Truth on the Market

Academic commentary on law, business, economics and more

Archive for April, 2007

FTC Website Upgrade

Posted by Josh Wright on April 13, 2007

As David points out over at Antitrust Review, the FTC has redesigned its website.  It is much easier to use than the old version and includes much easier access to content.  Here is the link to the Sections 2 Hearings and another to a weekly calendar of FTC Commission Meetings, Speeches, Workshops, Testimony and other events.

Of course, the big event on the antitrust community radar for next week is the ABA Antitrust Law Spring Meetings (here is the brochure).  See you there.

Posted in antitrust, federal trade commission | Comments Off

Mickey Mouse Investment Banks

Posted by Elizabeth Nowicki on April 13, 2007

Last month, at Tulane’s Corporate Law Institute, Delaware Vice Chancellor Leo Strine suggested that it might not be prudent for directors to consult “Mickey Mouse” investment banks when assessing a going private (or other) deal.  Normally I am a huge Strine fan.  But I think he missed the bus on this one.Â

Let me first stipulate that I understood Strine’s Mickey Mouse comment to mean that boards of directors or special committees should not struggle to find a truly independent investment bank (e.g. one who has never done work for the company) to advise them when assessing proposed going private transactions.  Better to pick one of the big regular players:Â

Goldman Sachs = Credible Bank; Nowicki & Damodoran = Mickey Mouse Bank

But Vice Chancellor Strine appears not to acknowledge that understanding how to value corporations and deals is not something on which Goldman et al. have a monopoly.  A small and/or no-name Mickey Mouse investment bank can certainly compete in terms of quality of advice given.  Perhaps it would be helpful to analogize:  Wachtell, Lipton, Rosen & Katz.  They started as a small shop, with no-name lawyers, all of whom graduated from NYU.  They are now one of the top three deal law firms.  It seems to me that clients who hired them in their Mickey Mouse law firm days were prescient, not ill-advised.

Going further, I recall that Vice Chancellor Strine said he favored investment banking repeat players because they were not starting from scratch – they knew the issuers, they had done work for the issuers.  He intimated that the Mickey Mouse bank would not be able to give the same good advice the regular players could give because the Mickey Mouse bank would not have the history and familiarity with the target corporation that the regular player had.  To that, I say, most respectfully, hogwash.

I am not a Goldman Sachs i-banker, but I can do a valuation.  With the right tools, I could make a fancy board book, and I could give a power point presentation on how to value a business.  Naysayers might respond with a scoff, saying that I lack “the insight” the big players have to do a really good valuation of any given business.  My response would be that there is nothing proprietary about insight.  If there is something special about the issuer that makes it more or less valuable than the comparables or the DCF or whatever would indicate, that can be revealed by talking to the CFO (or by talking to the special committee itself).  (I was going to suggest “by reading the public disclosure,” but I did not want the cynics to snort.)

I suppose Vice Chancellor Strine might reply that valuation is more an art than a science.  My response to that, however, is that this art is often expressed in favor of the regular client.  Phrased differently, the regular players do have more of a foundation from which to start an analysis of a proposed deal, but they *also* have more of a reason to reach a given decision on the deal in one direction or another.  They have more of a reason to be biased.  So I think things are a wash in that regard.

Mind you, I am not suggesting that hiring me to prepare a board book is a good option, but I am suggesting that there is likely a flood of Mickey Mouse investment banks out there staffed with super bankers who can certainly can do a quality job advising a board or a special committee on a deal.  With fewer conflicts than the big players.

Posted in corporate governance, corporate law, economics | 1 Comment »

Two and Twenty-five?

Posted by Bill Sjostrom on April 9, 2007

See here.

Posted in hedge funds, private equity | 1 Comment »

AMC Report and Recommendations Released

Posted by Josh Wright on April 6, 2007

Not going anywhere?  The AMC Report is available.  All 500 plus pages of it (including the separate statements from the individual Commissioners).  There is a lot to digest and I hope to blog about some recommendations of particular interest to me next week.

Posted in antitrust, economics, federal trade commission, regulation, scholarship | Comments Off

Blog roll updates

Posted by Geoffrey Manne on April 5, 2007

I just updated our blog roll.  It now contains a link to the always-excellent Organizations & Markets Blog (Peter Klein and Nicolai Foss), mentioned/linked to by several of us before. 

Also, Marc Hodak (of frequent and excellent commenting fame) seems to have a blog, Hodak Value, to which we’ve added a link.  I look forward to reading more of that one.

And I finally got around to changing the name of the Antrust Prof Blog to Antitrust & Competition Policy Blog, which has improved on its already high quality with the addition of Danny Sokol.

Posted in administrative, blogging | Comments Off

George Mason/Microsoft Conference on the Law & Economics of Innovation

Posted by Geoffrey Manne on April 5, 2007

As Danny Sokol already pointed out, On May 4 at George Mason Law School, Josh Wright and I will be putting on a conference.  This is the inaugural conference in an expected annual series of conferences co-sponsored by George Mason Law School and Microsoft on the law and economics of innovation.  Our first conference is on “The Regulation of Innovation and Economic Growth.”

Here’s a blurb describing the conference:

Our inaugural conference is organized around the fundamental question of how we identify the optimal regulation of innovation. It is fairly well-established that there is a relationship between innovation and economic growth. What we don’t really know is exactly how this relationship works, how to foster this relationship, and how this relationship can stimulate economic growth resulting in benefits to consumers and industry alike. Technology and innovation defy simple regulatory solutions because of the complex and ill-understood relationship between innovation and economic growth. Many have proposed, however, that bad (or good) regulation is certainly part of the answer.

Our primary regulatory tools for regulating innovation fall within the broad categories of intellectual property and antitrust. Through these twin regimes, nations seek to promote optimal incentives and to curtail inefficient dead weight loss. To this could also be added the broader regulation of property rights-the ability of entrepreneurs effectively to commercialize their innovations. And at root the question is: How should a jurisdiction-particularly an emerging or developing economy-approach its IP or its antitrust regime if it seeks to maximize economic growth?

The papers in this conference will address these questions.

We have a fantastic list of Presenters:

Robert D. Cooter, University of California at Berkeley School of Law (Keynote Address)

Keith N. Hylton, Boston University School of Law

Marco Iansiti, Harvard Business School

Douglas G. Lichtman, University of Chicago Law School

Stan J. Liebowitz, University of Texas/Dallas School of Management

Stephen E. Margolis, North Carolina State College of Management

Howard A. Shelanski, University of California at Berkeley School of Law

Daniel F. Spulber, Kellogg School of Management

Joshua D. Wright, George Mason University School of Law

As well as commenters/moderators:

Jonathan B. Baker, American University Washington College of Law

Ronald A. Cass, Dean Emeritus, Boston University School of Law

Bruce H. Kobayashi, George Mason School of Law

Randal Picker, University of Chicago Law School

We’ll also have an industry/regulator roundtable discussion of the papers presented.  So far we have lined up Dave Heiner, Deputy General Counsel, Antitrust Group, at Microsoft and Gerald Masoudi, Deputy Assistant Attorney General in the Antitrust Division.  More to come.

The conference begins at 9 and runs until 4, with a reception following. Registration is free, but space is increasingly limited.  Register here if you’d like to attend.

As they become available, the conference papers will be posted here; abstracts are already posted.  Look for an edited volume some time in the future.

Posted in announcements, antitrust, intellectual property, law and economics, legal scholarship, scholarship, technology | 1 Comment »

Dear Wal-Mart, Shareholders *own* the corporation.

Posted by Elizabeth Nowicki on April 5, 2007

Today’s WSJ had an article titled “Wal-Mart Apologizes to Groups That Were Focus of Surveillance,” which noted that Wal-Mart apologized for responding to large institutional shareholders as “threats.”  Obviously Wal-Mart realized a bit too late that it was absurd, from an investor relations standpoint (and a corporate governance standpoint), to refer to the owners of the corporation as “threats.”

That said, I am not shocked by the reference to large (activist) shareholders as “threats,” and I partially blame corporate lawyers for that perspective.  My view is that, too often, outside counsel forgets that, actually, the corporation is the client, not the CEO/GC who hired outside counsel.  My impression is that often outside counsel tries to “protect” executive officers and the board from large shareholders, as opposed to trying to agitate *for* the shareholders.  Of course, we all know why.  Who hires and fires outside counsel (outside accountants, investment banks, etc.)?  They know where their bread is buttered.  The savvy lawyer/accountant/banker is going to try to keep the person who hired her happy.

Perhaps, then, the solution is to have shareholder ratification of outside counsel….  (Just a random thought that came to me as I typed – no prior thought given.)  Kudos to Wal-Mart for at least recognizing their shareholder relations gaffe.

Posted in corporate governance, corporate law, corporate social responsibility | 4 Comments »

Another credit snob. Or is he just a snob?

Posted by Geoffrey Manne on April 4, 2007

Benjamin Barber (the author of the polemic, Jihad vs. McWorld) has an editorial in the LA Times today.  Its title is:  “Overselling capitalism: Why today’s markets are headed for disaster unless there is a shift in focus.”  At first the editorial looks like a pretty standard entry in the growing line of comments suggesting we deny credit to the poor–you know, for their own good.  But then it really goes off the rails.  Can anyone explain to me what this means:

Capitalism’s success, however, has meant that core wants in the developed world are now mostly met and that too many goods are now chasing too few needs. Yet capitalism requires us to “need” all that it produces in order to survive. So it busies itself manufacturing needs for the wealthy while ignoring the wants of the truly needy. Global inequality means that while the wealthy have too few needs, the needy have too little wealth.

Huh?  “Too many goods” and “too few needs” implies a baseline.  Does anyone (least of all Barber) know what that baseline is?  In what way does “capitalism” require us  to do anything?  What does that even mean?  And how could it possibly be the case, giving the most charitable interpretation possible, that our economic system requires us to need all that it produces?  Has he not heard of bankruptcy?  Of Schumpeter?  I’d file this under “most idiotic paragraph I’ve read today,” but I’ve been reading some choice materials relating to the Microsoft EU case, so I can’t legitimately make that claim.

Really, this is an example of the worst kind of intellectual elitism and hubris–the belief that cute slogans can capture the complex reality of the market, reduce it to a manageable concept, and then enable perfect ex ante regulation. 

Actually, the dumbest paragraph(s) I read today are the very next ones in the article:

Capitalism is stymied, courting long-term disaster. We still work hard, but only so that we can pay and play. In order to turn reluctant consumers with few unsatisfied core needs into permanent shoppers, producers must dumb down consumers, shape their wants, take over their life worlds, encourage impulse buying, cultivate shopoholism and invent new needs. At the same time, they empower kids as shoppers by legitimizing their unformed tastes and mercurial wants and detaching them from their gatekeeper mothers and fathers and teachers and pastors. The kids include toddlers who recognize brand logos before they can talk and commodity-minded baby Einsteins who learn to shop before they can walk.

Consumerism needs this infantilist ethos because it favors laxity and leisure over discipline and denial, values childish impetuosity and juvenile narcissism over adult order and enlightened self-interest, and prefers consumption-directed play to spontaneous recreation. The ethos feeds a private-market logic (“What I want is what society needs!”) and combats the public logic fashioned by democracy (“What society needs is what I want to want!”).

Just in case you don’t get the real point (Barber doesn’t want it to be too clear, you see, because although he is blaming “the Man,” it’s still borderline-racist and definitely-distasteful):  Poor people are like infants.  He talks about all of us, but he’s not interested in protecting the rich from themselves–his concern is cheap credit, shopping addictions and poor people who “need” iPods.  And it is the poor who are duped by the capitalist merchants of death (or, in this case, leisure.  Same thing, I guess) into an infantile stupor, where they consume beyond their means, deny their civic duties, and generally act like poopyheads (we’re all infants now).

You can bet there is a simple corrective in Barber’s book (which I doubt I will ever get around to reading):  Enlightened and benighted (and massive!) government regulation.  His editorial makes an oblique reference to “democratic institutions,” but he doesn’t go into detail.  Of course Barber has the answer:  Constrain the capitalists.  And don’t worry–he knows ‘em when he sees ‘em.  And if we just restrict the capitalists to produce only our “core needs,” there won’t be any manufactured wants to cause all these problems.  And poor people can get back to needing food instead of MTV and rich people can get back to . . . not being too rich.  Oh, and cancer will be cured, backyard nuclear fusion will become reality and no one named Bush will ever be president again. 

Why is this garbage taken seriously?

Posted in economics, markets, personal finance | 4 Comments »

I’ve Been Had.

Posted by Thom Lambert on April 3, 2007

My jaw just about hit the floor when I read this press release from the American Antitrust Institute. In my defense, I skipped the “editor’s note” and the “embargoed until” information. Of course, I should have known something was up because the page linking to the report said “the contents are disturbing.” I can’t imagine that the contents would have concerned AAI, which is “principally dedicated to supporting a more aggressive antitrust agenda” and dubs itself a “counterweight to conservative influence.”

Posted in antitrust, musings | 2 Comments »

One More on Leegin (and then I’ll shut up…promise!)

Posted by Thom Lambert on April 2, 2007

I was on Spring Break last week and was too tied up to do much blogging on Leegin, which I’ve been following pretty closely. Fortunately, Josh and Keith were on the ball with some great insights. I did eventually manage to do a little tea-leaf reading for the eSapience Center for Competition Policy (eCCP).

eCCP has now posted my Observations on the Leegin Argument. To obtain the full document, you’ll need to register with eCCP — which, if you’re at all interested in antitrust, is something you should do in any event.

My short article summarizes the discussion on the seven primary issues addressed at oral argument: potential difficulties with a rule of reason approach, the view of economists, the relevance of the 1975 Consumer Goods Pricing Act, potential effects on discount retailers, the role of stare decisis, the relevance of price increases following the repeal of fair trade laws, and the relevance of the Colgate doctrine.

In the end, I make a specific prediction: In a 7-2 or 6-3 decision authored by Justice Scalia (with a Ginsburg concurrence), the Court will overrule Dr. Miles.

(Please note that my prior promise to eat my hat if the Court does not overrule Dr. Miles does not apply to this more specific prediction about voting, opinion authorship, etc.)

Posted in antitrust | 3 Comments »

 
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