United States: Antitrust & Competition Year in Review 2012

Last Updated: April 10 2013
Article by Robert E. Bloch

Keywords: antitrust/competition, review, 2012

INTRODUCTION

In 2012, we were pleased to have represented our clients in important cases and transactions around the world. We are happy to share with you this summary of accomplishments for 2012, which were made possible by our clients' confidence and trust in us.

Antitrust enforcement authorities around the world are becoming more active and aggressive. The US Department of Justice achieved record criminal fines in 2012 totaling more than $1.35 billion. The European Commission also achieved impressive results, imposing approximately $2.48 billion in fines against 37 companies. The FTC and state attorneys general have been very active as well, challenging mergers, as has the Department of Justice, which stopped the AT&T merger last year. International enforcement has seen new competition regimes passed, reformed or implemented in Hong Kong, India, Brazil and England, and many others are pursuing enforcement activities under existing programs, which now exceed 100. New bilateral and multilateral relationships have been established between US enforcement agencies and China, as well as with India, and cooperation among enforcement agencies has never been greater. Private litigation in the United States also picked up noticeably for the first time in several years. These activities demand that our practitioners be well informed and capable of meeting every challenge anywhere in the world.

Mayer Brown's Global Antitrust lawyers regularly appear before antitrust agencies in the United States, Europe and Asia to deal with complex issues in investigations, cases, transactions, and multidistrict and multijurisdictional litigation and bring an innovative approach to solving important problems and addressing issues that have helped shape the law. Our deep bench of highly experienced litigators and advisers covers every antitrust-related area.

With more than 60 lawyers and other professionals around the world, our team spans many generations and includes numerous former government officials. We are always adding to the depth of our team, and 2012 was no exception. Robert Klotz joined our Brussels office and brings 10 years of prior experience with the European Commission. Both Tom Panoff and Dan Storino, in Chicago, and Adam Hudes, in Washington, DC, became partners. They focus on antitrust and complex commercial litigation, including price-fixing, market allocation and monopolization issues.

We have also continued to be thought leaders in the field by publishing extensively on a broad range of antitrust topics—a listing of some of the key publications appears later in this report. We have also participated in many national and international programs and are recognized as a leader in this practice area by Chambers & Partners, Legal 500 and Global Competition Review.

As 2013 progresses, we look forward to new opportunities to represent and help you solve the difficult challenges you face. We promise to bring our global strengths, energy and creative thinking to the task to assist you in reaching your business goals.

Robert E. Bloch
Global Practice Leader


REPRESENTATIVE MATTERS

Mayer Brown's Antitrust & Competition Group takes great pride in its involvement in high-profile antitrust and competition matters across the globe, ranging from complex multidistrict litigation to meeting regulatory challenges from global enforcement authorities, to assisting clients in transforming their businesses via mergers and acquisitions. A sampling of key matters from the past year is as follows:

Asahi Kasei Pharma Corp. v. CoTherix, Inc.

After Actelion bought CoTherix, CoTherix stopped developing a drug that Asahi had licensed to it. Asahi won an arbitration award against CoTherix based on breach of the license agreement between those two companies. Asahi also sued CoTherix and several Actelion entities and officers in California state court, asserting California antitrust claims against all defendants and tort claims against the Actelion defendants. The trial court granted summary adjudication dismissing the antitrust claim against CoTherix, and Asahi appealed. The court affirmed the dismissal on the ground that the acquiring and acquired entities had unified economic interests. This case is significant because the Court of Appeal rejected Asahi's effort to evade the limitations of California antitrust law, which does not address the conduct of a single economic actor (such as two merged companies). The decision extended the reasoning of a case that the California Supreme Court had not revisited for many years. The court's conclusions with respect to the unity of economic interest between CoTherix and Actelion also may affect the pending appeal of a $385 million judgment entered against Actelion for intentional interference with the Asahi-CoTherix contract.

American Specialty Health Group v. Healthways, Inc.

We represent American Specialty Health Group (ASH) in a pending action against Healthways, Inc., alleging violations of the antitrust laws arising from Healthways' selective enforcement of multiyear exclusivity, and post-termination non-compete provisions, included in contracts with fitness clubs throughout the United States. ASH and Healthways are the two principal competitors in the business of supplying senior fitness program products to Medicare Advantage plans that offer a fitness benefit to enrolled seniors. In order to supply a fitness product to the Medicare Advantage health plans, Healthways and ASH each created a nationwide network of contracted fitness clubs. Healthways insisted that its fitness clubs sign an exclusivity provision, which it typically enforces when a club attempts to sign up to work with ASH or another Healthways competitor. Healthways dominates the Medicare Advantage market for senior fitness benefits, serving more than 50 percent of eligible seniors. ASH, the next largest competitor, serves slightly more than 10 percent of eligible seniors. We believe this to be one of the first cases that applies antitrust scrutiny to aggressive use of exclusivity clauses to dominate a critical aspect of the market for Medicare Advantage products and services.

Lear Corporation

We represent Lear Corporation in direct and indirect purchaser putative class actions in which plaintiffs allege that the major manufacturers of automotive wire harnesses (and several manufacturers of the parts used in those harnesses) engaged in price-fixing and bid rigging in violation of the Sherman Act and numerous state antitrust, consumer protection and unfair competition laws. This is a high-profile price-fixing case that follows in the wake of several defendants' recent agreements to plead guilty and pay substantial fines to the United States government. Automotive wire harnesses are used in every car on the road today.

We also represented Lear Corporation in relation to the investigation by the EU Commission into an alleged cartel activity in relation to wire harnesses. This two-year investigation went to the next step over the summer with the Commission initiating proceedings, but not against Lear.

In re Potash Antitrust Litigation (II)

We serve as counsel for The Mosaic Company, a domestic manufacturer of potash, in putative class actions brought by direct and indirect purchasers alleging that Mosaic and other global potash manufacturers conspired to fix the prices of potash in the United States. In the 1990s, we successfully represented IMC Global, Inc., a predecessor to Mosaic, in a comparable price-fixing case, obtaining summary judgment that ultimately was affirmed by the en banc Eighth Circuit. Like its predecessor, this new litigation is a multidistrict proceeding, consolidating some eight different cases for pretrial purposes in the Northern District of Illinois (Judge Castillo). This is a large price-fixing action involving multinational defendants operating in a worldwide industry which has been the subject of recent economic commentary about its global market impact. Unlike the 1990s matter, this case includes several new foreign defendants, including a number in the former Soviet Union, and new allegations regarding commerce in China, India and Brazil. Class settlements with all of the defendants were recently preliminarily approved by the district court with final approval scheduled for mid-2013.

Kleen Products, et al. v. Packaging Corporation of America, et al.

We represent Temple-Inland Inc., a business of International Paper, in connection with allegations that manufacturers of linerboard, corrugated medium, containerboard and corrugated products conspired to fix the prices of these products and restrict capacity. The case, which includes a number of individual class actions, was consolidated before the Hon. Milton Shadur in the Northern District of Illinois. The case was recently reassigned to the Hon. Harry Leinenweber. Corrugated products (and the materials they are made from) are used in almost every consumer product segment in the country. Plaintiffs here allege that the class includes companies that made purchases as early as 2005.

In re Urethanes Antitrust Litigation

We have defended BASF SE and BASF Corporation in connection with allegations that manufacturers conspired to fix the price of, and allocate customers and nationwide markets for, certain urethane products. This is a high-profile price-fixing case that was brought despite the Department of Justice's closure of a related grand jury investigation without charges being filed against anyone. Urethanes have applications in a wide range of consumer products. The case includes class actions filed around the country. We aggressively defended and favorably resolved the key cases before a federal jury returned a substantial verdict against one of our co-defendants in the class case.

In re Steel Antitrust Litigation

We are serving as co-counsel to ArcelorMittal USA, Inc. and ArcelorMittal S.A. in connection with allegations that steel producers entered into a multiyear antitrust conspiracy to reduce the production of steel products in the United States through coordinated production cuts for the express purpose of raising the price of steel products.

Unlike many other cartel cases, there is no underlying government investigation in this case. Instead, the alleged conspiracy is based entirely on public commentary regarding the structure of the industry, readily observable industry events and the timing of each individual defendant's production cuts.

In re EPDM Antitrust Litigation

We have defended DSM Elastomers Europe B.V. and DSM Copolymer, Inc. in connection with allegations that manufacturers conspired to fix the price of, and allocate customers and nationwide markets for, ethylene propylene diene monomer (EPDM), a synthetic rubber. The federal case, which included individual class actions filed around the country, was consolidated for pretrial purposes in the District of Connecticut and was settled in early 2011. In addition, several indirect purchasers filed suits in various state jurisdictions. Those cases, too, were recently resolved. EPDM is a widely used synthetic rubber product with applications in automobiles, roofing materials and other goods. Notably, the plaintiffs pressed their claims despite the Department of Justice's closure of a related grand jury investigation without charges being filed against anyone.

In re Retail Food Packaging Investigation

We are assisting Ono Packaging, a producer of expanded polystyrene trays, in the European Commission's pending retail food packaging cartel investigation. On September 28, 2012, the European Commission informed 13 companies active in the production and/or distribution of retail food packaging of its preliminary view that they may have participated in a cartel in the European Economic Area (EEA) for up to eight years, in breach of EU antitrust rules.

In re French TV Rights Antitrust Litigation

We are representing Ma Chaîne Sport, one of the main French editors of sports TV channels, in proceedings before the French Competition Authority, which was asked by the Paris Commercial Court to provide a preliminary opinion on a dispute with antitrust aspects. In the underlying action, Ma Chaîne Sport is challenging the Ligue 2 TV rights allocation process organized by the French Football League in 2010 because its offer for those television rights was set aside as too low; the TV rights eventually were granted for free to a new TV channel created by the French Football League itself. The French Competition Authority is expected to deliver its opinion in early 2013. The proceedings before the Commercial Court will then resume.

Électricité Réseau Distribution France

We are assisting Électricité Réseau Distribution France in its defense of proceedings brought by an independent solar energy producer before the French Competition Authority. This independent producer claims that France's primary electricity producer, EDF, which is also a shareholder of Électricité Réseau Distribution France, receives favorable treatment from Électricité Réseau Distribution France in the procedures for the connection of new solar plants to the electricity network. The French Competition Authority rejected all the interim measures (i.e., the measures that would be necessary until a final decision is adopted on the substance) requested by the claimant and will now investigate the substance of the claims. As the main electricity network operator in France, Électricité Réseau Distribution France is subject to strict public service obligations, including independence and nondiscrimination rules. Électricité Réseau Distribution France further operates under the control of the electricity regulator in France, which regularly assesses whether equal treatment is being strictly observed.

Nestlé USA

We represent Nestlé USA in the defense of more than 90 federal lawsuits that allege a conspiracy with Mars, Hershey and Cadbury to fix the price of chocolate candy products sold in the United States. These complaints were brought on behalf of direct and indirect putative class plaintiffs and large individual corporate plaintiffs (e.g., Safeway, Kroger, CVS) that are not seeking class status. The suits have been consolidated for pretrial proceedings in the Middle District of Pennsylvania (Harrisburg). Nestlé S.A. and Nestlé Canada were initially named as defendants, but were dismissed from the litigation for lack of personal jurisdiction. This is one of the largest multidistrict antitrust litigation matters currently pending. The plaintiffs allege potentially billions of dollars in damages. The case also will raise significant legal issues. For example, the standards for summary judgment in the Third Circuit will be tested, including the inferences to be drawn based upon purely non-US conduct (in this case, Canada).

Starwood Hotels & Resorts Worldwide, Inc.

We represent Starwood Hotels & Resorts Worldwide, Inc. in a consolidated multidistrict antitrust class action litigation involving online hotel reservations. Beginning in August 2012, over 30 virtually identical class actions were filed in federal courts around the country by plaintiffs claiming to have used the online travel agents (OTAs) Expedia, Orbitz, Priceline and Travelocity (and their respective affiliates) to book rooms at hotels affiliated with one of the eight defendant hotel companies (Hilton, Marriott, InterContinental, Starwood, Kimpton, Wyndham, Hyatt and Trump). The plaintiffs contend that each defendant hotel company entered into minimum resale price maintenance agreements with the defendant OTAs and agreed with the OTAs not to allow competing OTAs to offer their hotel rooms at lower rates. Plaintiffs claim that these alleged agreements violate the Sherman Act and various state antitrust statutes, and have made other state-law claims against the OTAs. Plaintiffs seek treble damages, permanent injunctive relief and attorneys' fees. The cases have all been consolidated for pretrial purposes in the Northern District of Texas in Dallas.

UAL Corporation: Dominguez v. UAL Corp.

We are antitrust litigation counsel to United Air Lines, Inc., and UAL Corporation. In 2012, we won affirmance of the district court's grant of summary judgment in Dominguez v. UAL Corporation, 10-7138 (D.C. Cir. 2012). The plaintiff had alleged that UAL's refusal to allow resale of tickets violated antitrust law and sought $100 million in damages. On summary judgment, we argued, and convinced the district court judge, that UAL's decision was not exclusionary because it had no impact on other air carriers. On appeal, we argued, in addition, that the plaintiff lacked standing because the claimed injury was too speculative. The DC Circuit affirmed on the standing issue and dismissed the plaintiff's complaint.

DPWN Holdings (USA), Inc. v. United Airlines, Inc.

We represent United Air Lines, Inc., in a case brought by its largest customer, DHL, alleging that United participated in a price-fixing cartel involving air cargo carriers. Although the district court denied our motion to dismiss, the question as to whether United could be liable for damages for claims arising prior to United's discharge in bankruptcy was certified to the Second Circuit. The certification motion was accepted by the Second Circuit, and the appeal will go forward in 2013.

Energetický a Prumyslový Holding a.s. (EPH)

In Brussels, we advised and represented the Czech energy company EPH in an EU antitrust investigation into possible restrictions of competition on the Czech electricity generation and wholesale market, following a third-party complaint. EPH had initially been one of the targets of this investigation, but it was released. Instead, the Commission is about to accept structural commitments from the other company involved in the investigation (the incumbent operator CEZ), which will have to divest certain power plants in the Czech Republic to an independent acquirer. However, the Commission imposed a fine on EPH for an alleged procedural infringement during the initial dawn raid. On behalf of EPH, we filed an appeal to the General Court of the EU in June 2012, seeking the annulment of this decision or at least a reduction of the fine. The court case is still pending.

Energetický a Prumyslový Holding a.s. (EPH)

We advised and represented the Czech energy company EPH on an EU merger filing for the acquisition of sole control of the Slovak energy company Slovenský Plynárenský Priemysel a.s. (SPP) by way of a share purchase from Gaz de France Suez and E.ON AG. Unconditional clearance for this transaction was granted by DG Comp in December 2012. We also advised EPH on EU and German merger filings for a number of other transactions.

BASF

We successfully defended BASF in the first antitrust case to be heard by the UK Supreme Court. This was a follow-on damages action brought by BASF customer BCL before the UK Competition Appeal Tribunal (CAT). The case followed from the European Commission's 2001 "vitamins cartel" decision, finding an infringement and imposing a penalty on BASF. BASF appealed the penalty but not, crucially, the infringement finding. The EU General Court reduced BASF's penalty in March 2006 and BCL brought its claim in the CAT in March 2008. The Supreme Court decided BCL's claim was time-barred because the UK Competition Act 1998 required it to bring its damages claim within two years of expiry of BASF's deadline for appealing the Commission's infringement decision, not penalty. BCL had made its claim over four years late.

European Commission's EBooks Investigation

We advised a major global publisher on its defense to, and settlement of, European Commission investigations into allegations of collusion among publishers to introduce agency arrangements for the sale of ebooks. The case was settled on the basis of commitments announced in a European Commission decision on December 12, 2012.

Gulf Oil Corporation Ltd (GOCL)

We advised the UK subsidiary of Gulf Oil Corporation Ltd (GOCL), the India-based lubricants division of international conglomerate the Hinduja Group, on its purchase of US industrial fluids manufacturer Houghton International Inc. for $1.045 billion, the largest outbound acquisition by an Indian company in 2012.

EUROFER—Glencore/Xstrata

We represented the European steel industry association EUROFER before the European Commission in connection with the US$70 billion merger of Glencore and Xstrata, creating the world's largest commodities and mining group. We represented EUROFER in a lengthy antitrust procedure and presented the association's views about the effects of the merger, in particular with respect to zinc metals. The European antitrust watchdog gave its approval to the merger, subject to remedies.

Microsol

We advised Indian-Arab company Microsol on its acquisition of key assets of the insolvent SOLON SE and its German subsidiaries. Microsol implements the acquisition through its newly formed German subsidiaries SOLON Energy GmbH and SOLON Modules GmbH. SOLON Energy GmbH will become the core of the new SOLON group as part of Microsol.

The Jordan Company, L.P.

We represented The Jordan Company, L.P., in the approximately $505 million sale of Kinetek Group Inc., a US-based commercial motor manufacturer, to Nidec Corporation.

Nestlé S.A.

We are the lead global competition counsel representing Nestlé S.A. in its $11.9 billion acquisition of Pfizer's infant nutrition business. We developed the merger clearance strategy and are managing and coordinating multiple filings around the world. We also are supervising country counsel in the implementation of our strategy. The transaction closed globally on November 30, 2012. This matter is one of the largest M&A transactions of 2012 and one of the largest strategic deals in 2012. The competition clearances involve about 20 jurisdictions, and it has been reported that in many of these jurisdictions market shares are high. Among other countries, there was a significant review in China, Australia, South Africa, Mexico, Colombia, Chile, India, Saudi Arabia and Pakistan. The coordination and strategy to obtain clearances in a number of jurisdictions is very complex. This challenge is made greater by the fact that many of the jurisdictions conducting review are newer, and both regulators and local counsel are less experienced in working on global transactions.

Worldwide Flight Services

We have represented Worldwide Flight Services, a global ground handler, in obtaining clearance for its acquisition of Aviapartner, which is active in Europe (most notably in Belgium, France, the Netherlands and Germany). With this transaction, Worldwide Flight Services becomes the leading ground handler in European airports and the number-two ground handler globally. Notice of the transaction went to the European Commission on October 24, 2012, following detailed exchanges with the Directorate-General for Competition (DG Comp) in view of the large number of local markets to be addressed in the notification. The merger was authorized in Phase 1 without condition on November 30, 2012. DG Comp notably acknowledged the arguments put forward by Worldwide Flight Services on low barriers to entry and significant buying power of customers. This case is one example, among many others, of our ability to obtain clearance within short time limits for transactions involving numerous local markets.

Senoble

We have assisted Senoble, one of the main dairy producers in France, regarding notification to the European Commission of its joint venture with Agrial, a farmers' cooperative that produces raw milk, among other food products. Senoble transferred to the joint venture all its private label dairy activities in France, Germany and Benelux. The transaction was notified to the Commission on January 16, 2012; it cleared in Phase 1 without conditions on February 21, 2012. This joint venture mainly created vertical relationships between the parties, but also included horizontal effects, as both parties are active in raw milk trading.

Vue Entertainment

We represented Vue Entertainment in its acquisition of Apollo Cinemas. The client requested that we predict the degree of divestments that would be required to avoid a second phase investigation in the United Kingdom. The first phase Office of Fair Trading investigation was completed with a level of divestments lower than predicted. Significant local market analysis involved the use of isochrones techniques to help define the local market for each cinema, while diversion ratios and indicative price rise analyses were used to determine the closeness of competition between cinemas.

Mittal Investments Sarl

We obtained purchaser suitability and merger clearances from the UK Competition and European Commission, respectively, for Mittal Investments Sarl to acquire assets from Anglo American and Lafarge. The Competition Commission had required sale of the assets as a precondition to completion of a proposed joint venture between Anglo (Tarmac) and Lafarge announced earlier in 2012.

THOUGHT LEADERSHIP

Speaking Engagements

JANUARY

"Dissecting the Market Definition of Competition Law"
Sponsored by: The Ideas Exchange (Master Class)
Speaker: Kiran Desai

FEBRUARY

"Legal and Practical Considerations Influencing Whether and When to Opt Out of a Class Action"
Sponsored by: The ABA Section of Antitrust Law (International Cartel Workshop)
Speaker: Robert Bloch

"Merger Control—A Global Update"
Sponsored by: Mayer Brown (Global Strategies Webinar Series)
Speakers: Gillian Sproul, Adrian Steel

"Antitrust Case Allocation within the European Competition Network: Playing Games with Different Rules Shows Limits"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Nathalie Jalabert Doury, Gillian Sproul

MARCH

"Pot to Frying Pan—Settlement Agreements as Antitrust Violations"
Sponsored by: ABA Antitrust Section (60th Annual Spring Meeting, Washington, DC)
Panelist: Carmine Zarlenga

"Health Plan Most Favored Nations Provisions with Providers in Metropolitan Areas"
Sponsored by: DC Bar Association Consumer Law—Antitrust Committee and ABA Antitrust Section Healthcare & Pharmaceuticals Committee
Moderator: Scott Perlman

"Healthcare Antitrust Bootcamp Webinar Series, Part VII: Trade Associations and Group Purchasing Organizations"
Sponsored by: The American Health Lawyers Association
Panelist: Scott Perlman

"Regulatory and Antitrust Issues in the Energy Sector"
Sponsored by: The German-American Lawyers Association (Annual Conference)
Panelist: Jens Peter Schmidt

"Food Products and Retail: Antitrust Initiatives and Investigations in the EU and EU Member States"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Nathalie Jalabert Doury, Jens Peter Schmidt

APRIL

"New Developments in Merger Analysis and Their Implications for FCC Merger Reviews"
Sponsored by: Federal Communications Bar Association
Moderator: Donald K. Stockdale, Jr.

MAY

"Poultry Merger Reviews: When Can Birds of a Feather Flock Together?"
Sponsored by: Mayer Brown (Teleconference)
Speaker: Carmine Zarlenga

"Competition Sector Enquiries: Do They Deliver?"
Sponsored by: Mayer Brown Brussels
Speaker: Kiran Desai

"Organizing and Simplifying a Complex Health Care Antitrust Case for Trial"
Sponsored by: The ABA and the American Health Lawyers Association
Speaker: Robert Bloch

"European Commission's Directorate General for Competition Discloses Its Manual of Antitrust Procedures"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Jens Peter Schmidt, Kiran Desai

JUNE

"Third Annual Chicago Forum on International Antitrust Issues"
Sponsored by: Mayer Brown and Northwestern Law's Chicago Forum on International Antitrust Issues
Speakers: Vincent Connelly, Andrew Marovitz, Mark McLaughlin, Britt Miller

"Abuse of Dominance in the Energy Sector"
Sponsored by: Claeys and Casteels (Fourth Annual Energy Law Master Class)
Speaker: Robert Klot

z"Energy Roadmap 2050 and Cooperation with Switzerland"
Sponsored by: Energiewirtschaft Schweiz 2012
Speaker: Robert Klot

z"Competition and Financial Services"
Sponsored by: The ABA Section of Antitrust Law and Columbia University School of Law
Speaker: Richard Steuer

"Dawn Raids in the EU and US Antitrust Enforcement Practice"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Robert Klotz, John Roberti

JULY

"Compliance: When Will It Really Matter at the EU Level?"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Nathalie Jalabert Doury, Jens Peter Schmidt

"Introduction to the Competition Ordinance"
Sponsored by: The Hong Kong Construction Materials Association
Speaker: Philip Monaghan

"Competition, Investment and IP"
Sponsored by: The World Trade Institute of the University of Bern and the Law Faculty of the Chinese University of Hong Kong
Speaker: Philip Monaghan

AUGUST

"Joint Ventures erfolgreich gestalten—Kontrolle, Einfluss, Ausstieg und Kartellrecht"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Jens Peter Schmidt, Heinrich von Bünau

SEPTEMBER

"Are You Ready for Competition Law? What Steps Do You Need to Take?"
Sponsored by: The Hong Kong General Chamber of Commerce
Speaker: John Hickin

"EU Energy Policy: What Is the Impact on the German Energy Markets?"
Sponsored by: The Deutscher Regulierungskongress (Ninth Annual, Berlin, Germany)
Panel Chairman: Robert Klot

z"How to Avoid Pitfalls in Disclosing Information in M&A Transactions and How to Ensure Safe Integration Planning"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Jens Peter Schmidt, Carsten Flasshoff

"Local Markets: Key Competition Issues"
Sponsored by: Mayer Brown (Teleconference)
Speakers: Nathalie Jalabert Doury, Kiran Desai

"Cartel Detection and Investigation: Defence Responses"
Sponsored by: The Indonesian Commission for the Supervision of Business Competition (KPPU) and UNCTAD
Speaker: Philip Monaghan

OCTOBER

"Fundamentals of Franchising/Antitrust"
Sponsored by: The American Bar Association Forum on Franchising
Speaker: Lee Abrams

"Participation in Global Forums: The Role of EU Competition Law in the Energy Market"
Sponsored by: The IE Law School (Madrid, Spain)
Speaker: Salomé Cisnal de Ugarte

"Seminar on Global Cartels and EU Enforcement"
Sponsored by: The ESADE (Barcelona, Spain)
Speaker: Salomé Cisnal de Ugarte

"The Hong Kong Competition Ordinance—Are You Covered or Do You Need Insurance?"
Sponsored by: The Hong Kong Insurance Law Association
Speaker: Philip Monaghan

NOVEMBER

"Compliance Control—Monitoring and Improving Compliance"
Sponsored by: Mayer Brown
Speakers: Jens Peter Schmidt together with Christian Schefold and Rainer Markfort and Alvarez & Marzal

"Sixth Annual Transatlantic Business Conference"
Sponsored by: The American Chamber of Commerce in Germany e.V., the Federation of German Industries (BDI), the F.A.Z.-Institut and the TransAtlantic Business Dialogue (TABD) Initiative
Speakers: Jens Peter Schmidt, Robert Klotz

DECEMBER

"A New Landscape After a Big Year in the Supreme Court"
Sponsored by: Law Seminars International
Speaker: Andrew Marovit

z"Restructuring Gas Markets Through Competition Law Enforcement"
Sponsored by: The International Energy Forum of Switzerland (Sixth Annual)
Speaker: Robert Klotz

Publications

ABA ANTITRUST SECTION

Carmine Zarlenga. The Franchise and Dealership Termination Handbook. Second Edition. 2012.
Second Edition 2012. Provides practical guidance for lawyers as they counsel their clients and navigate the difficult issues that often arise when a franchise or dealership ends. Contributing editor.

Carmine Zarlenga. Market Definition in Antitrust: Theories and Case Studies. 2012.
A comprehensive analysis of the issues involved in defining markets in antitrust cases. Contributing author.

Scott Perlman. Price Discrimination Handbook. 2012.
This book covers federal and state price discrimination laws in the United States, as well as price discrimination laws in a number of major foreign jurisdictions, including the European Union, China, India, Japan, Indonesia, South Africa, Canada, Mexico and South Africa. Co-editor and project manager.

COMPETITION POLICY INTERNATIONAL

Nathalie Jalabert Doury, Gillian Sproul. "Enforcers' consideration of compliance programs in Europe: Are 2011 initiatives raising their profile or reducing it to the lowest common denominator?" February 2012.
In 2011, three European competition authorities produced new guidance outlining their support for corporate compliance programs: the UK Office of Fair Trading (OFT), the French Competition Authority (FCA) and the European Commission. The guidance shows that competition authorities will now at least recognize compliance programs in Europe. However, behind the supportive tone, the new guidelines in the United Kingdom and France only go as far as maintaining existing compliance reductions with reinforced conditions. Furthermore, the main emphasis of the European Commission's guidance appears to be on its commitment not to consider compliance programs as an aggravating circumstance.

Donald Falk, Christopher Kelly. "DOJ Merger Statement Renews Focus On Competitive Implications Of Industry Standards." April 2012.
Two developments have led to greater focus on the acquisition of underlying patent rights as a basis for antitrust scrutiny. First is the rise of non-practicing entities, pejoratively known as "patent trolls," as buyers and enforcers of valuable intellectual property. The second development is the recent large-scale patent portfolio acquisitions by technology firms with significant positions in important markets.

CONCURRENCES

Nathalie Jalabert Doury. "Best practices for compliance programs: Results of an international survey." May 2012.
All companies should employ competition law compliance programs in an attempt to ensure that their employees will follow these complicated laws. Yet, enforcers' support for competition law compliance programs is wildly inconsistent. A few enforcers provide guidance about compliance, and some will consider a sincerely implemented compliance program to be a mitigating factor. But many will not do so.

Robert Klotz. "Concerted practices in the telecommunication sector: An overview of EU and national case law." November 2012.
The article describes how the liberalization of the telecoms sector in the late 1990s was complemented by antitrust enforcement action both at the level of the EU and of its member states, and concludes that national competition authorities were the front-runners in this regard.

INTERNATIONAL LAW OFFICE

Kiran Desai. "Deutsche Börse and NYSE Euronext Merger Blocked." February 2012.
On February 1, 2012, the European Commission adopted its decision prohibiting the $10.2 billion merger between Deutsche Börse and NYSE Euronext. The decision is notable not least because it is rare for the commission to block a merger. Of the 4,857 merger transactions that have been notified under the EU merger control regime since its inception in 1990, only 21 have been blocked.

Kiran Desai. "Tell All: Whistleblowing to EU and National Competition Authorities." February 2012.
A company notifies a competition authority of the company's involvement in a cartel in order to obtain immunity from fines or, at least, a reduction in the fine imposed—which is available on a first-come, first-served basis. The European Commission's Directorate-General for Competition provides a leniency notice setting out the terms for companies wishing to whistleblow in relation to EU law infringements.

Kiran Desai. "Is the food sector ripe for a sectoral inquiry?" July 2012.
The European Commission's competition department (DG Comp) has the power to investigate an industry or sector. Recent action by the DG Comp raises the question of whether it is likely to initiate a food sector inquiry. The DG Comp may undertake a sectoral inquiry if it concludes that "rigidity of prices or other circumstances suggest that competition may be restricted or distorted with the common market."

Kiran Desai. "EU merger control: accidental by-catch?" August 2012.
The Deutsche Börse/NYSE Euronext merger was blocked in 2012, despite only a few transactions being prohibited under the EU Merger Regulation. The decision suggests misalignment between the parties and DG Comp on three issues: market definition, the relevance of efficiencies, and possible commitments. It has been reported that the parties must pay breakdown costs exceeding $200 million; in light of these costs, as well as the overall negative effect of the rejected merger on the parties, it is important to try to understand what the misaligned issues were and why they arose.

LAW 360

Kelly Kramer, John Roberti and Scott Claffee. "A 'Trial Penalty' For AU Optronics." September 2012.
The article discusses a federal judge's ruling against AU Optronics Corp. for its role in a price-fixing conspiracy case.

LEXOLOGY

Salomé Cisnal de Ugarte. "EU State Aid Modernisation – A Trojan Horse in Commissioner Almunia's Court?" May 2012.
This article provides an overview of the Commission's far-reaching plans to modernize State aid law.

MAYER BROWN PUBLICATIONS

Jens Peter Schmidt. "Leniency Applications Protected: German Court Denies Private Plaintiffs Access to File." February 2012.
This article addresses a decision of the Local Court of Bonn, Germany, denying a company seeking redress from cartelists access to a leniency application and documentary evidence submitted in the context of a cartel proceeding.

Nathalie Jalabert Doury. "Multijurisdictional Merger Filings: News and Recent Developments." April 2012.
Cross-border mergers frequently trigger pre-closing antitrust reviews. Such reviews are complex and can be fraught with risk. With more than 90 countries now having obligatory premerger filing requirements, different substantive and procedural regimes can make a multijurisdictional transaction an expensive and time-consuming process.

Jens Peter Schmidt. "German Federal Cartel Office published new Merger Guidelines." April 2012.
On March 29, 2012, the German Federal Cartel Office (Cartel Office) adopted new Merger Control Guidelines (Guidelines). The Guidelines replace the Principles on the Assessment of Market Power, which the Cartel Office had released i n 2 000. A first draft of the Guidelines had already been published in July 2011 f or consultation.

Kiran Desai. "Standards: Is Failure to License on FRAND Terms a Breach of EU Competition Rules?" Spring/Summer 2012.
The EU Commissioner for Competition has repeatedly stated that the antitrust process would be used to ensure that, once companies hold standard essential patents, they must give effective access on fair, reasonable and nondiscriminatory terms. The application of EU competition law to licensing of intellectual property rights that are incorporated into technical standards has been focused to date on the application of Article 102 of the Treaty on the Functioning of the European Union. However, this article deals with the licensing issue under the EU rules relating to anticompetitive agreements, namely Article 101.

Kiran Desai. "Privatizations: Substantive and Procedural Implications Under EU Competition Law." Spring/Summer 2012.
Privatizations are political decisions that are generally based on financial or policy considerations. This article outlines the main implications of privatizations under EU competition law as well as issues relating to merger control, state aid and antitrust concerns.

Jens Peter Schmidt. "Merger Control in Germany – German Court Clarifies Controversial Jurisdictional Issues." August 2012.
A decision from the Higher Regional Court of Düsseldorf provides interesting guidance on how to deal with jurisdictional uncertainties of German merger control. The court took the opportunity to clarify controversial topics concerning the de minimis market notification exemption and geographic turnover calculation. The court also made very clear that merging parties, rather than calling the courts, have to go through the administrative procedure with the Bundeskartellamt (Federal Cartel Office) first.

Jens Peter Schmidt. "ECN revises its Model Leniency Programme." November 2012.
The network of European antitrust and competition authorities (ECN) has published its revised Model Leniency Programme.

Kiran Desai. "Minority Shareholding." December 2012.
In a speech, the Commissioner for Competition revealed that the European Commission is considering a revision to the EU Merger Regulation that would mean acquisition of minority shareholdings would require prior authorization by the Commission.

Jens Peter Schmidt. "EU State Aid Modernisation – A Trojan Horse in Commissioner Almunia's Court?" May 2012.
The European Commission adopted a Communication announcing its plans to modernize State aid control. The Communication on State Aid Modernisation (also referred to as SAM) sets out the long-awaited reform package of the State aid rules in the European Union.

NETZWIRTSCHAFTEN & RECHT

Robert Klotz. "EU Law Developments in Network Industries 2011." February 2012.
The article provides an overview of the most relevant developments in EU legislation, jurisprudence and antitrust enforcement practice in the most important network industries (i.e., telecoms, energy, post and rail) in 2011, as well as a look at expected hot topics in 2012.

THOMSON REUTERS – WESTLAW

Lee Abrams. "Legal Aspects of Selling and Buying." Third Edition 2012.
Chapter One: "The Standard of Legality: Per Se or Rule of Reason?" Provides practical answers to the most frequently raised questions in antitrust, franchising and distribution law.

VIEWPOINT – TURNING ANTITRUST TO ECONOMIC ADVANTAGE

By Richard M. Steuer, Partner
Immediate Past Chair, ABA Section of Antitrust Law

Antitrust enforcement made plenty of headlines during the first Obama administration and it promises to make even more news during his second term. New leaders are taking charge of key antitrust watchdogs such as the Antitrust Division of the US Department of Justice; the Federal Trade Commission; the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights; and the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial and Antitrust Law. These leaders will need to address changing competitive dynamics in the health care industry under the Affordable Care Act, in the financial services industry under the Dodd-Frank Act and the Consumer Financial Protection Bureau, and in every sector of the economy in connection with mergers, technology, cartel activity and hard-knuckled competition.

Job creation and growth remain the nation's highest economic priorities, and the new leaders in Washington face the challenge of applying antitrust principles to speed, rather than impede, economic recovery. They will need to resist the notion that corralling business is always good for the public and adopt a pragmatic approach that preserves competition while promoting growth and new jobs—permitting activity that fosters innovation while challenging activity that suffocates it.

Antitrust enforcement can either help or hinder the recovery. For example, over-deterrence with respect to mergers can impede growth, while under-deterrence can eliminate competition and jobs that ought to be retained. Activities such as patent licensing, e-commerce, energy development, health care alliance formation and cooperation among financial institutions stand to benefit from the intelligent application of antitrust laws but can be stifled by antitrust overreach. By promoting competition, the antitrust laws can keep companies sharp and creative, helping them to avoid takeovers by global rivals. But when those laws are misapplied, they can work serious mischief.

Antitrust law is a two-edged sword. Businesses with a strong command of antitrust law and economics have an edge on their competitors because they almost always can find a way to accomplish their objectives without running afoul of the law. At the same time, when the antitrust laws are enforced judiciously, they can foster growth—not impede it—and serve as an engine of prosperity.

Learn more about our Antitrust & Competition practice.

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© Copyright 2013. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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