Law Commons^™

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

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

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

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

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

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 …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

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

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

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

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

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

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 …

Online Music Joint Ventures: Taken For A Song, Harry First

ExpressO

In 2001 the five major record companies, controlling more than 80 percent of prerecorded music sales in the United States, announced the formation of two joint ventures to distribute music over the Internet. The Department of Justice opened an antitrust investigation into these ventures even before the ventures began their operations. Two and one-half years later the Department announced that it had closed the investigation because its "theoretical concerns ultimately were not supported by the evidence." The Department's investigation, however, focused on the ventures' licensing practices rather than on their formation.

This paper focuses on the formation of the online …

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

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 …

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

Designing Sports Leagues As Efficient Monopolists Rather Than Inefficient Cartels, Stephen F. Ross, Stefan Szymanski

ExpressO

An inherent conflict exists when clubs participating in a sports league control the way in which the competition is organized. This conflict leads to fewer franchises that may not be in the best locations, fewer broadcast rights sold with too many “black-outs,” inefficient marketing of merchandise and sponsorships, ineffective supervision of club management, labor market restrictions that do not enhance consumer appeal in the sport, and insufficient international competition. We suggest that sports leagues would be more profitable and fans’ welfare improved if sports leagues looked more like McDonald’s and less like the United Nations, by restructuring the leagues to …

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

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

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

No abstract provided.

Will The Wto Turn Green? The Implications Of Extending Observer Status To Multilateral Environmental Agreements, Richard L. Skeen

ExpressO

This article addresses whether the WTO should extend permanent observer status to multilateral environmental agreements and analyzes the impact of injecting environmental issues into the multilateral trading system. The paper begins with a chronological analysis of the transition from the GATT governance of international trade to the formation of the WTO and will also examine influences upon the formation and the agenda of the Committee on Trade and the Environment. The discussion continues with a look at the Committee on Trade and the Environment’s first year of progress and discussion of the critical report entitled Special Studies 4: Trade and …

Global Governance, Antitrust, And The Limits Of International Cooperation, Paul B. Stephan

ExpressO

The contemporary world economy make it easier to produce and sell across national borders. The partition of transactions into separate geographical components in turn makes it easier to pick and choose regulatory regimes. Antitrust law has dealt with this problem for nearly a century. At one time it regarded the assignment of a transaction to a particular territory as a prerequisite for the application of its rules; lately it has required much less. As a result, overlapping national regulation has become the dominant structure. Overlapping regulation has its own problems. National regimes may impose inconsistent rules and pursue conflicting ends. …

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

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

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.