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Foreign subsidies: The European Commission goes extraterritorial

The EU State Aid regime has long protected the EU internal market from anti-competitive subsidies granted by EU Member States. On 17 June 2020, the European Commission published a White Paper that proposes a new set of tools designed to address distortive effects in the internal market caused by subsidies granted by states outside the EU.

The White Paper outlines three complementary tools, or “modules”, intended to tackle the distortive competitive effects arising from foreign subsidies. These modules would be implemented by “supervisory authorities”, possibly at EU-level (most likely by the Commission itself) and/or at national level by an authority chosen by the Member State. For each of the three modules, the existence of a foreign subsidy with an actual or potential disruptive effect in the EU would be assessed in a “preliminary review”, potentially followed by an “in-depth investigation”. Undertakings under investigation could face “redressive measures” including the prohibition or even unwinding of certain transactions, or else make commitments to avoid prohibition. Failure to comply with procedural obligations would be subject to fines and periodic penalty payments.

Module 1 – General instrument to capture distortive effects of foreign subsidies

This largely mirrors the existing EU State Aid regime that applies to states in the European Economic Area (EEA). It proposes a general instrument that could capture all distortive effects of foreign subsidies exceeding a certain threshold, currently proposed at EUR 200,000 over three consecutive years. The Commission lists several categories of distortive subsidies, i.e. foreign subsidies that would distort the EU’s internal market: export financing, debt relief to the benefit of ailing undertakings, unlimited government guarantees, individual tax reliefs and foreign subsidies directly facilitating an acquisition.

For all other forms of subsidies, a more detailed assessment would be necessary, based on indicators such as the size of the subsidy, the size of the beneficiary and the utilisation of production capacity, the market situation, specific behaviour such as outbidding in acquisitions or distortive bidding in procurement procedures, and the level of activity of the beneficiary in the EU. If a distortive effect is established, it would be weighed up against any positive impact (the “EU interest test”), taking into account EU objectives such as job creation, climate neutrality goals, digital transformation, security, public order, public safety and resilience. Redressive measures could range from structural remedies and behavioural measures, to redressive payments to the EU, or the Member States, and could be subject to a limitation period of ten years.

Module 2 – Control of acquisitions facilitated by foreign subsidies

This proposes to tackle subsidised acquisitions of EU businesses by introducing an ex ante notification system, separate from and complementary to EU merger control and foreign direct investment screening. This module would investigate direct facilitation of acquisitions by foreign subsidies, as well as indirect de facto facilitation when foreign subsidies increase the acquirer’s financial strength. The regime would be subject to certain quantitative and qualitative thresholds and cover not only the acquisition of control over EU targets, but also the acquisition of significant – but possibly non-controlling – minority rights or shareholdings. The time period for the benefit of foreign subsidies would be limited, e.g. from three years prior to the notification until one year after closing. To avoid a prohibition of the planned transaction the acquirer could offer commitments, which would likely have to include structural remedies.

The proposals also envisage an ex officio review process to scrutinise acquisitions that should have been notified by the acquirer but were not, including after they have completed. The module includes the right to order the unwinding of completed transactions.

Module 3 – Control of unfair advantages in public procurement due to foreign subsidies

This complements the public procurement regime by introducing an additional notification obligation when submitting a bid, where the bidding party has received a “financial contribution” in the last three years. This module would address direct distortion of a procurement procedure by operation-specific foreign subsidies, as well as indirect de facto distortion by increasing the financial strength of the operator. The Commission aims to avoid situations where artificially low public procurement bids are facilitated by foreign subsidies. If a bidder is found to benefit from foreign subsidies, it could be excluded from public procurement in the EU.

The White Paper also identifies a risk that foreign subsidies create unfairness in the context of EU funding. The proposals are less developed, but the solution could be similar to Module 3 where EU funding is distributed through public tenders.

Hurdles and next steps

A first obstacle might be resistance by national governments that will scrutinise the proposal – the outcome of this process will influence the distribution of powers between the Commission and the Member States. For the general instrument (Module 1) as well as the public procurement instrument (Module 3), it is proposed that the Commission and the relevant national authorities would have concurrent authority for the initial stages. However, the Commission proposes to be exclusively competent to apply the EU interest test. Similar to its “one-stop shop” role in EU merger control, the Commission envisages exclusive responsibility for the enforcement of the ex ante control of acquisitions facilitated by foreign subsidies (Module 2).

In any event, enforcement outside the EEA will largely depend on third countries’ willingness to co-operate, which is not a given. State aid is highly political – foreign countries are unlikely to give the EU access to detailed information, unless the benefit of achieving EU approval outweighs the intrusion in the foreign state’s autonomy and political process. While the White Paper proposes an obligation to provide information, as well as powers to impose a fine or to order parties to unwind a transaction, the lack of effective enforcement outside the EEA could jeopardize the new regime(s). Even providing the supervisory authorities with the possibility to make decisions based on the facts available would not fully address this fundamental and intrinsic weakness.

Conversely, foreign companies benefiting from subsidies may lack information that would enable them to argue either the absence of a distortive effect, or the benefits outweighing such distortive effects. These dynamics could cause a stalemate between the EU and foreign countries, with increased trade barriers as a result.

The Commission acknowledges that there might be overlaps with existing legal tools, including international law such as the WTO Agreement on Subsidies and Countervailing Measures (for goods), as well as bilateral free trade agreements with third states, which may contain relevant dispute settlement or consultation provisions. In case of overlapping actions, the White Paper merely suggests the ability to suspend the proceedings under the proposed new instruments and to conditionally resume those if the distortion persists.

A public consultation is open for stakeholders to comment on the White Paper until 23 September 2020, with proposed legislation scheduled for 2021. Legislation is unlikely to come into force before 2022.

M&A HSR Premerger Notification Thresholds Increase in 2020

Chinese: 美国提高2020年HSR法案并购前申报门槛

Takeaways

  • The new minimum HSR threshold is $94 million and applies to transactions closing on or after February 27, 2020.
  • The current threshold of $90 million is in effect for all transactions that will close through February 26, 2020.
  • Failure to file may result in a fine of up to $43,280 per day of non-compliance.
  • The HSR Act casts a wide net, catching mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

The Federal Trade Commission has announced new HSR thresholds for 2020. Transactions closing on or after February 27, 2020 that are valued in excess of $94 million potentially require an HSR premerger notification filing to the U.S. antitrust agencies. The HSR Act and Rules require that parties to certain transactions submit an HSR filing and wait up to 30 days (or more, if additional information is formally requested) before closing, which gives the government time to review the transaction for potential antitrust concerns. The HSR Act applies to a wide variety of transactions, including those outside the usual M&A context. Potentially reportable transactions include mergers and acquisitions, minority stock positions (including compensation equity and financing rounds), asset acquisitions, joint venture formations, and grants of exclusive licenses, among others.

Determining reportability: Does the transaction meet the Size of Transaction test?

The potential need for an HSR filing requires determining whether the acquiring person will hold an aggregate amount of voting securities, non-corporate interests, and/or assets valued in excess of the HSR “Size of Transaction” threshold that is in place at the time of closing. Calculating the Size of Transaction may require aggregating voting securities, non-corporate interests, and assets previously acquired, with what will be acquired in the contemplated transaction. It may also include more than the purchase price, such as earnouts and liabilities. Talk to your HSR counsel to determine what must be included in determining your Size of Transaction.

If the transaction will close before February 27, 2020, the $90 million threshold still applies; closings as of February 27, 2020 will be subject to the new $94 million threshold.

Determining reportability: Do the parties to the transaction have to meet the Size of Person test?

Transactions that satisfy the Size of Transaction threshold may also have to satisfy the “Size of Person” thresholds to be HSR-reportable. These new thresholds are also effective for all closings on or after February 27, 2020. Talk to your HSR counsel to determine which entity’s sales and assets must be evaluated.

Filing Fee

For all HSR filings, one filing fee is required per transaction. The amount of the filing fee is based on the Size of Transaction.

Failure to File Penalty

Failing to submit an HSR filing can carry a significant financial penalty for each day of non-compliance.

Always consult with HSR counsel to determine if your transaction is HSR-reportable, especially before concluding that a filing is not required. Even if the Size of Transaction and Size of Person tests are met, the transaction may be exempt from the filing requirements.

Dusting the Regulatory Framework – French Competition Authority Seeks to Liberalize Distribution of Drugs and Private Medical Biology

On April 4, 2019, just three months after the publication of the European Commission (EC) report on “Competition enforcement in the pharmaceutical sector,” the French Competition Authority (FrCA) issued its report n°19-A-08 on “Distribution of drugs and private medical biology.” While the reports do not have much in common, except maybe the shared concern of excessive prices in the pharmaceutical sector, they both illustrate the keen interest of the European competition authorities in this sector. The focus of the EC report is the market players’ conducts and how they may impede competition. The FrCA report rather focuses on the obstacles to effective competition that may derive from the current legislative and regulatory framework and may translate in a competitiveness gap to the detriment of French-based operators and in higher prices for patients. It deals inter alia with a French “exception”: the monopoly of pharmacies and pharmacists over drug distribution. The report also covers a wide range of French-centric topics from online sales of drugs to capital ownership of private biology medical laboratories and pharmacies, and drug advertisement, as well as the situation of wholesalers-distributors.

Softening the pharmacies and pharmacists’ monopoly over drug distribution

16 of 28 EU Member States have softened the pharmacies’ and/or pharmacists’ monopoly over drug distribution. Among France’s neighboring countries, only Belgium, Luxembourg and Spain have a legislation as restrictive as France, where drugs, whether prescription-only or over-the-counter (OTC), may only be sold in pharmacies by qualified pharmacists.

After noticing the positive effects on prices of the enlargement of the distribution channels for certain medical devices, the FrCA advocates for a liberalization of pharmacies’ monopoly over the sale of OTC drugs, to allow drugstores and supermarkets to sell them as well. For the sake of public health, it is suggested to preserve the pharmacists’ monopoly over their sale, meaning that OTC drugs could be sold in drugstores or supermarkets but only by qualified pharmacists on whom no sales targets may be applied, and in delineated spaces with their own cash point.

Softening the regime applicable to advertising issued by pharmacists

The current regulations provide for a strict framework for advertising issued by pharmacies, be it done in favor of the pharmacies themselves or of any product, drug or other, marketed by them.

According to the FrCA, the way those regulations are currently being construed translates into excessive restrictions and prevents pharmacists from using any form of advertising, including when it does not pertain to medicinal products and therefore does not present any risk to public health.

One of the detrimental consequences thereof is the absence of any real competitive pressure between pharmacies and significant price disparities. For instance, the FrCA has found price disparities between pharmacies ranging from 103.4% to 431% for certain drugs.

The FrCA considers that softening the framework for advertising issued by pharmacists and increasing price transparency would contribute to boost competition between them, and between pharmacists and supermarkets and drugstores commercializing the same personal care products.

One of the recommendations issued by the FrCA in that respect would be to better distinguish between advertisement for drugs and for personal care products: by, for instance, allowing pharmacists to put in place rebates and loyalty programs for the latter.

Softening the rules applicable to online drug distribution

Directive 2011/62/EU obliges EU Member States to allow online sales of OTC drugs and permits online sales of prescription drugs. Implementation of the Directive has noticeably differed between countries. For instance, the UK and the Netherlands have allowed online sales for both OTC and prescription drugs by pure-players. Germany, Portugal, Sweden and Denmark have allowed the sale of any drug (OTC or prescription), but only by websites leaning on a physical pharmacy. Finally, France, Belgium, Spain, Italy and Ireland have limited online sales to OTC drugs and impose a physical pharmacy.

Questioning the effectiveness of the legal framework in France, the report points out that online sales of drugs are not very well developed in France. Most French patients still think the practice is illegal or non-existent. As a result, online sales of OTC represent only 1% of total sales in France vs 14.3% of total sales in Germany. Besides, the French offer of online sales is very limited compared to that of other European countries.

According to the FrCA, the development of online sales is impeded by the numerous legal constraints facing France-based players. In particular, the prohibition of joint websites between pharmacies is being challenged because it prevents them from pooling their resources. Furthermore, the FrCA points out the difficulty for pharmacies to get visibility since the law prohibits advertising of online sales websites, comparison price websites and paid referencing.

Here again, the FrCA considers that the solution would be to soften the applicable legal framework to provide patients with better information on the online sale of medicines, as well as on the actors authorized to do so. This enhanced information would promote the emergence of an economic model better suited to the development of competitive national operators capable of competing effectively with foreign players.

Other issues addressed

The report also points out several improvable aspects that could help balance the market. The FrCA points out the rules of capital ownership of pharmacies and private medical biology laboratories that could be softened to allow better access to financing and, regarding private biology medical laboratories, to put an end to an asymmetry existing as a result of a softening in the rules of capital ownership followed by a step backward, which has created an unjustified difference between laboratories that could benefit from the softening and the ones that were created after the step backward. Finally, the FrCA advocates for a revision of the method of remuneration of wholesalers-distributors, allowing for a fairer compensation of the heavy public service mission weighing on them.

Conclusion

This report is another illustration of what could start to become an interesting trend at the FrCA: using its power to deliver opinion to invite the legislator to tackle the inefficiencies and barriers to competition created by old and sometimes overly rigid rules in regulated sectors. In the same vein, one may mention its report of February 21, 2019, n° 19-A-04, on the broadcasting sector, where the FrCA advocates for a softened regulation of the sector to consider the development of new technologies and market entry of new players.

While this trend is welcome for France-based players and also for consumers in general, it remains to be seen how these recommendations will be used (or not) by the legislator.

 

China’s Conditional Approval of Bayer’s Acquisition of Monsanto: Lessons for Future Merger Cases in China

On March 13, 2018, China’s Ministry of Commerce (“MOFCOM”)[1] announced its Conditional Approval following antitrust review of a concentration of undertakings relating to Bayer’s proposed merger with Monsanto (“Merger”) (Bayer and Monsanto are hereinafter collectively referred to as the “Parties”). This matter, plus three other mergers approved with restrictive conditions by MOFCOM or SAMR in 2018, suggests some trends in China’s approach to antitrust merger review, as discussed below.[2]

In the Bayer/Monsanto matter, the Parties filed a declaration on concentration of undertakings with MOFCOM on December 5, 2016. Afterwards, the Parties withdrew and refiled the declaration twice, and MOFCOM’s review period for each refiled declaration was extended once, with the last one extended to March 15, 2018, which indicates the complexity of the Merger and the antitrust review.

During the review process, MOFCOM raised the concern that the Merger would or might have the effect of eliminating and restricting competition in the following markets: (1) China’s non-selective herbicide market; (2) China’s vegetable seed market (long-day onion seeds, carrot seeds and large-fruit tomato seeds, etc.); (3) field crop traits (corn, soybean, cotton, and oilseed rape); and (4) digital agricultural markets.

According to Article 27 of the Anti-Monopoly Law, the Ministry of Commerce conducted an in-depth analysis of the impact of the Merger on market competition from the following aspects, among others: (i) the market concentration of the relevant market; (ii) the market share and the control of the market by the participating operators in the relevant market; (iii) the impact on market entry and technological progress; and (iv) the impact on consumers and other relevant operators. MOFCOM solicited opinions from relevant government departments, industry associations, downstream customers and industry experts, and held multiple symposiums to understand relevant market definitions, market participants, market structures, industry characteristics, etc. Based on its analysis, MOFCOM believed that the Merger would or might have the effect of eliminating or restricting competition in the four markets, as mentioned above.

MOFCOM then timely informed the Parties of its review opinions and conducted multiple rounds of negotiations with the Parties on how to reduce the adverse impact of the Merger on competition. For the restrictive conditions submitted by the Parties, MOFCOM, in accordance with the “Provisions of MOFCOM on Imposing Additional Restrictive Conditions on the Concentration of Business Operators (for Trial Implementation),” evaluated mainly the following aspects, among others: (i) the scope and effectiveness of divested business; (ii) the divested business’ continuity, competitiveness and marketability; and (iii) the effectiveness of conditions requiring actions to be taken. On March 13, 2018, after evaluation, MOFCOM decided to approve the Merger with additional restrictive conditions, requiring Bayer, Monsanto and the post-merger entity to fulfil the following obligations:

  1. Globally divesting (i) Bayer’s vegetable seed business, (ii) Bayer’s non-selective herbicide business (glyphosate business), and (iii) Bayer’s corn, soybean, cotton, and oilseed rape traits businesses. The above divestitures include divesting related facilities, personnel, intellectual properties (including patents, know-how and trademarks) and other tangible and intangible assets.
  2. Allowing all Chinese agricultural software application developers to connect their digital agricultural software applications to the digital agriculture platform(s) of Bayer, Monsanto and the post-merger entity in China, and allowing all Chinese users to register with and use the digital agricultural products or applications from Bayer, Monsanto and the post-merger entity, within five years from the date when Bayer’s, Monsanto’s and the post-merger entity’s commercialized digital agricultural products enter the Chinese market, and based on fair, reasonable and non-discriminatory terms.

This case, as well as the other three mergers approved with restrictive conditions by MOFCOM or SAMR in 2018, suggests the following trends in China’s antitrust review of mergers:

  •  Economic analysis and market research tools are more frequently being introduced for case analysis. In the Bayer/Monsanto Merger, MOFCOM frequently used the Herfindahl-Hirschman Index (“HHI”) to analyze market concentration issues, and MOFCOM also held hearings/seminars to discuss issues related to market definition, market structure and industry characteristics with industry experts.
  • Potential effects of excluding or limiting competition without proved market shares may also be considered in the antitrust review. In the Bayer/Monsanto Merger, as to the large fruit tomato seeds market, Monsanto’s market share was 10-20%, which was believed to be much larger than that of other competitors. Considering that Bayer was an important competitor in the market, MOFCOM believed that Bayer’s potential in the Chinese market had not yet been fully reflected in its own market share, and that the Merger might render the market less competitive. Thus, in addition to market shares, the Parties’ market power or potential for expansion will also be considered when determining whether or not a merger might exclude or limit the competition in the market.
  • The impact on technological progress will be assessed and the theory of damaging innovation is likely to be adopted. In the Bayer/Monsanto Merger, MOFCOM adopted a “damaging innovation” theory by positing that a merging party’s innovative level and research and development (R&D) ability should be considered in assessing its market position. After the merger, because there are fewer R&D competitors, the merging parties might have less incentive to innovate and they might reduce R&D investment and delay the release of new products to the market, consequently causing an adverse impact on innovation in the whole market. It seems likely that Chinese antitrust officials will continue to consider the technological factor and will apply the damaging innovation theory when necessary for reviewing complicated transactions.
  • Structural conditions and conditions requiring certain actions to be taken may be combined as remedies. Finally, in the Bayer/Monsanto Merger, MOFCOM imposed both structural conditions (requiring global divestiture of certain of Bayer’s businesses) as well as conditions requiring certain actions to be taken (requiring that the Parties make their platforms and digital agricultural products available to Chinese users). Similar combined remedies were imposed in two of the three other approved mergers in 2018. Again, it seems likely this trend will continue.

_____________

[1] In April 2018, the anti-monopoly law enforcement agencies under the three ministries, i.e. the Ministry of Commerce, the National Development and Reform Commission and the State Administration for Industry and Commerce, were incorporated into the newly-formed State Administration for Market Regulation (“SAMR”) based on the State Administration for Industry and Commerce.

[2] See Announcement No. 31 [2018] of the Ministry of Commerce – Announcement on Anti-monopoly Review Decision concerning the Conditional Approval of Concentration of Undertakings in the Case of Acquisition of Equity Interests of Monsanto Company by Bayer Aktiengesellschaft Kwa Investment Co. [Effective], available at http://fldj.mofcom.gov.cn/article/ztxx/201803/20180302719123.shtml.

 

The Antitrust Review of the Americas 2019

As part of Global Competition Review’s The Antitrust Review of the Americas 2019, Orrick attorneys Jay Jurata, Alex Okuliar, and Emily Luken contributed a chapter titled “IP and Antitrust,” examining three important developments this year evolving from recent trends at the intersection of IP and antitrust law.  The chapter is part of GCR’s The Antitrust Review of the Americas 2019, first published in September 2018.

The whole publication can be found here.

Out of Sync? : DOJ’s Policy Reversal Towards SEPs Lacks Legal Support

Jay Jurata and Emily Luken co-authored an article for Global Competition Review about the troubling policy shift by the DOJ’s Antitrust Division regarding the application of competition law to the assertion of standard-essential patents.

Please click here to read the full article.

Events, Articles and Honors

Recent Events

March

China Legal Executive Council (L-Council) China Anti-Monopoly Forum 2012
Beijing, China
Of Counsel Veronica Lockyer will speak on Merger Control under China’s Anti-Monopoly Law (March 23).

May

Strafford Publications Webinar
Orrick Of Counsel Howard Ullman will participate in a webinar panel sponsored by Strafford Publications, titled “Tying Arrangements: Avoiding Antitrust Liability: Leveraging Market Power Arguments and Seller Defenses” (May 1).

Recent Articles

Orrick partner Russell Cohen co-wrote “From the Experts: Recent Developments in Alien Tort Statute Litigation,” which appeared in Corporate Counsel magazine and on Law.com on Dec. 23, 2011.

Recent Honors

Benchmark Litigation’s 2012 edition recognizes Orrick’s Antitrust and Competition Group for the first time and “highly recommends” Orrick’s California antitrust litigators.

Top Legal (Italy)’s latest rankings placed Orrick in the top 10 firms in Italy for Competition and EU Law.

Germany’s 2012 JUVE legal handbook placed Orrick as among the top firms in that country, recognized Orrick’s Competition Law practice, and recommended the firm’s State Aid work.

Asian-MENA Counsel magazine’s latest “Representing Corporate Asia and Middle East” survey gives Orrick’s Antitrust and Competition practice in Japan an honorable mention.

PLC Which Lawyer?: Orrick’s Competition/Antitrust practice was “recognized” in PLC’s survey for England, France, Germany, and Italy and was “recommended” for USA, California, San Francisco and Silicon Valley.

Get to Know: Garret Rasmussen

Garret Rasmussen, a partner in the Washington, D.C. office, is a member of the Antitrust and Global Competition Group. He specializes in antitrust and consumer protection matters before the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice. His practice also includes counseling and litigation regarding mergers and acquisitions, joint ventures, product distribution and marketing, privacy, telemarketing and advertising issues.

Mr. Rasmussen was featured in a front page story in the Legal Times, as well as the book The Jury by Stephen J. Adler. He has also been quoted numerous times in the Wall Street Journal and the New York Times, as well as other national publications.
Prior to joining Orrick, Mr. Rasmussen was a partner for 22 years with Patton Boggs LLP in Washington, D.C. He was also a trial attorney with the FTC’s Bureau of Competition, and served as a Lt. J.A.G. in the U.S. Naval Reserve.

Get to Know: Veronica Lockyer

As a commercial law specialist, Veronica Lockyer is quite familiar with handling major overhauls on the corporate landscape. But this year, she handled a major overhaul of her professional and personal landscapes, in relocating from Orrick’s London office to its Shanghai office.

Lockyer, whose practice also focuses on antitrust, market regulation, consumer law and data privacy, was happy to be a part of Orrick’s continued strengthening of its Asia presence. She’s also enjoyed helping existing clients explore business opportunities in Asia. “My relocation to Asia this year has allowed me to help a lot of the same clients I was already working for in Europe feel comfortable branching into new directions in Asia,” she said.

Many of the same legal issues arise in Asia as in Europe, but clients appreciate Lockyer’s guidance on the important governmental, legislative and even cultural differences. “It is fascinating to look at similar issues from an entirely different legal and regional perspective and to see the similarities and differences in the approach to and resolution of these issues,” she said.

The law in China is developing at a fast pace to accommodate the country’s rapid economic development, Lockyer noted, adding that the many new laws, regulations and guidance can sometimes appear opaque or contradictory initially. It’s therefore vitally important for attorneys to stay on top of the government’s priorities in order to provide clients with sound legal advice against this background, she said.

Veronica’s work has included advising clients on commercial agreements, merger control, abuse of dominance, anticompetitive behavior and pricing practices. She has also helped clients develop global privacy policies as well as terms and conditions for Internet sales, and provided advice on international cross-border data transfers. Veronica received her law degree from the College of Law of England and Wales in 1998. Before joining the firm, Veronica was an associate in Coudert Brothers’ London office. She speaks French and Mandarin and said that in her off time, she enjoys spending time with her family and exploring “my new city, country and region.”

Events and Articles

Recent Events

March

Working With Economic Experts in Antitrust Matters
Teleconference – March 22, 2011
Orrick partner Russell Cohen will participate in a panel discussion presented by the American Bar Association Section of International Law on the role of economic experts in antitrust proceedings.

ABA Antitrust Division DOJ Alumni Cocktail Reception
Washington, D.C. – March 30, 2011
Orrick is co-sponsoring this cocktail reception in connection with the American Bar Association Antitrust Spring Meeting.

April

India Competition Working Group Tea and Reception
Washington, D.C. – April 1, 2011
In connection with the ABA Antitrust Section Spring Meeting, Orrick partner David Smutny and other members of the Section’s India Competition Working Group will host an informal tea and reception for members and staff of the Competition Commission of India, the India private competition law bar, and some U.S. government officials and Section officers.

Competition Law Conference
Seoul – April 28-29, 2011
Orrick partner Philippe Rincazaux will be co-chairing a session on the future of cartel investigation and enforcement in the Asia-Pacific region in a conference co-presented by the International Bar Association’s Antitrust Committee and the Korean Bar Association.

May

22nd Annual IBA Communications and Competition Law Conference
Vienna – May 16-17, 2011
Orrick partner Ted Henneberry will participate in a panel discussion focusing on recent developments in competition enforcement in the communications sector.

Recent Articles

ABA, Antitrust Section, Cartel & Criminal Practice Newsletter, March 2011, Lisa Tenorio-Kutzkey, co-editor.

California Supreme Court’s Kwikset Decision Expands Standing to Bring Unfair Competition Law Claims, Antitrust and Competition Alert, by David Goldstein and Howard Ullman.

Arbitrating U.S. Antitrust Law in Pharmaceuticals Markets, chapter in EU and U.S. Antitrust Arbitration, by Robert Reznick.

Get to Know: Douglas Lahnborg, Philippe Rincazaux

Douglas Lahnborg is a partner in the Antitrust and Competition Group. His practice covers all areas of EU and UK competition law.

He has advised extensively on merger and acquisitions under the UK Enterprise Act 2002 and EC Merger Regulation. Mr. Lahnborg has wide experience in advising on issues relating to Articles 101 and 102 of the TFEU and corresponding UK legislation, including representation of clients before the EC Commission in cartel investigations. He has advised several companies in abuse of dominance investigations, including in the fields of software and pharmaceuticals.

Before joining Orrick, Mr. Lahnborg was a shareholder with Heller Ehrman’s Antitrust and Trade Regulation Practice and previously a senior associate in Slaughter and May’s competition group. He spent one year with the EC Commission where he trained with the Merger Task Force and State Aid Policy Unit of DG Competition.

Philippe Rincazaux is a partner in Orrick’s Paris office. Philippe focuses his practice on European and French antitrust and competition law. He regularly advises French and international clients in antitrust, competition and regulatory matters and represents them before European and French courts and competition and regulatory authorities.

His practice focuses on merger transactions, joint ventures and cooperation agreements, dominant firm conduct and investigations. He has deep experience with cartel investigations and was counsel in the first settlement proceedings before the French competition authority and also before the European Commission. He also has an extensive practice in leniency proceedings and focuses on issues related to legal privilege in international matters and on ethics issues in investigations and leniency proceedings.

Mr. Rincazaux is a board member, treasurer and in charge of international relations for the French Association of Competition Law. He is a founding member and a member of the board of the Association for Lawyers Practising Competition Law.

Get to Know: Stephen Bomse

Stephen Bomse, a partner in Orrick’s San Francisco office, is a member of the Litigation Group specializing in antitrust litigation. He is widely regarded as one of the nation’s leading antitrust lawyers, having tried cases throughout the United States involving multibillion-dollar claims while also maintaining a significant appellate practice, including his successful representation of Weyerhaeuser Company in a major Section 2 case before the United States Supreme Court.

Mr. Bomse also represents clients from around the world in other types of complex commercial litigation, both at the trial and the appellate level. Mr. Bomse and his partner Larry Popofsky were counsel for GTE Sylvania in the landmark U.S. Supreme Court case of GTE Sylvania v. Continental T.V., 433 U.S. 36 (1977), which is widely credited with changing the direction of American antitrust law both in the area of vertical restraints and, and, more generally, by reorienting U.S. competition policy in favor of its current economic-based approach to the analysis of competition issues.

Among the many other companies for whom Mr. Bomse has handled significant antitrust matters are: Sony Corporation, 3M, Coca-Cola, Pacific Gas & Electric, Sara Lee Corporation, Levi Strauss & Co., American Home Foods, SunTrust Banks, Miller Brewing and Weyerhaeuser Company.

Mr. Bomse recently conducted a series of seminars in Taiwan addressing current antitrust issues of importance to international companies. He is the author of numerous antitrust and competition articles, including, most recently, Threading the American Needle: Is There Still Room for a Unitary Action Doctrine in Antitrust Cases Involving Joint Ventures?, published by Competition Policy International.

Before joining Orrick, Mr. Bomse was a shareholder at Heller Ehrman LLP where he served for many years as a member of its Management and Policy Committee, and headed up both the Litigation Department and the firm’s Global Competition Practice.

Get to Know: Andrés Martin-Ehlers

Dr. Andrés Martin-Ehlers, an Antitrust and Competition partner in Orrick’s Frankfurt office, joined the firm in 2008 after the merger of Orrick and Hölters & Elsing. Andrés focuses his practice in the areas of competition law, state aid and related litigation. He regularly works with industries such as banking, packaging materials for foodstuffs, chemicals, computer and related technology, sports, and infrastructural issues for airports and other facilities.

He has extensive experience working in Brussels and handles antitrust matters at the national and international levels, with particular emphasis on proceedings initiated by the European Commission.

Andrés also regularly counsels companies on compliance issues as well as European, national and multi-jurisdictional merger control filings. In the area of state aid, he recently successfully defended the granting of pitcoal state aid to the German producer RAG in the amount of more than €7 billion.

Andrés is the author of numerous articles on antitrust and state aid law, including “European State Aid in a Nutshell” published in this issue of the Antitrust and Competition newsletter and “Commission v MTU Friedrichshafen” in European State Aid Law Quarterly. He is also the co-author of State Aid Within the EU, the standard German book on state aid.

Get to Know: Robert Reznick

Robert Reznick recently joined Orrick’s Washington, D.C., office as a partner in the Antitrust and Competition Group and the Life Sciences Industry Group.

“We are excited about Rob’s arrival,” said New York partner and managing director of litigation Jim Stengel. “Over the last several years we have grown our antitrust and competition and life sciences global platforms with significant expertise. We have a track record of seeking innovative, cooperative and collegial methods of serving the needs of our global clients.

Rob’s prominent litigation and counseling expertise is a great complement to our antitrust and competition and life sciences practices, both domestically and globally.”

Rob’s practice focuses on the counseling of pharmaceutical and other life sciences companies in connection with pricing, marketing and M&A activities, and the representation of those entities in multiplaintiff and class action litigation involving claims of price-fixing and other collusive conduct, fraud, RICO and IP-based antitrust claims. He is co-author of a chapter on the arbitration of pharmaceutical industry antitrust claims in International Arbitration: A Practical Handbook (Gordon Blanke and Phillip Landolt, Eds., Kluwer/Aspen), to be published in the spring of 2010. Formerly a partner with Hughes Hubbard & Reed LLP, Rob was co-chair of its Pharmaceutical and Healthcare Industry and Product Safety Practice Groups.

Rob also represents drug industry clients in enforcement actions against the sale of counterfeit and illegally imported and diverted drugs and medical devices, and in connection with Federal Trade Commission investigations and enforcement actions. In addition, he serves as outside counsel to the Pharmaceutical Security Institute, Inc., the brand name pharmaceutical industry’s anti-counterfeiting trade group.Rob also has extensive experience representing clients in product safety matters before the U.S. Consumer Product Safety Commission.

“Orrick’s premier global antitrust and life sciences industry-focused groups offer the highest quality of service in the global markets of most importance to clients,” said Rob. “Working with the lawyers in these groups and having the chance to integrate my practice with theirs has been enormously satisfying. The combined Orrick life sciences antitrust team provides premier service to clients in the key markets in Asia, Europe and the United States and deepens Orrick’s commitment to the provision of wide-ranging and sophisticated legal services worldwide.”