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Ip Antitrust: Keeping The Free-Market Innovation Machine Working, William Kolasky
Ip Antitrust: Keeping The Free-Market Innovation Machine Working, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
One of the most thoughtful books in recent years on how innovation drives economic growth is Professor William Baumol’s The Free-Market Innovation Machine. In it, Professor Baumol shows that over the past 150 years, per capita incomes in a typical free market economy have risen at unprecedented levels. He argues that the engine driving this growth is the competitive pressure a well-functioning free market economy places on firms to invest in innovation and to share new technologies with the firms that can use it most efficiently.
Pharmabulletin Issue 3, Fall 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Pharmabulletin Issue 3, Fall 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On August 15, 2005, the Food and Drug Administration (FDA) and the Association of American Medical Colleges released a joint report that examines possible steps to accelerate drug discovery and development. The report, entitled Drug Development Science: Obstacles and Opportunities for Collaboration Among Academia, Industry and Government, is the product of a two-day conference among leaders from the pharmaceutical industry, academia, and FDA. The goal of the conference and the report was to explore means of overcoming the high failure rate for tentative drug candidates.
New Safe “Round Trip Investment” Circular Lightens The Regulatory Burden On Venture Capital Investments In China, Lester Ross
New Safe “Round Trip Investment” Circular Lightens The Regulatory Burden On Venture Capital Investments In China, Lester Ross
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The State Administration of Foreign Exchange (SAFE), China’s foreign exchange regulatory authority, recently clarified the PRC’s overall attitude with respect to offshore VC investments by setting out clearer registration procedures and expressly permitting VC transactions involving offshore SPV structures, subject to compliance with foreign exchange registration requirements. This clarification was set forth in the Circular on Issues Relating to Financing through Offshore Special Purpose Vehicles by Domestic Residents and Round Trip Investment (Circular No. 75), promulgated on October 21, 2005, with effect from November 1, 2005. Circular No. 75 supersedes two SAFE circulars promulgated earlier this year, Circular No. 11 …
Wto Dispute Settlement And Competition Law: Views From The Perspective Of The Appellate Body's Experience, Claus-Dieter Ehlermann
Wto Dispute Settlement And Competition Law: Views From The Perspective Of The Appellate Body's Experience, Claus-Dieter Ehlermann
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The current discussions on a future framework for competition policy within the World Trade Organization ("WTO")have revealed reservations against the full application of the WTO dispute settlement system to such a framework. The current dispute settlement system of the WTO is one of the results of the Uruguay Round negotiations. For an international agreement of nearly universal scope, this system is unique in its obligatory and quasi-automatic character. In general, complaints can be brought to the WTO against national laws which fail to comply with WTO obligations and also against a WTO-inconsistent application of national laws in individual cases. The …
Worst Us Antitrust Decisions...Ever - Part Two, William Kolasky
Worst Us Antitrust Decisions...Ever - Part Two, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Last month we invited a panel of three US lawyers to discuss some of the worst antitrust decisions of all time. We now conclude that series, with the second set of candidates for the 'Hall of Shame'. Read the opinions carefully--we'll be picking the worst of the worst in a website survey next month.
Administrative Law Judge Upholds Ftc Complaint Ordering Evanston Northwesternhealthcare Corporation To Unwind Five-Year-Old Acquisition , James Lowe, Alexander Krulic
Administrative Law Judge Upholds Ftc Complaint Ordering Evanston Northwesternhealthcare Corporation To Unwind Five-Year-Old Acquisition , James Lowe, Alexander Krulic
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On October 21, 2005, the Federal Trade Commission (FTC) announced that Administrative Law Judge Stephen J. McGuire had ordered Evanston Northwestern Healthcare Corporation (ENH) to divest Highland Park Hospital, located in a Chicago suburb. (The decision can be found at http://www.ftc. gov/os/adjpro/d9315/051021idtextversion. pdf.) ENH had acquired Highland Park five years ago for $200 million. In an administrative complaint issued in February 2004, the FTC alleged that the acquisition had resulted in "substantially lessened competition" and higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations. In upholding part of the complaint, Judge …
China's Proposed Anti-Monopoly Law, Pamela Bookman
China's Proposed Anti-Monopoly Law, Pamela Bookman
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Well-designed competition policy can promote consumer welfare and economic growth. Poorly designed policy can retard both. As China’s importance in the world economy grows steadily each year, so does the importance of its competition policy. Because China is a low-cost manufacturing center and home to an enormous market, foreign companies have invested in China extensively, including through joint ventures with Chinese companies that involve sharing the foreign companies’ intellectual property rights with their Chinese partners.
Empagran S.A. V. F. Hoffman-Laroche, Ltd.: Dc Circuit Restricts Reach Of Us Antitrust Laws Over Injuries Sustained In Foreign Commerce, Leon Greenfield, David Olsky
Empagran S.A. V. F. Hoffman-Laroche, Ltd.: Dc Circuit Restricts Reach Of Us Antitrust Laws Over Injuries Sustained In Foreign Commerce, Leon Greenfield, David Olsky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On June 28, 2005, the US Court of Appeals for the District of Columbia issued an important opinion on the extraterritorial reach of the US antitrust laws in Empagran S.A. v. F. Hoffman-Laroche, Ltd. The court held, on remand from the Supreme Court, that plaintiffs injured outside US commerce cannot bring antitrust suits in US courts unless the US effects of the anticompetitive conduct at issue are the proximate cause of their injuries. The decision construes narrowly the circumstances under which plaintiffs may be able to sue in US courts for injuries suffered in foreign commerce.
Us Merger Review: A ‘Goldilocksian’ Perspective, William Kolasky
Us Merger Review: A ‘Goldilocksian’ Perspective, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
US merger control rests on four strong cornerstones. The first is section 7 of the Clayton Act, as amended by the Celler-Kefauver Act in 1950, which created the substantial lessening of competition standard as the test for the legality of mergers and acquisitions. The second is the Supreme Court’s 1962 decision in Philadelphia National Bank, which relied on the structure-conduct-performance paradigm from industrial organisation economics to fashion a presumption that mergers that significantly increase concentration in already concentrated industries will lessen competition, imposing on the parties the burden of rebutting the government’s structural case. The third is the Hart-Scott-Rodino Antitrust …
Single-Firm Conduct: The Search For The Holy Grail Of Administrable Procompetetive Standards, William Kolaskly
Single-Firm Conduct: The Search For The Holy Grail Of Administrable Procompetetive Standards, William Kolaskly
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
During my tenure as Deputy Assistant Attorney General for International Enforcement in the Antitrust Division of the United States Department of Justice, in a speech I delivered in London, in May 2002, I identified the regulation of single-firm conduct as the area of greatest divergence between U.S. and European competition policy. In the United States, led by the insights of the so-called Chicago School of economics, the courts have moved progressively toward an approach to single-firm conduct that has substantially narrowed the range of potential antitrust intervention. In Europe, by contrast, the courts appear to continue to take a more …
Sector Inquiries On The Italian Electricity And Natural Gas Markets Expose Failures In Both Liberalisation Processes., Antonio Capobianco
Sector Inquiries On The Italian Electricity And Natural Gas Markets Expose Failures In Both Liberalisation Processes., Antonio Capobianco
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 9 February 2005, the Autorità Garante della Concorrenza e del Mercato (AGCM) and the Autorità per l’Energia Elettrica e il Gas (AEEG) concluded a joint sector inquiry on the progress of liberalisation in the Italian electricity market (Electricity Sector inquiry). The Electricity Sector inquiry follows another joint inquiry by the two authorities a few months earlier on the progress of liberalisation of the natural gas market in Italy (Natural Gas Sector inquiry). The Natural Gas Sector inquiry was published on 19 June 2004. This article summarises the findings and the conclusions of both sector inquiries and describes the methodology …
Pharmabulletin Issue 2, Summer 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Pharmabulletin Issue 2, Summer 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
In May 2005, the Food and Drug Administration (FDA) issued draft guidance on the type of information to be posted on its new “Drug Watch” website—a site intended to identify drugs for which it is actively evaluating early safety signals. At this time, the FDA plans only to post information on drug products regulated by the Center for Drug Evaluation and Research, therefore vaccines, blood products and medical devices shall be excluded.
Mario Monti’S Legacy: A U.S. Perspective, William Kolasky
Mario Monti’S Legacy: A U.S. Perspective, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The departure of Commissioner Mario Monti from his post as the EC Commissioner for competition policy provides a good opportunity to reflect upon the achievements and perceived failures of the European Commission in the field of antitrust law over the past five years. This paper attempts to do so on the basis of six core principles of sound competition policy. Under the first principle, it is undisputable that the Commission under Commissioner Monti’s leadership has been at the forefront of the international efforts undertaken in the fight against cartels. Second, despite some weaknesses in areas such as conglomerate mergers or …
Pharma Bulletin - Spring 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Pharma Bulletin - Spring 2005, Mark Heller, Hollie Baker, Robert Barry, James Burling, Suyong Kim
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
FDA to Create Drug Safety Board In February 2005, the Food and Drug Administration (FDA) announced that it will create a new independent Drug Safety Oversight Board (DSB) to oversee the management of drug safety issues within the Center for Drug Evaluation and Research (CDER). The FDA Commissioner will appoint individuals from the FDA and medical experts from other Health and Human Services agencies and government departments to the DSB, which also will consult with other medical experts and patient and consumer group representatives. Additionally, the FDA is proposing a new “Drug Watch” web page for emerging data and risk …
Antitrust And Competition Law Update: Tetra Laval--A Landmark Judgement On Ec Merger Control, Ulrich Quack, Claus-Dieter Ehlermann, James Burling, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Antitrust And Competition Law Update: Tetra Laval--A Landmark Judgement On Ec Merger Control, Ulrich Quack, Claus-Dieter Ehlermann, James Burling, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 15 February 2005, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in the Tetra Laval/Sidel merger case.2 The ECJ’s judgment establishes two significant principles that apply beyond the facts of this particular case:The judgment confirms that the Court of First Instance (CFI) for all practical purposes will continue to be the ultimate arbiter of disputes about the Commission’s use of evidence and economic assessment in merger control proceedings. The ECJ has signaled that it will generally not entertain appeals asserting that the CFI engaged in excessive scrutiny of the Commission’s assessment and therefore overstepped the permissible …
Mario Monti’S Legacy For Competition Policy In Article 82, Claus-Dieter Ehlermann, John Ratliff
Mario Monti’S Legacy For Competition Policy In Article 82, Claus-Dieter Ehlermann, John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Commissioner Mario Monti’s impact on Article 82 of the EC Treaty during his period as EC Competition Commissioner has not been as revolutionary as his impact on other areas of EC competition law. Nonetheless, the European Commission has done serious work on Article 82 cases, notably taking several important decisions: Microsoft in the area of refusal to supply and tying and Michelin II on rebates. The European Court of Justice (ECJ) and the Court of First Instance (CFI) have also made important contributions to the law on Article 82 with their judgments in IMS Health and in appeals from these …
Major Events And Policy Issues In Ec Competition Law 2003-2004 Part 2, John Ratliff
Major Events And Policy Issues In Ec Competition Law 2003-2004 Part 2, John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This paper is the second and final part of the overview of ‘‘Major Events and Policy Issues in EC Competition law in 2004’’, following from last month’s journal. This part of the paper is divided into three sections: (1) Recent Commission decisions on cartels, co-operation, distribution and abuse of dominant position, including notably the Microsoft decision; (2) an outline of current policy issues, including possible extension of in-house privilege and possible Art.82 EC guidelines; (3) a survey of some areas of particular interest.Notably, the Commission’s recent drive topromote cempetition in the liberal professions with a decision involving Belgian Architects; recent …
Antitrust And Competition Law Update: Hsr Filing Thresholds Increased For Inflation Acquisitions Unreportable Up To $53.1 Million Effective March 2, 2005, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge
Antitrust And Competition Law Update: Hsr Filing Thresholds Increased For Inflation Acquisitions Unreportable Up To $53.1 Million Effective March 2, 2005, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
For the first time since the passage of the HSR Act in 1976, the Federal Trade Commission has published new HSR thresholds adjusted for inflation, slightly reducing the overall number of transactions that will require premerger notification filings. The new, higher thresholds will become effective on March 2, 2005. See 70 F.R. 5020 (January 31, 2005). These threshold raises match changes in the gross national product, and will be readjusted annually going forward, as required by the 2000 amendments to the Hart-Scott-Rodino Antitrust Act of 1976. As of the effective date, acquisitions will be reportable under the HSR Act only …
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.
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 …
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