Taperers, Recoverers and Reinjurers . . .

Went out for an early run with the SBRC gang this morning.  It was tremendous fun.  The group was large, and made up of folks who had either run NYC last week or were tapering to run the Brooklyn Marathon next week.  And then there was me. . .  Not surprisingly, the taperers were frisky.  I was counting on the recoverers to slow things down, but no such luck.  I always forget that when you can finally hit the road again after a week's rest, post marathon, you often feel pretty good (unless you don't).  Anyway, we did a loop of Prospect Park, almost entirely at a sub 8:30 pace.  I did it, and it felt great, except for when everybody else surged up the Prospect Park hill, and my heart rate monitor not too gently pointed out that I am not in peak condition.  This was a huge confidence booster, until, on the run back, somewhere between mile 6 and 7, the bottom fell out.  This is a fairly consistent occurrence in my recent runs.   I'm fine for about 6 miles and then my heel starts hurting and my hips tighten up, and I have to revert to the survival shuffle.  It would be one thing if this were happening after ten or twelve miles, but after 6 it is a bit unnerving.  I know this will pass, but it's frustrating.

Chile and Competition Part Tres

Like the band Greenday, I have now come out with three items that sounds really similar in a very short time.  For my final post reflecting on my visit to Chile I will focus on private rights of action for damages in competition cases which was the subject of the conference in Santiago two weeks ago.  While I spoke about the Rise and Fall of the US Class Action (slides available upon request), I spent most of my time trying to understand the state of play of private actions in Chile. 

Its not so good.  Private parties can bring actions directly before the Tribunal (the specialized antitrust court) but the Tribunal cannot hear actions for damages.  But if the Tribunal finds a violation, a private party can use that finding as basis for an action of or damages before the general civil courts and the defendants cannot relitigate liability.  It is currently up for grabs whether a private person had to have been a party before the Tribunal in order to bring a follow on action for damages although it is theoretically possible to just file an action and start from scratch in the civil courts.

The problem with the civil courts is a rigid formalism that makes it difficult from judges to accept expert economic testimony about causation and damages.  Testimony as to a range of damages or loss profits from market exclusion is viewed very skeptically and the courts have not yet accepted the US view that fact of damage must be strictly proven but amount of damages can be shown through good faith estimates.

So there are not many private damages cases and fewer successful ones.  One of the first was a $2 million award in a case between British American Tobacco and Phillip Morris for dirty tricks in the retail cigarette market (think Conwood).  For consumer cases, there is a pending follow on damages case to a FNE case involving retail pharmacies which so far isn't going so well.

For class actions, it is even worse.  The available statute allows such cases for consumer cases but not competition cases.  the consumer agency has tried to smuggle in some competition cases into that statute but so far hasn't been successful to my knowledge.

The Chilean are looking to the US and the EU in particular for guidance for a way out of this fix.  When they find one, I will let you know.  This is typical of competition law outside of the US where competition enforcement so far is almost entirely a matter of public enforcement.

Doing it wrong . . .

Well, after several years of teaching myself to swim, and getting frustrated at my consistently mediocre results, I signed up for a swim class.  Last Wednesday, I discovered I'd been doing it wrong . . .  Who knew that you were supposed to wait until your trailing arm was almost back to the front before dropping the lead arm and pulling . . . All of a sudden I have more power, more shoulder rotation.  Instead of taking 12 strokes per lap, it's down to 10 strokes per lap, and a few seconds per lap faster in the bargain. . .

Anyone ever have success with chiropractors?

Unlike Ted, my glimmer of hope (two pain-free runs) didn't last. Something is going on with me and I am sick of people asking me if I should be running if my foot hurts. I've basically been in PT since February and any improvement has been followed by the pain returning. I'm stronger for sure but what is the root cause? Lately my left hip has been jamming up every so often (not related to running, happens after sitting usually) and given that it's my left foot that is the problem, I'm wondering if I am just all out of whack and need an adjustment. But I also know that while that may be true, there could be other factors at play. I know that I do lift my daughter on my left side--she is way too old to be carried, but that doesn't mean I don't ever pick her up...

Anyone had success with a chiro?

Chile and Competition - Part Dos

Competition cases are investigated by the Fiscalia Nacional Economica (FNE) a talented and reasonably well resourced agency.  The head of the FNE is appointed by the President with the aid of a panel of experts and has a four year term.  Currently the FNE has a budget of about $8 million and a staff of 80-90.  It is a hot job for new law grads and often staff go off for an LLM in the US or UK and return.  Most of the division heads have substantial experience.  Historically the FNE has brought mainly abuse of dominance cases in keeping with Chile's staus as a relatively small country with a highly concentrated economy.  Case law in this area follows the EU with US cases only occasionally being used to support a decision to bring a case.  Merger enforcement is limited with no mandatory pre-merger notification.  The first voluntary notification brought a successful challenge and appears to have deterred future use of this option.

There is an increased emphasis on cartel cases.  Leniency exists but is seldom used but it only applies to fines and doesn't apply to potential criminal prosecution which is handled by the general criminal prosecutors.  No specific antitrust statute permits criminal prosecution but ancient 19th century statutes theoretically permit such actions.  The general prosecutors office does not have a strong interest or background in this area.  The FNE uses dawn raids and the possibility of wiretaps to make cartel cases carrying medium levels fines.  One of the first successful ones involved pharmacies resulting in rather modest fines) and a current case involves the poultry industry.

I was impressed with the head of the FNE and the staff I met.  Felipe Irrazabal, the chief, is smart, practical, and keenly aware of the need to pick and choose his shots given his budget and staff.  Everyone I met was sophisticated in both and economics and knowledgeable in the substance of US and EU law.

The FNE brings the cases it does not settle before a specialized court, the Tribunal for the Defense of Free Competition.  The Tribunal has 5 judges, three lawyers and two economists.  The Central bank appoints 3 of the judges with the help of a panel of experts and the President appoints the other 2 judges.  One of the current economists holds a PhD from the University of Chicago without sharing those politics.  Another judge is the former head of the FNE.  The Tribunal hears 20-30 cases a year with the help of a small staff and a budget of about $2 million.  The Tribunal also hears private cases for injunctions but not damages.  All appeals go to the commercial chamber of the Supreme Court of Chile which is slowly becoming more sophisticated in its handling of the substance as well as the procedure of the cases before it.

What about private actions for damages?  Stay tuned for Part Tres after mid-term grading concludes later tonight or tomorrow.

NYC Marathon

Good luck to everyone running the NYC Marathon tomorrow.  What a difference a year makes.

Chile and Competition Part Uno

As I have learned more about Chilean competition policy I have learned more about Chile itself.  Its a country of approximately 17,000,000 of whom 6,000,000 live in Santiago and its immediate environs.  It has gaping wealth inequality that make the 1% versus the 99% look like Swedish egalitarianism.  A huge chunk of the economy is basically controlled by 20-40 intertwined and interlocked families and family groups.  The economics are intertwined with its history, a democratically elected hard left government led by Salvador Allende, an ugly military coup supported by the CIA and most of the Chilean elite led by Pinochet whose subsequent market reforms were egged on by "the Chicago boys" (their phrase not mine), a gradual restoration of democracy and alternating centrist governments of both the left and the right.  Copper mining generates enormous foreign reserve earning much of which are sued to pay for oil of which Chile has next to none.  Overall, I would call Chile a mid-major in terms of economic development and size.  Kind of the Wichita State or Butler of the OECD of which Chile is a proud but new member.

So what type of competition policy would exist or be ideal for such a country and economy?  Stay tuned for Parts II and III.  Now back to grading mid-terms.