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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.

Germany Plans to Introduce New Merger Notification Test

Merger Acquisition Antitrust

The German government has recently published a bill that would significantly amend the criteria for determining whether an M&A transaction is subject to German merger control.

Currently, the applicability of the German merger control rules depends primarily on the revenues of the firms participating in a transaction. A concentration needs to be notified to the German competition authority – the Bundeskartellamt – where all the following three turnover thresholds are met: (i) EUR 500 million worldwide, (ii) EUR 25 million in Germany, and (iii) EUR 5 million in Germany. The 500 million threshold (i) refers to the sales achieved by all of the parties combined in their last completed financial year. The other two thresholds (ii) and (iii) refer to the individual sales of two parties to the transaction (e.g., the acquirer, on the one hand, and the business being acquired, on the other). Where the notification thresholds are met, the parties are subject to a standstill obligation. They must not consummate the transaction until it has been cleared (or is deemed to have been cleared) by the Bundeskartellamt.

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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.

Events, Articles and Honors

Recent Events

September

International Bar Association’s 15th Annual Competition Conference
Florence, Italy – Sept. 16 and 17, 2011
Orrick partner Philippe Rincazaux co-chaired a session focusing on “Challenges Posed by the Growing Internationalization of Cartel Investigations.”

Law Seminars International Panel on Antitrust Issues in the Pending AT&T/T-Mobile Merger
Teleconference – Sept. 20, 2011
Orrick partner David Smutny was a featured speaker on this panel designed to update practitioners on key issues around this high-profile merger.

October

Pharmaceutical Security Institute Semi-Annual Meeting
McLean, Va. – Oct. 20, 2011
Orrick partner Robert Reznick spoke about EU-U.S. privacy issues before the semiannual meeting of PSI, the drug industry’s anti-counterfeiting trade group.

International Bar Association Annual Conference
Dubai, UAE – Oct. 30 to Nov. 4, 2011
Orrick partner Philippe Rincazaux participated in a panel discussion on “Antitrust Issues in Investments, Joint Ventures and Long-Term Infrastructures in the Oil and Gas Industry.”

November

BIICL Seminar on Competition Damages Actions: Practice and Pitfalls
London, England – Nov. 16, 2011
Orrick partners Ted Henneberry and Douglas Lahnborg spoke at the British Institute of International and Comparative Law’s (BIICL’s) Competition Damages Actions: Practice and Pitfalls seminar. Ted chaired this event, and Orrick sponsored it.

Orrick Seminar: Unfair Commercial Practices: Unstable Balance Between Companies and Consumers?
Rome, Italy – Nov. 16, 2011
Orrick partner Alessandro De Nicola as well as Michele Bertani, Orrick special counsel and professor of business law at Università degli Studi di Foggia, discussed unfair commercial practices, competition regulation and consumer protection with leading Italian antitrust, business and political authorities at Orrick’s Rome office.

Recent Articles

Orrick partner Philippe Rincazaux and associate trainee David Dubois contributed an article titled “Appreciability Cannot Be Assessed Only From the Characteristics of the Undertakings,” (in French) published in May 2011 in the law journal Concurrences.

Orrick partners Richard Goldstein, Douglas Lahnborg and Robert Reznick wrote “New Regulatory Actions Underscore Global Antitrust/Competition Risk of Altering Product Offerings in Light of Imminent Generic Competition,” an Orrick Pharmaceutical Law & Industry Report, on July 22, 2011.

Orrick partners Elizabeth Cole, Ted Henneberry and of counsel Veronica Lockyer wrote “Asia in Focus: U.S. and China Sign a Memorandum of Understanding on Antitrust Cooperation,” an Orrick Asia in Focus and Antitrust and Competition Alert, on Aug. 9, 2011.

Orrick of counsel Howard Ullman wrote “Profit Sharing Agreements and Non- Statutory Labor Exemption in State of California v. Safeway,” an article in the September 2011 edition of The Antitrust Counselor, the newsletter of the American Bar Association Section of Antitrust Law’s Corporate Counseling Committee.

Orrick partner Kathryn Edwards and of counsel Howard Ullman wrote “Consumer Advertising Misrepresentation Claims Under California’s Section 17200 Becoming More Difficult to Dismiss,” an Orrick Consumer Protection Update, on Aug. 29, 2011. It also appeared in The Recorder on Sept. 5, 2011.

Orrick partners Richard Goldstein, Robert Reznick, Douglas Lahnborg, Yoshihiro Takatori, Robert Pé and of counsels Howard Ullman and Veronica Lockyer wrote “New Appellate Court Ruling Increases Risk of U.S. Antitrust Litigation for Foreign Companies,” an Orrick Antitrust and Competition Alert, on Aug. 22, 2011. It also appeared in Competition Law360 on Sept. 29, 2011.

Recent Honors

The annual Global Competition Review 100 recently ranked Orrick’s Antitrust and Competition Group as “highly recommended.”

Chambers UK 2012 has ranked Orrick partner Douglas Lahnborg as a “notable practitioner” who was backed by “strong support” from colleagues and clients. The edition noted that he provides “clear, constructive advice in driving the issues forward,” and quoted clients as saying they appreciate his “rapid understanding of our business needs.”

The Legal 500 UK recognized Orrick partner Douglas Lahnborg as a leading lawyer and noted that he provides “clear, constructive advice,” is “tight into the process” and “drives the issues forward.”

U.S. News and World Report’s Best Firms in America rankings for 2012 placed Orrick’s Antitrust and Competition practice in National Tier 2. The magazine’s Best Lawyers in America publication also recommends Orrick partner Ted Henneberry for the antitrust law and antitrust litigation categories; partner Bob Rosenfeld for the antitrust law, commercial litigation and bet-the-company litigation categories; and partner Stephen Bomse for the antitrust law, bet-the-company litigation, commercial litigation and antitrust litigation categories.

The Legal 500 Europe, Middle East and Africa edition recently recognized Orrick partner Philippe Rincazaux as “very good,” noting that he stands out for his “excellent écritures.”

Paris-based Orrick partner Philippe Rincazaux has been re-appointed Non- Governmental Advisor to the International Competition Network (ICN) by the French Competition Authority (FCA). He was asked by the FCA to assist in issues relating to cartels and merger control and was a guest at ICN’s annual event on cartels, held Oct. 10–13, 2011, in Bruges, Belgium.

Chambers Europe recently recognized Orrick partner Philippe Rincazaux, noting that he is “very bright” and “has the trust of important clients.”

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, Articles and Honors

Recent Events

Practical Lessons and Experience under the New Merger Guidelines
Silicon Valley – July 20, 2011
Orrick partners Ted Henneberry, Garret Rasmussen and Richard Vernon Smith will chair a panel discussion focusing on key lessons for mergers and acquisitions planning in light of new antitrust merger guidelines. The featured speaker will be former Deputy Assistant Attorney General for Antitrust in the U.S. Department of Justice, Daniel L. Rubinfeld.

Global Investigations
Tokyo – July 26, 2011
Orrick partners Lisa Tenorio-Kutzkey and Andrew Dale >will lead a discussion in the firm’s “Orrick Library” seminar series on the topic of global investigations.

Recent Articles

David Goldstein, Richard Goldstein, Robert Reznick and Howard Ullman authored FTC Advisory Letters Clarify Obligation Report Drug Patent Agreements, Life Sciences and Antitrust Alert. It also appeared in Competition Law360 on June 7, 2011.

Douglas Lahnborg, Veronica Lockyer and Elizabeth Turner contributed the UK chapter to the recently published PLC Competition Handbook 2011, Volume 2: Leniency – Country Q&A.

Douglas Lahnborg and Margarita Ivanova contributed an article on “Private Damages Actions in the EU” in the recently published Euromoney Competition & Antitrust Review 2011.

Recent Honors

BTI Consulting Group, a research firm devoted to general counsel issues, listed Orrick partner Bob Rosenfeldas one of 15 U.S. lawyers identified in a recent survey of corporate counsel for providing exceptional client service in antitrust matters.

Chambers has recognized several Orrick antitrust partners in its 2011 rankings. Milan-based Orrick partner Alessandro De Nicola is listed in Chambers Europe; San Francisco-based partners Bob Rosenfeld and Stephen Bomse and senior counsel Laurence Popofsky are listed in Chambers California; and Washington, D.C.-based partner Robert Reznick is listed in Chambers D.C.

The Legal 500 also released its rankings for 2011, recommending Orrick’s Antitrust and Competition Group as a whole and individually recommending partners Bob Rosenfeld, David Goldstein, David Smutny, Lisa Tenorio-Kutzkey, Robert Reznick and Ted Henneberry. Rosenfeld was called “a great counsel and courtroom lawyer;” Reznick was characterized as “a superior antitrust lawyer in every way;” Goldstein was quoted as being “very smart, very practical and extremely responsive;” and Smutny’s dedication to clients was called “unrelenting.”

The Legal 500 UK‘s latest rankings recommended Orrick’s London practice, which earned “top marks across the board,” and characterized partner Douglas Lahnborg as an “excellent practitioner” who “conveys clear messages” and is “very responsive.” This edition also recommended partner Ted Henneberry, who splits his time between Washington, D.C. and London, as possessing “deep experience” and “excellent judgment.”

Get to Know: Robert Rosenfeld

Robert “Bob” Rosenfeld is the Antitrust and Competition Group’s Practice Group Leader. His practice focuses on antitrust, complex commercial litigation and financial institutions. For more than 10 years, he has represented Microsoft Corporation in numerous antitrust proceedings in California and elsewhere in the United States and abroad. Bob is currently working on patent misuse matters on behalf of Microsoft before the International Trade Commission and in federal court.
He is also involved in antitrust litigation in the health care realm, including matters involving third-party payor and provider groups. He frequently advises clients about the antitrust implications of the new health care legislation and regulations. Bob also represents three major potato growers, in litigation in Idaho federal court, alleging that an unlawful cartel is limiting the potato supply for the purpose of raising prices.

Bob’s practice also includes complex business litigation, principally on behalf of major financial institutions. He has represented and counseled special litigation committees on the conduct of internal investigations and the prosecution and defense of derivative litigation.

This year, Bob was identified by the BTI Consulting Group in a recent survey of corporate counsel as one of 15 U.S. lawyers who provide exceptional client service in antitrust matters. He has also been named one of The Best Lawyers in America, for Antitrust Law, Bet-the-Company Litigation and Commercial Litigation, 2006-2010. In addition, Bob has been named as one of America’s Leading Lawyers: Antitrust, by Chambers from 2003 through 2011. He was recognized for his work this year by PLC Which Lawyer? and the Legal 500, which called him “a great counsel and courtroom lawyer.”

Bob is on the board of directors/executive committees of Sutter West Bay Hospitals, Sutter Pacific Medical Foundation and the Consensus Building Institute.

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.

Events and Articles

Recent Events

November 2010

IBA Asia Pacific Forum Antitrust Enforcement
Tokyo, Japan – November 17-19, 2010
Philippe Rincazaux participated in a panel discussion on the growing themes of antitrust enforcement in the region with a particular focus on abuse of dominance and cartel enforcement.

Directors Roundtable
Washington, DC – November 12, 2010
Orrick partners Ted Henneberry and Jay Jurata discussed recent antitrust and competition issues of importance to directors and officers as part of a panel featuring Richard Feinstein, Director of Competition at the FTC.

ICN Merger Workshop
Rome, Italy – November 3-5, 2010
Orrick partner Ted Henneberry participated in the Italian Competition Authority’s 2010 Merger Workshop, which focused on merger enforcement trends, economic analysis in merger review and merger investigations.

ABA-IBA Training Program
New Delhi, India – November 1-2, 2010
Orrick partner David Smutny participated in a training program for the Competition Commission of India staff. Topics discussed included Merger Process, Cross-Border M&A, Cartels, Transparency/Procedural Fairness, Sectoral Regulations and Competition, Antitrust and the Internet, and Dominance/Unilateral Conduct.

October 2010

Association Francaise des Juristes d’Entreprise
Paris, France – October 18, 2010
Orrick partner Philippe Rincazaux participated in a panel on “Consequences of the Akzo Judgment” at a conference for the French Association of In-House Counsels.

IBA Annual Conference
Vancouver, Canada – October 3-8, 2010
Orrick partner Philippe Rincazaux co-chaired a workshop on “Unilateral Conduct—The Law of Discounts and Loyalty Rebates in the EU, U.S. and Elsewhere.”

September 2010

State Bar of California Annual Meeting
Monterey, CA – September 24, 2010
Orrick partner Robert Rosenfeld was a speaker at the 83rd State Bar of California Annual Meeting in Monterey

IBA Antitrust Conference
Florence, Italy – September 17-18, 2010
Orrick partner Philippe Rincazaux moderated a panel discussion on the latest developments in cartel investigations in Europe and the United States.

August 2010

Ramifications of American Needle, Inc. v. NFL
San Francisco, CA – August 4, 2010
Orrick partner Stephen Bomse participated on a panel with FTC Commissioner Tom Rosch and others for the Antitrust Section of the Bar Association of San Francisco. The panelists discussed the impact of American Needle on joint ventures.

Recent Antitrust and Competition Publications

Key Ruling on Legal and Professional Privilege, Antitrust and Competition Alert, September 2010, by Douglas Lahnborg and Matthew Rose
California Supreme Court Denies Pass-On Defense in Price-Fixing Cases, Antitrust and Competition Alert, July 2010, by David Goldstein, Richard Goldstein, Robert Reznick and Howard Ullman

The European Union General Court rules on AstraZeneca v. Commission, Antitrust and Competition Alert, July 2010, by Douglas Lahnborg

Threading the American Needle: Is There Still Room for a Unitary Action Doctrine in Antitrust Cases Involving Joint Ventures?, Competition Policy International, June 2010, by Stephen Bomse

Private Damages Actions in the EU, 2010 Competition and Antitrust Review, Summer 2010, by Douglas Lahnborg and Wessen Jazrawi

Most Favored Nations Clauses in Health Care: Are They Legal or Not?, The Price Point, Summer 2010, by Scott Westrich

European Commission Adopts Revised Block Exemption for Vertical Restraints, The Price Point, Summer 2010, by Douglas Lahnborg and Elizabeth Turner

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.

Events and Articles

June 2010

Important Issues in Antitrust Law: What Global Companies Need to Know
Taipei, Taiwan
June 4–9, 2010
Orrick partners Stephen Bomse and David Brownstein and senior associate Vena Cheng are presenting a series of seminars in Taiwan addressing current antitrust issues of importance for international companies.

Friends of Europe Forum
Brussels, Belgium
June 10, 2010
Orrick partner Ted Henneberry will participate in a panel discussion on New Transatlantic Trends in Competition Policy. The panel will include EC Commissioner for Competition Joaquin Almunia, FTC Commissioner Tom Rosch, and DOJ Assistant Attorney General Christine Varney. Additional information here.

July 2010

Global Antitrust Enforcement and Compliance
Washington, D.C.
July 20–21, 2010
Orrick partner Robert Rosenfeld will moderate a panel discussion on Vertical Restraints: Preventing Resale Price Maintenance, Distribution and Other Pricing Arrangements that May Raise Global Antitrust Scrutiny.

The Role of Antitrust Law in Analyzing Patent Misuse
Silicon Valley, CA
July 21, 2010
Orrick partners Robert Freitas, David Goldstein and Eric Wesenberg will participate in the second in a series of seminars covering Antitrust Issues for Silicon Valley Companies. The panelists will discuss the convergence of patent misuse and antitrust analysis, and current developments in patent misuse defenses. Register here.

Past Events

May 2010

Bundling and Loyalty Discounts: What the Law Is and What the Law Should Be
Via Teleconference
May 25, 2010
Orrick partner Scott Westrich participated in an ABA panel discussion on the fundamentals of bundled pricing and loyalty discounts and the current state of the law in the United States and the European Union.

Bundled Pricing and Loyalty Discounts: Lawful Incentives or Exclusionary Conduct?
Silicon Valley, CA
May 19, 2010
Orrick senior counsel Larry Popofsky, partner Scott Westrich and of counsel Howard Ullman participated in the first in a series of seminars covering Antitrust Issues for Silicon Valley Companies. For a copy of the presentation click here.

21st Annual Communications and Competition Law Conference
Barcelona, Spain
May 17–18, 2010
Orrick partner Ted Henneberry participated in a panel discussion on Antitrust and the Internet.

Global Antitrust Enforcement: The Perspective from Latin America
São Paulo, Brazil
May 13-14, 2010
Orrick partner Philippe Rincazaux, Officer of the International Bar Association Antitrust Committee, participated in a panel discussion on legal and practical issues which arise in the context of merger remedies required by competition authorities when clearing a proposed merger.

April 2010

International Competition Network
Istanbul, Turkey
April 27–29, 2010
Orrick partners Ted Henneberry and Philippe Rincazaux participated in ICN’s 9th annual conference. Ted participated as a Non-Governmental Advisor on behalf of the U.S. DOJ and FTC, and Philippe participated on behalf of the French Competition Authority.

Presentation to China’s Ministry of Commerce
Beijing, China
April 22, 2010
Senior associate Vena Cheng was invited by the division chief of the Enforcement Division of the Anti-Monopoly Bureau of MOFCOM to present on the effects of U.S. cartel enforcement on PRC corporations at a MOFCOM meeting.

Recent Antitrust and Competition Publications

Commission v. MTU Friedrichshafen,” European State Aid Law Quarterly, February 2010 by Andrés Martin-Ehlers

The Supreme Court Holds That NFL Licensing Activities Are Subject to Antitrust Scrutiny,” Antitrust and Competition Alert, May 2010 by Scott Westrich

Vertical Agreements Block Exemption,” Antitrust and Competition Alert, April 2010 by Douglas Lahnborg

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.

Appointments, Articles and Events

Recent Antitrust and Competition Appointments

Philippe Rincazaux, an Orrick Paris partner, was recently named editor for the International Bar Association’s (IBA) antitrust newsletter. In his new role, Philippe joins a board of 13 lawyers from around the world who comprise the IBA’s Antitrust Committee.

In addition, Philippe will serve a second term as a nongovernmental advisor to the International Competition Network (ICN). Established in October 2001 to facilitate procedural and substantive convergence in antitrust enforcement, the ICN is an informal network of competition authorities from around the world. Its membership is composed of 107 competition authorities from 96 jurisdictions worldwide.

Edward “Ted” Henneberry, an Orrick Washington, D.C. partner, was selected to join an American Bar Association (ABA) special advisory team which provided counsel to the Anti-Monopoly Bureau of the Chinese Government’s Ministry of Commerce (MOFCOM) on best practices in relation to China’s new Anti-Monopoly Law. Ted traveled to Beijing with two other U.S. lawyers and two economists to attend a meeting and private seminar focusing on key issues in merger enforcement and analysis under the Anti-Monopoly Law. In addition, Ted will serve as a Non-Governmental Advisor (NGA) for the International Competition Network’s (ICN) Annual Meeting and consult on ongoing work for the Merger Working Group. He has served as a NGA for ICN since 2006.

David Goldstein, an Orrick San Francisco partner, was recently appointed Vice Chair of the Antitrust Section of the Bar Association of San Francisco. The Section sponsors presentations and panel discussions concerning antitrust and competition counseling, enforcement and litigation.

Recent Antitrust and Competition Publications

On Antitrust,” Association of Business Trial Lawyers, Fall 2009 – Article by Howard Ullman
China’s Chief Price-Regulator Flexes New Antitrust Muscle,” The Price Point, Fall 2009 – Article by Jonathan Palmer
China Moves To Implement Its New Merger Control Regime,” Orrick Client Alert, March 2009 – Article by Edward Henneberry, Jonathan Palmer and Vena Cheng
China Outlines Market Definition Criteria for Antitrust Analysis Following Offsite Workshop with U.S. Experts,” Orrick Client Alert, February 2009 – Article by Edward Henneberry and Jonathan Palmer

Upcoming Antitrust and Competition Events

March

Directors Roundtable
Santa Clara, California
March 19, 2010
Orrick partners Robert Rosenfeld and Robert Freitas will join Carl Shapiro from the U.S. Department of Justice and other distinguished speakers to discuss antitrust policy a year into the Obama Administration.

April

ABA Antitrust Spring Meeting
Washington, D.C.
April 21-23, 2010
>Orrick will host a cocktail reception in the Pierce Room of the Willard Hotel on the evening of April 21, 2010, from 5:30 p.m. – 8:00 p.m.

Bar Association of San Francisco, Antitrust Section
San Francisco, California
April 26, 2010
Orrick partner Robert Rosenfeld will participate in a panel discussion on taking document-intensive antitrust cases to trial.

Past Events

January

DOJ/FTC Horizontal Merger Guidelines Review Project
Stanford University, California
January 14, 2010
M. Laurence Popofsky, an Orrick senior counsel, participated in an FTC/DOJ workshop exploring the possibility of updating the Horizontal Merger Guidelines the agencies use to evaluate the potential competitive effects of mergers and acquisitions.

Current Trends and Issues in Antitrust
Stanford University, California
January 15, 2010
Orrick partners Stephen Bomse, David Goldstein and Jessica Persparticipated in a panel addressing Current Trends and Issues in Antitrust. In addition to a general overview of developments in antitrust and competition law, the panelists addressed issues facing today’s in-house counsel, including resale price maintenance, Section 5 of the FTC Act and participation in standards-setting organizations.

February

Biennial ABA/IBA International Cartel Workshop
Paris, France
February 10-12, 2010
Edward Henneberry, an Orrick partner and a member of The ABA’s International Cartel Task Force and Planning Committee, participated in a panel discussion at the ABA’s International Cartel Workshop.

5th Annual In-House Forum on Pharma Antitrust
American Conference Institute
New York, New York
February 17-18, 2010
Orrick partner Robert Reznick participated in a panel on “Avoiding the Appearance of ‘Predatory Pricing’ by Carefully Crafting Pricing and Distribution Strategies that Are in Line with Robinson-Patman.”

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.”