Sunday, July 27, 2003

Antitrust News: A Sticky Injunction

The Justice Department obtained an injunction this week preventing UPM-Kymmene Oyj from acquiring a competitor in the “label stock” industry, that is the adhesive used on peel-and-stick labels. The DOJ claimed the merger of UPM and rival Morgan Adhesive would illegally concentrate 70% of the market with UPM and its remaining major competitor, Avery. The Court’s injunction stops the merger pending an adjudication of the government’s antitrust claims.

This is an all-too-typical antitrust decision, where the Court falsely emphasizes the government’s specious claims over the property rights of the merging companies. The Court admits as much in the final paragraph of its 26-page ruling granting the injunction:
The balance of harms, which is a question I am not required to consider given my view of the merits, is nonetheless a factor which favors the government. A wrongful denial of injunction would, for a year or more, inflict irreparable damage on consumers and, in all probability, leave us with a Raflatac 2nd that could not be divided back into the entities from which it was formed. A wrongful grant of injunction leaves Raflatac no worse off than it is now. Instead of buying market share, they can earn it in the customary way. MACtac’s declining condition will either be reversed or its slack will be taken up by other producers–the existing price competition will be diminished little or not at all. I find the public interest in having competitive markets is served by preventing the merger.

Although “[i]t is regrettable that antitrust cases are decided on the basis of theoretical guesses as to what particular market-structure characteristics portend for competition, . . . to place on the government an insuperable burden of proof is not the answer.” Rockford, 898 F.2d at 1286. “The principles of civil procedure do not require that the plaintiff make an airtight case, only that his case satisfy some minimum threshold of persuasiveness and be better than the defendant’s case.” Id. I find that the government has met this “minimum threshold.”
As with most antitrust cases, due process and reason are turned on its head to satisfy the government’s pathological need to regulate the economy. The most blatant false premise asserted by the Court here is the notion that UPM is “buying market share” rather than earning it “in the customary way”. Even with a larger firm, UPM still has to prove its value to its customers on a daily basis, or risk facing new competitors down the road. The government, however, cannot account for these new competitors, so instead the Justice Department goes after UPM merely on the fear that no such competition will arise.

And even if UPM is doing nothing more than buying market share, so what? In a free market, property owners may buy more property to satisfy their needs. In a regulated antitrust market, however, property itself is a privilege held at the government’s discretion. Thus, UPM is guilty not of harming consumers, but of failing to show proper tribute to government regulators before purchasing a rival firm.

No comments: