Electronic copy available at: http://ssrn.com/abstract=1009573

Forensic Economics in Competition Law Enforcement

Maarten Pieter schinkel

Amsterdam Center for Law & Economics Working Paper No. 2007-05

The complete Amsterdam Center for Law & Economics Working Paper Series is online at: http://ssrn.acle.nl

For information on the ACLE go to: http://www.acle.nl

Electronic copy available at: http://ssrn.com/abstract=1009573

1

Forensic Economics in Competition Law Enforcement

Maarten Pieter Schinkel1

4 September 2007

forthcoming in the Journal of Competition Law and Economics (March 2008)

Abstract

This paper delineates the specialty field of forensic IO as the application of

theoretical and empirical industrial organization economics in the legal

process of competition law enforcement. Four stages of that process which

can benefit from forensic IO techniques are distinguished: detection and

investigation; case development; decision making and litigation; and

remedies, sanctions and damages. We survey the use of economics in such

aspects as identifying potential forms of anticompetitive behaviour, screening

markets for competition law violations, determining causality, advising on

appropriate remedies and assessing antitrust damages. The paper discusses the

role of expert economic witnesses in competition cases. It calls for an

organization of forensic IO within the context of existing forensic institutes.

Keywords: forensics, antitrust, litigation, competition law

JEL-codes: K21, L44, K41, K42

1 Department of Economics and ACLE, Universiteit van Amsterdam and CEPR. Roetersstraat 11, 1018WB Amsterdam, The Netherlands. E-mail: m.p.schinkel@uva.nl. The papers in this special issue were selected from contributions to the ACLE workshop Forensic Economics in Competition Law Enforcement, held March 17, 2006 at the Universiteit van Amsterdam. John Connor, Andrew I. Gavil and Franklin M. Fisher made outstanding keynote contributions to the event. I am indebted to them, as well as other participants to the workshop, for stimulating discussions. I thank the editors of the Journal of Competition Law and Economics, Damien Geradin and Gregory Sidak, as well as more than twenty anonymous referees for their assistance in the editorial process. Iwan Bos, John Connor, Kati Cseres, Franklin M. Fisher, Andy Gavil, Vivek Ghosal, Jon McNally, Jakob Rüggeberg, Francesco Russo, Daniel Slottje and Jan Tuinstra gave constructive comments to an earlier version of this paper. Norman Bremer and Marie Goppelsroeder provided excellent research assistance. Opinions and errors remain mine.

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1. Introduction

Forensic science is the application of scientific disciplines to the legal process.2

Scientific methods and tools have found productive and popular application in

criminal law enforcement. Techniques such as DNA-profiling, blood spatter

projection and handwriting analysis, are used to establish suspects, methods and

motives in homicide cases. They feature in television and documentary series, such as

Forensic Detectives, which graphically describe the pivotal role of forensic

techniques in police investigations and criminal law proceedings. Forensic tools have

become important in the discovery of crimes, their investigation and presentation in

court, and in establishing causality and damages. The field has its own professional

journals, university curricula, respected national forensic laboratories and institutes.

There exist a wide variety of applied forensic methods. Saukko and Knupfer’s 3

volume Encyclopaedia of Forensic Sciences contains more than two hundred different

alphabetically ordered entries, ranging from Airbag Related Injuries and Deaths to

Wood Analysis. Most methods derive from natural sciences. They include bio-medics

– to determine skeletal trauma, make time-since-death analysis and conduct

morphological age estimation – chemistry and toxicology – including ink analysis in

document forgery and counterfeits – as well as physics – informing enforcers with

ballistics, bloodstain analysis, image processing and forensic IT – and engineering –

understanding fire-scene patterns in buildings and motor vehicle accidents. The three

volumes of the encyclopaedia also describe applications from psychology – such as

criminal profiling, eyewitness reliability and methods to detect lies and deception. In

addition, it has some entries on white-collar crime and forensic computing.

Economics is a science that has methods and tools to offer for application in legal

processes. Insights from the discipline of industrial organization (IO) in particular are

extensively used in the interpretation and the enforcement of the competition laws.

Expert IO economists have made contributions to both the challenge and defence of

mergers that raised competition concerns and alleged antitrust violations. They have

2 Lyle (2004), p.8. The Forensic Science Society defines it similarly as: “the application of science to the law.” See http://www.forensic-science-society.org.uk.

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assisted in assessing antitrust effects and damages, as well as the identification of new

types of behaviour that could potentially be anticompetitive. Their economic

justifications have been taken into consideration in the judgements of the Supreme

Court of the United States, as well as the European Court of Justice.3

The aim of this special issue on Forensic Economics in Competition Law Enforcement

is to delineate the speciality area of industrial organization economics applied in

various aspects of the legal process of antitrust cases. It is an exciting area of work, in

which a great many industrial economists are active. It generates a considerable turn-

over as well as large likely deterrence benefits. The area has an active international

conference circuit and even its own society journal, the Global Competition Law

Review.4

The area nevertheless lacks a systematic description as a discipline. Saukko and

Knupfer’s Encyclopaedia does not contain a single entry related to economics – not

even on forensic accounting, which is the analysis of financial and economic

transactions for the purpose of assessing their legality. Likewise, there is no

mentioning of topics related to economics in the description of forensic science given

by the Forensic Science Society. 5

The American National Association of Forensic Economics (NAFE), and the Journal

of Forensic Economics (JFE) which it publishes, has had a strong business orientation

since its creation in 1986. In their inaugurating contribution to the JFE, John Ward

and Gerald Olson set the research agenda for the field:

“The primary focus of the research of the forensic economists is

the measurement of market loss (damages) arising from market

failures, contract disputes or Torts.” (Wald and Olson, 1987, p.2)

3 See Adams and Brock (1991) and Kaplow and Shapiro (2007). 4 See Slottje (1999), a collection of essays by leading economists that were active in high-profile antitrust cases and the round-table on expert witness work in antitrust cases in the 2003 spring issue of Antitrust. Contributions to both are discussed in the text below. Baker (2003) and Neven (2006) attempt to quantify the effects of competition law enforcement in the US and Europe respectively, concluding that the gains are likely to far outweigh the costs in either regime. 5 See http://www.forensic-science-society.org.uk. The society publishes the journal Science & Justice.

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Antitrust is mentioned as a specialization of damage calculation in public interest

disputes, but considered an area of minor importance compared to business

valuation. 6 Indeed, the vast majority of the papers published in the volumes of the JFE

is on the quantification of damages in individual tort cases. Topics include the

appropriate discount rate, expected employment duration and the effects of

progressive taxes in present value calculations of lost earning as a result of personal

injury and wrongful death. Typically, causality in these accident cases is

straightforwardly established and has nothing to do with economics. Only a hand-full

of papers discusses applications of economics to competition cases.7

In a further methodological paper in the Journal of Legal Economics, Ireland (1997a)

recognizes the application of “econometric tests of causality” in antitrust, but keeps it

outside the scope of forensic economics as “this element involves only a minority of

forensic economists” (op. cit., p.7). Emphasis remains on damages assessments.

Finally, Kaufman et al. (2005) define forensic economics as “the application of

economics to litigation” (op. cit., p.xv). The volume of seminal contributions to the

field claims to offer coverage of “all the major topics in this sub-field” (ibid.) but

contains not a single paper on antitrust.

We define the specialty field of ‘forensic IO’– as the application of theoretical and

empirical industrial organization economics in one or more of the various stages of

the legal process of competition law enforcement.8 Apart from antitrust economics,

the area overlaps with law and economics and the economics of law enforcement.

Forensic IO is much narrower than IO itself, which is only in part applied to antitrust.

This latter part, antitrust economics, in turn is narrower than forensic IO, as it focuses

on the economic interpretation of the competition laws, more than on the techniques

and tools of their enforcement by institutions and courts.

6 This research focus on damages assessments is also maintained in Thornton and Ward (1999) . 7 An interesting early example is Einhorn (1989). There even appears to be some hostility towards antitrust applications. Slottje (1999) was received in the JFE as a “view from Mt. Olympus” (Vernarelli, 2001, p.101). According to this review, the volume had the “mainstream forensic economist” little insight to offer. Instead, the reviewer suggested that “…if, heaven forbid, Professor Slottje were to suffer serious injuries when the car he is driving is hit by a tractor trailer which runs a red light, then he would really learn what forensic economics is all about” (op.cit., p. 103). 8 One of the first references to the term ‘forensic economics’ may be Boudin’s 1984 book review of Fisher et al. (1983), based on the authors’ experience as consultants to IBM in the American IBM case, on which more in Section 4. See also Fisher (2000).

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In his introductory contribution to this special issue, John Connor traces the use of

forensic economics back to the first written record of an antitrust proceeding in the

Roman Forum, more than 300 years BC. Connor discusses its subsequent role in

modern cartel law enforcement in both the US and Europe. He establishes a

considerably longer modern tradition of applied forensic IO in the US courts, but also

sees an emerging field in Europe resulting from the European appellate courts

increasingly requesting sound economic argumentation and emerging private antitrust

suits before the national courts. The paper focuses on cartels and surveys a number of

methods for the construction of “but for” worlds and the determination of cartel

overcharges.

Forensic IO is not limited, however, to the assessment of damages in antitrust

litigation. It makes some of its most fundamental contributions to competition cases

by assisting to establish causality. Economic analysis can help to determine, for

example, the relationship between a collusive agreement between incumbents to

restrict entry and low product quality due to a resulting lack of effort. Economics can

be applied to identify market power and how it was abused. Its tools can also be used

to value claims of merger-specific efficiencies, as well as to determine the extent to

which intermediaries and final consumers were damaged by the anti-competitively

raised prices of their suppliers.

To determine likely causalities requires a complex process of building a relevant

economic theory, deriving testable hypotheses, and corroborating them with the help

of econometric tests. Precisely this is the scientific method for which academic

experts are consulted to produce objective and reliable truths.9 As a result, it is on

issues of causality that many of the more interesting differences of opinion exist

between experts applying industrial economics to antitrust. In fact, the Daubert-

qualification of admissible scientific expertise – discussed in Section 5 below – is

essentially concerned with the question whether causation has been shown

satisfactorily and by means of accepted scientific methods.

9 On methodology generally, see Chalmers (2004). On economics as a science, see Hands (2001).

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The relevant elements of the legal processes in which forensic IO can assist should

also be interpreted broadly. To begin with, forensic IO is not restricted to (criminal)

cartel litigation and per se monopolization or abuse cases. In fact, the application of

IO economics is often most powerful in investigations that come under the rule of

reason. The same is true for merger investigations, in which the legality of acts under

the antitrust laws is assessed ex ante. It is in these cases that the causality of economic

effects often is an important part of the analysis.10

Forensic IO is also not limited to litigation. Instead, its tools find application in

investigation, litigation and adjudication, as well as the enforcement of remedies. In

the US, Federal and State courts decide on cases that are prosecuted by the antitrust

agencies. Appeals can reach the U.S. Supreme Court. In Europe, competition law

enforcement is mostly an administrative process in which the agencies take formal

decisions. These decisions can be appealed with the national tribunals and appellate

courts, or, in cases affecting trade between Member States, with the Court of First

Instance and European Court of Justice. Actual legal proceedings are a mixture of the

elements of the court-based and administration-based models.11 The US antitrust

authorities have considerable discretionary powers in deciding to sue or settle cases,

for example. Also, several parts of the European decision making processes involve

litigation-style events, such as oral hearings. Furthermore, the emerging private

antitrust damage actions in Europe are primarily before national courts. Forensic IO

finds application in all of these aspects of competition law enforcement.

Forensic IO is an academic discipline that contributes to the advancement of

economics as a science. The debate over important competition cases in many cases

spreads from competition agencies and the courts to academia. Frequently, the stakes

of the parties in competition cases are high and they are willing to invest in a good

representation of their case. Likewise, the forensic experts testifying to the case in

court have valuable reputations to protect and know that their contributions will be

publicly scrutinized by the opposing side. As a result, the debates are often of very

high quality. Economic reasoning between theory and empirical evidence helps to 10 For example, the contributions on antitrust in a special issue of the Journal of Econometrics on “Statistics and Econometrics in Litigation Support”, edited by Robert Basmann and published March 2003, are concerned with estimation techniques for merger control. See Basmann (2003). 11 See Fingleton (2005), Neven (2006), Section 4 and Borrell (2006).

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support and sharpen the legal analysis of the facts and circumstances in the case. In

return, the involvement in actual cases provides access to internal corporate

documents that normally would be confidential and unavailable to the academic

economist. The economic principles of landmark cases can so be an inspiration for

academic contributions in the abstract that can be developed beyond the litigation

deadlines and budgets.

As a result of this, in a growing number of competition policy regimes around the

world, IO economics and the interpretation of the competition laws work and develop

in a productive symbioses. Novel business strategies cast up anticompetitive concerns

that subsequently inspire fundamental academic research. The recent software and

credit card cases, for example, stimulated the research area of network economics and

two-sided market theory. 12 At the same time, new economic insights and techniques

are being translated into revisions of guidelines and priorities in enforcement. The

adoption of the efficiency defence in the 2004 EU horizontal merger regulation was

likely influenced by the seminal work of Oliver Williamson. 13 Similarly, leniency

programs have been designed on the basis of a game-theoretical understanding of the

problem of internal cartel stability. Finally, courts have become increasingly open to

considering economic justifications in their rulings.

It is possible to distinguish four (related) stages of the process of competition law

enforcement in which forensic IO has a role: first, detection and investigation, second,

case development, third, decision making and litigation, and fourth, remedies,

sanctions and damages. In the following four sections, each of these roles is discussed

in some depth. Section 6 offers some concluding remarks on forensic IO as a

discipline.

2. Detection and Investigation

Competition law violations are different from more traditional crimes, such as murder

or burglary, in the sense that anticompetitive acts often leave no obvious traces. There

is not necessarily a body, signs of a break- in, or at all a crime scene. The fact that a

12 See Evans et al. (2000), Fisher and Rubinfeld (2001), Shy (2001) and Rochet and Tirole (2006). 13 Williamson (1968). See also the introductory chapter in Ghosal and Stennek (2007).

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cartel had raised prices, for example, can be difficult to prove with only time-series on

prices and no data on costs. Often, however, cartel damages to society are more

indirect; for example when reduced competition leads to lower quality of goods and

services, less innovation efforts or the suppression of new technologies. Even people

who are close to the cartel conspirators, including in-house counsel and in some cases

higher management, may not know about the illegal practices that are going on in

their organizations. Forensic IO therefore has an important role to play in the

discovery of the very fact that a violation of law was committed, essentially in two

ways.

First, economics can uncover anticompetitive aspects of behaviour previously not

understood as restrictive of competition. In this sense, economics informs the

interpretation – or even the choice – of competition law rules and standards of

conduct. A business practice is only anticompetitive if it is shown to be restrictive of

competition by some plausible economic argumentation. Sometimes, a new type of

antitrust violation is discovered through independent theoretical and empirical

academic research. An example of this may be the insight pointed out by Steve Salop

that price-matching clauses, although they appear genuinely competitive can in fact

sustain collusion. 14 Another example is the more or less accidental discovery of a

suspicious lack of odd-eight quotes for actively traded NASDAQ securities by

William Christie and Paul Schulz. The research uncovered the market-makers

conspiracy, which led to an antitrust class action that was eventually settled in the late

1990’s.15

Often also, the understanding of possible anticompetitive strategies develops over the

course of an antitrust investigation. A prominent example is the US Microsoft case, in

which the insight was developed, primarily in the testimony of Franklin M. Fisher,

that Microsoft had attempted to levy existing monopoly power from the market for

operating systems to that of internet browsers by means of a predatory tie between the

two products.16 This type of forensic assistance in antitrust cases is highly innovative,

drawing on theoretical and applied developments such as game theory, computer 14 See Salop (1986). Corts (1997) challenges the view that price-matching clauses are anticompetitive. 15 See Christie and Schultz (1994) and In Re NASDAQ Market-Makers Antitrust Litigation , MDL No. 1023, (S.D.N.Y.) (R.W.S. 94 CIV 3996). 16 See Evans et al. (2000).

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simulation techniques, and experimental economics, thus advancing both competition

law enforcement and academic research.

Second, forensic IO can help find recognized types of antitrust violations by

systematically screening industries and firms. A suspicion of an anticompetitive act

will typically be aroused by some kind of irregular market behaviour. A purchaser, for

example, may be alerted to the presence of a wholesale cartel by a sudden increase in

prices, or, if the cartel has divided the market geographically, by a refusal to supply

all but his local dealer. More sophisticated “tell- tale signs” of complicated abuses of

dominance or collusion may only be detectable by specialized detectives who monitor

markets to find violations.17 Examples may be sudden atypical changes in sales

conditions or product quality captured by the data, a decrease in price volatility over

time, odd bidding behaviour in an auction, or correlated capacity investments.18

Monitoring markets for behavioural patterns indicative of collusion can help target

further inspections of companies that display suspicious behaviour. An emerging

literature develops such ‘live forensics’ methods to systematically screen markets for

antitrust violations, in particular cartels. Practitioners as well as academic economists

contribute to the development of sophisticated antitrust screens.19 They typically

apply a combination of two types of indicators of cartel likelihood: structural and

behavioural indicators.

The first type of indicator is based on structural characteristics of industries and

markets in which theories of collusion predict cartels to be particularly sustainable

and in which cartels were found in the past.20 These characteristics include relatively

stable demand for a low-tech homogenous product sold in large volumes by a

relatively small group of more or less identical suppliers that frequently interact in a

17 Effective collusive markers are suggested by contextual and detailed cartel studies such as Simpson (1993), Griffin (2000), Connor (2001; 2007), Eichenwald (2001) and Mason (2004). 18 See, for example, Porter and Zona (1993) and Bajari and Summers (2002). The US Department of justice publishes a leaflet on its website that advises the public on how to identify collusive schemes. 19 See Porter (2005) and Harrington (2007a; 2007b). The distinction between ‘live’ and ‘dead’ forensics stems from forensic IT. Live forensics takes place in real time and analyses running IT systems in use, whereas dead forensics analyses a conserved snapshot of system. It is more complicated, but less invasive and allows for monitoring industries without the market parties being aware of it. See Volonino (2003) and Adelstein (2003). 20 See Grout and Sonderegger (2007).

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transparent market. Likewise, relatively little buyer power, or common cross-

ownership may be reason to zoom in on certain industries rather than others. The

second type of indicator uses behavioural screens of the kind discussed above.21 It is

applied to pre- identified high-risk industries in order to systematically identify

potential antitrust concerns.

Forensic IO can assist the antitrust agencies to actively discover and assess the

illegality of certain business strategies. The US Department of Justice Antitrust

Division, for example, has developed ‘cartel profiling’ techniques based on its

experience that cartel activity may take place in markets adjacent to industries under

investigation for collusion, or to merger inquiries.22 The division pre-emptively

monitors industries in which convicted price-fixers are active as “mentors” in “cartel

trees”, or that are vulnerable to cartelization because they have the kind of market

structure characteristics discussed above.

Academic research can provide insights into uncovering such patterns. The paper by

Vivek Ghosal, who worked for the Antitrust Division for several years, focuses on the

genesis and taxonomy of cartel investigations. Ghosal examines the dynamic

interrelationships between civil and criminal investigations. His empirical findings

suggest that prior criminal prosecution of firms and individuals, as well as

information gleaned from merger and monopolization investigations, provide useful

leads for future cartel prosecutions. Ghosal also finds that cartel prosecutions rise

following economic downturns, which he relates to the stability and breakdown of

cartels.

Independent and active detection of antitrust violations is important for an effective

enforcement regime. It allows for an efficient allocation of limited enforcement

budgets over various antitrust priorities. This helps to create a sufficiently high

probability of discovery by the authorities, which in turn is essential to destabilize

active cartels through the leniency programs.23 In their paper in the issue, Hans

Friederiszick and Frank Maier-Rigaud argue that ex officio inspections remain crucial

21 See Harrington (2007b). 22 See Barnett (2007). 23 See Rey (2007).

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in an era where many cartels apply for leniency. Their contribution reflects a high-

level strategy debate in the European Commission’s Directory General Competition.

Friederiszick and Maier-Rigaud make a strong case for a mixed instruments

methodology in which complementarities in enforcement are exploited.

Another perspective from inside the agencies is offered by Peter van Bergeijk. In his

paper he revisits the Dutch construction cartel, which was a complex and wide

ranging case of collusion that involved nearly all major construction companies in

The Netherlands, which lasted for more than ten years. Van Bergeijk is one of the

people responsible for the Dutch cartel “Paradise Lost” and worked for the

Netherlands Competition Authority (NMa) as an economic expert on the construction

cartel case. His cartel post mortem offers intriguing insight into this Dutch case, as

well as useful suggestions for tell- tale signs of collusion.

Companies take a keen interest in forensic IO methods to detect antitrust violations as

well. To know what collusive markers can trigger an investigation is useful for hard

core repeat cartel offenders of the type the US DoJ profiles. In particular, it can help

them to hinder or even avoid detection. It has been documented how specialized cartel

consulting firms organize secretive meetings, making sure no physical evidence

leaves the smoke-filled room. 24 Allegedly, it is possible to reserve server space in

Switzerland, where the inspection rights of competition authorities are limited, to

store sensitive documents. Just like a sophisticated thief makes sure to wear gloves to

avoid leaving finger prints, so will white collar crime constantly professionalize. It is

crucial that the antitrust agencies make sure to continue to update their use of the

latest detection methods in their struggle to stay ahead of this game of hide-and-seek.

Private-eye antitrust detection also serves a legitimate demand. In larger companies, it

may well be the case that the owners or senior management disapprove of

anticompetitive practices, but have insufficient oversight over their complex

organizations to know of the existence of the latter. Lower managers in subdivisions

or remote parts of the world may use collusive schemes to fix the division targets to

24 Case COMP/E-2/37.857, PO/Organic peroxides. Commission decision of 10 December 2003.

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which their persona l bonuses are tied, thus leaving the firm with future liabilities.25

Higher management that deals insufficiently with cartel problems may even risk

criminal prosecution. Those involved in cartel conspiracies often even manage to hide

the cartel from in-house counsel, which has a duty to report irregular activity.26

Alternatively, in planned acquisitions or mergers, forensic IO detection methods can

support due diligence inspections by the prospective buyer. Internal audits for

corporate-risk analyses can find potential antitrust problems before the authorities do

and clean them up.27 Leniency programs offer companies a way to resolve their

unwanted antitrust problems, if they manage to discover a cartel in their organization

before anybody else does. Compliance programs can subsequently be put in place to

help prevent future violations.28 As the market for these forensic services develops, so

do the methods of detection available for public policy.

3. Case Development

A second role for forensic economics in competition law enforcement exists in

providing assistance in the development of cases prior to litigation, either on the

agency or prosecutor side, or on the defence side. Partially, this concerns forensics

issues such as collecting physical evidence of monopolization strategies or cartel

meetings, such as paper minutes, e-mail correspondence, or conference call records

that goes beyond initial detection. 29 This type of investigations aims to build a profile

of individuals and their networks similar to the traditional white collar crime forensics

methods mentioned in the introduction. It can benefit from the analysis of information

that is readily available within the business environment through employment records,

expense claims and network data. Forensic accounting and IT techniques can be used

25 On corporate governance issues and corporate crime generally, see Alexander and Cohen (1999), Paul (2000) and Green (2006). Applications to antitrust are offered in Jamieson (1994), Garoupa (2000), Spagnolo (2005), Buccirossi and Spagnolo (2006). 26 Sophisticated methods to hide cartels internally have been revealed in several of the cartel cases recently documented, including the auction houses cartel. See Mason (2004). 27 See Anastasi (2003) for an account of the role of forensics in corporate fraud detection. Internal company data often allow for analysing evidence of personal benefit, such as preferential treatment or bribes, and on-the-job surveillance. The industry has developed highly sophisticated tools, including packages such as ISYS, DTSearch and Attenex that assist in extracting relevant intelligence from background noise. 28 See Beckenstein, Gabel and Roberts (1983) 29 In U.S. vs. Microsoft Corp ., Civil Action No. 98-1232, for example, discovered internal emails on the ‘jihad to win the browser war’ played an important role in establishing the intend to monopolize.

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to recover deleted files.30 It may further involve covert surveillance, handwriting

analyses and voice recognition to identify responsible individuals and their network.

Forensic IO can advise here on targeting inspections in ‘dawn raids’ on the premises

of companies by identifying the type of suspected antitrust violation and the likely

evidence that it leaves.

The main function of forensic IO, however, is in building the economic logic of a

case. The economics applied in this is closest to the material covered in the IO

textbooks, and so I confine myself here to only a brief discussion. 31 The extent to

which industrial organization economics can be used in a competition case depends

very much on the nature of the case. In merger investigations, structural models and

econometric specification are important in determining post-merger effects and

matching divestitures. IO theory and empirics also underlies monopolization cases in

the US and abuse of dominance cases in Europe. Here economics can point out the

principles that are at work to subvert competition, or the other way around, show how

behaviour that appears anticompetitive really is just genuine competition. In per se

cartel proceedings, the finding of an infringement will be based on direct evidence.

Nevertheless, economics can help determine whether the market structure is

conducive to collusion, whether there is an incentive to collude, or if a cartel could at

all be sustainable.32

In any case of substance, both sides are likely to benefit from employing economic

advisors and both sides typically decide to do so. The standard of economic work in

many antitrust investigations is high, often leading to additional insights and a deeper

understanding of economics. An advanced form of economic consultancy has

developed that applies cutting edge economic techniques, reasoning and evidence.

These competition practices employ PhD’s in economics and industry experts. They

maintain international and academic networks, which allows them to put together

teams of experts with a division of labour that is tailored to the case at hand.

30 See Volonino (2003) on the admis sibility of electronic evidence in computer forensics cases. 31 Tirole (1988), Carlton and Perloff (2006) and Motta (2004). 32 See Milne and Pace III (2003), Werden (2004) and Johnson (2007). An early contribution in the JFE is Einhorn (1989).

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A number of routine economic analyses, such as application of the SSNIP-test for the

determination of the relevant market, HHI calculations for merger assessments, the

Pivotal-Supply- index (PSI), or the Elzinga-Hogarty-test have become standard

procedure.33 Yet, diversity across industries assures that many competition disputes

have one or the other fundamental issue of general economic interest. In some of the

landmark antitrust cases, such as Microsoft, VISA/Mastercard and Leegin, the

contributions of economists involved have been crucially innovative.34 They

generated important positive externalities for our general understanding of the

workings of these special markets and the potential monopolization, abuse and cartel

strategies to which they are exposed.

The same is true for some of the larger merger investigations. In GE/Honeywell,

which was cleared in the US after thorough investigation, the European Commission

blocked the merger on the basis of a rather adventurous conglomerate merger

theory. 35 It feared that post-merger product bundles of GE and Honeywell would be

so attractive to customers in comparison to the separate components offered by riva ls

that the competition would be forced out of business. The decision caused

considerable debate.36 It further highlighted the uneasy relationship between law and

economics in European competition law enforcement when the Court of First Instance

rejected most of the Commission’s analysis while upholding its decision to block the

merger. Other merger inquiries in which forensic IO made competition law

enforcement history are Staples/Office Depot in the US and Volvo/Scania in Europe.37

In both cases, sophisticated econometric analyses were entered to predict post-merger

market developments to support the challenge of the proposed merger.38

Obviously, in each case the choice of modelling has to go with the structure and type

of competition in the industry and the particular competition concerns at hand. The

33 Bishop and Walker (2002) provides a useful overview of the economics toolkit for European competition cases. 34 In re Visa Check/Master Money Antitrust Litigation, Master File No. CV-96-5238 (E.D.N.Y.) and Leegin Creative Leather Products, Inc. v. PSKS, Inc., No. 06-480, June 28, 2007. 35 General Electric/Honeywell Commission decision 2004/134/EC [2004] OJ L 48/1. 36 See Patterson and Shapiro (2001). See Vickers (2007) on the issue of transatlantic con- and divergence in competition law and economics. 37 Federal Trade Commission v. Staples, Inc., 970 F.Supp. 1066 [1997] and Volvo/Scania Commission decision 2001/403/EC [2001] OJ L 143/74, Case COMP/M.1672. 38 See Baker (1999) and Ivaldi and Verboven (2005).

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more interesting landmark antitrust cases centre on questions about the specification

of the nature of competition. A theory of harm related to margin squeeze, for

example, requires a dominant wholesaler who is vertically integrated in part of the

retail market. An allegation of price predation would need to be sustained by showing

pricing below long-run average costs, as well as the predator’s likely ability to recoup

initial losses. Crude observations on the industry should fit such model

specifications.39 There is a danger in applying off- the-shelf instruments rather than

bespoke models. In particular this is so in the use of merger simulation models, some

of which are readily available as user- friendly software package with an appearance

of generality, whereas outcomes are very much dependent on the details of structural

and empirical specifications. When the models remain undisclosed to opposing sides,

which often is the case when the algorithms are proprietary to the consultants, they

can obscure rather than enlighten the understanding of merger effects.40

At regular intervals, Jonathan Baker has reviewed the use of empirical methods in

antitrust cases with various co-authors.41 Baker and Bresnahan (2007) emphasises that

difference among industries matter, although similarities with related industries are an

important source of learning. The authors discuss a number of methods tested in past

cases for the measurement of the magnitude of economic relationships and effects.

These include various ways to identify buyer power substitution and market power,

using different types of tests that are related to structure, conduct and performance.

An important concern in the use of econometric techniques is the quality of the data.

The interpretation of empirical findings is further relative to a proper market

specification. A high market concentration (few firms) in a bidding market, for

example, may not be so much of a concern, whereas it can signal dominance in a

regular production market.

In light of the many degrees of freedom with regards to model specification and data

collection unfolds a discussion on “bright line tests”. Simple tests were called for,

amongst others, by Easterbrook (1984), to help reduce enforcement costs and create

legal certainty. Baker and Bresnahan (2007) suggest that where such tests presently 39 See Wish (2007). 40 See Goppelsroeder and Schinkel (2005) and Walker (2005). 41 See Baker and Bresnahan (1992, 2007) and Baker and Rubinfeld (1999). Bishop and Walker (2002) offers several chapters on the use of empirical methods in European competition cases.

16

do not exist, economics should further categorize generalizations and develop a

standard toolkit that is sufficiently reliable for antitrust enforcers to use. In his

contribution to this issue, Fisher is not so optimistic. Based on his extensive

experience in economic consultancy and as an expert witness in some of the definitive

antitrust cases of our time, Fisher warns against the dangers of giving in to the

pressure from attorneys and judges to oversimplify economics. To do so is likely to

lead to mistakes in antitrust decisions and generally harms the discipline. In his paper,

Fisher gives several examples of this that are both entertaining and alarming.

One particular pitfall in measuring market power that Fisher addresses, here as well as

in his earlier work, is to use evidence on profits. Paul Grout and Anna Zalewska

explore the boundaries for doing so in their paper. Grout and Zalewska carefully

qualify excessive rates of return to confirm they have limited reliability, certainly for

assessing standalone excessive pricing cases. The authors argue, however, that when

handled with care, case specific rate of return measurements can help inform antitrust

decisions.

4. Decision Making and Litigation

The process of discovery and case development is obviously geared towards final

decision making. Competition law is grounded in the economic insight that a

workable competitive process is socially beneficial. As a result, competition law

enforcement is fundamentally based on economic reasoning and evidence. The

agencies apply economic analysis and interested parties will go at great lengths to

present their case in the best possible light, using cutting-edge economic analyses,

often presented by reputable economic expert witnesses.

Differences between the US court-based system and the European administration-

based approach, however, can have important implications for the type and quality of

forensic IO analyses that are applied to a case. In the court-based model, parties

present their case in a public arena before independent judges. Administrative law

17

processes, on the other hand, can be less transparent.42 High quality economic

reasoning and quantitative analyses have historically played a more prominent role in

US antitrust than in European competition law enforcement. European practice is

converging towards American practice, however, with the adoption and promotion of

a “more economic approach” in recent years.43

The quality of the forensic economics submitted is best safeguarded when the

decision making process is fully public. There appear to be at least three reasons for

this. First, an open process reduces the scope for factors other than substantive

arguments to influence decision making. That is, favouritism, lobbying, political

pressuring and corruption are exposed more easily and thereby partly deterred.

Second, an open process allows for all parties involved to learn as case law develops.

Enforcers, firm management, attorneys and judges can improve their understanding of

economics and its application in antitrust. Third, the economists involved in

competition cases can build – and destroy – their reputations. When economic

analyses are available for critical examination by peers, sloppy or fabricated

arguments are exposed. Unscientific analyses are weeded out, and thorough

economics is supported by the possibility to establish a reputation for objective and

high quality work.

The US system of expert economic witnesses in court proceedings is one of the most

open forums of antitrust debate. Expert witnesses submit their testimony, give it in

court and are subsequently cross-examined. In high-profile cases, this creates a

competitive arena for discussion, in which industrial organization economics is truly

put to the test. This is to the benefit of the field.

Posner (1999) summarizes the US law governing the use of expert witnesses.

According to the original Federal Rules of Evidence (FRE), anyone who has relevant

42 The process of decision making in competition cases by the European Commission and many of the Member States does involve elements of an open court system, such as oral hearings, and disclosure of submitted reports. The European appellate courts, in turn, are often restricted in their freedom to consider economic arguments. See Neven (2006). 43 See Vesterdorf (2005), Roeller and Stehmann (2006) and Vickers (2007). DG Competition, and in its wake many national competition authorities in Europe, have created chief economist positions, supported by teams of PhD economists. The goal is to raise the quality of standard of in-house economic analyses, as well as the ability to appraise outside experts’ reports.

18

expertise “by knowledge, skill, experience, training or education” is permitted to be

classified as an expert witness. The expert witness is expressly not a consultant to the

parties, but an independent professional who testifies on the evidence to the courts.44

The expert has a moral and professional obligation to testify honestly to his or her

professional opinion. 45 Posner does note that testifying experts tend to polarize over

time, representing plaintiffs or defendants, but rarely both. This may reflect personal

dispositions, but to the extent that it is a separating equilibrium, it may compromise

objectivity and make it difficult for courts to choose between duelling experts.

The reliability and integrity of the expert’s testimony is safe-guarded by a number of

mechanisms, including professional rules of conduct.46 Members of the NAFE, for

example, are held to work by The Statement of Ethical Principles and Principles of

Professional Practice. It specifies in its first article that:

“1. Engagement

Practitioners of forensic economics should decline involvement in

any litigation when they are asked to assume invalid

representations of facts or alter their methodologies without

foundation or compelling analytical reasons.”

On diligence, it further requires in the third article that:

“Practitioners of forensic economics should employ generally

accepted and/or theoretically sound economic methodologies based

on reliable data. Practitioners of forensic economics should attempt

to provide accurate, fair and reasonable expert opinions. […]”

In addition, the code contains several paragraphs that are to assure transparency of

information, methods and academic debate. The latter is also a legal requirement, as

the expert must make the facts or data which he or she relied upon in forming

opinions available for opposing counsel to cross-examine.

44 See also MacKenzie -Mason (2001). 45 Posner (1999), p. 92. 46 See Piette (1991).

19

In case law, a higher standard for expert testimony to be admissible and sufficient to

show causation developed seminally since the U.S. Supreme Court decision in

Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993.47 In Daubert, the Supreme

Court considered the question what are ‘reliable’ scientific principles and methods

and who qualifies as a scientific expert. Criteria to answer these fundamental

questions on ‘the scientific method’ were sought in evidence based on falsifiability,

replication, limitations and potential rate of error, peer review, publication and general

acceptance by consensus in the academic community. The case was much debated at

the time – involving several Nobel Prize laureates who in Amicus Briefs pointed out,

amongst other things, the limitations of the peer review system as an indicator of

scientific truth. The implications of the Daubert decision are still discussed today. 48

The methodological debate led to a revision of rule 702 of the FRE in 2000, which

now specifies on expert witnesses qualifications:

“If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training of education, may testify thereto in the form of

an opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.”

A literature developed on expert economic testimony in antitrust cases. Beyond the

fundamental question whether there is sufficient consensus in the economics

profession at all for it to satisfy the Daubert-test, Slottje (1999) collects expert witness

account to provide insight into the “nuts and bolts of what forensic economists

actually do” (op. cit., p. ix). In the same year appeared the Spring issue of the Journal

of Economic Perspectives that includes Posner (1999). Gavil (2000) is an early 47 U.S. Supreme Court, Daubert v. Merrel Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). 48 See Solomon and Hackett (1996) for an insightful review of Daubert from the point of view of philosophy of science. See Bernstein (1996) for a general critique. Ireland (1997b) introduces a special issue of the JFE on the Daubert decision.

20

detailed legal study. The Spring 2003 issue of Antitrust on “Working with Economic

Experts” contains various relevant contributions as well, including Mile and Pace III

(2003) on successful and unsuccessful expert witness testimony in alleged cartel

conspiracies. Werden et al. (2004) discusses the use of economic models in assessing

the competitive effects of mergers in the context of the Daubert-criteria. Werden

(2007) surveys the admissibility of expert economic testimony in antitrust cases.

In his critique to “bright- line tests” in this issue of the Journal of Competition Law

and Economics, Franklin M. Fisher draws on his extensive experience as an expert

witness in antitrust cases. In the process, Fisher gives various insights into how to be

an effective expert economic witness. Several other leading economists had done so

before in Slottje (1999), making for entertaining reading. The first contribution to the

book is by Hendrik Houthakker, and largely about his involvement for the DoJ in the

landmark United States v. IBM, which was filed in 1969.49 In this case, Fisher was the

opposing principal economic witness to IBM. It ran for more than 10 years before the

DoJ withdrew it as “without merit”.

Houthakker describes how he was instrumental in advising the DoJ to “go after” IBM,

“with its 70% market share in computers,” as a top priority in 1967. In his later role of

witness, IBM’s counsel failed to intimidate him, because the lawyer who cross-

examined him paled in comparison to the Gestapo tactics he had faced in his youth as

a prisoner of war. Houthakker resigned as a witness when the DoJ scheduled his

testimony during fall classes in 1977, a few years before the DoJ “threw in the towel.”

According to Houthakker, the government’s decision to stop pursuing the case was

political, and he criticizes the account of Fisher et al. (1983) that the allegations

against IBM had been a mistake from the start. Houthakker experienced the

adversarial element that litigation introduces into otherwise “generally peaceful”

academia as not necessarily productive, which was a reason for him to select only few

cases to get involved in since.

William Baumol’s account is brief but no less insightful, with several examples of

how consulting experience contributed directly to his academic output, including

49 United States v. IBM, 69 Civ. 200 (S.D.N.Y. 1969).

21

contestable market theory. Top-level consulting allowed him to meet key players,

Baumol says, and see things that otherwise would never have been disclosed.

Frederic Scherer’s expert witness account is most instructive and amusing. He too

acknowledged a cross-fertilization between research and litigation consulting. To that

end, he accepted cases with substantial “precedential interest” and avoided cases in

which he would be “reluctant to submit my testimony to critical judgement by my

economist peers” (op.cit., p.132). Scherer would further not testify on behalf of firms

that were likely to have committed per se law violations and only in cases that

concerned a limited number of industries that he knew well.

Scherer distils some valuable lessons from “surviving” roughly 40 years in “a blood

sport” (op.cit., p. 129). The first is: “Know thy subject matter thoroughly.” This

lesson Scherer explains he learned the hard way: being cross-examined in the IBM

case. Good preparations include reading everything, but also visiting production

facilities, talking to product users and preparing a chronology of key events. The

second rule is: “Admit your mistakes and get on with the show.” Third is not to try to

deny the significant weaknesses in your client’s case, as it may discredit the entire

testimony. Fourth, “search one’s prior writings for statements that might be construed

as conflicting with impeding testimony.” Such potential contradictions should be

explainable and: “Altering views for specific testimony is not recommended.” Finally,

Scherer advises to: “always tell the truth, as best you know it.” (ibid.)

A key concern with all the contributing experts is to guarantee independence and

objectivity – or to avoid the “whose bread I eat, his song I sing”-attack, as Scherer

calls it (op. cit., p.130).50 The NAFE-code forbids forensic economists to accept

contingency fees, or fees that relate to the size of the court award or settlement. The

large amounts of work that competition cases often are, are normally compensated on

the basis of hourly fees, which may in part be paid into faculty funds. MacKie-Mason

and Pfau (1999) offers an extensive discussion on advocacy issues, motives and

pitfalls of the expert witness. The authors point out that since expert witnesses are

repeat players there is a market mechanism that induces professionals to guard their 50 See also Meier (1986) and Mandel (1999). The latter discusses “the booming market for expert testimony” and calls for ethical standards to regulate it that include full disclosure by academic economists on the cases in which they are or have been involved, and a protocol to avoid conflicts with academic objectivity.

22

reputation for professional honesty and integrity, as these credentials – more so

possibly than winning the case – generate future work. Whilst professional interests

and collegial reputation may further help to encourage objectivity, experts should

watch out for ego, obliga tion to the client, a deceptive team spirit and the risk of

getting locked into position.

In MacKie-Mason and Pfau (1999), various pieces of advice to steer clear of these

problems are given, including tips on how to choose a case and research it wisely. The

authors recommend to provide lots of quantitative evidence, tie testimony to a

publication commitment, and be conservative in drawing conclusions in the sense of

trying to “err on the low side” (op.cit., p.218). In all of this, an open relationship with

the attorneys is important to be able to discuss reservations and doubts. First and

foremost, however, the authors advise due diligence in deciding to accept a case. They

developed a two-stage approach to case selection based on the difference between

testifying and non-testifying experts.51 In the first stage, it is agreed that initial

research is done as a consulting expert, and not yet as a testifying expert, at a separate

fee. Only on the outcome of that research does the expert decide to testify in the case

or not. This approach leaves an exit option and no up front commitment. The client

benefits as well, in that the initial report and the materials shown to the non-testifying

expert are not discoverable by the other parties and can be suppressed if they do not

support the case.

For practicing lawyers, working with expert witnesses has become a speciality area in

itself. Handbooks and consultants advise on trial techniques for how to select and

present expert witnesses and prepare them to explain economics to jurors and judges.

The expert can expect close scrutiny of his or her testimony and needs special skills

and training to prepare for intense cross-examination. For that purpose, court sessions

are sometimes extensively rehearsed. The detailed accounts in Slottje (1999) by

Dennis Carlton and Hal Sider on Toys R Us, and by Lawrence White on the FTC’s

challenge of the 1986 merger between Coca-Cola and Dr Pepper contain various 51 See Posner (1999), p.92. The requirements on discoverability of information shown to non-testifying expert are lower than to testifying experts. As a result, a division of labour has developed between testifying expert witnesses and their associates who help prepare the testimony. The latter are sometimes given a great deal of independency to avoid that irrelevant information or intermediate draft reports are discoverable by the other party. This, in turn, had led to case law in extreme cases on the question of who effectively is giving testimony. See also Keyte (2003).

23

details on their preparation for trial and deposition. The aspiring expert witness can

furthermore consult Nolo’s Deposition Handbook or Smith and Bace’s 2002 Guide to

Forensic Testimony: The Art and Practice of Presenting Testimony as an Expert

Technical Witness. The latter draws extensively on U.S. v. Microsoft Corporation, and

critically analyzes the video recordings of the deposition of Bill Gates, which the

government released in April 1999.

This extensive industry of specialised and high-paid employment raises questions on

the economic efficiency of the system. Apart from the public good of just law

enforcement and fair compensation, a cost-benefit analysis of the competition law

enforcement process is essentially a comparison between legal transaction costs and

deterrence benefits. A key factor in this is the quality of decision making. In antitrust

regimes that are open to erroneous judgements in the form of either false positives or

false negatives, the incidence of competition law violations may be higher in

anticipation, as shown in Schinkel and Tuinstra (2006). An improved quality of

competition law decision making therefore has an efficiency effect as well.

Competition and reputation help to sustain neutrality and a high quality of work.52 To

stimulate both, several reviewers of the expert economic witness system have

proposed further disclosure of expert witness assignments. Posner (1999) suggested

that the American Economic Association could maintain a public file of the

involvements of its members in antitrust cases, including electronic links to the

testimony. Such improved transparency would help to maintain high professional

standards and thereby guard the reputation of the profession as a whole. In addition,

Posner and others have urged the courts to make greater use of their ability to appoint

their own independent experts. They could help decide in cases in which reasonable

economic expert witnesses disagree in their findings.53

52 Interestingly enough, in the more traditional forensic disciplines, models of competition are studied as a means to improve quality. Such competitive self-regulation for police forensics and forensic labs is discussed in Koppl (2005). 53 Scherer (1999) and Baker and Bresnahan (2007). In Australian courts, it is possible to have all experts on the stand at once and questioning each other in the presence of the judge. A version of this ‘hot-tub’ model is a meeting of the expert witnesses of opposing sides prior to the trial, in which they are to agree on their disagreements before giving testimony before the court. This latter version was used, allegedly quite effectively, in court proceedings following claims by Seven Network, an Australian television network, of anticompetitive conduct against a number of competing network. The Federal Court in Sydney dismissed these claims end of July 2007.

24

Most of the above accounts and best practice rules relate to the US antitrust practice.

As remarked already, the European process of competition law enforcement can be

less transparent than the US court-based model. In his contribution to the issue,

Andrew Gavil relates the American experiences with the use of economic expert

witnesses and the Daubert-rule to lessons for European enforcement. Gavil practises

US antitrust law and teaches at Howard University School of Law. In his paper, he

examines the preference expressed in the European Commission’s Green Paper on

Damages Actions for court-appointed experts over party-retained testifying experts.54

Gavil questions some of the assumptions that underlie that preference and posits that

reliance solely on court-appointed experts may be insufficient to realize the Green

Paper's principal objective of promoting private enforcement of competition laws. He

concludes that additional procedural tools to facilitate the development and

presentation of economic evidence, including party-retained experts, may be

necessary.

Currently, there does not seem to exist an association or a common code of ethics for

expert economic witnesses to the European courts or agencies. Nevertheless, the role

of academic economists in the EU competition law is growing, as the revolving-door

position of Chief Competition Economist at the European Commission exemplifies.

Other functions, such as those of the Economic Advisory Group on Competition

Policy, also seem to have similarities to non-testifying experts’ work. The members of

this group are all leading academics, who publish reports on competition issues in

subgroups that influence decisions in a major way. 55 The national competition

authorities in Europe increasingly add (part-time and/or temporary) academic

economists to their advisory boards and staff. In addition, there is a large pool of

competition consultants available to assist the parties. Furthermore, various policy

makers have argued for court-appointed experts in recent contributions and an

increasing number of judges specialize in competition matters and receive economic

training and advise.56 The role and quality of forensic IO in Europe is therefore likely

to increase in the decades to come.

54 Commission of the European Communities (2005). 55 See http://ec.europa.eu/dgs/competit ion/eagcp.htm. 56 Fingleton (2005) and Neven (2006).

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5. Remedies, Sanctions and Damages

The fourth aspect of the process of competition law enforcement in which forensic IO

can assist is in determining appropriate remedies in cases in which an antitrust

concern or an infringement has been established. Parties found to have breached the

competition laws face a number of possible consequences, including interventions in

the structure of the firm, disciplinary actions against management, and obligations to

pay corporate fines and private damages. In merger control, competition concerns

with the agencies can be overcome when the merging parties divest sufficiently large

parts of their business to competitors or new entrants in the market.

The principles that underlie punishment relate primarily to concepts such as fairness,

vindication and compensation, which are in the domain of law, more so than of

economics. Yet in antitrust, the law and economics approach of sanctioning in order

to deter and prevent lawbreaking has had a strong influence on the way in which

competition authorities have designed their sentencing guidelines and other remedies.

In addition, economics can inform how to remediate harm and repair competition.

Therefore, industrial organization economics plays an important role in advising on

effective remedies. The same kind of analyses that helped to identify competition

problems can assist in stopping and further avoiding them. Forensic IO therefore has

an important preventative role.

Economists play an essential role in devising strategies for restoring competition,

especially in cases of exclusionary conduct. In some cases, the obstacle to workable

competition is structural and can be removed. An early case in which this was

believed to be possible is US v. AT&T, which led to the ordained break-up of the

company in the early 1980’s.57 The structural intervention aimed at reducing the

company’s ability to monopolize the telephone industry by erecting artificial barriers

to entry and fighting entrants out of the market through predatory pricing. 58 Many

smaller and independent telephone companies would compete more forcefully,

reducing prices and stimulating innovation.

57 United States v. American Telephone & Telegraph Co., 552 F.Supp. 131 [1982]. 58 See Evans (1983).

26

Similarly and more recently, the power of Microsoft Corporation to monopolize the

platform market has been argued to relate to the company’s exclusive intellectual

property right on its popular operating system and network software, refusing to

disclose the source code to competitors. This makes it difficult for rivals to produce a

viable alternative to Microsoft’s products that is compatible with the installed base of

application software and can induce Microsoft clients to switch. As a result,

competition is stifled and innovation with it.59 The original proposals to split up

Microsoft in a systems and an application software company were in part inspired by

the idea that this would force the systems company to reveal all application interfaces.

On the same logic, the European Commission has ordained Microsoft in its official

decision to untie some of its software bundles and make its source code information

publicly available to other software writers.60

Structural remedy negotiations are more common in merger control. As noted in

Section 3, Phase II merger inquiries involve extensive economic analyses. They are

often cleared only with considerable structural remedies. Large merger investigations

include advanced simulation models that combine oligopoly theory and econometric

estimations. The models help ex ante assessments of the likely effects of the proposed

mergers. As a result – and with all the caveats pointed out earlier – they can also

advise on structural remedies on which the merger can conditionally be cleared, in

particular the divestment of parts of the merging firms’ capacity. The detailed

numerical scenarios that these merger models allow for can support divestiture

negotiations between the agencies and the merging parties. The result is essentially a

design of a post-merger market structure in which the competition concerns raised by

the merger are reduced to a sufficient extent.

In the case of hard-core cartel violations or flagrant abuses of dominance, the law

specifies what should be the appropriate sanction. For corporate fines, however, both

US and European agencies have in recent years committed themselves in guidelines to

59 See Fisher (2000). 60 See Evans et al. (2000).

27

punishing antitrust fines.61 The calculation methods implied by these guidelines relate

the effective fine to the volume of sales that was affected by the antitrust violation,

with is further fine-tuned on the basis of several multiplicative factors that relate to

the gravity of the infringement and mitigating circumstances. While crude and

imperfect, this is a reasonable approach to setting fines with a bite – although more so

for cartels than for abuses of dominance.62 Forensic IO techniques can be used to

estimate the appropriate base amount of the fine, which is not obvious in complex

organizations.

In addition, enforcement regimes increasingly dispose of possibilities for criminal

sanctions against individuals responsible for anticompetitive acts.63 These sanctions

can be more effective than punishing the company when they are targeted at the right

decision makers within the organizations. Organizational economics in combination

with more traditional forensic techniques discussed above in the context of cartel

audits can have a role in this, laying out the de facto corporate governance structures.

Similarly, economics can advise on the design of incentive compatible corporate

compliance programs that can help prevent antitrust violations. Such programs can

only be credible if combined with managerial incentive scheme, such as bonuses and

stock option plans, that have safeguards against individuals seeking illegal profits.

These are largely unexplored areas of corporate governance theory, which are only

recently attracting attention as a result of several recent corporate frauds.64 These

issues have direct application in antitrust and, for example in combination with

private antitrust detection, hold a promise for increasing deterrence.

Finally, forensic IO techniques are often used in the context of antitrust damages

actions. This is the area in which members of the NAFE are most active, as discussed

above. Part of the debate is on methods for quantifying damages and the design of an

effective private enforcement practice. The latter includes questions such as whether

61 See, respectively, The United States Sentencing Guidelines, last amendments effective November 1, 2007 at http://www.ussc.gov/GUIDELIN.HTM., and Commission of the European Communities, “Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003,” Official Journal of the European Union , 1.9.2006, C 210/2. 62 See Bos and Schinkel (2006) on the implied method for calculating fines of the European Commission. 63 See Cseres et al. (2006). 64 See Denis et al. (2006).

28

or not class actions are possible and in what form, whether the pass-on defence should

be available, or whe ther punitive damages are an appropriate mechanism. 65 For the

most part, however, the quantification of antitrust damages is involved practical work

in preparing calculations for court proceedings or to support settlement negotiations.66

An essential part of assessing antitrust damages is to determine what would have been

the market situation absent of the anticompetitive acts – sometimes referred to as the

‘but-for’ world. The most basic aspect of this question is what would have been the

price level if the industry would have been competitive. More complicated issues are

what kind of industry dynamics – entry, exit and acquisitions – would have unfolded

if not for the antitrust violation, what product quality and safety improvements would

have been generated or what forms of innovation flourished. To reconstruct a but- for

world with a sufficient degree of reliability requires an economic model of the market,

in combination with a thorough econometric analysis of the relevant data – in the but-

for price question, usually time-series of prices. With the qualification and

quantification of the but- for world based on economic reasoning, the subsequent

determination of the antitrust damage total is essentially an accounting exercise, but

one that can turn on complex issues of discounting and probability calculus.

In their contributions to this issue, Connor, Fisher and Gavil cover several aspects of

private antitrust damages actions. Connor surveys various methods to assess damages,

including the before-and-after-method, the yardstick-method and cost-based

approached. He draws amongst other cases on the Vitamins litigation. Fisher explains

the case development and litigation aspects of the Visa Check/MasterMoney antitrust

litigation, a private damage case in which he also was responsible for assessing the

damage total that led to a landmark out-of-court settlement award.67 Andrew Gavil

discusses elements for the design of an effective private enforcement regime in

Europe, where the practice is in its infancy and in need of further development.

6. Forensic IO as a Discipline: Concluding Remarks

65 See Rüggeberg and Schinkel (2006). 66 See Hall and Lazear (1994). 67 See http://www.inrevisacheckmastermoneyantitrustlitigation.com.

29

The application of industrial organization economics to competition law enforcement

is sufficiently multifaceted to be a speciality discipline of its own. The market for

expert economic advise on competition issues and complementary forensic IO skills is

highly specialized. Often the skills and knowledge necessary to address all issues in

even a single antitrust case require the assistance of multiple experts. This necessitates

considerable coordination and project management work. The market for competition

advice is large and sustains an oligopoly of just a few advanced consulting firms.

They employ economists trained in IO theory and econometrics at the best schools,

highly specialized industry expertise and a broad experience. The various sides in

competition law disputes, interested parties as well as the antitrust agencies, rely on

the economic consulting firms for assistance. These firms produce institutional

reports, but importantly also they form a platform for independent academic

economists, who work with them on selected cases and on a freelance basis.68 For

reasons of identifiable reputation, the testifying individual expert witness remains

central – although still much more so in the US than in Europe – and the consulting

firms often act as non-testifying experts or sophisticated back-offices in the

preparation of their eventual testimony.

Universities can supply the discipline with graduates trained in the relevant economic

disciplines. Most universities offer theory and econometrics courses. In addition, a

few have specialized courses in forensic economics. Slenick and Tinari (2001), in the

Journal of Forensic Economics, survey forensic economics taught in university

curricula. They report very few organized programs on the topic – mainly their own –

and a just a few isolated individual courses, or elements of forensic economics

introduced in traditional economics classes. The emphasis in the curriculum elements

the authors found is firmly on damages assessment in tort litigation. An exception,

which their study did not include, is a semester course ‘Forensic Economics’ that John

Connor teaches at Purdue University, which is entirely on antitrust.

Antitrust agencies have forensic IO skills available at various levels within their

organizations. Cartel and merger units each have their own specialists. As said, more

and more competition authorities in Europe follow the US example of having a chief

68 See Short and Sattler (1996).

30

economist office. However, there presently does not seem to exist a public institution

or other form of centralized organization of forensic IO. At best, agencies have a

forensic IT unit. The more traditional forensic sciences, however, are organized in

national institutes for the forensic sciences.69 These governmental laboratories are

typically part of the national departments of justice. They maintain close relationships

with academia, having prominent scientific boards with renowned scientists from

various disciplines. University professors closely cooperate with the institutes, are

called upon to assist in particular investigations and teach in specialized masters

programs on forensic science.70 The institutes publish best-practice manuals, accredit

independent experts and organize conferences, expert working groups and other

platforms to advance the discipline.

It appears that the practice of forensic IO could benefit from a similar type of

organization, for example on a European level. The agencies and the courts could rely

on such an institute of society for expert advice in complex competition cases directly.

It could further be a reference source to reputable specialists. If such an entity was set

up as an economics division of existing national forensic institutions, there are

obvious synergies across the sciences. The ideal team of forensic skills, including

forensic IT and data analysts, could be put together around forensic IO specialists to

solve complicated competition cases.

The traditional forensic sciences seemingly owe much of their popularity to suspense

novels, drama series and television documentaries. Although it is likely that capital

crime will remain more appealing to a broader audience, antitrust acts can be just as

shocking and suspenseful. In fact, several internal cartel cases have inspired best-

selling courtroom/law suspense novels.71 The footage of the Lysine cartel members

meeting in hotel rooms, which the FBI managed to obtain with cameras hidden in

table lamps, shows just how exciting white collar antitrust crimes are. Lysine, just like

the latest cartel decision of the European Commission in Dutch Beers, contain enough

69 Examples are the US Federal Bureau of Investigation (FBI), the National Institute of Forensic Science in Australia, and the Forensic Science Service in England. See European Network of Forensic Science Institutes 70 Key societies are the American Academy of Forensic Sciences (http://www.aafs.org) and the European Academy of Forensic Science (http://www.enfsi.org). 71 See Eichenwald (2001) and Mason (2004).

31

thriller and script for several episodes of Forensic Detectives.72 To attract the

attention of the public in that way would not only make for effective marketing for the

specialty discipline, but could also raise awareness of the serious harm that is often

caused by competition law violations.

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