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Full-Text Articles in Law
Implications Of The Court Of First Instance’S Microsoft Order, Sven Völcker, Cormac O'Daly
Implications Of The Court Of First Instance’S Microsoft Order, Sven Völcker, Cormac O'Daly
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 22 December 2004, the President of the European Court of First Instance issued an order rejecting Microsoft’s application for a suspension of the remedies imposed by the European Commission in its decision of 24 March 2004, effectively forcing Microsoft to provide interoperability information to rival server operating systems suppliers, and to offer an “unbundled” version of its Windows operating system without the Windows Media Player. The President found that, while Microsoft had established a prima facie case on the merits, it had not proved that it would suffer serious and irreparable harm from immediate implementation of the remedies ordered …
Major Events And Policy Issues In Ec Competition Law, 2003–2004 (Part 1), John Ratliff
Major Events And Policy Issues In Ec Competition Law, 2003–2004 (Part 1), John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This paper is designed to offer an overview of the major events and policy issues related to Arts 81, 82 and 86 EC in the last year. The paper follows the format of previous years and is divided into three sections: — A general overview of major events (legislation and notices, European Court cases and European Commission decisions). — Anoutlineofcurrent policy issues, including legal privilege, private actions and Art.82 guidelines. — Discussion of certain areas of specific interest, notably competition and the liberal professions, energy, sport and media and certain international issues.
Antitrust And Competition Law Update: Brazil Adjusts Merger Notification Thresholds, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Ridge
Antitrust And Competition Law Update: Brazil Adjusts Merger Notification Thresholds, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Ridge
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Brazilian merger notification requirements, traditionally a major hurdle for multinational mergers, have just become less burdensome. In an unexpected development last Wednesday, the Brazilian antitrust authority (“CADE”) announced a new interpretation of the Brazilian merger notification thresholds that may reduce foreign merger filings in Brazil by more than 90%. CADE reversed 10 years of precedent by declaring that, in line with the approach of many other jurisdictions worldwide, the Brazil notification threshold of 400 million Reales should henceforth be assessed in terms of Brazilian turnover rather than worldwide turnover. (ADC Telecommunications Inc. / Krone International Holding Inc., announced January 19, …
Information Exchanges Between Competitors: The Italian Competition Authority’S Recent Practice, Antonio Capobianco, Stefano Fratta
Information Exchanges Between Competitors: The Italian Competition Authority’S Recent Practice, Antonio Capobianco, Stefano Fratta
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
In 2004, two cases on exchanges of information between competitors were decided by the Italian competition authority (“AGCM” – the Autorità Garante per la Concorrenza ed il Mercato). This revived a lively debate on the conditions in which these practices should be prohibited and whether they are anticompetitive per se. Over the years, the AGCM has taken a firm stand against such practices, in some cases beyond that taken by the European Commission and the European Court. This article reviews the rules and outlines the innovative approach that the AGCM has recently adopted.
Uk Competition Appeal Tribunal Rules On Oft’S Duty To Refer Mergers For Investigation, Suyong Kim
Uk Competition Appeal Tribunal Rules On Oft’S Duty To Refer Mergers For Investigation, Suyong Kim
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 3 December 2003, the Competition Appeal Tribunal in the UK upheld an application by IBA Health Ltd for judicial review against the Office of Fair Trading's decision not to refer the anticipated merger between iSoft Plc and Torex Plc to the Competition Commissionfor detailed investigation. This is the first case under the new merger control provisions in the Enterprise Act 2002 to come before the Tribunal for judicial review under Section 120 of that Act.
The Article 82 Ec Abuse Concept: What Scope Is There For Modernization?, Ulrich Quack, James Burling, John Ratliff, Antonio Capobianco, Suyong Kim, William Kolasky
The Article 82 Ec Abuse Concept: What Scope Is There For Modernization?, Ulrich Quack, James Burling, John Ratliff, Antonio Capobianco, Suyong Kim, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 30 September 2004, Wilmer Cutler Pickering Hale and Dorr LLP, the University of Nyenrode, and Global Competition Review co-sponsored a seminar on the reform of Article 82 EC by the European Commission. The seminar raised a great deal of interest amongst members of the legal community and attracted a large attendance. The speakers included some of the most well-known top-level policy makers, academics, and practitioners in the field of competition law. Over the last two years, there have been numerous calls for modernization of the way in which Article 82 of the EC Treaty is applied by the European …
Theory And Practice Of Competition Advocacy At The Ftc, James C. Cooper, Paul A. Pautler, Todd J. Zywicki
Theory And Practice Of Competition Advocacy At The Ftc, James C. Cooper, Paul A. Pautler, Todd J. Zywicki
George Mason University School of Law Working Papers Series
This article was prepared as part of a recent symposium celebrating the Ninetieth Anniversary of the founding of the Federal Trade Commission. In addition, fall 2004 marks the Thirtieth Anniversary of a pivotal moment in the establishment of the modern advocacy program at the FTC, Chairman Lewis Engman’s speech on the economic burden that inefficient transportation regulation policies were imposing on the American economy. Although the FTC has been involved in advocacy activities since its founding, Engman’s speech symbolized a new aggressiveness on the part of the FTC in using its expertise to work with other governmental actors at all …
The Rise Of Anti-Dumping, Effects On Business, Natalie Mcnelis
The Rise Of Anti-Dumping, Effects On Business, Natalie Mcnelis
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
While conventional wisdom is that dumping is selling at a loss, this is not necessarily the case. Dumping is exporting a product at a lower price than that charged on the home market (the dumping margin (see Glossary)). As a result, a company may be making money on the export of a product, but if it is making a greater profit on its home market than it is making on a foreign market, it may be dumping. A company may engage in dumping as part of a deliberate strategy (for instance, it may be protected from competition on its home …
Supreme Court In Search Of Limiting Principles, William Kolasky
Supreme Court In Search Of Limiting Principles, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
US antitrust law evolves as the common law does: through experience, not logic. US statutes are framed in broad, almost constitutional terms, leaving the courts to define how those laws should be applied to an ever-changing economy and how new learning should be integrated into their application. Yet over the years, the Supreme Court has come to hear fewer and fewer antitrust cases, allowing the lower courts to develop antitrust doctrine until a split among the lower courts requires the high court to step in to resolve the conflict. It is for this reason that the Supreme Court’s 2004 term …
Judicial Review Of Mergers, Suyong Kim, Anne Vallery, Deirdre Waters
Judicial Review Of Mergers, Suyong Kim, Anne Vallery, Deirdre Waters
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
After the significant and much publicised appeals heard by the EC courts in 2002 and early 2003, 2004 has been a quieter year for judicial review of merger cases. Nevertheless, 2004 has seen judgments and opinions that further develop EC merger control law, albeit largely on procedural points. On the substantive side, Advocate General Tizzano delivered his opinion1 in the appeal against the judgment of the Court of First Instance (‘CFI’) in the Tetra Laval case, where he focused on the standard of proof required in Commission merger decisions and the scope of permissible judicial review of those decisions. The …
Mind The Gap: Unilateral Effects Analysis Arrives In Ec Merger Control, Sven Volcker
Mind The Gap: Unilateral Effects Analysis Arrives In Ec Merger Control, Sven Volcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
With the adoption of a new substantive test in the revised Merger Regulation, and the publication of the European Commission's Guidelines on the assesment of horizontal mergers, unilateral effects analysis is poised to become an integral part of merger review in the European Union. Notwithstanding the Commission's insistence on a European terminology ("non-coordinated" rather than "unilateral" effects), the EC thus embraces a concept that has gained substantial traction in the United States since its explicit recognition in the 1992 Horizontal Merger Guidelines as one variant of a "substantial lessening of competition" (SLC) under s.7 of the Clayton Act. This is …
Antitrust And Competition Law Update: Important Changes To U.S. Antitrust Statutes Become Law, William Kolasky
Antitrust And Competition Law Update: Important Changes To U.S. Antitrust Statutes Become Law, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On June 22, 2004, President Bush signed into law perhaps the most significant amendments to the U.S. antitrust statutes since the Hart-Scott-Rodino Antitrust Improvements Act of 1976. These changes, enacted as H.R. 1086, will have substantial implications for several areas of antitrust enforcement. These include: • limiting potential civil actions against standard-setting organizations;increasing even further incentives for antitrust wrongdoers to participate in the Antitrust Division’s corporate leniency program; increasing criminal penalties for corporations and individuals; and enhancing judicial scrutiny of antitrust consent decrees.
Antitrust And Competition Law Update: F. Hoffman-La Roche Ltd. V. Empagran: Supreme Court Restricts Extraterritorial Reach Of U.S. Antitrust Laws, James Burling
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On June 14, the U.S. Supreme Court issued an important opinion on the extraterritorial reach of U.S. antitrust laws in F. Hoffmann-La Roche Ltd. v. Empagran, S.A.1 The opinion, written by Justice Breyer, restricts the extraterritorial application of the antitrust laws under the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA). The Court unanimously held that purchasers in overseas markets claiming injury from price fixing (or other antitrust violations) cannot sue in U.S. courts by alleging that they were harmed by conduct that also injured consumers in the United States, at least absent allegations that injury to U.S. consumers facilitated …
The Implications Of Microsoft And Ims Health: Interesting Times For Dominant Intellectual Property Holders In Europe, Sven Voelcker
The Implications Of Microsoft And Ims Health: Interesting Times For Dominant Intellectual Property Holders In Europe, Sven Voelcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This article examines: (i) The Commission's treatment of trying issues with respect to Microsoft Window's Media Player (ii) The Commission's analysis of Microsoft's withholding of interoperability specifications for workgroup server operating systems, and (iii) the Court of Justice's pronouncement on refusals by dominant companies to license IP rights in IMS Health
The Impact On The Czech Republic, John Ratliff
The Impact On The Czech Republic, John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 1 May 2004, huge changes were introduced to the way in which EC competition law is enforced. The recent enlargement, with ten new EU Member States, is probably the most important change, because it results in a scale change in the size of the European Union. However, that change has also led to other important changes: a reappraisal of how enforcement is spread across competition authorities in the European Union and an effort to see whether other modernising steps should be taken. Coincidentally, the EC Merger Control Regulation has also been subject to a review mechanism and the related …
Antitrust And Competition Law Update: New European Licensing Rules Require Fresh Assessment Of Existing And New Intellectual Property Licenses, Axel Gutermuth, Thomas Mueller, John Ratliff
Antitrust And Competition Law Update: New European Licensing Rules Require Fresh Assessment Of Existing And New Intellectual Property Licenses, Axel Gutermuth, Thomas Mueller, John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
As of 1 May 2004, many licensors and licensees of patents, know-how and computer software in Europe will need to step up their efforts to ensure that they comply with European competition law. Companies without significant market power will enjoy greater flexibility than in the past to tailor licenses to their particular needs. But companies which license competitors or which have market power need to review their market position and licenses more carefully and more frequently.
Antitrust And Law Update: Interesting Times For Ip Holders In Europe, The Implications Of Microsoft And Ims Health, Sven Volcker, Leon Greenfield, Antonio Capobianco, Markus Hutschneider
Antitrust And Law Update: Interesting Times For Ip Holders In Europe, The Implications Of Microsoft And Ims Health, Sven Volcker, Leon Greenfield, Antonio Capobianco, Markus Hutschneider
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On March 24th 2004, the European Commission issued its long awaited Microsoft decision, which has now been published on its Website.1 On April 29th 2004, the Court of Justice handed down its judgment in the IMS Health case.2 Both decisions have important implications for all companies with valuable IP portfolios that do business in the European Union. Although these decisions are arguably not revolutionary given the existing legal framework for dominant companies set out in Article 82 EC, they illustrate that EC competition law sometimes strikes a different balance than US antitrust law between spurring innovation by protecting IP rights …
The Scope Of Antitrust Jurisdiction Abroad: A Classic Conflicts-Of-Law Problem, Robert W. Trenchard Esq.
The Scope Of Antitrust Jurisdiction Abroad: A Classic Conflicts-Of-Law Problem, Robert W. Trenchard Esq.
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This term, the Supreme Court is set to address an issue of profound importance to the regulation of the global economy that has sharply divided the lower courts over the past few years about the extent to which US antitrust law applies outside the US. While it has been within the US, what is less clear is the scope of that reach. What happens if foreign anticompetitive conduct affects not only the US, but also foreign economies? Are people injured abroad protected by the Sherman Act's criminal and civil provisions? Courts examining this important issue have so far looked to …
Major Events And Policy Issues In Ec Competition Law, 2002-03 (Part 2), John Ratliff
Major Events And Policy Issues In Ec Competition Law, 2002-03 (Part 2), John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This article is the second and final part of the overview of major events and policy issues in EC competition law in 2003, following on from last month’s journal ( [2004] I.C.C.L.R. 19). This part of the article is divided into three sections: (1) European Commission decisions on cartels, joint ventures/horizontal co-operation, distribution and Articles 82/86 EC. (2) An outline of current policy issues, including competition and the liberal professions, review of the liner conference block exemption, and the modernisation of Article 82 EC enforcement. (3) A survey of areas of specific interest, focusing mainly on recent Commission activity as …
What Is Competition? A Comparison Of U.S. And European Perspectives, William J. Kolasky
What Is Competition? A Comparison Of U.S. And European Perspectives, William J. Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
No abstract provided.
An End To Cooperation In Competition?, William Kolasky
An End To Cooperation In Competition?, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Decades of cooperation between international antitrust authorities are now under threat following two controversial rulings by the US courts of appeal in New York and Washington D.C. William Kolasky examines the far-reaching implications of the Empagran and Kruman cases
Major Events And Policy Issues In Ec Competition Law, 2002–03 (Part 1), John Ratliff
Major Events And Policy Issues In Ec Competition Law, 2002–03 (Part 1), John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The object of this paper is to outline the major events and policy issues related to Articles 81, 82 and 86 EC in the last year. The paper is divided into three sections: (1) a general overview of major events (legislation and notices, European Court cases, and European Commission decisions); (2) an outline of current policy issues, including competition and the liberal professions, review of the liner conference block exemption, and modernisation of Art.82 EC; and (3) areas of specific interest, meaning this year competition andgas supply, telecoms, sport, and media.
Verizon Communications Inc. V. Law Offices Of Curtis V. Trinko, Llp:, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Verizon Communications Inc. V. Law Offices Of Curtis V. Trinko, Llp:, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Last week, the U.S. Supreme Court issued an important opinion concerning Section 2 of the Sherman Act, which prohibits monopolization and attempted monopolization. The opinion, written by Justice Scalia, limits the circumstances under which antitrust law will compel companies to assist their rivals.
Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller
Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Last year the FTC and the Department of Justice jointly held hearings focused on the current balance of competition and patent law and policy. (See our December, 2001 Antitrust and Trade Regulation Bulletin at www.haledorr.com/antitrust.) The hearings spanned more than 24 days, involving more than 300 panelists and 100 separate written submissions. The first tangible by-product of those sessions came on October 28, 2003, with the release of a 266-page FTC report containing specific recommendations for changes in the existing patent system (the Patent Report)(http://www.ftc.gov/opa/2003/10/creport .htm). A second, joint report with DOJ, containing specific recommendations for antitrust, is promised for …
The Summary Judgment Standard And Pleading Requirements For Conspiracy Claims Relying On The Doctrine Of Conscious Parallelism, Robert Bell, Lee Greenfield, Veronica Kanye, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
The Summary Judgment Standard And Pleading Requirements For Conspiracy Claims Relying On The Doctrine Of Conscious Parallelism, Robert Bell, Lee Greenfield, Veronica Kanye, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Last spring there was growing concern in the wake of the Seventh Circuit’s decision in In re High Fruc-tose Corn Syrup1 that the courts might be adopting a more receptive attitude toward antitrust claims based on allegations of consciously parallel pricing and other behavior in highly concentrated industries. Three decisions in the last few months suggest that High Fructose Corn Syrup may remain an aberration and that most courts remain deeply skeptical of claims that seek to infer agreement from consciously parallel conduct without any hard evidence of conspiracy. Two of these three decisions, Williamson Oil Co., Inc. v. Phillip …
The Merger Of Guidelines And The Integration Of Efficiencies Into Antitrust Review Of Horizontal Mergers, William Kolasky, Andrew Dick
The Merger Of Guidelines And The Integration Of Efficiencies Into Antitrust Review Of Horizontal Mergers, William Kolasky, Andrew Dick
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
There is a widening consensus among jurisdictions with competition laws that “the basic objective of competition policy is to protect competition as the most appropriate means of ensuring the efficient allocation of resources—and thus efficientmarket outcomes—in free market economies.” 1 As this statement indicates, it is efficiency, not competition, that is the ultimate goal of the antitrust laws. One of the senior economists of the Justice Department’s Antitrust Division put it very well recently: “efficiency is the goal, competition is the process.”2 When the competitive process is allowed to run its course—unfettered by exclusionary practices or anticompetitive agreements among firms—the …
State Aid And The Financing Of Public Services: A Comment On The Altmark Judgment Of The Court Of Justice, Frederic Louis, Anne Vallery
State Aid And The Financing Of Public Services: A Comment On The Altmark Judgment Of The Court Of Justice, Frederic Louis, Anne Vallery
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 24 July 2003, the European Court of Justice handed down its judgment in the Altmark case, ending the controversy surrounding the application of the EC state aid control regime to compensation granted to undertakings in consideration for public service obligations imposed on them.
Antitrust And Competition Law Update: Busy Times For U.S. Antitrust Enforcement, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Antitrust And Competition Law Update: Busy Times For U.S. Antitrust Enforcement, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The last several weeks have seen a flurry of important developments in antitrust enforcement, with major decisions in one merger and one joint venture case, an important Federal Trade Commission policy statement about disgorgement and restitution remedies, and an announced FTC challenge to a consummated merger. Each of these developments is significant standing alone; collectively, they reflect extremely active Justice Department and FTC antitrust enforcement programs, with the agencies at times adopting more aggressive positions than some might have expected from a Republican administration.
United States V. Amr Corp.: Non-Traditional Cost Measures And Expanding Predatory Pricing Exposure, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
United States V. Amr Corp.: Non-Traditional Cost Measures And Expanding Predatory Pricing Exposure, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Historically, industries with low average variable costs (AVC) have been as a practical matter largely immune from predatory pricing claims. The reason is simple. Predatory pricing claims require the plaintiff to establish, among other things, that the defendant priced below an appropriate measure of cost. Because marginal costs are notoriously difficult to measure, courts have commonly compared the defendant’s prices to AVC (total costs that vary with output/units of output). Consequently, in industries where average variable costs are very low, plaintiffs are unlikely to be able to prove that defendants have priced below AVC, even when defendants have drastically slashed …