Showing papers by "Robert H. Lande published in 2006"

The Size of Cartel Overcharges: Implications for U.S. and E.U. Fining Policies

Abstract: The purpose of this paper is to examine whether the current cartel fine levels of the European Union and the United States are at the optimal levels. The article does this by collecting and analyzing the available information concerning the size of the overcharges caused by hard core pricing fixing, bid rigging, and market allocation agreements. Data sets for United States cartels are assembled and examined (these cartels overcharged an average of 18% to 37%, depending upon the data set and methodology employed in the analysis and whether mean or median figures are used). Separate data sets for European cartels also are analyzed (which show overcharges in the 28% to 54% range). The article similarly examines cartels that had effects solely within a single European country (which showed significantly lower overcharges, averaging in the 16% to 48% range).In light of the antitrust objective of optimal deterrence, this article compares the current fine levels in both the European Union and the United States to the amounts gained on average by cartels as a result of their illegal activity. The results show that on average these cartel overcharges are significantly larger than the criminal fines of either the European Union or the United States. This means that the United States and - especially - the European Union should increase their penalties for hard core collusion substantially.

Five Myths About Antitrust Damages

Abstract: This article examines five common beliefs about antitrust damages and shows they all are untrue.Myth #1. Antitrust violations give rise to treble damages.Myth #2. There is "duplication" of antitrust damages because many defendants pay six-fold or more damages.Myth #3. Courts should go easy on defendants when formulating liability rules or calculating overcharges because the awarded damages from a finding of an antitrust violation are so severe.Myth #4. The size of the harms caused by antitrust violations, even by such "hardcore" violations as naked cartels, is relatively modest, and criminal penalties resulting from violations are out of proportion to these harms. This causes overdeterrence.Myth #5. Even though treble damages should be maintained for "hardcore" violations, they should be reduced for some violations, such as rule of reason violations.The final version of this article appeared as, "Five Myths About Antitrust Damages", 40 U.S.F.L. Rev 651 (2006).

Should Predatory Pricing Rules Immunize Exclusionary Discounts

Abstract: The purpose of this commentary is to analyze some of the empirical issues that help lay the foundation for the policy conclusions in the excellent and provocative article by Professor Herbert Hovenkamp, Discounts and Exclusion.This Article argues that, because there is no support for these empirical assertions, policymakers should reject the policy suggestions that follow. Finally,some policy alternatives are proposed for consideration by the antitrust community.

Five Myths about Antitrust Damages

Abstract: A MYTH IS A STORY, TALE, OR LEGEND that has never been proven. Myths are often related as if they were true and often are assumed to be true—frequently by interested parties. But there is never any solid evidence that they are true. By analogy, there might well be unicorns, dragons, or abominable snowmen somewhere in the world. But until someone produces one, we are justified to call each only a myth. Similarly, neither the Antitrust Modernization Commission (“AMC”) nor anyone else should make judicial or public policy decisions based upon myths, unless of course someone presents solid evidence proving that the myths actually are true. The principal myths of antitrust damages are: Myth #1. Antitrust violations give rise to treble damages. Myth #2. There is “duplication” of antitrust damages because many defendants pay six-fold or more damages. Myth #3. Courts should go easy on defendants when formulating liability rules or calculating overcharges because the awarded damages from a finding of an antitrust violation are so severe. Myth #4. The size of the harms caused by antitrust violations,