Economic and Legal Issues in Competition, Intellectual Property, Bankruptcy, and the Cost of Raising Children: Volume 27

Plus Factors have long played an important role in inferring a price agreement from the totality of the evidence. In response to changes in the case law, economists have proposed two alternative paths for the future of price fixing analysis. This paper evaluates the suggested approaches and recommends retaining the enhanced Plus Factor methodology.

By carefully defining the Plus Factor concept, three key components of the analysis emerge: (1) information on communications associated with the alleged agreement, (2) economic considerations affecting market competition, and (3) characteristics that serve to differentiate explicit from tacit collusion.

Developments rationalizing the Plus Factor concept show promise, as the methodology is not more closely related to economic theory. On the other hand, replacement of the Plus Factor methodology with one focused on market performance seems problematic. By abandoning the Plus Factor concept, the economist loses a key institutional constraint on over-aggressive enforcement.

Until advocates can address the difficulties associated with using performance evidence to identify price fixing, the standard Plus Factor concept appears more appropriate. Thus, antitrust analysts should continue to use the Plus Factor methodology to infer agreements in price fixing investigations, as long as the economic rationalization of the specific Plus Factor is clearly presented.

The paper synthesizes a number of recent contributions to the price fixing literature and addresses key issues of interest to the enforcement community. By providing a critique of the proposed policy shift to use performance evidence to infer price fixing liability, the study serves to justify continued application of the Plus Factor methodology.

This paper investigates the impact of refusal to deal by a monopoly supplier of an essential input on firms’ investments in product quality, consumer surplus, and net social welfare.

The paper uses a standard economic model of endogenous quality choice for horizontally differentiated products to compare market performance with and without refusal do deal.

Refusal to deal increases the payoff of the integrated firm and reduces equilibrium investment in quality, consumer surplus, and net social welfare if varieties are moderate or good substitutes. If varieties are poor substitutes, the integrated firm maximizes its payoff setting a wholesale price that allows the downstream rival a small economic profit.

The analysis presented here implies that it is actual rivalry in the development of high-quality substitute varieties that promotes consumer welfare, and that such rivalry is ill served by the exercise of market power in input markets and by the refusal of vertically integrated upstream firms to deal with their nonintegrated downstream rivals. Reliance on the lure of monopoly profit to get good market performance is misplaced.

To develop a framework for systematically defining the relevant market for intermediate goods that incorporates downstream market conditions.

We combine the well-established “Hicks-Marshall” conditions of derived demand for inputs with “critical loss/critical elasticity of demand” to yield insights into the definition of antitrust markets for intermediate goods and the competitive effects from a merger.

We show that examining “Hicks-Marshall” conditions can provide a more rigorous framework for analyzing relevant markets for intermediate goods. We also show that solely examining demand substitution possibilities for direct customers of an input can lead to an incorrect market definition.

Our framework may be difficult to apply in circumstances when several different downstream products use the input being examined and each of those downstream products has a different elasticity of demand.

We illustrate how reasonable ranges for key parameters relating to the ability of firms to substitute to other inputs and to adjust to downstream market conditions will often be sufficient to define antitrust markets for intermediate goods in practice.

Previous antitrust analysis has not systematically analyzed the impact of downstream market conditions in assessing market definition for intermediate goods. The framework we develop will be useful to future researchers attempting to define relevant markets for intermediate goods and evaluating the competitive effects of a merger.

In fraudulent conveyance cases, plaintiffs allege that by entering into a complex leverage transaction, such as an LBO, a firm’s former owners ensured its subsequent collapse. Proving that the transaction rendered the firm insolvent may allow debtors (or their proxies) to claw back transfers made to former shareholders and others as part of the transaction.

Courts have recently questioned the robustness of the solvency evidence traditionally provided in such cases, claiming that traditional expert analyses (e.g., a discounted flow analysis) may suffer from hindsight (and other forms of) bias, and thus not reflect an accurate view of the firm’s insolvency prospects at the time of the challenged transfers. To address the issue, courts have recently suggested that experts should consider market evidence, such as the firm’s stock, bond, or credit default swap prices at the time of the challenged transaction. We review market-evidence-based approaches for determination of solvency in fraudulent conveyance cases.

We compare different methods of solvency determination that rely on market data. We discuss the pros and cons of these methods and illustrate the use of credit default swap spreads with a numerical example. Finally, we highlight the limitations of these methods.

If securities trade in efficient markets in which security prices quickly impound all available information, then such security prices provide an objective assessment of investors’ views of the firm’s future insolvency prospects at the time of challenged transfer, given contemporaneously available information. As we explain, using market data to analyze fraudulent conveyance claims or assess a firm’s solvency prospects is not as straightforward as some courts argue. To do so, an expert must first pick a particular credit risk model from a host of choices which links the market evidence (or security price) to the likelihood of future default. Then, to implement his chosen model, the expert must estimate various parameter input values at the time of the alleged fraudulent transfer. In this connection, it is important to note that each credit risk model rests on particular assumptions, and there are typically several ways in which a model’s key parameters may be empirically estimated. Such choices critically affect any conclusion about a firm’s future default prospects as of the date of an alleged fraudulent conveyance.

Simply using market evidence does not necessarily eliminate the question of bias in any analysis. The reliability of a plaintiff’s claims regarding fraudulent conveyance will depend on the reasonableness of the analysis used to tie the observed market evidence at the time of the alleged fraudulent transfer to default prospects of the firm.

There is a large body of literature in financial economics that examines the relationship between market data and the prospects of a firm’s future default. However, there is surprisingly little research tying that literature to the analysis of fraudulent conveyance claims. Our paper, in part, attempts to do so. We show that while market-based methods use the information contained in market prices, this information must be supplemented with assumptions and the conclusions of these methods critically depend on the assumption made.

The subject of resale pricing is a hot topic in franchising, due to its links with chain homogeneity and franchisee autonomy. The franchisee is bound by current legislation and regulations, in addition to respecting the franchise contract clauses, to the extent that they are lawful, and potentially opposing contentious professional practices. Focusing on resale prices, we cover these three perspectives, that is, legal, contractual, and professional constraints, using a dual approach based on managerial and legal perspectives and illustrating our arguments using examples from European and French cases.

We illustrate our arguments using examples from European and French cases.

We pointed out that the ban on the practice of imposed resale prices presents several advantages (e.g., integrity of franchise chains, chain’s commercial dynamism).

Our paper contributes to the stream of franchising literature dealing with resale prices.

Our paper can be viewed by franchisors, franchise experts, franchisees, and franchisee candidates as a synthesis of the impact of European and French regulations on resale price-based practices to be adopted in franchise chains. It also highlights practices to be avoided in order to prevent potential conflicts.

We use a dual approach based on managerial and legal perspectives to explore resale prices in the context of franchising.

We study how different rules for allocating litigation costs impact on royalty negotiation when a non-practicing patent holder asserts its patent against a product developer.

A theoretical framework is proposed which distinguishes between three legal-cost allocation systems: the American system, where each party bears its own costs; the British system, where the loser incurs all costs; and the system favoring the defendant, where the defendant pays its own costs if it loses and nothing otherwise. The model considers both flat lawyer fees and contingency fees.

We first determine conditions under which, in the assumed contexts, the American system is preferable to the British one. Successively, we show that the less usual system favoring the defendant proves to be an interesting alternative.

In this way, in addition to extend the standard model of patent holdup, we furnish an analytical treatment of recent legislative proposals, such as the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act of 2013.

This paper focuses on the strategic inclusion of reciprocity clauses in the licensing commitments disclosed by firms claiming standard essential patents (SEPs) in the telecom industry. We highlight the main cost and benefit of using these clauses for SEPs holders, namely, a possible deterrence effect for potential standard users on the one hand, and a legal instrument to prevent holdup and negotiate cross-licenses with other SEPs owners on the other hand.

We formulate general hypotheses explaining firms’ disclosure strategies with respect to reciprocity clauses, and use an original dataset of 19,601 patent disclosures in 12 different ETSI (European Telecommunications Standard Institute) projects (including UMTS, GSM, 3GPP, or GPRS) to test them empirically.

Our econometric results first confirm our predictions that reciprocity clauses are used as an insurance mechanism in technologically complex environments. They are more frequently included in patent disclosures when the ownership of SEPs at the project level is more fragmented. We also find that firms do not claim reciprocity clauses before having already declared a significant number of non-reciprocal SEPs in the same project, which suggests a deterrence effect on standard users that must be balanced by a strong patent position.

Our findings highlight a trade-off for the SEPs holder to insert a reciprocity clause. There is both a cost and a benefit of adding this clause to the patent licensing commitment. Contrary to the usual literature on the subject, we do not analyze the general patenting strategies but the conducts on the licensing terms.

In bankruptcy, a reorganization procedure is based on the terms of a reorganization plan aimed to save a financially distressed firm. We provide an original approach of the reorganization plan that we treated as a future contract that demands to creditors a certain degree of cost sharing. This paper examines how the sharing of the reorganization plan costs influences the bankruptcy outcome of such firm.

The sharing of the costs between creditors and debtor is analyzed by a static theoretical model that uses a Lagrangian approach.

We show that debtors have strong incentives to propose reorganization plans which provide an expected gain for creditors higher than the liquidation value of the firm and lower than the payment of the reorganization plan with an optimal sharing degree. Hence, a reorganization plan can be rejected by creditors if the sharing degree is too important.

The liquidation of the firm can be avoided if the design of the reorganization plan is improved by performing an appraisal or purchasing the services of an audit company.

The novelty of this paper resides in the distinction of two types of bankruptcy legal systems. The first one represents a pro-creditor or a creditor-friendly bankruptcy system in which the claimants’ payment is not limited to a fixed value written in the reorganization plan. Conversely, we treated the case of a debtor-friendly bankruptcy system which limits the creditors’ payment. The results of our model hold independently of the bankruptcy law orientation, that is, pro-creditor or pro-debtor.

Under the impetus of federal law, each state is required to develop Guidelines by which to determine presumptive child support awards following divorce. The key federal requirement is that during the specified quadrennial reviews of each state’s Guidelines, “a state must consider economic data on the cost of raising children.” Our purpose here is to compare presumptive child support awards provided in typical state Guidelines with the actual monetary costs of raising children.

To this end, we estimate these monetary costs from government data on consumer outlays in households with children as compared with substantially similar childless households. We review and reject current methods for determining child costs: both from income equivalence methods and those offered in annual government surveys; and provide quite different results despite using the same data employed by others.

Our econometric results indicate much lower monetary costs than reported for either of the two alternatives. Since presumptive child support awards in most states rely on current methods, these findings suggest that existing award structures should be re-evaluated.

Current award structures create a financial asset resulting from the gap between presumptive awards and monetary costs for custodial parents. This factor engenders resentment by support payers since it is his or her payments that fund this asset. And this resentment harms relationships between the parents. Increased willingness of non-custodial parents to make their assessed payments is an outcome promoted when payment amounts reflect the actual monetary costs of raising children.