December 2014 - II

Antitrust Chronicle – Antitrust Year End Buffet Edition In 2014, we published 156 articles in the CPI Antitrust Chronicle. For this last issue of the year, we’re presenting a baker’s dozen of articles that highlight the variety, scope, and diversity of the content we presented over the course of the year. We invite you take a look back and see what you may have missed, or re-acquaint yourselves with some topic that seems a bit unfamiliar—and check out the related articles in the archives. The articles cover diverse topics such as regulation of sports in the EU, regulation of credit rating agencies, effect of leniency on cartel enforcement in the US, relationship between media plurality and competition law in the UK, modernization of state aid, due process under EU competition law, intra agency cooperation in Latin America, Chinese treatment of resale price maintenance cases, potential impact of Affordable Care Act on merger reforms. There’s a world of information available, and it’s always accessible. And, of course, many thanks to all of you—our authors and readers—who continue to prove the world of competition policy/antitrust is vibrant, energetic, and challenging. Here’s to a great 2015!

December 2014 - I

Antitrust Chronicle – High Tech Mergers Handle With Care The subject of merger remedies dramatically demonstrates the increasing complexity of antitrust regulation. In this CPI issue, organized by Danny Sokol, we look at problems with conditions imposed on proposed mergers, including (i) dealing with ever-changing high-tech markets and the need for the regulators to adopt a more nuanced approach to merger remedies in such markets, (ii) conflicts across multiple regimes when it comes to assessment of tech mergers and the need to have a harmonized approach, (iii) competition laws that deal with more than maintaining competitive markets, (iv) asking whether authorities or companies should design solutions, and (v) treatment of minority ownership. Plus, we have two “Of Special Interest” articles — defining relevant markets, and the new Greek method of identifying collusion in the tendering process. Happy holidays, everyone!

November 2014 - I

Antitrust Chronicle – INFORMATION SHARING & ANTITRUST Information exchanges between competitors have been an object of interest for competition authorities on both sides of the Atlantic for decades now; in the European Union since the 1970s with cases such as the IFTRA Glass Containers and later the UK Tractor information exchanges, and in the United States as far back as the 1920s with cases such as Maple Flooring or American Column & Lumber. Information exchanges between competitors have not only given rise to a considerable amount of cases, but also to interpretative notices by the respective competition authorities. The U.S. Federal Trade Commission and the Department of Justice jointly issued in 2000 the Antitrust Guidelines for Collaboration Among Competitors, and the European Commission issued in 2011 the Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Cooperation Agreements.

October 2014 - I

Antitrust Chronicle – PROTECTIONISM & ANTITRUST In this CPI issue, we address a pressing antitrust question of political nature – how should nations address political concerns, if at all, through antitrust policy. We first look at the position in the U.S. & EU and then turn to look at Asia. In doing so, our contributing authors ask certain pertinent questions, such as what is the legal framework governing the current U.K. merger control regime insofar as public interest considerations are concerned, including its important interface with EU law? What is the extent to which public interest considerations can be invoked under foreign investment control rules in the United Kingdom and a number of other jurisdictions? Whether there is, or should be, a role for national interest considerations in the review of corporate acquisitions by foreign purchasers? How does the how the current EU merger control framework accommodate both competition and non-competition considerations and reconcile them with EU law principles of freedom of establishment and free movement of capital? How can the EU system learn from the U.S. in addressing non-competition related public interests on investment within a merger control timetable.

September 2014 - II

Antitrust Chronicle – ANTITRUST & Obamacare Obama Care, which attempts to increase coverage at less cost, has brought a classic cost-benefit question in health care to the forefront: How to improve health care while controlling costs? What will be the long-term impact of having ‘low health care costs’ as policy objective of the health care regime? What are the adjustments that antitrust law may have to make to accommodate the goals of healthcare policy that may be not be aligned with the policy goals of antitrust law? How does FTC treat the quality improvement claims in some of its most recent hospital merger cases? we note the conflict is not just between government and private entities — but also between different federal government agencies, and state and federal authorities. Resolution looks to be very tough.

September 2014 - I

Antitrust Chronicle – ANTITRUST & SEPs In this CPI issue, our contributing authors look at the fast-evolving issue relating to standard essential patents – How the Seventh Circuit Court of Appeals ruling in Motorola Mobility LLC v. AU Optronics, expands the applicability of the Sherman Act to foreign companies, whether such extra territoriality is desirable, what is the optimal approach on the matter. Some authors argue for the Motorola ruling while another argues for repeal of the FTAIA and addressing Motorola through the principles laid down in the Hartford Fire and Illinois Brick cases.

August 2014

Antitrust Chronicle – ANTITRUST MELANGE In this combined CPI Issue, we look at mélange of competition issues from across the world. We look at several pressing antitrust questions from around the world, such as – how the two recent decisions taken by the European Commission on April 29, 2014, the Motorola and the Samsung decisions relating to standard essential patents, sit with the civil rights regime of the EU that protects a petitioner from prosecution or punishment from bringing in the claim; what are the different theories of harm that have been used by the U.S. & EU competition authorities when assessing matters relating to IPRs; how the most favored nation / price matching clause can have anti-competitive effects; what is the best way to implement FRAND obligations and what be the benchmarks for implementing the non-discriminatory provision, how to deal with patent hold ups; what has been the track record of criminal anti-cartel competition law enforcement in Canada from 2009 to present and what have been the significant changes in the law and policy that have shaped that landscape…

July 2014 - II

Antitrust Chronicle – False Advertising - An Antitrust Problem? Antitrust and advertising can be surprisingly intertwined, but the relationship doesn’t receive much attention. This CPI issue addresses the key question whether can false advertising give rise to violations of the Sherman Act in the U.S. context and how other national competition authorities deal with the issue.

July 2014 - I

Antitrust Chronicle – Latin America - Antitrust With all eyes on the Americas for the World Cup (many congratulations to Brazil for such a successful job hosting), it is a good time to take a quick survey of the latest antitrust happenings in Latin America. We start with a strong indication of just how seriously the region is taking the subject, surveying the extent of cooperation among the agencies, followed by a look at the challenges of dealing with a “sluggish” judiciary in many of the countries of the region. We continue with three interesting country case studies: two perspectives on Mexico’s just-enacted major — and controversial — changes to their competition regime, lessons learned after ten years of a restructured Chilean regime, and a look at how Brazil’s two-year-old New Law is maturing.

June 2014 - II

Antitrust Chronicle – Antitrust Caught in Supply Chains As Mark Katz, the guest editor for this CPI issue puts it: “Perhaps more than ever, tensions between suppliers and retailers have become the defining feature of the grocery industry worldwide. These tensions have also frequently formed the basis for interventions by competition enforcement authorities in this sector.”

June 2014 - I

Antitrust Chronicle – Dues Process & Antitrust There is broad consensus on the need for, and growing importance of, transparency and procedural fairness in competition enforcement. Our guest editor, Paul Lugard, has organized a special issue that highlights a number of recent developments on this matter. The contributing authors address various topics, such as: how while discussing procedural rights, one has to be mindful of the cultural differences across competition agencies, the need for global best practices on procedural matters, European position on the matter in the light of the Menarini and Schindler rulings, and the need for reforms, whether it makes sense to extend ECHR’s ‘human right protections’ to corporate entities as well? What are the due protection provisions under the Chinese competition regime? How does the Japanese experience in relation to administrative hearings contrast with the American and the European experience? What makes an authority an independent and unbiased decision maker?

May 2014 - II

Antitrust Chronicle – State Aid & Antitrust Since 2012, when the Commission launched its State Aid Modernisation (“SAM”) reform of aid policy, new regulations have been steadily forthcoming – including, just last week, the adoption of new General Block Exemptions. So, it’s more than timely that this CPI issue brings us up to date on State aid. The first group of papers analyze the new reforms from a variety of perspectives. We then look at where State aid and private mandates intersect, followed by an especially topical question: How will State aid in the financial sector work with the reformed EU Banking Union?

May 2014 - I

Antitrust Chronicle – FTC @ 100 Since the FTC is such a major part of the antitrust and consumer landscape, we couldn’t let their 100th birthday pass without a suitable acknowledgment — Happy Birthday! And we aren’t the only ones to have noticed—this February the House Energy and Commerce Committee, Subcommittee on Commerce, Manufacturing, and Trade held a Hearing entitled “The FTC at 100: Views From the Academic Experts.” The presentations included an intriguing range of views on both what the FTC has accomplished in the past and should be accomplishing in the future. So, for this commemorative issue we asked the participants to share their views on issues ranging from how FTC may deal with challenges posed by tech companies, role of consumer welfare standard, what is the sphere of powers of FTC, how FTC has fared so far and what can be done better.

April 2014 - II

Antitrust Chronicle – Patents, Drugs & Antitrust This issue looks at four health issues recently argued by the FTC. First, we deal with the FDA’s REMS (risk evaluation and mitigation strategies) program and how it seems to conflict with the FTC’s desire to encourage generic competition. The FTC is examining branded pharmaceutical firms’ refusal to sell samples of restricted distribution products to firms seeking approval to market generic versions. The contributing authors ask some relevant questions such as — under which circumstances a monopolist’s refusal to deal with a rival constitutes exclusionary conduct that violates Section 2 of the Sherman Act? whether there is merit in using antitrust laws to force brand-name drug companies to share samples of their products with generic rivals to further competition and reduce the cost of prescription drugs, or is congressional action a better route?

April 2014 - I

Antitrust Chronicle – Antitrust & Media In this CPI Issue, we are looking at two volatile media questions—the hotly debated Comcast/Time Warner merger in the U.S. and media plurality in the U.K. Understanding the Comcast merger requires an appreciation that the diverse services the company provides — pay television, broadband, and content — that create horizontal & vertical merger issues plus a variety of possible remedies. Our authors present diverse perspectives on the issue – whether there are any real competition concerns arising from the Comcast merger at all? What may be the implications of the merger when the companies post-merger as buyers of content for cable and as controllers of the increasingly crowded bridge to customers-broadband? What may be effect of the merger on OTTs.

March 2014 - II

Antitrust Chronicle® – Antitrust perspectives from Canada Canada may have the oldest existing competition law in the world, but that doesn’t mean they aren’t facing modern problems that can provide lessons for the rest of us. Mark Katz has organized a survey of some of these problems in this CPI issue where the authors discuss several issues including the implications of the Tervita case (now on appeal to the Supreme Court of Canada), which will address the analytical framework to be applied when a merger is alleged to “prevent” competition substantially in a relevant market, assessing the Competition Bureau’s recent foray into a case involving “product hopping” in the pharmaceutical industry and exploring what this could mean for future enforcement in the (still) cutting edge intersection of intellectual property and competition law, appraising from an economist’s perspective the Canadian government’s recent proposal to use competition law to combat what many Canadians perceive to be “unjustified” cross-border price discrimination.

March 2014 - I

Antitrust Chronicle – Bazaarvoice - A deep Dive In January 2014, a consummated merger between Bazaarvoice and PowerReviews (both firms are third-party providers of ratings and review platforms that allow online shoppers to comment on purchases and allow prospective buyers to see how other consumers rated products) was found to be violative of Section 7 of the Clayton Act. This DOJ court victory throwing out the 2012 merger of Bazaarvoice and PowerReviews involved several meaty antitrust questions: unwinding a consummated merger (here, one that was exempt from HSR reporting) and related remedies; the presence of “hot” documents and intent as a dispositive factor; the value of customer testimony; value of post-merger evidence, “arguably manipulable” evidence; the suitability of traditional merger analysis for high-tech mergers; DOJ’s inclinations to go to trial. Our authors, invited by Danny Sokol, evaluate these questions and bring a variety of opinions to the table. Pull up a seat and dive in!

February 2014 - II

Antitrust Chronicle – LENIENCY This CPI issue is focused on leniency programs, their appeal, their success and challenges. United States Department of Justice Antitrust Division’s leniency program has been in use for over last twenty years and has a solid track record. EU’s leniency program has also been fairly effective. In this context, some of our contributing authors suggest that it may be prudent to allocate resources to other tools of anti-cartel enforcement toolkit and to re-assess the leniency programs. In this issue, we discuss several facets of the leniency and also share perspectives from different jurisdictions (Ecuador, Finland and Mexico), both relatively young and older ones.

February 2014 - I

Antitrust Chronicle – Antitrust In China Every year, we celebrate the Chinese New Year with an authoritative collection of articles on recent developments in competition law China, sponsored by Adrian Emch (Hogan Lovells). This is the year of the horse and, appropriately, the Chinese agencies are making great strides in refining their competition activities and decisions. Anyone planning to do business in their backyard needs to be on top of the situation — even if just virtually.

January 2014 - II

Antitrust Chronicle – Antitrust and Credit Rating Agencies This issue, sponsored by Rosa Abrantes-Metz, takes a global look at the vexing question of an essential — but contentious — oligopoly, the credit rating agencies (“CRAs”). Credit Rating Agencies have become increasingly important in the last few years due to the increasing changes in the financial sector. CRAs were recently in the spotlight when certain securities, which were given high rating by CRAs, were downgraded to junk after the crisis, and when they downgraded Member States in Europe during the sovereign debt crisis. This has led several authorities to look more closely at CRAs and to introduce new regulations.

January 2014 - I

Antitrust Chronicle – Hot Off The Press Controversies The new year kicks off with hot-off-the-presses controversies. We’re starting with four articles on sports, including recent charges of maladministration against Commissioner Almunia resulting from his alleged allegiance to Spanish football, Judge Wilken’s recent ruling in In re NCAA Student-Athlete Name & Likeness Licensing Litigation case, examination of UEFA’s recent regulations to ensure so-called “financial fair play”, the need for ‘sporting exception’ under the Indian antitrust law. Other two articles visit a perennial favorite – the Noerr-Pennington immunity, and pose a unique question—is Noerr-Pennington immunity antitrust’s Schrödinger’s Cat paradox? Then we ask if, to stop patent trolls, certain states will succeed in going where the feds fear to tread. Buckle your seat belts, people, it’s going to be a bumpy year.