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For The Record Inc 301 870 8025 www ftrinc net
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1 FEDERAL TRADE COMMISSION,2 I N D E X,4 Welcome 3. 6 Opening Remarks and Discussion 7,8 Institutional Investors Diversification and. 9 Corporate Governance 64,11 Remarks 154,13 Presentations Common Ownership 167. 15 Theories of Competitive Harm from Common,16 Ownership 201. 18 Econometric Evidence of Competitive Harm from,19 Common Ownership 279.
For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 2 MR HEMPHILL Hi everyone Why don t we,3 get started Welcome to the New York University. 4 School of Law My name is Scott Hemphill and I m a. 5 professor here at the law school NYU joined by our. 6 Engelberg Center on Innovation Law is delighted to be. 7 hosting this eighth session in the hearings,8 initiative. 9 Today s hearing focuses on the question of, 10 common ownership by investors in competing firms and. 11 related issues at the intersection of antitrust and. 12 corporate governance My first order of business. 13 today is to invite our dean Trevor Morrison to offer. 14 a welcome Trevor,15 Applause,16 MR MORRISON Thank you Scott and good.
17 morning Let me be the second to welcome you all here. 18 to NYU Law We really are thrilled to be hosting this. 19 hearing of the FTC Thanks to the FTC for joining us. 20 in this We certainly think that if the hearing is. 21 going to be held in New York it s absolutely fitting. 22 that it be here at NYU Law,23 We have a great many people in our. 24 community on our faculty engaged in the issues that. 25 the FTC is engaged in and many of them will be,For The Record Inc. 301 870 8025 www ftrinc net 800 921 5555,1 speaking today including Scott Hemphill Dan. 2 Rubinfeld and Ed Rock and of course our colleague. 3 Marcel Kahan works closely on these issues and with. 4 Scott as well So with that cohort of faculty working. 5 on these issues we re certainly glad to be able to. 6 bring and host the FTC here today And I wish you. 7 very well for this hearing Again welcome and thank. 9 MR HEMPHILL Thanks Trevor So next I, 10 have a couple of housekeeping items FTC staff has. 11 asked me to remind everyone that this is a public. 12 event and is being webcast photographed and,13 recorded By participating in this event you re.
14 agreeing that your image and anything you say or. 15 submit may be posted indefinitely at FTC gov,16 Laughter. 17 MR HEMPHILL or on one of the, 18 Commission s publicly available social media sites A. 19 transcript of today s proceedings will be posted as. 20 well Question cards will be available throughout the. 21 day Please use them to write down questions for. 22 panelists Staff will collect them and pass them to. 23 the moderators who may pose selected questions if time. 24 permits Finally if you have your mobile phone with. 25 you please silence it,For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 1 So let me also echo Trevor s welcome It s, 2 particularly fitting that the session is held at NYU. 3 Law for two reasons The first Trevor already gave. 4 this school s deep engagement with some of these. 5 questions and more generally the role that financial. 6 services play as the lifeblood of New York City,7 The second reason that I just wanted to.
8 emphasize for a minute comes back to the late Bob. 9 Pitofsky Former Chair of the Federal Trade Commission. 10 and a dear friend to many of us Today s hearing and. 11 the FTC s series of hearings more generally were. 12 inspired by Bob s desire to keep the FTC abreast of. 13 cutting edge issues in antitrust and consumer, 14 protection Chairman Pitofsky held a series of public. 15 hearings in order to advance that aim and this is. 16 very much in that tradition,17 Now as some of you know Bob Pitofsky and. 18 NYU have a deep connection Before Bob was a public. 19 servant he was a professor of law here at NYU Bob. 20 joined our faculty in 1964 at the urging of our late. 21 colleague the great Norman Dorsen Such was their. 22 friendship that Bob led the school s Hays Program on. 23 civil liberties while Norman was on sabbatical And. 24 the favor was returned Norman Dorsen filled in one. 25 year to teach Bob s antitrust class So all of us at. For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 1 NYU are particularly pleased to reconnect in this way. 2 with Bob s legacy as a scholar and as a public,4 So as you guys have seen we have a full. 5 agenda today Our first session features two sitting. 6 Commissioners one from the Federal Trade Commission. 7 and one from the Securities and Exchange Commission. 8 who will be giving some remarks So first up is Noah. 9 Phillips Commissioner Phillips was confirmed by the. 10 Senate in April Prior to the Commission he served. 11 as Chief Counsel to Senator John Cornyn on the Senate. 12 Judiciary Committee and a variety of other roles. 13 advising the Senator,14 Prior to his Senate service Commissioner.
15 Phillips worked at Wasserstein Perella an investment. 16 bank and as a litigator at Cravath Swain Moore,17 So Commissioner Phillips the floor is. 19 Applause,For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 1 OPENING REMARKS AND DISCUSSION,2 COMMISSIONER PHILLIPS Thank you for the. 3 kind introduction and also the privacy warning This. 4 is not our privacy hearing but it s important that. 5 everyone think about that all the time,6 I m really really thrilled to be here to. 7 open today s excellent hearing and to welcome the. 8 distinguished group of scholars and market, 9 participants from whom we ll hear today I m also.
10 very thankful to NYU for hosting this event I do. 11 think it is appropriate that we are here in New York. 12 to talk about this,13 I don t know whether Commissioner Jackson. 14 is here yet I m very pleased that he is joining us. 15 He has spoken publicly about the need to bring, 16 competition economics to the Securities and Exchange. 17 Commission and of course is joining us today My. 18 only hope is that doesn t bog your some sort of like. 19 interjurisdictional power grab on the part of the SEC. 20 We are older but we re scrappy and we don t shy from. 21 a fight so he should just know that,22 I want to start with the traditional FTC. 23 caveat and that is the remarks that I give today are. 24 my own thoughts and don t necessarily represent the. 25 views of the Commission as a whole or my fellow. For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 1 Commissioners,2 Common ownership is an issue of particular.
3 interest to me but it probably helps to just start. 4 with a little bit of a definition Last year in front. 5 of the OECD the U S antitrust agencies defined, 6 common ownership as the simultaneous ownership of. 7 stock in competing companies by a single investor. 8 where none of the stock holdings is large enough to. 9 give the owner control of any of these companies. 10 And I want to draw an important distinction, 11 Common ownership is distinct from cross ownership. 12 wherein a company holds an interest in one of its. 13 competitors or other joint venture or copartner. 14 scenarios that have long been a focus of U S,15 antitrust law. 16 The most important thing for purposes of, 17 today about common ownership is that it is a reality. 18 of our modern economy and that it is ubiquitous. 19 Americans are increasingly utilizing the many and. 20 diversified investment options that large, 21 institutional asset managers offer and the advent of.
22 indexing funds has opened important avenues through. 23 which average Americans can invest their retirement. 24 savings sometimes at a low or even zero price They. 25 can also have pretty good returns,For The Record Inc. 301 870 8025 www ftrinc net 800 921 5555,1 As a result of the growing demand for this. 2 popular product trillions of dollars that these, 3 companies now manage are increasingly including shares. 4 of competing companies That s a reality In the, 5 last few years economists and law professors have. 6 raised the question whether common ownership is,7 negatively affecting competition.
8 We have a number of them here today I see, 9 Martin Schmalz sitting over here His work with Jos. 10 Azar and Isabel Tecu kicked off such a bevy of, 11 research and commentary that it is often simply. 12 referred to as the airlines paper I know that s. 13 not the only work but it s sort of set the ships to. 15 Some are concerned that common ownership, 16 remedies proposed are quite dramatic According to. 17 one group of scholars who are proponents of these. 18 remedies addressing the threat of common ownership. 19 would upend the basic structure of the financial. 20 sector for example by limiting asset managers to. 21 holding no more than 1 percent of a given industry. 22 unless they do so in a purely passive manner,23 And this debate is not just academic. 24 Antitrust enforcers around the world are watching its. 25 development as we are today and incorporating common. For The Record Inc,301 870 8025 www ftrinc net 800 921 5555.
1 ownership into their analyses For instance last, 2 year as I mentioned the OECD held hearings on common. 3 ownership and we ve seen that European antitrust. 4 enforcers began citing these theories in their,5 decisions. 6 I find this debate particularly interesting, 7 because it takes us to the intersection of antitrust. 8 corporate and securities law and policy And in a. 9 sense historically this is very fitting because in a. 10 way the FTC grew out of the Bureau of Corporations at. 11 the Department of Commerce,12 When I spoke about this issue last in June. 13 I noted an important way in which the intuition behind. 14 the antitrust theory of harm from common ownership. 15 runs counter to the longstanding concerns of those. 16 other bodies of law Specifically corporate law in. 17 particular preoccupies itself with the principal agent. 18 problem the issue of how you get the management to. 19 work on behalf of the owners of the corporation the. 20 shareholders,21 Management neglect of shareholders and in.
22 particular of minority shareholders is a particular. 23 concern And the common ownership theory or at, 24 least one version of it and I ll talk about that a. 25 little bit later is a concern that managers show. For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 1 too much attention to shareholders and in particular. 2 to certain minority shareholders,3 In June I identified several areas of. 4 research that I as an antitrust enforcer would like. 5 to see developed before shifting policy on common. 6 ownership They were first how common ownership, 7 affects a broad group of industries second whether a. 8 clear mechanism of harm can be identified third a. 9 rationale why managers would put the interests of one. 10 set of shareholders in particular a minority set. 11 above the others and finally a rigorous weighing of. 12 the harms of the allegedly anticompetitive harms. 13 against all the benefits of institutional,14 shareholding.
15 So the first question stems from the fact, 16 that common ownership is so ubiquitous Is it also. 17 ubiquitously causing anticompetitive harm And if so. 18 how Professor Menesh Patel from whom we ll also. 19 hear today writes about the sensitivity of the harm. 20 theories to various factors including the structure. 21 of a given industry,22 We ve seen some additional research since. 23 June One recent working paper examines common, 24 ownership and competition in the ready to eat cereal. 25 industry and another looks at pay for delay,For The Record Inc. 301 870 8025 www ftrinc net 800 921 5555,1 settlements in the pharmaceutical industry.
2 I understand that economists are continuing, 3 to analyze the impact of common ownership in other. 4 industries These studies are critical to, 5 understanding whether and if so how common ownership. 6 might dampen competition between rivals The better. 7 the research behind our enforcement the better our. 8 enforcement will be,9 So the second thing I asked about was to. 10 identify a clear mechanism of harm Identifying the. 11 mechanism of harm that is how common shareholding. 12 actually causes a lessening of competition remains a. 13 matter of robust debate Some proponents of, 14 predicating antitrust liability on common ownership. 15 acknowledge that the theory literature to date does. 16 not identify what mechanisms funds may use to soften. 17 competition That s Fiona Scott Morton and Herbert. 18 Hovenkamp,19 Understanding the mechanism is however.
20 critical to developing a coherent legal theory of. 21 antitrust harm and ultimately to crafting an, 22 appropriate remedy To my mind there are in fact. 23 two competing theories of common ownership and how it. 24 might lead to anticompetitive harm And for purposes. 25 of this discussion I want to call them active and. For The Record Inc,301 870 8025 www ftrinc net 800 921 5555. 2 The active theory involves managers, 3 affirmatively foregoing competition Professor Einer. 4 Elhauge argues that the harm mechanism is less opaque. 5 than critics claim noting that it would include all. 6 the ordinary mechanisms by which managers are,7 incentivized to act in the interest of . everyone think about that all the time I m really really thrilled to be here to open today s excellent hearing and to welcome the distinguished group of scholars and market participants from whom we ll hear today I m also very thankful to NYU for hosting this event I do think it is appropriate that we are here in New York to talk about this

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