Showing posts with label Competition law. Show all posts
Showing posts with label Competition law. Show all posts

Tuesday, November 21, 2017

Watch Live: AT&T, Time Warner Respond To DOJ Anti-Trust Lawsuit

Update (5:40 pm ET): In a statement, AT&T CEO Randall Stephenson vowed to fight the DOJ"s lawsuit. He said AT&T"s challenge is about preserving the rule of law against an overreaching DOJ anti-trust division. He also said that, while he doesn"t know for sure if the opposition is political in nature, he"s not surprised that the question of whether this is a political vendetta keep coming up.


He also vowed that AT&T wouldn"t divest Turner Broadcasting and CNN, calling that "a nonstarter."


"When the government suddenly discards decades of legal precedent, businesses large and small are left with no legal guidepost."


"We have no intention of proposing a solution outside of the bounds of what the rule of law would require."


"There"s been a lot of reporting and speculation whether this is all about CNN. But frankly I dont know. But nobody should be surprise that the question keeps coming up because we"ve witnessed such an abrupt change in the application of anti-trust law here."


"Any agreement that results in us forfeiting control of CNN, whether directly or indirectly, is a nonstarter. We have no intention of backing down from the government"s lawsuit."


A lawyer for AT&T also noted that Trump has been "critical" of CNN. The president of course has repeatedly accused the network of being "fake news."


In response to a reporter"s question, Time Warner CEO Jeff Bewkes said he would push for the earliest possible court date, adding that the first hearings could begin in 60 days or less.


Watch the news conference live below:



* * *


Update (5:20 pm ET): According to Bloomberg, a Justice Dept official says the govt’s lawsuit to block AT&T’s planned $85.4b purchase of Time Warner wasn’t influenced by President Trump or anyone else in the White House.


Several media outlets, including Buzzfeed, have noted that some executives at the companies are viewing the stipulation as a political barb aimed directly at CNN, which President Donald Trump has frequently demonized as “fake news.”


“The pro-business, pro-commerce Republican administration objects to a vertical integration with 40 years of legal precedent,” said one executive familiar with the negotiations.


* * *


Update (4:50 pm ET): Court documents have confirmed that the DOJ is suing to block the AT&T-Time Warner deal, according to several US media organizations...


 



 


The DOJ has released a brief statement: “This merger would greatly harm American consumers. It would mean higher monthly television bills and fewer of the new, emerging innovative options that consumers are beginning to enjoy,” said Makan Delrahim the head of the department’s antitrust division.


As Reuters pointed out, the legal challenge was expected after AT&T rejected a demand by the Justice Department earlier this month to divest its DirecTV unit or Turner Broadcasting.


AT&T and Time Warner are expected to make a joint statement around 5:30 pm ET...


* * *


Update (4:20 pm ET): David R. McAtee II, Senior Executive Vice President and General Counsel at AT&T, has released a statement responding to reports DOJ plans to sue to block its purchase of Time Warner.


In the statement, McAtee says he"s "confident" the courts will side with AT&T..


"Today"s DOJ lawsuit is a radical and inexplicable departure from decades of antitrust precedent.  Vertical mergers like this one are routinely approved because they benefit consumers without removing any competitor from the market. We see no legitimate reason for our merger to be treated differently.  


"Our merger combines Time Warner"s content and talent with AT&T"s TV, wireless and broadband distribution platforms.  The result will help make television more affordable, innovative, interactive and mobile.  Fortunately, the Department of Justice doesn"t have the final say in this matter.  Rather, it bears the burden of proving to the U.S. District Court that the transaction violates the law.  We are confident that the Court will reject the Government"s claims and permit this merger under longstanding legal precedent."


The DOJ Is expected to make a "major statement" about an anti-trust action within the hour. It"s been widely reported that the AT&T-Time Warner merger will be the subject of the statement.


AT&T CEO Randall Stephenson recently said he was never told that selling CNN would be a condition of getting the deal done. But he said that the company was prepared to fight in court to save the deal, if necessary, according to the Financial Times.


“Since the day we announced this we’ve been preparing to litigate this deal,” he said. “We are prepared to litigate now," Stephenson said earlier this month at the NYT"s Dealbook conference.


* * *


Just minutes after the DOJ announced that it would be unveiling a major anti-trust action late Monday, Bloomberg reported that AT&T will be the target of said action (as Amazon sneaks by one more day). Late last year, AT&T announced that it had agreed to buy Time Warner in another controversial merger of content creators and distributors.


The news hammered shares of Time Warner, which dropped nearly 2% as investors realized that the White House is preparing to act on President Donald Trump’s campaign-season threat to block the $85.4 billion merger. Meanwhile, shares of AT&T climbed.



The reports are the culmination of more than a week of sparring over the deal and dealing a major blow to the carrier’s bid to create a media and telecommunications empire, Bloomberg reported. NBC also confirmed the news.


The challenge would derail a deal that had appeared to be sailing toward approval as recently as a month ago. That was before the new US antitrust chief Makan Delrahim took up his position and took over the investigation. During negotiations he pushed for the companies to sell the Turner broadcasting unit or DirecTV, a request that AT&T rejected. Last week, reports emerged that the DOJ had asked Time Warner to sell its Turner Broadcasting unit, which includes cable news network CNN. Later, the DOJ said AT&T and Time Warner had offered to sell CNN if that would cause DOJ to drop its opposition to the deal.









Thursday, August 31, 2017

Has Google Become A Major Threat To Democracy In America?

Authored by Mike Krieger via Liberty Blitzkrieg blog,






About 10 years ago, Tim Wu, the Columbia Law professor who coined the term network neutrality, made this prescient comment: “To love Google, you have to be a little bit of a monarchist, you have to have faith in the way people traditionally felt about the king.”



Wu was right. And now, Google has established a pattern of lobbying and threatening to acquire power. It has reached a dangerous point common to many monarchs: The moment where it no longer wants to allow dissent.



When Google was founded in 1998, it famously committed itself to the motto: “Don’t be evil.” It appears that Google may have lost sight of what being evil means, in the way that most monarchs do: Once you reach a pinnacle of power, you start to believe that any threats to your authority are themselves villainous and that you are entitled to shut down dissent. As Lord Acton famously said, “Despotic power is always accompanied by corruption of morality.” Those with too much power cannot help but be evil. Google, the company dedicated to free expression, has chosen to silence opposition, apparently without any sense of irony.



In recent years, Google has become greedy about owning not just search capacities, video and maps, but also the shape of public discourse. As the Wall Street Journal recently reported, Google has recruited and cultivated law professors who support its views. And as the New York Times recently reported, it has become invested in building curriculum for our public schools, and has created political strategy to get schools to adopt its products.



It is time to call out Google for what it is: a monopolist in search, video, maps and browser, and a thin-skinned tyrant when it comes to ideas.



Google is forming into a government of itself, and it seems incapable of even seeing its own overreach. We, as citizens, must respond in two ways. First, support the brave researchers and journalists who stand up to overreaching power; and second, support traditional antimonopoly laws that will allow us to have great, innovative companies — but not allow them to govern us.



– From Zephyr Teachout’s powerful arcticle: Google Is Coming After Critics in Academia and Journalism. It’s Time to Stop Them.



The mask has finally come off Google’s face, and what lurks underneath looks pretty evil.


2017 has represented a coming out party of sorts for Google and the control-freaks who run it. The company’s response to the James Damore controversy made it crystal clear that executives at Google are far more interested in shoving their particular worldview down the throats of the public, versus encouraging vibrant and lively debate. This is not a good look for the dominant search engine.


The creeping evilness of Google has been obvious for quite some time, but this troubling reality has only recently started getting the attention it deserves. The worst authoritarian impulses exhibited at the company appear to emanate from Alphabet Chairman Eric Schmidt, whose actions consistently seem to come from a very dark and unconscious place.


Today’s piece focuses on the breaking news that an important initiative known as Open Markets, housed within the think tank New America Foundation, has been booted from the think tank after major donor Google complained about its anti-monopoly stance. Open Markets was led by a man named Barry Lynn, who all of you should become familiar with.


The Huffington Post profiled him last year. Here’s some of what we learned:





There’s a solid economic rationale behind Washington’s new big thing. Monopolies and oligopolies are distorting the markets for everything from pet food to cable service. There’s a reason why cable companies have such persistently lousy customer-service ratings. They know you have few (if any) alternatives. Today, two-thirds of the 900 industries tracked by The Economist feature heavier concentration at the top than they did in 1997. The global economy is in the middle of a merger wave big enough to make 2015 the biggest year in history for corporate consolidation.



Most political junkies have never heard of the man chiefly responsible for the current Beltway antitrust revival: Barry C. Lynn. A former business journalist, Lynn has spent more than a decade carving out his own fiefdom at a calm, centrist Washington think tank called the New America Foundation. In the process, he has changed the way D.C. elites think about corporate power.



“Barry is the hub,” says Zephyr Teachout, a fiery progressive who recently clinched the Democratic nomination for a competitive House seat in New York. “He is at the center of a growing new ? I hesitate to call it a movement ? but a group of people who recognize that we have a problem with monopolies not only in our economy, but in our democracy.”



Many Southerners who relocate to the nation’s capital try to temper their accents for the elite crowd that dominates the District’s social scene. Lynn, a South Florida native, never shed his drawl. He pronounces “sonofabitch” as a single word, which he uses to describe both corrupt politicians and big corporations. He is a blunt man in a town that rewards caginess and flexibility. But like King, Lynn’s critique of monopolies does not reflect a disdain for business itself.



Lynn left Global Business for The New America Foundation in 2001 and began work on his first book, End of the Line: The Rise and Coming Fall of the Global Corporation, which argues that globalization and merger mania had injected a new fragility into international politics. Disruptive events ? earthquakes, coups, famines, or at worst, war ? could now wreak havoc on U.S. products that had once been safely manufactured domestically. Production of anything from light bulbs to computers all could shut down without warning.



It was a frightening vision with implications for economic policy and national security alike. It was also ideologically inconvenient for the techno-utopian zeitgeist of its day. Lynn’s book landed on shelves about the same time as Thomas Friedman’s better-known tome, The World Is Flat, which declared globalization a triumph of innovation and hard work for anyone willing to do the hard work of innovating.



Today, Lynn’s predictions of market disruption and political unrest appear to have been ahead of their time. Early globalization champions, including Martin Wolf and Lawrence Summers, are rethinking their judgments of a decade ago. But Lynn turned several influential heads when his book was published. Thomas Frank, bestselling author of What’s The Matter With Kansas?, became a Lynn enthusiast. So did food writer Michael Pollan.



“He was writing about an issue that nobody was paying attention to, and he was doing it with a very strong sense of history,” Pollan says. “Barry understood antitrust going back to the trust-busters a century ago, and how our understanding of the issue shrank during the Reagan administration … The food movement is not very sophisticated on those issues.”



Lynn’s history nerd-dom is eccentric in a town that hyperventilates over every hour of the cable news cycle. Ask about Donald Trump or Hillary Clinton, and Lynn will oblige you a polite sentence or two. Ask him about former Supreme Court Justices Louis Brandeis or William Howard Taft, and you’ll need to reschedule your dinner plans.



“He once asked me to read about Roman law for a piece on common carriage,” says Lina Khan, referencing a plank of net neutrality policy not typically associated with the Code of Justinian.



After he published his second book in 2010, Lynn began bringing on his own staff within New America. Khan was one of his first hires. Teachout, a Fordham University Law School professor, was another. Teachout eventually ran for office and published a book of her own on the history of corruption in America. Another of Lynn’s associates, Christopher Leonard, published a book on meat industry monopolies around the same time. These works shared a common theme: Monopolistic businesses create social problems beyond consumer price-gouging, from buying off politicians to degrading the quality of our food.



Analyzing the political power of companies with overwhelming market positions used to be a normal part of antitrust thinking. But over the decades, a narrower conception focused on consumer prices has taken hold in Washington. Even if anti-competitive behavior can be proved, according to this thinking, it’s not a problem unless it raises prices for consumers. Under this view, it’s not necessarily an antitrust problem, if, say, Amazon used its market position to force publishers into charging lower prices for books. If the result is lower prices, everything is fine. It would only become a problem if Amazon used its market power to raise prices.



That’s not how Lynn sees it. When the Authors Guild, the American Booksellers Association, the Association of Authors’ Representatives and Authors United went after Amazon in 2015 for requiring publishers to accept lower e-book prices, Lynn penned a 24-page position paper to the Department of Justice on their behalf. It wasn’t just a question of immediate consumer impact. Amazon’s market position was so dominant, he argued, that the company could restrict or cut off access to books from publishers it wanted to punish for rejecting its pricing requirements. It could “exercise control over the marketplace of ideas in ways that threaten not merely open markets but free speech.”


Monopolies, according to Lynn, are fundamentally political enterprises — not just players in a market.



As the Amazon conflict demonstrates, some of Lynn’s chief targets are tech giants. That makes him an odd fit for New America, which was founded in 1999 as Silicon Valley’s think tank in search of a “radical center,” as The New York Times put it. Google Executive Chairman Eric Schmidt is still on New America’s board of directors, yet Lynn consistently puts the company under the microscope.



When Warren blasted tech monopolies this summer, she was speaking at a conference that Lynn had organized. When Sen. Al Franken (D-Minn.) asked about “platform” monopolies at a Senate hearing in March, he was echoing Lynn’s objections to digital kingpins, including Amazon, Apple and Google.



But Lynn’s apostasy gets results. The Obama administration conferred with him on an anti-monopoly executive order this spring, and he helped work antitrust language into the 2016 Democratic Party platform. He can’t claim the same kind of direct credit for the Republican Party’s partial conversion to the antitrust cause. But his work is changing the way Washington thinks about corporate power, and that shift is having bipartisan repercussions.



Barry Lynn and his Open Markets initiative have been a thorn in the side of tech-monopoly plutocrats for a while, and Google apparently decided that it finally had enough.


As the The New York Times noted in a blockbuster article published earlier today:





WASHINGTON — In the hours after European antitrust regulators levied a record $2.7 billion fine against Google in late June, an influential Washington think tank learned what can happen when a tech giant that shapes public policy debates with its enormous wealth is criticized.



The New America Foundation has received more than $21 million from Google; its parent company’s executive chairman, Eric Schmidt; and his family’s foundation since the think tank’s founding in 1999. That money helped to establish New America as an elite voice in policy debates on the American left.



But not long after one of New America’s scholars posted a statement on the think tank’s website praising the European Union’s penalty against Google, Mr. Schmidt, who had been chairman of New America until 2016, communicated his displeasure with the statement to the group’s president, Anne-Marie Slaughter, according to the scholar.



The statement disappeared from New America’s website, only to be reposted without explanation a few hours later. But word of Mr. Schmidt’s displeasure rippled through New America, which employs more than 200 people, including dozens of researchers, writers and scholars, most of whom work in sleek Washington offices where the main conference room is called the “Eric Schmidt Ideas Lab.” The episode left some people concerned that Google intended to discontinue funding, while others worried whether the think tank could truly be independent if it had to worry about offending its donors.



Those worries seemed to be substantiated a couple of days later, when Ms. Slaughter summoned the scholar who wrote the critical statement, Barry Lynn, to her office. He ran a New America initiative called Open Markets that has led a growing chorus of liberal criticism of the market dominance of telecom and tech giants, including Google, which is now part of a larger corporate entity known as Alphabet, for which Mr. Schmidt serves as executive chairman.



Ms. Slaughter told Mr. Lynn that “the time has come for Open Markets and New America to part ways,” according to an email from Ms. Slaughter to Mr. Lynn. The email suggested that the entire Open Markets team — nearly 10 full-time employees and unpaid fellows — would be exiled from New America.



While she asserted in the email, which was reviewed by The New York Times, that the decision was “in no way based on the content of your work,” Ms. Slaughter accused Mr. Lynn of “imperiling the institution as a whole.”



Mr. Lynn, in an interview, charged that Ms. Slaughter caved to pressure from Mr. Schmidt and Google, and, in so doing, set the desires of a donor over the think tank’s intellectual integrity.


 


“Google is very aggressive in throwing its money around Washington and Brussels, and then pulling the strings,” Mr. Lynn said. “People are so afraid of Google now.”



It is difficult to overstate Mr. Lynn’s influence in raising concerns about the market dominance of Google, as well as of other tech companies such as Amazon and Facebook. His Open Markets initiative organized a 2016 conference at which a range of influential figures — including Senator Elizabeth Warren of Massachusetts — warned of damaging effects from market consolidation in tech.



In the run-up to that conference, Ms. Slaughter and New America’s lead fund-raiser in emails to Mr. Lynn indicated that Google was concerned that its positions were not going to be represented, and that it was not given advanced notice of the event.



“We are in the process of trying to expand our relationship with Google on some absolutely key points,” Ms. Slaughter wrote in an email to Mr. Lynn, urging him to “just THINK about how you are imperiling funding for others.”



After initially eschewing Washington public policy debates, which were seen in Silicon Valley as pay-to-play politics, Google has developed an influence operation that is arguably more muscular and sophisticated than that of any other American company. It spent $9.5 million on lobbying through the first half of this year — more than almost any other company. It helped organize conferences at which key regulators overseeing investigations into the company were presented with pro-Google arguments, sometimes without disclosure of Google’s role.



Among the most effective — if little examined — tools in Google’s public policy toolbox has been its funding of nonprofit groups from across the political spectrum. This year, it has donated to 170 such groups, according to Google’s voluntary disclosures on Google’s website. While Google does not indicate how much cash was donated, the number of beneficiaries has grown exponentially since it started disclosing its donations in 2010, when it gave to 45 groups.



Some tech lobbyists, think tank officials and scholars argue that the efforts help explain why Google has mostly avoided damaging regulatory and enforcement decisions in the United States of the sort levied by the European Union in late June.



Google’s willingness to spread cash around the think tanks and advocacy groups focused on internet and telecommunications policy has effectively muted, if not silenced, criticism of the company over the past several years, said Marc Rotenberg, the president of the Electronic Privacy Information Center. His group, which does not accept any corporate funding, has played a leading role in calling out Google and other tech companies for alleged privacy violations. But Mr. Rotenberg said it is become increasingly difficult to find partners in that effort as more groups have accepted Google funding.



“There are simply fewer groups that are available to speak up about Google’s activities that threaten online privacy,” Mr. Rotenberg said. “The groups that should be speaking up aren’t.”



As a result of its actions in recent years, I believe Google represents a clear threat to democracy and freedom of expression in America. The good news is that Barry Lynn and his team at Open Markets will continue their work independently at a new group called Citizens Against Monopoly.


You can sign a letter of support for this new initiative and contribute to it financially (I have done both), by clicking the image below.



Let’s make sure this story results in the the ultimate Streisand effect, thus bringing the crucial issue of anti-trust to the forefront of the American political conversation where it belongs.


Monopoly capitalism is not a “left” or “right” issue, it’s an issue nearly everyone can stand united on irrespective of where you lie on the political spectrum. Concentration is too high in too many industries, and this reality is starting to have negative repercussions on our basic freedoms. It’s long past time that we tackle this issue with the seriousness it deserves and start to push back aggressively as a people.

Thursday, February 16, 2017

Monopolies Are Caused by Government, Not Technology, and Should be Removed by the Courts


Via The Daily Bell



Monopolies Are Worse Than We Thought ... Economists are increasingly turning their attention to the problem of monopoly. This doesn’t mean literal monopoly, like when one utility company provides all the power in a city. It refers to market concentration in general -- when an industry goes from having 20 players to having only 10, or when the four biggest companies in an industry start taking a bigger and bigger share of sales. This sort of creeping oligopoly acts much like a literal monopoly -- it raises prices, limits market size and tends to make the economy less efficient. - Bloomberg



Market concentration hurts workers according to this article. It"s true, but makes no distinction between voluntary monopolies and imposed monopolies.


In some cases, monopolies are valuable and adopted voluntarily. For instance, light bulbs are standardized. This is a form of voluntary monopoly and customers do not react against it from what we can tell.


Then there"s the Federal Reserve, which has been given the power to regulate and print money.


The Fed is a government monopoly with all the negatives we associate with this kind of monopoly. It runs money for the sake of a handful of people and not for the larger good.


Additionally, the idea that the Fed could run money and regulate banks for the larger good is suspect anyway. It is not going to turn into an eleemosynary institution just because it has the ability to exercise a monopoly.


More:



I suspect that creeping monopoly will prove to be one of the main reasons for decreasing business dynamism. And it could even be a contributor to slow productivity growth.


In other words, many of the diseases in our economy can probably be traced, at least in part, to the problem of market concentration. In a previous post, I mentioned a couple of potential causes. The obvious culprit would be a more lax attitude toward antitrust enforcement.


If free-market fundamentalism caused the U.S. to be friendlier toward big mergers since the 1990s, this could have encouraged concentration. One problem with this story is that antitrust fines have actually been on the rise: Regulation can increase monopoly power by raising barriers to entry.



Even within a couple of grafs the author says two contradictory things. First he says the antitrust enforcement has made monopolies more common. Then he says that antitrust fines have been on the rise but that they too can encourage monopolies by creating barriers to entry.


The article says that if regulation is the main reason for monopolies than he will have to become "much more libertarian." In fact it is already established that regulation is a main cause of monopolies.


However, the article doesn"t see it this way. Modern regulatory trends, he declares, have only been around since about 2000. Therefore blaming regulation for monopolies must not be true.


Additionally, the article mentions a recent paper claiming that a few "superstar" companies in various fields have naturally emerged as quasi-monopolies. Modern technology may simply have change the way companies relate to each other and to the market. "Those companies could simply be out-competing their rivals."


Yet a third reason could be because technology has broadened competition and top brands are now far more ubiquitous. Big corporations can now more easily push out smaller ones.


Probably none of this is true. What builds big corporations with monopoly tendencies is what we have been saying all along: Monopoly force exercised through the court system, and by the legislature.


Remove intellectual property rights and corporate person-hood and you would go a long ways to naturally reducing the overly large size of corporations.


If technology is the culprit, then the problem will be complex indeed. But technology is not the culprit. America"s judicial system and legislature has created the problem and can solve it in large part by walking back a few of decisions.


Of course the chance of this are fairly minimal. The current system only makes thing more complicated over time.


Conclusion: But if the court at the federal level could be compelled to reexamine its decisions and then to change them, the US would become a much better place. Involuntary monopolies would become far fewer. And that would help everyone.

Friday, December 16, 2016

Silver Smoking Gun to Stop Dishonest Dealing

By Bron Suchecki


Last week ZeroHedge reported on the amended London Silver Fixing Antitrust Litigation which included damaging chat logs provided by Deutsche Bank that reveal collusion between bullion bank traders to “shade”, “blade”, “muscle”, “job”, “spoof” and “snipe” the silver market.


While the amended complaint only provides selected examples from the 350,000 pages of documents and 75 audio tapes that the plaintiffs received as part of the settlement with Deutsche Bank, what has been provided shows cliques of traders who worked together against the interests of their clients.


Below is a network map of these cliques, which shows every trader mentioned in the complaint with the lines indicating who chatted with whom (view the map online here).


 Network map of fix manipulation traders


The key ringleader is DB Trader-Submitter A (submitter refers to their role submitting orders into the London Fix) and this sort of hub and spoke model is common in social networks. The two persons with a slash and two banks in their name indicate that they moved banks during the period of the complaint. This is not uncommon in bullion banking since it is a small industry and would increase the risk of collusion between former workmates, something the management of the banks should have been alert to.


The lack of connection between these groups is likely due to them being in different timezones. The group of four in the top left corner are most likely in Singapore, given the use of Singlish terms like “lah” in the chats. The larger group is based mostly in London with one in New York, based on references in the complaint. The group of three at the bottom may be in Dubai, although that is speculation.


The chats have a jovial feel with traders calling each other “bro”, “dude” and “mates” and show no care for clients on the other end of their schemes: for example, Deutsche Bank Trader B talks about “wanna ramp it up like really just buy at mmkt and fk everyone so bad”. No doubt these chats will now be a lot more stilted as traders realise that collusive behaviour brings with it personal consequences like jail terms, as it did with LIBOR.


Nick Laird at goldchartsrus.com has collated all the chats in chronological order here with a chart of the silver price underneath to help put the chats in context of market price action at the time. In general, the chat logs show collusion to tactically/short-term manipulate the London Silver Fix and spot market (curiously, there is no mention of Comex futures, but the plaintiffs are only giving us a sample in this complaint).


With the Deutsche Bank chat logs showing a collusive network across banks, it would seem unlikely that the defendants will be able to refute the antitrust claim by the plaintiffs. The next question is that of damages. As it stands, the tactical nature of the manipulations means that the defendants are likely to argue that the members of the class action can only claim damages if they traded at the same time as the chat evidence shows market manipulation.


To cover the entire class and increase the damages, the plaintiffs need to show that the traders’ actions resulted in ongoing suppression of the silver price.


In the chats the traders do not explicitly indicate any plans to suppress the price on an ongoing, multi-day/month/year basis or reference having to manage a large naked futures short position (which many have said is necessary for ongoing price suppression to exist). Monetary Metals have written on the naked short theory in the past, noting that it is not supported by observation of prices as contracts approach first notice day. To implement such an ongoing suppression using futures, the bullion banks would need to roll their oversized short position by purchasing the expiring contract and shorting the next contract. Such massive buying of an expiring contract would cause the basis to rise, yet the opposite occurs - see here for more details.


Absent such explicit proof of suppression, the complaint masses a number of different econometric analyses to show that the London Silver Fix impacts other silver prices in the wider market.


The analysis does not start off well where, on page 40, the plaintiffs fall for the “correlation proves causation” fallacy claiming that “the prices of COMEX silver futures contracts are directly impacted by changes in the Fix price, which determines the value of the physical silver underlying each COMEX silver futures contract” on the basis of a regression analysis between futures closing prices and the Silver Fix of 99.85%. The defendants will be able to rebut such claims by referring to papers like London or New York: where and when does the gold price originate? which show that neither London (spot) nor New York (futures) are dominant in terms of price and that the dominant market switches from time to time.


We feel the plaintiffs are on stronger footing when comparing spot and futures price movements around the fix (see page 71 onwards, figures 24 to 28). The plaintiffs’ show a few charts demonstrating a spot to futures linkage but we would suggest that to win the case the analysis would benefit from looking the spread between spot and futures markets, or the basis, which we report on each week. For an example of the application of basis to forensic price analysis, see our November 13 report where we show that the drop of $30 in the gold price around the London Fix on November 11 was driven by selling of futures as the gold basis began to fall before the price did (see below).


Gold Intraday Nov 11


The final challenge for the plaintiffs is to prove that the impact of the banks’ manipulative actions persisted “well beyond the end of the Fixing Member’s daily conference call” (see pages 81-83). While the plaintiffs claim that this is proven because the mean of the cumulative unadjusted returns “on Down Days does not recover fully from the price drop that occurs at the start of the Silver Fix”, the very wide confidence interval implies that on a number of days it did recover. It will be interesting to see how the defendants response to this crucial claim.


The Deutsche Bank chat logs have enabled the plaintiffs to get over the first huge hurdle of showing antitrust behaviour. The focus of media reports to-date on the colorful chats gives the impression this is a closed case but the lack of explicit chats discussing management of a large naked futures short position and/or plans to supress the price over months is unusual. One would expect that managing such a large ongoing supression would be the main focus of discussions between traders. It is possible that the plaintiffs may have withheld this evidence for strategic purposes but if not, this case may end up turning into a battle of the bookworms with academics arguing econometrics and questioning what does the “mean of the cumulative unadjusted returns” really mean.


Whichever way the case develops, bullion banks now have increased costs of supervising and managing the risks that precious metals trading desk “bros” might be looking to "fk" their clients. Combined with the potential that the “cost of doing business will jump – perhaps by 300% on one estimate” due to Basel 3 rules, some may decide to do a Deutsche Bank and pull out of the market. The result may be further consolidation in bullion banking and give regulators more justification to push those that remain out of "dark" OTC trading and on to "lit" exchanges.