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Full-Text Articles in Law
Antitrust And Competition Law Update: U.S. V. Visa: Government Wins Major Rule Of Reason Case, William Kolasky, Robert Bell, Lee Greenfield, Veronica Kayne, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Antitrust And Competition Law Update: U.S. V. Visa: Government Wins Major Rule Of Reason Case, William Kolasky, Robert Bell, Lee Greenfield, Veronica Kayne, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On September 17, 2003, the Second Circuit issued an important decision in U.S. v. Visa U.S.A., Inc., 2003 WL 22138519 (2d Cir. Sept. 17, 2003). The court affirmed a district court ruling invalidating Visa and Mastercard rules that prohibit member banks from issuing American Express or Discover.1 The district court had found that these ìexclusionary rulesî substantially harmed competition and failed scrutiny under a rule of reason analysis. Visa is noteworthy both because it is a (relatively rare) government win in a major rule of reason case ó with the Second Circuit affirming the trial courtís rigorous inquiry into the …
Major Events And Policy Issues In Ec Competition Law, 2004-2005 (Part 1), John Ratliff
Major Events And Policy Issues In Ec Competition Law, 2004-2005 (Part 1), John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This article is designed to offer an overview of the major events and policy issues related to Arts 81, 82 and 86 EC in 2004–2005. The article follows the format of previous years and is divided into three sections: — A general overview of major events (legislation and notices, European Court cases, European Commission decisions, ECN developments and new sector inquiries). — Discussion of current policy issues, including cartel enforcement, private actions and Art.82 EC modernisation. — An outline of certain areas of specific interest, notably competition and the liberal professions, the Commission’s ‘‘Sport and 3G’’ review and a DG …
Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth
Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional "dominance" test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of "unilateral" or "non-coordinated" effects. The old Merger Regulation therefore suffered from a potential "enforcement gap" that was closed only by the legislative change to the "significant impediment of effective competition" test. National jurisdictions still using variants of …
Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge
Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The Federal Trade Commission and Department of Justice’s Antitrust Division last week each announced enforcement actions against and settlements with parties that alleged failed to make required notifications of transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Each case resulted in a significant fine (one of $800,000 and one of $1 million) and signaled the agencies’ intent to pursue vigorously parties that fail -- intentionally or negligently -- to meet their obligations under the HSR Act. Moreover, both cases address the scope of the HSR Act’s “investment only” exemption and show that the agencies construe it strictly …
Trading And Distribution In China, Lester Ross, Kenneth Zhou
Trading And Distribution In China, Lester Ross, Kenneth Zhou
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Trading and distribution rights were major issues in the negotiation of China’s entry to the World Trade Organisation, a process which took 14 years before concluding in late 2001. Trading rights, i.e. the right to import and export goods, had historically been mainly restricted to a small number of largely sector-specific state-owned monopoly trading enterprises. Trading rights were modestly liberalised in the years preceding China’s entry, but generally remained tightly restricted.
“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker
“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 7 February 2005, the European Commission published draft “Community guidelines on the financing of airports and start-up aid to airlines departing from regional airports” for consultation. This article focuses on the Draft Guidelines’ statements on “start-up aid,” which seek to integrate the Commission’s statements in last year’s Charleroi decision into a consistent state aid policy framework. It is submitted here that such an attempt is highly problematic, given the absence of a coherent and objective justification for start-up aid in its proposed form. The Commission should not depart from its long-standing hostility to operating aid for reasons of perceived …
Oracle In Brussels, Christian Duvernoy, Sven Völcker
Oracle In Brussels, Christian Duvernoy, Sven Völcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
It was hands across the water when both a U.S. district court and the European Commission cleared the $10.3 billion merger of Oracle and PeopleSoft. The Department of Justice, which had opposed the deal, had decided not to appeal its defeat in the San Francisco court, and it is thought that the Commission took this as a sign that U.S. regulators would not take it amiss if their European counterparts also let the merger proceed. In any event, there was none of the resentment and outrage that bubbled over not so long ago when U.S. antitrust authorities approved the GE/Honeywell …
Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
In recent years, the Federal Trade Commission (“FTC” or the “Commission”) has investigated several settlement agreements between pioneer and generic drug manufacturers involving “reverse payments.” In the view of the FTC, reverse payments are cash that a pioneer drug manufacturer pays to a generic manufacturer who has challenged the patent(s) protecting the pioneer drug, in exchange for the generic manufacturer’s agreement to delay market entry. Such payments sometimes occur in the settlement of patent infringement actions. The Commission has been extremely skeptical of reverse payments, viewing them as objective indicia of intent to illegally share monopoly profits that the delayed …
Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta
Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The first three months of this year have witnessed extensive enforcement activity by Italy’s Autorità Garante per la Concorrenza ed il Mercato (“AGCM”). In the closing 90 days of the chairmanship of Professor Tesauro, former Advocate General at the European Court of Justice, the AGCM initiated a number of investigations for infringement of EC competition rules in various key markets: natural gas, telecommunication services, pharmaceuticals and postal services. The cases reported below are of particular interest since they are the first examples of enforcement of EC competition rules by the AGCM in the new “modernised” system of European enforcement.
Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro
Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On December 20 and 22, the Spanish Competition Tribunal (Tribunal de Defensa de la Competencia, or TDC) dismissed three actions that were brought by Uni2 and WorldCom (both alternative fixed operators) against the three Spanish mobile operators (Telefonica Moviles, Vodafone, and Amena) for abuse of a dominant position. The complaints alleged that the three mobile operators applied a price squeeze on the corporate market segment and discriminatory pricing practices as regards mobile termination services. In particular, according to Uni2 and WorldCom, during the period of 2000-2002, the three Spanish mobile operators offered retail services to corporate clients (including pricing terms …
Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge
Antitrust And Competition Law Update, 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
The US Federal Trade Commission(FTC) has announced sweeping changes to the Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those governing transactions involving partnerships and LLCs, that will come into effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to reconciling the HSR analysis of LLCs, partnerships and other unincorporated entities with that of corporations, the new rules will make a number of technical adjustments and codify some informal FTC interpretations. The changes will make some transactions reportable that have historically be exempt; this effect will be offset to some extent by new exemptions from …
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.
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 …