we eat, cars we drive, and sources of energy we consume, there is a sense among our political, media, and academic elites that our privately ordered affairs are out of whack and can be improved by government rules...

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