FTC Releases Agenda for Public Workshop on Unilateral Effects Analysis and Litigation

The Federal Trade Commission today released an agenda for the upcoming public workshop on February 12, 2008, in Washington, DC, to examine “Unilateral Effects Analysis and Litigation.” The event, which was previously announced by Chairman Majoras in her keynote address at the ABA Antitrust Law Section’s Fall Forum, will be held at the Commission’s satellite building conference center from 9:00 am to 5:00 pm. The workshop will bring together recognized legal and economic experts to discuss how unilateral effects theories are applied to mergers of firms selling competing but differentiated products as well as to discuss judicial perspectives on such theories.

Unilateral effects as a formal theory of competitive harm was added to the joint FTC/Department of Justice Horizontal Merger Guidelines in 1992. The theory recognizes that, in some instances, mergers may create or enhance market power by allowing the merged firm to profitably raise prices, without the accommodation of other rival market incumbents. The most common application of the theory is in differentiated product markets where products sold by different firms are imperfect substitutes for one another.

Among economists, unilateral effects is a widely accepted theory of competitive harm. Yet, the federal antitrust agencies have experienced limited success litigating differentiated product cases in district courts under unilateral effects theory. Calling together leading lawyers and economists to discuss these issues is a central component of Chairman Majoras’ efforts to refine the Commission’s ability to explain and prove cases based on unilateral effects theory.

Workshop Structure

The workshop will feature introductory remarks provided by Chairman Majoras, and a series of panel discussions moderated by experts in unilateral effects analysis and litigation issues. As detailed in the workshop agenda, scheduled panels include: 1) Foundations of Unilateral Effects Theories: Core Features, Economic Bases, and Potential Grounds for Attack; 2) The Role of Market Definition in Unilateral Effects Analysis and in the Litigation of Unilateral Effects Cases; 3) Judicial Perspectives on Unilateral Effects; 4) Evidentiary Issues Related to Proving Unilateral Effects; and 5) Virtues and Limitations of Econometric Versus Other Approaches for Developing Economic Evidence.

Among the panelists and moderators expected to participate in the workshop are FTC Commissioners William E. Kovacic and J. Thomas Rosch, FTC Bureau of Competition Director Jeffrey Schmidt, FTC Bureau of Economics Director Michael Baye, former Competition Bureau directors Susan Creighton, Richard G. Parker, Joe Simons, and William Baer, former Economics Bureau Director Jonathan B. Baker, and members of the judiciary including the Hon. Douglas Ginsburg, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, and the Hon. Diane Wood, Judge of the U.S. Court of Appeals for the Seventh Circuit.

Logistics

The workshop, which will be free and open to the public, will be held from 9:00 a.m. until 5:00 p.m. at the FTC’s satellite building conference center, located at 601 New Jersey Avenue, N.W., Washington, DC. A government-issued photo ID is required for entry. Pre-registration is not required. Members of the public and press who cannot attend can view a live Webcast of the workshop on the FTC’s Web site.

Reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via e-mail to cmcglothlin@ftc.gov or by calling Carrie McGlothlin at 202-326-3388. Such requests should include a detailed description of the accommodations needed and a way to contact you if we need more information. Please provide advance notice.

For more information on the workshop, including a detailed agenda, directions to the conference center, and other relevant information, please visit: http://www.ftc.gov/bc/unilateral/.