The Arch Coal Case
Kiki Frey
Sam Rael
Ford Eubanks
Background Information
• The Southern Powder River Basin:
– Northern Wyoming, produced low BTU, low-sulfur
coal that represents 40% of steam coal produced
in the US.
– The mines in this area can be divided into two
groups:
• Tier 1 Mines, that produce 8800 BTU coal
• Tier 2 & 3 Mines, that produce 8400 BTU coal
Background Information
• Land is leased from the government.
• The winning bid is paid in five yearly installments.
• This process, known as a “lease by application”,
or LBA, took about 4 years to secure.
• Given the year time span to reach coal
subsequently, entry into this market was not
deemed to be important on anti-trust grounds.
The Purchasers of Coal
• Most are located in the Midwest:
– Some plants were built specifically to burn low
BTU coal.
• Four dimensions of differentiation
– Utility Location
– BTU’s effect on boiler performance
– Sulfur Level, as per state regulation
– “Tier 3” mines only had 1 railway access vice 2 for
others
The History of SPRB
Timeline:
Cost of Production:
– 1970’s: mining began for 8400 BTU coal of what is now Tier 3 mines
$2 per ton
– Early 1980’s: as mines moved west, strip ratios increased, making mining
$8 per ton
more difficult
– Late 1980’s: technology improved, just as 8800 BTU (Tier 1) mines opened
$3.50 per ton (L)
$4.50 per ton (H)
– -2000: production increased to 350 million tons from 105 million tons.
– 1999 & 2000: several mines reduced production capacity, causing prices to
respond in turn
$11 per ton (L)
$13 per ton (H)
– July 2001: DOJ launched an investigation for price fixing, no case was filed
– 2002-2003: coal prices normalized
Market Consolidation: from 1993 to 2000, the number for firms in SPRB shrank
from ten to five.
$5.50-$6.50 per ton (H)
Creating a Market Definition
• The was no serious claim that the market included coal
produced outside SPRB:
– The other four coal producing regions were either not in compliance
with Clean Air Act sulfur levels, or had more costly mines to operate.
Creating a Market Definition
•
Is there market differentiation for the 8800 BTU coal and the 8400 BTU coal?
– The merger guidelines prescribe a SSNIP Test
– Transactional data for coal is unable to undergo cross-price elasticity tests due
to the length and irregularity of the contracts between buyer and seller
– A test using the utility’s standard of “cost per kilowatt” could have been used,
but neither the FTC nor Arch Coal amassed the data from the relatively few
buyers of SPRB coal and analysis based on these data was not conducted.
– THUS, neither presented any DIRECT evidence in support of either position.
– The FTC presented co-integration analysis in support of the two tiers of coal
being in different markets
– The Defendants claimed transportation costs as a sole cause of cross-price
elasticity.
• Although the expert witness claimed that a 10% increase in the price of
8800 BTU coal was not profitable, under cross-examination she admitted
higher profitability with a 25% price increase
FTC’s Case
•April 1st, 2004 the Federal Trade Commission (FTC) filed a
complaint in federal district court to block the transaction
•Coordinated Effects Theory
i. Engage in tacit coordination
ii. Unilateral effects theory
• Provided six arguments against the acquisition
Argument One
•Collusion more likely even without explicit (illegal) communication
•The “Big Three” have a greater incentive to reduce output and increase price
•Acquisition of Tier 1 New Rochelle mine
i. The “Big Three” now control all Tier 1 mines
ii. No longer can offset a “Big Three” output reduction
• Analysis provided by FTC economic expert
i. Remaining SPRB mines can no longer compete
ii. Tacit agreement between the “Big Three” much more profitable
postmerger
Arguments Two & Three
•Market characteristics facilitate tacit coordination
•Observable data
i. Mine owners report to U.S. Department of Labor’s Mine Health and Safety
Administration (MHSA)
ii. Utility reports to the Federal Energy Regulatory Commission (FERC) and
the U.S. Department of Energy’s Energy Information Administration (EIA)
• Owner’s knew mine-mouth prices of competing mines
i. Difficult to deviate from a tacit agreement
ii. Cheating is easily detectable
•
Public statements by “Big Three” CEO’s
i. Persistent low spot prices
ii. All producers must exercise discipline
iii. Arch’s CEO Steven Leer
Arguments Four & Five
•Belief that the Big Three had already begun to coordinate
i. Production discipline
ii. Price discipline
•
•
•
Arch attempted to negotiate the sell of Triton’s Buckskin mine
Buckskin won’t constrain tacit coordination:
i. Produced the third-lowest BTU coal in SPRB
ii. One of the highest sulfur levels
iii. Not a good substitute for Tier 1 mines’ coal
FTC argued that Buckskin was not a profitable enough mine that could
constrain the “Big Three”
i. Sold for only $80 million
Argument Six
•FTC argued that a vast majority of customers were also concerned about the
merger
•FTC believed that customers would…
i. Limited ability to switch from SPRB coal to other coals
ii. Concerned about public statements made by “Big Three” CEO’s
iii. Long-term contracts with market-price adjustments
iv. Reduced sources of 8800 BTU coal
The Defendant’s Case
•Concentrated on four main themes
1. No customer had any knowledge that the mines were attempting to
coordinate
2. For most utilities 8800 and 8400 BTU coals were good substitutes
3. Historical data is not a good basis on which to predict current bids
4. Triton was too “weak” to constrain the Big Three’s pricing and Buckskin
was Triton’s strong mine
Arguments One, Two & Three
1. The merger would provide an efficiency that would lower the cost of production
2. Number of mine owners would not fall because the Buckskin mine was sold to
Peter Keiwit and Sons another mining company
3. FTC argued that the Big Three were colluding based on quantity
Arguments Four, Five & Six
4. Difficult for the Big Three to coordinate
i. Long-term contracts
ii. Increased demand
5. Fringe firms could expand output to prevent supracompetitive prices
6. Rebuttal on FTC’s argument that reductions in production capacity
constituted coordinated interaction
i. Simply unilateral decisions
SPRB Coal Market Concentration
HHI
Practical
Capacity
Loadout
Capacity
Production
Reserves
Current Market
2152
2068
2201
2054
Postmerger
2346
2292
2365
2103
Postmerger
Increase
193
224
163
49
The defense argued that HHI calculations should be based on the total
reserves of SPRB coal owned by mines at the time of the merger rather
than on a level of output.
The Decision
“Although production restrictions were advocated and even practiced by Arch
during 2000-2002, and broader coordination by SPRB producers to limit
supply was feasible, no express or tacit coordination to limit production has
actually occurred among the major SPRB coal producers”
-
-
“A more significant indicator of a company’s power effectively to compete
with other companies lies in the state of a company’s uncommitted reserves
of coal”
The North Rochelle mine had 7.5 years of reserves left and no impediment to
purchasing additional reserves through the LBA process
“Exclusive reliance on the measure to determine market concentration in the
SPRB today does not appear warranted”
Coordination in the SPRB
The “Novel Theory”
-coordination only on output, in which the major coal producers
in the SPRB market would constrain their production so that
increases in supply would lag behind increases in demand,
thereby creating upward pressure on price
- The FTC must show projected future tacit coordination, which:
1. May not be illegal
2. Is difficult to prove
3. Few precedents
Likelihood of Coordination
Will the Big Three be more likely to coordinate
after the merger?
Successful coordination requires two factors:
1. Reaching terms of coordination that are profitable to the firms
involved
2. An ability to detect and punish deviations that would
undermine the coordinated interaction (credible punishment)
Likelihood of Coordination
The FTC must be able to show that the proposed transactions will
increase the risk of coordinated output restriction and decrease the
likelihood of deviation in the SPRB market.
1. The court will examine the SPRB market to determine if
coordinated interaction is feasible
2. They will then determine if there is evidence that actual or tacit
coordination has occurred
3. Then examine the structure and dynamics of the SPRB market, the
competitive strength of the firms and the roles they would play in a
post-merger market
Raising the Bar
This decision raised the bar significantly as to what must be shown
when bringing a coordinated effects case.
Judges focused on whether coordination had already taken place.
They placed great weight on the fact that a showing of past
coordination was a requirement for the court to find harm.
Past Coordination
-No history of successful coordination in the SPRB
- FTC: “idling productive capacity”
- Idling of productive capacity was not evidence of past
coordination: could be explained as a unilateral decision to save
costs in a time of overcapacity
- Customers: testimonies that coal market was competitive
Susceptibility of the Market to
Coordination
The decision argues that the structure and dynamics of the SPRB
market do not make coordination likely:
-Heterogeneity of products and producers
- unpredictable demand
- irregular pricing data
- emphasis on sealed bids and confidentiality
- no effective disciplinary mechanism
North Rochelle
Could the North Rochelle mine (the one Arch would retain) act as a
constraint on the Big Three?
- Decide based on North Rochelle’s behavior
- Before 2002, it expanded output and was identified by Arch as an
impediment to production discipline.
-After 2002, “they agreed to have Arch try to acquire them” and ceased
to become competitive
- The Court focused on North Rochelle’s behavior after 2002
Customer Concerns
Treatment of customer concerns over the merger is a very significant
portion of the case.
FTC produced several customers who expressed the opinion that the
shrinking number of suppliers would lead to higher coal prices.
Court found that though a decrease in the number of suppliers may
lead to a decrease in the level of competition, customers do not have
the expertise to stat what will happen in the market.
The Market Since the Decision
Look at spot prices and long-term contract prices to analyze the effects
of the merger:
-However analysis is complicated by a rail outage: severe rainstorms
washed away several sections of the joint track line serving the SPRB in
May 2005.
- Lead to a significant reduction in the ability of utilities to send trains
into the SPRB to receive delivery of coal
- In the months after the washout, spot prices went as high as $20
before falling to just under $10 in September 2006, and remained far
above the premerger spot price of $5.75-$6.50 per ton
The Market Since the Decision
If the market between mines and utilities were perfectly competitive,
one would expect the prices to fall: as mines experienced excess
production capacity, they would compete the price down.
Once the bottleneck was eliminated, one could expect higher prices in
the SPRB as demand would exceed the mines’ short-run capacity at spot
prices near average variable cost of production. (Consistent with the $20
spot price in January 2006) and the reduction in the price over the next
several months as utilities restocked their inventory levels.
Conclusion
Interesting case because:
- Court relied exclusively on a coordinated effects theory
of harm
- Number of very strong conclusions by the district court
about the level of competitiveness of the market and the
likelihood of coordination