Talk:Index Definitions
Fines
Should we add language to limit the fines for only the prohibited acts themselves?
Hylton's 3 cases:
- Violate the prohibitions of the law: Easy. Counts.
- Violate an order of the commission to stop activity. Gray area, but it counts.
- Violating rules of procedure. Defendant doesn't cooperate with proceedings - doesn't hand-over evidence, perjures self, etc. Doesn't count.
Prison Sentences
Add language to limit the prison sentence to not include general perjury type stuff.
Hylton: See fines discussion above.
Divestiture
Include text for mergers.
Working version: "The law allows the selling of assets or division of the company in response to certain violations. Or the law allows divestiture specifically in the merger context. In that case, the law must allow a merger to be conditioned on certain acts and must allow the agency to force those acts to occur if the firm does not."
"The law authorizes the commission or court to require division of the company or selling of assets in response to certain violations."
Hylton:
Easy case: divestiture for some particular prohibition of the statute.
Hard case: merger statutes. There must be some language in the law that gives the commission the power to unwind or split-up a company. This power must be more than just a power to fine or imprison, they must be able to compel the break-up of the company. Everything hinges on what kind of power the commission has in these situations.
3rd Party Initiation =
Comments: A complaint to the competition agency isn't enough, it must commence proceedings. In other words, the law must allow for more than merely a "tip line" to the agency. The complaint must "compel" an investigation.
Hylton: Keep "tip line" phrase in there. Tip line not enough. "Instead, there must be a formal process for 3rd parties to initiate an investigation or hearing, even if the commission retains the discretion to proceed with the investigation or hearing." Must be a formal process to initiate the proceedings.
Remedies to 3rd parties
Can include money or an injunction. Also includes situations where the statute says a 3rd party may seek compensation from a party in violation of the statute.
Hylton: This second sentence is good.
3rd party rights
We're including appeals by affected parties.
Hylton: This works.
Case where there's 3rd party right to initiate but no right in proceedings: 3rd party complains, ball starts rolling with enforcement agency, then 3rd party backs-out and doesn't do a thing.
3 possible cases:
- 3rd party has right to initiate proceeding, but no right to participate in it
- 3rd party can initiate AND participate. Count it.
- 3rd party can't initiate proceeding, but once it starts, you can participate. Count it.
Voluntary
If voluntary, then default of post-merger
Hylton: If voluntary, then post-merger.
Post-merger
Remove "and then often has the power to invalidate the completed merger"
Hylton: Cut this language out.
Merger assessment - dominance
Assessing only dominance or dominance with abusive acts? In other words, if two firms merge to have 90% market share, in the absence of any abuse, will that be banned under "dominance."
Hylton: This is an assessment of the sheer size of the resulting firm, not abusive acts.
Merger assessment - restriction of competition
Umbrella term, includes barrier to entry.
Hylton: This is an umbrella term. Current definition is OK. Keep the language of this definition as general as possible. Example of a 3-firm market where 1 firm buys a second, would likely count.
Public Interest (Pro D)
New working definition - "The Commission or Council considers whether an otherwise impermissible merger may be allowed because it is in the public interest. Public interest is linked to social welfare, and not to market efficiency. For example, this would include international competitiveness, national champions, employment markets, and promoting minority ownership."
What about lower consumer prices?
Hylton: Lowering prices usually counts as efficiency. Efficiency that increases product surplus.
Public Interest (Pro Auth.)
More examples of where this would be used.
Other
So far, this definition only includes business failure defenses.
Efficiency Defense
Should we include technological developments to this definition?
Limits Access
Looking for quota language or output limits.
A single dominant firm may not limit the supply of goods to the market or in other ways restrict access to the market by consumers or competitors.
Remove the "or competitors."
Abusive Acts
Wouldn't this always be coded as a one if there's anything there?
Output Restraint
E.g. output quotas
Supply Refusal
Boycott
Extraterritoriality
Hylton: Language has to be CLEAR that activities outside the nation that affect the nation's economy are covered.