German Competition Authority Still One of the Most Active Regulators in Europe

Bundeskartellamt Haus German Competition Authority Still One of the Most Active Regulators in Europe

Germany’s Federal Cartel Office (FCO) has published two documents summarizing its activities for the public: a more detailed “Activities Report” for the years 2015 and 2016 and the high-level “Annual Report 2016.” These documents confirm that the FCO continues to be a highly active operator in the area of competition law enforcement in Europe.

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Pricing Algorithms: Conscious Parallelism or Conscious Commitment?

Blue screen of multi colored computer code Pricing Algorithms: Conscious Parallelism or Conscious Commitment?

Antitrust partner Alex Okuliar and associate Elena Kamenir published a column on Competition Policy International about recent commentary by the global enforcement community on pricing algorithms, the legal precedent supporting the US antitrust agencies’ views, and the possible antitrust implications for businesses. To view the column, please visit here.

 

 

China’s Fair Competition Review System, 1 Year Later

Orrick Partner Shelly Zhang Headshot China's Fair Competition Review System, 1 Year Later

Shelley Zhang, an Orrick partner based in Beijing, recently published in Competition Law360 an article discussing the first year of the China State Council’s fair competition review system, which is designed to foster the development of competitive markets throughout China.  A link to the article appears here.

 

 

 

 

U.S. Supreme Court Limits Jurisdictions Where Non-U.S. Businesses May Be Sued

United States Supreme Court building U.S. SUPREME COURT LIMITS JURISDICTIONS WHERE NON-U.S. BUSINESSES MAY BE SUED

On June 19, 2017, the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California,[1] a multi-plaintiff State product liability case in which the Court rejected a loose standard for personal jurisdiction for claims brought by out-of-State plaintiffs. Though questions as to its impact remain, BMS surely will signal the end to multi-State plaintiffs’ efforts to centralize claims in the State court of their choosing. Even beyond this, the decision has potentially significant implications for State class actions and perhaps even federal antitrust cases.

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Janssen Cilag S.A.S v. France: Approval of Broad and Indiscriminate Seizures by the European Court of Human Rights

European Court of Human Rights Logo Janssen Cilag S.A.S v. France: Approval of Broad and Indiscriminate Seizures by the European Court of Human Rights

On April 13, 2017 in Janssen Cilag S.A.S v. France,[1] the European Court of Human Rights (the “Court”) confirmed the validity of search and seizure operations carried out by the French Competition Authority at Janssen Cilag’s company premises. In keeping with its findings in Vinci Construction and GTM Génie Civile et Services v. France, [2] the Court considered that the broad and indiscriminate seizure by the FCA amounted to interference with the rights guaranteed by Article 8 of the European Convention of Human Rights (the “Convention”), but that the interference was while pursuing a legitimate aim and therefore “in accordance with the law.”

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FTC Sues Louisiana Appraisers for Price Fixing

Close-up Of Person Hand Filling Real Estate Appraisal Form With House Model At Desk FTC Sues Louisiana Appraisers for Price Fixing

On May 31, 2017, the FTC filed an administrative complaint alleging that the Louisiana Real Estate Appraisers Board (“Board”), a state agency controlled by real estate appraisers, violated Section 5 of the FTC Act by fixing real estate appraisal fees paid by appraisal management companies (“AMCs”). AMCs act as agents for lenders in arranging real estate appraisals and are licensed and regulated by the Board.  The FTC alleges that the Board required AMCs to pay appraisal fees that are equal to or exceed the median fees identified in survey reports commissioned and published by the Board.  This action represents the FTC’s first enforcement action against a state agency since its victory in North Carolina State Board of Dental Examiners v. FTC, 135 S.Ct. 1101 (2015).  An administrative trial is scheduled to begin on January 30, 2018.

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D.C. Area–Come Join Us for a Discussion on FRAND

On Tuesday June 20, Orrick partner Jay Jurata will be giving a presentation to the DC Chapter of the Licensing Executives Society Jay Jurata Headshot

On Tuesday June 20, Orrick partner Jay Jurata will be giving a presentation to the DC Chapter of the Licensing Executives Society about the challenges and opportunities raised by recent developments regarding standards-essential patents.  Over the past four years, numerous court decisions and regulatory actions around the globe have provided some insight inthttp://blogs.orrick.com/antitrust/?p=1086&preview=trueo the meaning of voluntary commitments to license patents on “fair, reasonable and non-discriminatory” terms.  Yet many questions remain unresolved, and Jay will discuss areas of emerging consensus, open issues, and what that means for both licensors and potential licensees of standard-essential patents. 

You can register at http://www.lesusacanada.org/event/201706WDC.  Hope to see you there!

 

 

New Merger Filing Thresholds In Germany and Austria

Merger Acquisition Antitrust

Merger notification obligations are changing in Germany and Austria, as new alternative jurisdictional thresholds based on the “transaction value” are being introduced into the respective national regimes, previously solely based on turnover thresholds.

Germany

In Germany, the introduction of a new set of alternative thresholds was approved by both chambers of Parliament and will enter into force upon the (imminent) signature by the Federal President.

Even though the new thresholds are being introduced with a view to better control acquisitions of Internet startups, they apply regardless of the economic sector to any high-valued acquisition of undertakings that have a “significant” presence in Germany. READ MORE

Antitrust Analysis of Joint Ventures: Structural Considerations

Businessman hand touching JOINT VENTURE sign with businesspeople icon network on virtual screen Antitrust Analysis of Joint Ventures Antitrust Analysis of Joint Ventures – Structural Considerations

In the first post in this series, we introduced the concept of joint ventures (“JVs”), outlined why antitrust law applies to their formation and operation, identified the major antitrust issues raised by JVs, and discussed why you should care about these issues. In this installment, we will unpack some of the major antitrust issues surrounding the threshold question of whether or not a JV is a legitimate collaboration.  In particular, we will first try to separate the analyses of, on the one hand, JV formation, and on the other, JV operation and structure.  Then we will consider whether a JV (i) constitutes a “naked” agreement between or among competitors which is per se unlawful, (ii) presents no significant antitrust issue because there is only a single, integrated entity performing the JV functions, or (iii) involves restraints within the scope of a legitimate collaboration that are virtually per se lawful.

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China’s NDRC Seeks Comments on Draft Guidelines for Price-Related Behavior of Industry Associations

Flag map of People's Republic of China China’s NDRC Seeks Comments on Draft Guidelines for Price-Related Behavior of Industry Associations

On March 24, 2017, the PRC National Development and Reform Commission (“NDRC”) issued draft Guidelines for Price-Related Behavior of Industry Associations (“Guidelines”). The Guidelines encourage industry associations in the People’s Republic of China to engage in price-related behavior that benefits industry development, market competition and consumers’ legal interests; outline the legal risks that may be involved in various price-related behavior by industry associations; and provide guidance for industry associations to assess whether price-related behavior poses legal risk. The NDRC is accepting public comments until April 24, 2017.

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Makan Delrahim Likely to Follow Conservative Path at DOJ Antitrust Division

Headshot of Delrahim Makan in front of the U.S. Captiol Makan Delrahim Likely to Follow Conservative Path as Chief of DOJ Antitrust Division

Last week, President Trump nominated Makan Delrahim to serve as the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice. Mr. Delrahim, who is currently serving as White House Deputy Counsel, is a former lobbyist and veteran of the George W. Bush Justice Department.  He served as Deputy Assistant Attorney General for International from 2003–2005.  Mr. Delrahim had a good working relationship with the career staff who he will now rely upon to advance the Trump Administration’s antitrust enforcement agenda and priorities.

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New Anonymous Whistle-Blower Tool Launched By The European Commission

Businessman in black suit hiding face behind sign whistle blower New Anonymous Whistle-Blower Tool Launched By The European Commission

On March 16, 2017, the European Commission (“EC”) introduced a new tool to make it easier for individuals to alert the EC about competition law violations, mainly secret cartels, while maintaining the anonymity of the whistle-blowers.

The EC presented the objectives of the new tool (I) and how it works (II); this tool, which is not new in Europe, leaves several questions unanswered (III).

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Two Noerr-Pennington Rulings Affirm Narrow Scope Of Immunity

Antitrust Legal Gavel On top of $100 bills Two Noerr-Pennington Rulings Affirm Narrow Scope of Immunity

Associate Elena Kamenir and Partners Russell Cohen and Richard Goldstein published an article discussing the scope of antitrust petitioning immunity in light of recent FTC and First Circuit opinions that addressed the Noerr-Pennington doctrine. In these two recent matters, defendants asserted the doctrine as an affirmative defense in two different contexts: in connection with trademark disputes in 1-800 Contacts and in relation to private standards-setting activity that was adopted by a regulatory agency in Amphastar v. Momenta. In their article, the authors suggest that the scope of the immunity likely remains narrow.

To read the published article, please click here

 

Changes to the UK’s Regime for Antitrust Damages Actions to Implement the EU Damages Directive

EU and UK Flags with gavelChanges to the UK’s Regime for Antitrust Damages Actions

Regulations implementing EU Directive 2014/104 (the “Damages Directive”) have come into force in the UK. The Claims in respect of Loss or Damage arising from Competition Infringements (Competition Act 1998 and Other Enactments (Amendment)) Regulations 2017 (SI 2017/385) (the “Regulations”) entered into force on 9 March 2017 and were published on 14 March 2017. The Regulations amend the UK Competition Act 1998 by adding a new section 47F and new Schedule 8A.

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Can a Foreign Defendant’s Conduct Satisfy the FTAIA But Not the Due Process Clause?

Global Trade, word cloud concept on white background Can a Foreign Defendant’s Conduct Satisfy the FTAIA But Not the Due Process Clause

In Sullivan v. Barclays PLC,[1] Judge P. Kevin Castel, of the Southern District of New York, raised an interesting point regarding the relationship between the viability of antitrust claims subject to the Foreign Trade Antitrust Improvement Act (FTAIA) and constitutional requirements for personal jurisdiction: The FTAIA “arguably may apply a less-exacting standard than the due process threshold to exercise personal jurisdiction over a foreign defendant.”[2]  In other words, even though the standard for the FTAIA might be met to allow an antitrust claim to proceed against a foreign defendant, the court nonetheless might not be able to assert personal jurisdiction.  The question whether the FTAIA should be read more strictly than has been the case to conform to due process requirements, or that foreign defendants should be more diligent in challenging personal jurisdiction, are interesting ones that warrant further analysis.

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General Court Annuls 2013 EU Veto on the TNT Acquisition by UPS

Logistics and transportation circular illustration - vector colorful logistic sign General Court Annuls 2013 EU Veto on the TNT Acquisition by UPS

For the first time in over a decade, the General Court of the European Union has annulled a European Commission (EC or Commission) decision to block a deal. This is a rare setback for the EC’s merger control program.

The ruling overturns a January 2013 move by the EC to stop global package delivery company, United Parcel Service (UPS), from acquiring a rival, TNT Holdings. The EC’s decision turned on its finding that the transaction would have restricted competition in 15 Member States regarding express delivery of small packages to other European countries. The Commission argued that the transaction would remove one of the four top players in Europe, leaving DHL as the only remaining significant competitor and FedEx as a distant third, with a European network lacking the density and scale to exert a meaningful competitive constraint on a combined UPS/TNT.

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Fine in Phosphates Cartel Case Confirms Need to Carefully Evaluate European Commission Settlement Proposals

Businessman's hands exchanging euro on blue background, closeup shot Fine in Phosphates Cartel Case Confirms Need to Carefully Evaluate European Commission Settlement Proposals

On January 12, 2017, the Court of Justice of the European Union (“CJEU”) dismissed Roullier group’s appeal and thereby confirmed a fine of €59,850,000 imposed by the European Commission (“EC”) in the phosphates cartel case.[1] This blog post summarizes the decision and discusses the CJEU’s reasoning, which provides valuable guidance to a firm in a cartel investigation that is evaluating a settlement proposal from the EC. In particular, the firm must weigh the fact that, pursuant to the CJEU’s decision, the EC may ultimately impose fines greater than those it proposed in a rejected settlement offer, even if it determines that the firm’s cartel participation was significantly less than it thought at the time of settlement discussions.

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DOJ and FTC Stand Their Ground on Comity Policy Despite Second Circuit’s Decision in Vitamin C Case

International Flags on poles DOJ and FTC Stand Their Ground on Comity Policy Despite 2d Circuit’s Decision in Vitamin C Case

Last September, we discussed the U.S. Court of Appeals for the Second Circuit’s opinion in In re Vitamin C Antitrust Litigation vacating a $147 million judgment against Chinese vitamin C manufacturers based on the doctrine of international comity.  That case stemmed from allegations that the defendants illegally fixed the price and output levels of vitamin C that they exported to the United States.  In reversing the district court’s decision to deny the defendants’ motion to dismiss, the Second Circuit held that the district court should have deferred to the Chinese government’s explanation that Chinese law compelled the defendants to coordinate the price and output of vitamin C.

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Antitrust Analysis of Joint Ventures: An Introduction

Businessman hand touching JOINT VENTURE sign with businesspeople icon network on virtual screen Antitrust Analysis of Joint Ventures Antitrust Analysis of Joint Ventures – Structural Considerations

Joint ventures (“JVs”) can require navigation of a potential minefield of antitrust issues, which we’ll explore in a series of six blog posts beginning with this introductory post. Not all of the law in this area is entirely settled, and there remain ongoing debates about some aspects of the antitrust treatment of JVs.  Indeed, arriving at a coherent and unified view of JV law is like putting together a jigsaw puzzle with missing and damaged pieces.

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