Here - MLex
Transcription
Here - MLex
Wa s h i n g t o n D C APRIL 14-17, 2015 MLEX IN WASHINGTON: Report from the 63rd ABA Antitrust Law Spring Meeting 1 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS Letter from the Editor-in-Chief While global mergers and antitrust compliance were the talk of this year’s American Bar Association Antitrust Spring Meeting, two events that occurred outside the conference eventually dominated discussions. The European Commission’s decision to file antitrust charges on the first morning of the conference against Google was certainly timed for effect. While a Google lawyer argued that that data was “more like sunshine… something we can all lie in”, Commissioner Vestager responded to inevitable accusations of protectionism. Indeed, European companies are likely to bear the brunt of the dozen or so active investigations the regulator is currently undertaking. The U.S. 11th Circuit Court of Appeals the same day affirmed the FTC decision that pipe fittings company McWane had harmed competition by unfairly using its monopoly power. While monopolization cases come by from time to time in Europe, for more junior lawyers the court’s decision on McWane was the first affirmation of such an FTC case in the US in their lifetime. Shifting to mergers, US officials warned that they must remain vigilant rather than shying away from over-enforcement, since some merger ideas should “never get out of corporate headquarters”. Indeed, FTC commissioner Brill argued for more analysis of where the FTC had cleared mergers that it shouldn’t have – so-called Type 2 errors. As single firm conduct charges and closer scrutiny of mergers add to the regulatory risk mix, the conference also ventured into the bribery, fraud and insider dealing cases that are springing up around the world. Keep an eye out for MLex’s new White Collar Compliance service to be launched later this year. I hope that this selection of our proprietary coverage from the event will be useful for you. Robert McLeod, Editor-in-Chief, MLex 2 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS We hope you enjoy our complimentary special report, encompassing MLex’s proprietary coverage of the 63rd Spring Meeting of the American Bar Association’s Section of Antitrust Law in Washington DC. Over the course of the three-day event, journalists from MLex bureaux in Washington, San Francisco, São Paulo, China and Brussels attended panel discussions and networking events, meeting with their broad base of leading regulatory, competition and legal contacts. We are pleased to present you with our unrivaled insight, analysis and commentary on the key themes in antitrust from around the world. To inquire about seeing the coverage in full, including all the background case files that accompany our articles, or to inquire about access to MLex’s content in general, please contact: [email protected]. 3 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust CONTENTS I. Antitrust US Regulatory Approach · · · · · · · · · · · · · Holder praises DOJ antitrust actions, expects ‘significant’ criminal cases in ‘next few weeks’ DOJ, FTC continue focus on monopolization, with ‘more to come’ Justice Department not deterred by fear of losing in court, top official says ‘Double-counting’ of cartel penalties rare, DOJ official says Foreign companies get largest antitrust fines because of calculation method Antitrust harm should lead to disgorgement, Baer says McWane ruling shows qualitative economic evidence can be enough to make case Excluding rivals through product-design changes warrants close scrutiny Clarity on conditional pricing more likely by case law than DOJ guidance FTC creates new litigation support unit for consumer-protection cases DOJ ‘optimistic’ about future extraditions ‘Don’t overread’ DOJ letter to IEEE, top official says Daubert motions ‘overused,’ US judge says 12 13 14 15 16 17 18 19 20 21 22 23 24 Sector/Case-specific · · · · · · · Supreme Court’s Actavis precedent should apply to settlements over follow-on biologics Large data stores aren’t an ‘unbeatable’ advantage, Google lawyer says FCC lawyer says antitrust, consumer protection have role in protecting open Internet Antitrust will help guide growth of ‘sharing economy’ FTC official criticizes laws handcuffing Uber, Tesla McWane lawyer critical of antitrust ruling, as company pledges appeal Supreme Court case may spur deregulation of professions 25 26 27 28 29 30 31 CANADA Regulatory Approach · · Canadian antitrust chief eyes closer cooperation with US Poor international cooperation on cartels leading to remedy issues 4 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 32 33 RETURN TO CONTENTS I. Antitrust continued EUROPE Regulatory Approach · · · · · US companies aren’t unfairly targeted in EU probes, Vestager says UK to boost criminal, civil cartel enforcement, says antitrust chairman New UK group-claims law won’t lead to litigation ‘flood,’ agency chief says Public price-signaling may be as damaging as private exchanges, UK official says Officials must be mindful of drawn-out cartel probes, Italian antitrust official says 34 35 36 37 38 Sector/Case-specific · · · · · Google-like companies don’t always break law by promoting own services, lawyer says Distribution restrictions ‘high on agenda,’ says EU’s Italianer Distribution arrangements need antitrust attention, Belgium’s Steenbergen says Banks’ signaling of interest rates needs scrutiny in Norway, regulator says Energy monopolies complicate national antitrust enforcement in EU, Polish regulator says 39 40 41 42 43 CHINA Regulatory Approach · · · · Conduct, not price, is central to antitrust probes, says NDRC official NDRC needs ‘more active’ enforcement and further study of digital industries SAIC to apply ‘rule-of-reason’ principle in antitrust enforcement in IP China urged to observe international antitrust norms 44 45 46 47 JAPAN Regulatory Approach · Japan to designate antitrust hearing officer this month 5 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 48 RETURN TO CONTENTS I. Antitrust continued BRAZIL Regulatory Approach · · · · No cartel-fine discounts for compliance programs, says Brazilian antitrust chief Brazilian regulator warns of impasse without nominations for new councillors CADE open to ‘mix’ of professionals in top agency positions Brazil’s antitrust comfort process can’t circumvent antitrust investigations, watchdog’s president says 49 50 51 52 Sector/Case-specific · CADE will fight to reinstate cartel fine on Abbott, Eli Lilly, Bayer, others · Still premature to hold settlement talks in Petrobras probe, CADE’s top investigator says · Petrobras probe won’t dominate CADE’s year, regulator says 53 54 55 MEXICO Regulatory Approach · Mexico’s competition woes not down to anticompetitive conduct 6 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 56 RETURN TO CONTENTS II. Mergers II. Mergers US Regulatory Approach · · · · · · · · · · · US merger filings, in-depth antitrust reviews on the rise Timid merger enforcement could prompt price rises, warns Brill Regional offices will handle more merger cases, FTC’s Feinstein says DOJ is performing systematic analysis of remedies imposed, top economist says Hertz-Dollar Thrifty deal has affected how FTC considers divestitures Courts unlikely to allow efficiencies defense if FTC rejects it, commissioner says FTC should issue more closing statements, says commissioner Mega-merger trend presenting increased antitrust risk, DOJ enforcer says Defendants are unharmed if denied access to agency’s ‘work product,’ DOJ top litigator says CEO often shouldn’t be initial defender of deal to regulators, US enforcer says CFIUS risk explained 57 58 59 60 61 62 63 64 65 66 67 Sector/Case-specific · Comcast, TWC merger faces probes in 25 US states · Denying public access to documents in St. Luke’s trial was ‘tough’ call 68 69 EUROPE Regulatory Approach · Vague German, UK rules jeopardize minority shareholding investments, lawyer says · Authorities could pitch merger remedies to ease reviews, Italian official says 70 71 CHINA Regulatory Approach - Behavioral fixes account for 70 percent of Mofcom’s deal remedies, lawyer says 7 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 72 RETURN TO CONTENTS II. Mergers continued BRAZIL Regulatory Approach · · · · · Brazilian antitrust watchdog to offer further merger-review clarity with new guidelines Cooperation with agencies abroad guides Brazilian competition policy CADE could again consider changing associative contracts resolution, president says Brazil may need to cut back on minority-shareholding notifications Brazilian antitrust watchdog has no preference of merger-remedy type 73 74 75 76 77 Sector/Case-specific · CADE probes several non-reportable transactions 8 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 78 RETURN TO CONTENTS III. Digital & Data IV. Corruption & Compliance III. Digital & Data US Regulatory Approach · · · · · Federal judge expresses skepticism of FTC’s authority over data breaches Action under online-shopper law to ‘grow,’ say enforcers Digital advertisers need to consider disclosures for ‘ordinary consumer’ FTC to issue more guidance on native advertising, Rich says Growth in national data-localization rules a ‘pernicious’ trend, US trade official says 79 80 81 82 83 IV. Corruption & Compliance · · Judgment against Siemens executive over compliance failure triggers broader concerns Reckitt Benckiser moves to ‘prevention’ model of compliance 9 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 84 85 RETURN TO CONTENTS Contributors CONTRIBUTORS Jeff Bliss Can Celik Lewis Crofts Jeff is MLex’s senior reporter for US mergers and acquisitions. He has worked for more than 25 years as a reporter and editor at a range of publications and services. Most recently, he spent 14 years as a reporter at Bloomberg, covering a number of beats in Washington DC, including antitrust, Congress, the White House, the Department of Homeland Security and intelligence agencies. Before that Jeff was a senior editor at Computer Reseller News, where he covered IBM and other hardware companies, and an assistant editor at a daily newspaper, the Staten Island Advance. Can covers antitrust enforcement and civil litigation for MLex. He graduated from Cornell University in 2007 with a BA in economics and received his JD from American University Washington College of Law in 2010. He is currently a member in good standing of the New York State Bar. Lewis leads the agency’s coverage on competition policy and enforcement in Europe, writing extensively on issues of cartels, regulation and state aid. He has also written for several years on litigation before courts in Luxembourg, London, Germany and the U.S. A graduate of Oxford University, Lewis worked in academia at the Charles University, Prague, before becoming a journalist. Flavia Fortes Eliot Gao Chief Regulatory Consultant, China Antitrust Global Head of Mergers Flavia writes about merger control, antitrust enforcement and litigation in the U.S. and Brazil. Flavia has worked as an Antitrust Consultant in the Federal Trade Commission’s Office of International Affairs and as a Research Fellow for the American Antitrust Institute. She has written on the intersection of antitrust law and intellectual property law in technology-driven and innovative markets. Flavia holds a LL.M. in intellectual property from the George Washington University Law School and a Bachelor of Laws from the Universidade Federal de Minas Gerais in Brazil. She is admitted to the bar in New York and Brazil. Eliot writes about merger control, antitrust enforcement and litigation in China. Prior to working for MLex, he worked at the Financial Times and Dow Jones Newswires, where he specialized in the economic and financial coverage. He has an acute understanding of the country’s regulatory system and government, writing extensively on regulation and investment policy issues. He received a Master’s in journalism from Shantou University. Dafydd oversees MLex’s global merger coverage. A specialist in European Commission merger investigations, he holds an LLM in European Community Law from the London School of Economics and Political Science. Before joining MLex, he worked as Best Practice Manager at Norton Rose LLP in London, legal researcher with Cardiff University Law School, and in the Banking & Finance division of Eversheds law firm. Senior Reporter Merger Analyst 10 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 Assistant Editor, North America Chief Correspondent Dafydd Nelson RETURN TO CONTENTS Contributors continued F T C : W AT C H Leah Nylen Ana Rita Rego Claude Marx Leah writes about cartels, class actions and litigation in the U.S. She previously covered legislation and regulation for Congressional Quarterly and Bloomberg, and received a Master’s from Northwestern University’s Medill School of Journalism Ana Rita is spearheading MLex’s coverage of Brazil. She spent five years at MLex writing about antitrust, state aid and legislative change in the EU. She also contributes on a regular basis to MLex’s court reporting service. Ana Rita holds a Master’s degree from the Institute d’Etudes Politiques de Paris and studied journalism in London. She works in English, Portuguese, French and Spanish. Claude covers the Federal Trade Commission, the Department of Justice and related congressional panels, focusing on the intersection of government and business, with a special emphasis on antitrust and consumer protection issues. Having previously written for the Associated Press and Congressional Quarterly, he is also writing a biography of William Howard Taft. Claude has a BA from Washington University, and an MA from Georgetown. Chief Correspondent, North America Chief Correspondent, MLex Brazil Reporter, FTC:Watch and MLex F T C : W AT C H Mike Swift Richard Vanderford Reporter Associate Editor, FTC:Watch Formerly chief Internet reporter for the San Jose Mercury News and SiliconValley.com, Mike has covered Google, Facebook and Yahoo closely as he followed trends in search, the mobile web and online social networks. A former John S. Knight Fellow at Stanford University, Swift is a graduate of Colby College. He is an award-winning journalist with expertise ranging from the business of professional sports to computer-assisted reporting. Richard covers antitrust and financial services in New York, as well as competition developments in Canada. A graduate of New York University’s journalism school, he covered litigation in Manhattan before joining MLex. Kirk covers the White House, Senate, labor, lobbying and telecommunications at MLex subsidiary FTC:Watch. He is an award winning journalist, having spent over 20 years at the National Journal, the Washingtonian, Governing and The Fiscal Times. He has degrees from Antioch School of Law, Columbia’s Graduate School of Journalism and Williams College, and practiced in the Justice Department’s Civil Division. Senior Correspondent, Internet, Media and Telecom 11 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 Kirk Victor RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Holder praises DOJ antitrust actions, expects ‘significant’ criminal enforcement news in ‘next few weeks’ The US Department of Justice won’t shrink from challenging anticompetitive conduct and mergers in court, the top US prosecutor said Friday, suggesting that major criminal antitrust enforcement action is expected in the coming weeks. US Attorney General Eric Holder made his most substantive comments on antitrust since taking office in 2009. “Whether it involves price-fixing of computer components or bid-rigging in real-estate foreclosure auctions, we have pursued all forms of criminal conduct — running the gamut from local wrongdoing to transnational crime,” Holder said. “I expect that there will be more significant news on the criminal side within the next few weeks.” Holder praised the division’s criminal enforcement efforts, which under the Obama administration have led to the prosecution of 385 individuals and 129 companies. Those prosecutions resulted in more than $5 billion in criminal fines — with $1.3 billion of that in the most recent fiscal year, he said. “No matter how lengthy the investigation, no matter how challenging the environment, and no matter how complex the practice or industry at hand, we will never shrink from litigation nor shirk our sacred responsibility to uphold the laws of our nation and protect the consumer,” said Holder, who is to step down once his replacement is confirmed by Congress. “There is no unlawful conduct too complicated to pursue, and no company or individual too large or too powerful to be held accountable.” “No matter how lengthy the investigation, no matter how challenging the environment, and no matter how complex the practice or industry at hand, we will never shrink from litigation nor shirk our sacred responsibility to uphold the laws of our nation and protect the consumer” 12 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach DOJ, FTC continue focus on monopolization, with ‘more to come’ The US Department of Justice and the Federal Trade Commission have multiple open investigations into abuse of dominance, senior officials said. Sonia Pfaffenroth, chief of staff at the DOJ’s antitrust division, rejected the notion that the agency hasn’t been focused on monopolization issues, which are prosecuted under Section 2 of the Sherman Act, the US’s primary competition law. The DOJ last brought a Section 2 case in 2011 against a Texas hospital that used exclusive contracts with commercial health insurance providers to maintain its monopoly power. “I wouldn’t consider us to have been dormant in recent times,” Pfaffenroth said. “Is the division still focused on Section 2 enforcement? Absolutely we are. Do we have investigations pending now that are exploring Section 2 theories? Yes, we do.” Stephen Weissman, deputy director of the FTC’s Bureau of Competition, said that his agency has been “appropriately active,” having brought seven cases since 2010 involving allegations of monopolization and abuse of dominance. “There’s going to be more to come,” Weissman said. “We certainly appreciate that too much activity can deter procompetitive behavior. At the same time, we are equally mindful too little activity in the area can chill the types of competitive process that we are seeking to protect.” “We are…mindful [that] too little activity in the area can chill the types of competitive process that we are seeking to protect” 13 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Justice Department not deterred by fear of losing in court, top official says The US Justice Department will not shy away from litigation for fear of losing, a senior official said. “If we are right on the law, right on the facts and right on the economics, fear of losing is not going to make us shy away from litigation,” said Mark W. Ryan, director of litigation for the department’s antitrust division. An analysis of the odds of courtroom success doesn’t drive decisions on whether to bring a case, but does provide “incentive to make sure we do everything we can do to put on the strongest possible case,” said Ryan, who is leaving the agency at the end of the month to return to private practice. The department has had a string of notable successes in antitrust cases, including a February victory over American Express in a case challenging its so-called anti-steering rules. Ryan, who said that his opinions were his own and not necessarily those of the department, added that the department does often base decisions on whether to bring a case on whether it thinks the markets can provide a remedy. The Justice Department “wants to err on the side of letting markets work things out,” he said. “[We] want to err on the side of letting markets work things out” 14 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach ‘Double-counting’ of cartel penalties rare, DOJ official says US prosecutors aren’t obligated to consider fines imposed by other antitrust regulators when calculating their own criminal penalties, the US Department of Justice’s top criminal antitrust official said. While the DOJ’s antitrust division will sometimes take other fines into account, Brent Snyder, the deputy assistant attorney general for criminal antitrust enforcement, said situations where double-counting arises are very rare. “If another jurisdiction imposes fines, we’re not obligated to take that into account,” said Snyder. “Our fines are calculated using direct US imports. It would be rare for us to exclude price-fixed products directly imported into United States” from a company’s fine. Snyder said that in the agency’s air-cargo investigation, the DOJ coordinated with other jurisdictions to take into account foreign fines for the same conduct. But Snyder, who worked as a prosecutor on the air-cargo case and several other international price-fixing cases before taking his current post, said that situations of true double-counting are scarce. “I’m aware of very few concrete instances of double-counting,” Snyder said. “It is the great exception rather than the rule.” Speaking at a different panel in the same conference, Kristen Limarzi, chief of the antitrust division’s appellate section, also said that concerns about double-counting are somewhat “overblown.” “We haven’t encountered this very frequently,” Limarzi said, adding that there’s little evidence that cartel conduct is being over-prosecuted. “If another jurisdiction imposes fines, we’re not obligated to take that into account” 15 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Foreign companies get largest antitrust fines because of calculation method, DOJ’s Baer says The US’s largest criminal antitrust fines have been imposed on foreign companies because of the way fines are calculated and the fact that more major multinational companies are based abroad, the top US antitrust prosecutor said Friday. Bill Baer, deputy attorney general of the antitrust division at the Department of Justice, said the US calculates fines based on the volume of affected commerce, and international cartels “inevitably” affect large economies, leading to larger fines. “It turns out that of Fortune 500 companies, 75 percent of them now are non-US based,” he said. “So the fact that the distribution would be the way it is at a given moment in time is not shocking.” The largest fine the antitrust division has ever obtained, $500 million in the LCD pricefixing case, came against AU Optronics, a Taiwanese maker of LCDs. The second highest fine, $470 million, was against Japanese auto parts manufacturer Yazaki. “It turns out that of Fortune 500 companies, 75 percent of them now are non-US based” 16 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Antitrust harm should lead to disgorgement, Baer says Antitrust violators who harm consumers or the government should pay for it by turning over profits, US Assistant Attorney General William Baer said Friday, emphasizing the government’s commitment to disgorgement as a remedy. “If you do wrong, you shouldn’t be able to pocket the dollars from your wrongdoing,” Baer said. “That goes back to consumers, and goes back to the government.” Edith Ramirez, the chairwoman of the US Federal Trade Commission, also said that disgorgement can be valuable when a fix such as an injunction would not be enough. A federal judge in Pennsylvania said this week that the FTC can seek disgorgement in a case it brought against Cephalon over alleged attempts to prevent generic competition, a decision Ramirez highlighted. Baer said that the Justice Department has focused on disgorgement in situations where it believes wrongdoing has occurred, including bad mergers and joint ventures that have raised prices. “If you do wrong, you shouldn’t be able to pocket the dollars from your wrongdoing” 17 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach McWane ruling shows qualitative economic evidence can be enough to make case, Brill says An appeals court ruling upholding the Federal Trade Commission’s finding that McWane’s rebate program violated antitrust law shows that qualitative economic evidence can be sufficient to establish a violation, Commissioner Julie Brill said. The US Court of Appeals for the Eleventh Circuit rejected McWane’s contention that the agency didn’t produce enough economic evidence — in particular, the agency didn’t offer a study showing cross-elasticity of demand — to show a separate market for domestically produced ductile piping. Instead, the court said, “Nope, don’t need it, qualitative economic evidence is enough,” Brill said. The appeals court said the economic study in the case — a SSNIP (small but significant and non-transitory increase in price) test to look at the effect of a price increase, and an expert who did testify— was enough and “we don’t actually need to go to econometrics,” she said. The court’s ruling “affirms on absolutely every single point the commission’s decision” dealing with the exclusive dealing arrangements McWane had with its distributors, she said. The appeals court also wasn’t persuaded by McWane’s argument that its exclusive dealing arrangements were voluntary and temporary, Brill said. “Nope, don’t need it, qualitative economic evidence is enough” 18 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 Instead of doing a formalistic analysis of the arrangement, the appeals court looked at what effects and found that it was to keep manufacturer Star off the market, she said. The court said, “We’re going to look at the effect of it and we’re going to see that its effect was to keep the competition out,” Brill said. RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Excluding rivals through productdesign changes warrants close scrutiny, commissioner says Product design changes that are explicitly created to make it harder for rivals to compete warrant scrutiny by antitrust authorities, the junior Democratic member of the US Federal Trade Commission said Thursday. “If there is evidence that a product design is motivated by a desire to increase barriers to entry or otherwise exclude rivals, that would certainly make me want to look closely at that decision,” said FTC Commissioner Terrell McSweeny. McSweeny’s comments came during a discussion on whether innovations can be anticompetitive. In particular, several cases have arisen in the pharmaceutical industry over a strategy known as “product-hopping,” where a branded drug manufacturer introduces an updated version of a drug in an effort to transfer patients from a drug whose patent is set to expire. McSweeny and others on the panel said it can be difficult to determine whether design changes are sufficiently innovative to justify the potentially anticompetitive effects. “It’s really tricky to answer this question, which is what leads me to believe the rule of reason analysis is a good tool for enforcers in this space because you can investigate and apply a balancing test,” McSweeny said. “The rule of reason analysis is a good tool for enforcers in this space” 19 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Clarity on conditional pricing more likely by case law than DOJ guidance The Justice Department is unlikely to set out antitrust guidelines for companies considering sales practices such as loyalty pricing or bundling, but may bring cases for the courts to develop the law, a senior official said. The conditional pricing area is of “great interest,” said Renata Hesse, a deputy assistant attorney general for criminal and civil operations in the DOJ antitrust division. But Hesse does not anticipate any “formal guidance or guidelines of any sort,” she said. But the government might bring cases to test the law. “It’s something we’re going to be looking at and seeing whether or not there are cases out there that we can look at to bring a little more clarity to the law,” she said. “It would actually help to have a little more work done in this area so the courts are providing guidance rather than us,” she said. “It’s something we’re going to be looking at… to bring a little more clarity to the law” 20 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach FTC creates new litigation support unit for consumer-protection cases Litigation is of “increasing importance” to the US Federal Trade Commission’s consumer protection enforcement efforts, a senior agency official said, announcing the creation of a new unit focused on litigation support. The FTC’s Bureau of Consumer Protection, which brings privacy, cybersecurity and fraud enforcement cases, recently devised a new unit — the division of litigation, technology and analysis — said Jessica Rich, the director of the bureau. The new unit reflects “the increasing importance of litigation to BCP and ... the use of technology to help in litigation,” Rich said. Rich cited the FTC’s case against Wyndham Hotel & Resorts over its alleged lax data security practices, which is pending before the US Court of Appeals for the Third Circuit, and the agency’s case against AT&T Mobility for allegedly misleading its customers by charging them for supposedly unlimited data plans while reducing their data speeds. The division of litigation, technology and analysis reflects “the increasing importance of litigation to BCP and ... the use of technology to help in litigation” 21 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach DOJ ‘optimistic’ about future extraditions The US Department of Justice is confident it can continue to seek extradition of antitrust offenders to face trial in US courts, the antitrust division’s top criminal official said. “We’re optimistic we will be able to successfully seek extradition in the future and will be continuing our efforts to seek extradition,” said Brent Snyder, the deputy assistant attorney general for criminal antitrust enforcement. Last year, the DOJ’s antitrust division successfully extradited two individuals to the US for antitrust violations. One was Romano Pisciotti, an Italian national who was accused of price-fixing marine hoses. The other was John Bennett, a Canadian national charged with fraud for allegedly paying kickbacks to a project manager at a federal cleanup site in New Jersey to gain a peek at competitors’ bids in an effort to win federal contracts. Pisciotti ultimately pleaded guilty and served more than a year in a US prison. Bennett has pleaded not guilty and is set for trial in November. “[We] will be continuing our efforts to seek extradition” 22 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach ‘Don’t overread’ DOJ letter to IEEE, top official says The author of a US Department of Justice letter on patent policy changes by a leading standards organization cautioned critics about reading too much into the document, emphasizing that the antitrust division doesn’t endorse the change. In February, the Institute of Electrical and Electronics Engineers, or IEEE, a global standards organization, approved controversial changes to its intellectual property rights policy that garnered criticism from some patent owners. The update placed limits on the ability of patent holders to obtain injunctions on essential patents, required patent holders to make their intellectual property available to component makers, as opposed to only licensing to end users, and said that patent royalties or damages should be calculated based on the “smallest saleable unit.” The US Department of Justice reviewed the updates and determined they didn’t raise competition concerns. But Renata Hesse, the deputy assistant attorney general for antitrust for criminal and civil operations, said: “We were asked a question, and we answered the question.” “We went to great pains to have the letter reflect that it was not an endorsement of the policy.” “We went to great pains to have the letter reflect that it was not an endorsement of the policy” 23 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Regulatory Approach Daubert motions ‘overused,’ US judge says Parties are overusing motions intended to challenge expert witnesses’ expertise, a federal judge said. US District Judge Susan Illston said she finds “that we overuse the Daubert process.” “We have more Daubert motions than you can shake a stick at,” Illston said. “Many of them are not really quarrels with the expert’s underlying expertise, or with the expert’s underlying knowledge of the subject matter that’s being provided.” Rather, she said, “it’s a challenge to the answers that the expert is providing because the other side doesn’t like them.” That becomes “very time-consuming and tedious,” Illston said. The process can become “very time-consuming and tedious” 24 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific Supreme Court’s Actavis precedent should apply to settlements over follow-on biologics, FTC’s Meier says “As long as it’s possible for competitors to get together and divide up monopoly profits at the expense of consumers, the fundamental teachings of Actavis remain relevant” The Supreme Court’s ruling in the Federal Trade Commission’s case against Actavis on pay-for-delay settlements should apply to similar settlements between biologic and follow-on biologic manufacturers, a senior FTC official said. Markus Meier, assistant director of the healthcare division in the agency’s Bureau of Competition, said an agreement between a biologic manufacturer and a follow-on biologic manufacturer that sets a specific entry date for the follow-on’s entry should be evaluated under the framework the high court set out in its June 2013 ruling. “Yes, Actavis should apply,” Meier said. “Did you really expect me to say anything else?” he quipped. Unlike traditional small molecule pharmaceuticals, biologics are products — such as vaccines and antitoxins — that are manufactured or extracted from biological sources. Follow-on biologics, also known as biosimilars, are generic versions that are highly similar to a branded biologic product. The FTC held a workshop in February 2014 exploring competition issues related to biologic medicines and follow-on biologics. “As long as it’s possible for competitors to get together and divide up monopoly profits at the expense of consumers, the fundamental teachings of Actavis remain relevant,” Meier said. 25 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific Large data stores aren’t an ‘unbeatable’ advantage, Google lawyer says “Data is more like sunshine. It is something we can all lie in” A company holding large amounts of data doesn’t stand in the way of rivals entering a market, a Google lawyer said. Data might benefit companies but it isn’t an “unbeatable competitive advantage,” Sara Walsh said, speaking in a personal capacity. As large companies have emerged in online services, regulators have come under pressure to assess whether the data amassed by search engines, social networks or online retailers can give them an unfair degree of power. “Data is nothing new,” Walsh said. “It is an input like any other.” “More data doesn’t necessarily mean an unbeatable competitive advantage. Having more cash may be an advantage, but not an unbeatable competitive advantage.” She said that web-based services in the past collected large amounts of data, but they were still overtaken by rivals offering better services. Walsh said that data is “non-rivalrous,” meaning it isn’t “exclusive to one platform.” “Data is more like sunshine. It is something we can all lie in.” Data is often used to hone advertising services so ads can be better targeted to users who will be interested in their content. Walsh said that targeted advertising isn’t the only way to compete. “The goal is to match advertisers with users, and data is not the only way to do that,” she said. 26 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific FCC lawyer says antitrust, consumer protection have role in protecting open Internet The top lawyer at the Federal Communications Commission said there is a role for both antitrust law and for the FCC’s new net neutrality regulations in protecting the openness of the Internet, rejecting arguments that an antitrust enforcer alone would be better situated for that enforcement. “It’s a false choice” to choose between antitrust law or pro-competition consumer protection rules like the FCC’s open Internet order, said Jonathan Sallet, the general counsel of the FCC. “In fact, this is an area where they have both existed the past, they have been used effectively and I believe they will continue to be used in that way.” “There’s more to be done, and I think the antitrust agencies and the commission ought to work together to get things done” The FCC enacted rules in March declaring broadband Internet services a common carrier service protected by Title II of the Communications Act. Sallet said he agreed with recent congressional testimony by a Democratic member of the US Federal Trade commission, Terrell McSweeny, that the FTC and the FCC should work together to preserve an open Internet, and that Congress can help that cooperation by repealing a section of the FTC’s enabling legislation that blocks the agency from regulating common carrier services. Sallet said that while antitrust law tends to look at conduct that happened in the past, the new net neutrality rules are intended to protect against future conduct by Internet service providers who might try to block or slow competing online applications or applications that require heavy bandwidth. Sallet pointed to a record $105 million joint enforcement action by the FCC and the FTC against AT&T Mobility in 2014 over mobile “cramming” charges as a blueprint for how the FTC and the FCC can work together to protect an open Internet. “The two agencies are looking to have better ways to work together, recognizing FTC’s greater experience on consumer protection,” Sallet said. “We want to be able to harmonize and work together.” Even with the passage of the FCC’s open Internet rules, “there’s more to be done, and I think the antitrust agencies and the commission ought to work together to get things done,” Sallet added. 27 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific Antitrust will help guide growth of ‘sharing economy’ Competition law is increasingly likely to play a guiding role as a regulatory regime develops for “sharing-economy” businesses such as Uber and Airbnb, according to leading antitrust enforcers from the US, Europe and UK. FTC Chairwoman Edith Ramirez said that while there might be some legitimate claims for local health and safety regulation of those new competition model upstarts, “it might also have the impact of creating barriers for new, disruptive business models.” William J. Baer, the US Department of Justice’s antitrust chief, agreed that enforcers are watching for anticompetitive efforts by industry incumbents to squelch technology start-ups. “We are instinctively in support of innovation and disruption as a competitive advantage” “As a general matter, the incumbents don’t like their revenue shrinking or their margin shrinking, and some companies will go to great lengths to protect that income stream,” Baer said. “Some of what we can do is law enforcement-based; some of it is advocacybased, and we need to be prepared to do that.” The antitrust chiefs for both the European Union and the United Kingdom agreed that there is likely to be a role for antitrust law in protecting the innovation and competition these startups have brought to the economy. Lord David Currie, chairman of the UK’s Competition and Markets Authority, agreed that he “absolutely” saw a role for the authority to play in protecting technology upstarts from any anticompetitive behavior by industry incumbents. “We are instinctively in support of innovation and disruption as a competitive advantage” to spur growth, Currie said. Margrethe Vestager, commissioner for Competition for the European Commission, said: “We have heard complaints by some of those companies who say member states are not enabling us to provide services,” she said. “We are, both in short run and also in the long run, going to be looking into it on the commission.” 28 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific FTC official criticizes laws handcuffing Uber, Tesla Local regulations that inhibit upstarts such as Uber and Tesla remain problematic, a senior Federal Trade Commission staffer said Wednesday, suggesting that the agency will continue advocating reform in the heavily regulated taxi and auto sales industries. Many of the strict municipal rules governing taxis are “decades old and are mismatched to the business model,” while state laws that block Tesla from selling cars directly to buyers “essentially discourage innovation,” said Marina Lao, director in the commission’s office of policy planning. “Is there a particular reason that a taxi has to be black or dark blue?” Lao said. “Instead of making it more difficult for everyone, we can perhaps make it a little bit easier for everyone.” The FTC has previously urged states to closely consider laws governing the taxi and car sales industries, both of which have been dogged by complaints that their old-school business models protect incumbents at the expense of innovation. Lao said that she doesn’t take a position on whether car sales through independent dealerships — a regime mandated in about 30 states — is actually better than the direct manufacturer-controlled sales model that electric car maker Tesla has advocated. But the choice of a sales market should usually be a company’s, she said. “They might be wrong. If they are wrong, the market will punish them,” she said. The FTC could help both industries by continuing to advocate and weigh in on state legislative proposals, Lao said. Lao added that she was speaking on her own behalf and not on behalf of the commission. “They might be wrong. If they are wrong, the market will punish them” 29 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific McWane lawyer critical of antitrust ruling, as company pledges appeal A lawyer for Alabama pipe-fitting maker McWane has criticized an appeals court ruling, which backed Federal Trade Commission findings that the company maintained a monopoly in the domestic fittings market through an unlawful exclusive dealing policy. “The Eleventh Circuit essentially deferred to the commission,” Joseph Ostoyich said. “It is very easy to confuse intent evidence and effects. I think that’s a mistake to focus on intent in what is an effects-based analysis.” The comments coincided with news from the company that it will appeal to the Supreme Court. “We are very disappointed that the court deferred to the FTC’s unsupported and erroneous findings, and allowed the FTC to ignore established antitrust law and basic economic principles,” G. Ruffner Page, president of McWane, said in a statement. “We will appeal.” “We are very disappointed that the court deferred to the FTC’s unsupported and erroneous findings” 30 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | US | Sector/Case-specific Supreme Court case may spur deregulation of professions States may want to discontinue licensing certain professions and restructure some boards as a way of complying with the Supreme Court’s recent decision over professional licensure, a top adviser to the West Virginia attorney general said Wednesday. Misha Tseytlin, general counsel to West Virginia Attorney General Patrick Morrisey, said states may want to have more professions regulate themselves without any involvement from the state to avoid potential litigation. He also said some boards would have to be restructured to reduce the role of individuals or organizations that would benefit from restricting competition. Tseytlin, who was an author of an amicus brief on behalf of state governments with the high court, said that he would advise state agencies of these options as a way of complying with a decision that he described as one that won’t help consumers and ignores the intents of the drafters of the Sherman Antitrust Act. He added that states could decide that getting rid of certain regulations would decrease the risk that they would be subject to additional litigation. In February, the high court ruled 6-3 that a state dental board controlled by dentists could be sued by the US Federal Trade Commission under antitrust laws for driving providers of teeth whitening services out of business. States could decide that getting rid of certain regulations would decrease the risk that they would be subject to additional litigation 31 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Canada | Regulatory Approach Canadian antitrust chief eyes closer cooperation with US John Pecman, Canada’s chief competition enforcer, advocated closer cooperation between his country and the US, saying that ideally the two would conduct joint merger reviews and joint investigations. The two neighboring countries, whose competition authorities already work together closely, could collaborate further, said Pecman, Canada’s commissioner of competition. “My ideal state would be conducting joint reviews, as opposed to parallel,” he said. “Then we could move to that next state of joint investigations.” Pecman said that he is hopeful in the coming years that the level of closeness could extend to Europe. Canada recently negotiated a free trade agreement with the European Union. Staff at Canada’s Competition Bureau already enjoy a “pick-up-the-phone” relationship with their front-line counterparts in the US, and the two countries extensively share certain types of data, like econometric data and draft reviews, Pecman said. Legal roadblocks in the US currently prevent the sharing of parties’ confidential information, Pecman said. But close cooperation in some cases has still occurred. In the seminal US antitrust case against Microsoft, for example, the company agreed that remedies imposed in the US would also apply in the closely integrated Canadian markets, a framework that could be a model in the future, Pecman said. “My ideal state would be conducting joint reviews, as opposed to parallel” 32 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Canada | Regulatory Approach Poor international cooperation on cartels leading to remedy issues, Canada competition chief says Weakness in cooperation between national competition agencies taking action against international cartels can lead to problems, like double counting, when each country tries to fashion remedies, Canada’s top competition enforcer said. Though countries tend to coordinate well when starting cartel investigations, they do a poorer job mopping them up after settlements, said John Pecman, Canada’s Commissioner of Competition. “The community does an excellent job on the front end of coordinating investigations, with dawn raids, searches and whatnot,” Pecman said. “It’s the back end, at the remedy and settlement stage, where...some of the agencies settle with parties without a lot of communication with their international partners.” “We can do a better job in that area for sure,” he said. One agency settling a cartel case without coordinating with its counterparts can lead to double counting when another agency, left out, tries to fashion its own remedy, he said. “We can do a better job in that area for sure,” 33 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Regulatory Approach US companies aren’t unfairly targeted in EU probes, Vestager says EU competition commissioner Margrethe Vestager said it was normal that US companies become involved on both sides of disputes in technology industries, but antitrust enforcement more often falls on European companies. In her first speech before a US audience, she said her agency is “indifferent” to the nationality of companies under scrutiny. On Wednesday, Vestager sent formal antitrust charges to Google over an alleged abuse of market power following complaints by European websites and publishers, as well as US companies including Microsoft and Yelp. The increasingly hardline approach to Google adopted by governments around Europe has given rise to accusations in some quarters that the continent is picking on US businesses. “It is clear that US companies are strong players in the IT sector, so it is normal that they are often involved in our cases in this sector. And that can be on both sides of the argument,” Vestager said. “So, one out of four individual companies that complained in the Google search case is a US company. Companies from the US also play a major role in complaining business associations,” she said, according to scripted remarks. “At the same time, since we enforce EU competition rules in the EU Single Market, the chances are that the companies that fall under our scrutiny are European.” “One out of four individual companies that complained in the Google search case is a US company” 34 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Regulatory Approach UK to boost criminal, civil cartel enforcement, says antitrust chairman The UK’s competition authority will focus on bringing more and stronger cartel cases to improve its track record, said the regulator’s chairman Lord David Currie. “We are determined to enforce more competition cases, consumer protection cases and most importantly cartel enforcement, both civil and criminal,” Currie said. Currie is confident the regulator’s pending cases will improve its track record. “Our record [in cartels] has not been as strong as we would like. There are a number of cases coming forward we think will change that,” he said. Bid-rigging cartels will be in the spotlight for officials, Currie said. “Bid-rigging is probably far greater than we would like. I want to get successes in that area.” A recent change in the law governing criminal cartel enforcement will make it easier to secure convictions, Currie said. “This will enable us to bring people in breach of the law to justice more effectively.” “Bid-rigging is probably far greater than we would like” 35 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Regulatory Approach New UK group-claims law won’t lead to litigation ‘flood,’ agency chief says New UK litigation that opens the door to consumers and companies grouping together to sue antitrust offenders won’t lead to an “absolute flood” of litigation, Lord David Currie, chairman of the British competition agency said. The UK government has adopted legislation which could see English courts hosting large group claims against cartel members. Specific rules are still needed before such a claim can be brought, but London is already seeing an uptick in damage claims. “We think this regime will increase the number of cases. We think that is desirable,” Currie of the Competition and Markets Authority said. “I don’t think it is going to lead to an absolute flood,” he said. Currie said the new legislation included safeguards that mean UK claims won’t feature some of the elements that characterize US-style class actions. He said a judge would decide on the level of damages, and the losing party in the litigation is obliged to pay the other side’s legal fees. “We think this regime will increase the number of cases. We think that is desirable” 36 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Regulatory Approach Public price-signaling may be as damaging as private exchanges, UK official says Disclosing pricing information in public to rivals may in theory be as damaging as doing it in private, a UK antitrust official said. “Conceptually speaking, the damage of sharing future pricing intentions … seems to be the same whether exchanges are in private and public,” said Juliette Enser, director of cartel enforcement at the UK’s Competition and Markets Authority, stressing that this was her own opinion. In a previous review of the cement market, the UK’s regulator looked at whether companies announcing pricing information could pose a threat to competition. Enser said that the market investigation carried out by the regulator was general and didn’t amount to an enforcement action against companies. “We haven’t taken an enforcement case yet,” she said. Enser said that in an enforcement case, officials would have to look at the “reason for the public announcement” and “consider the ...context coming out of the announcement.” She suggested there may be legitimate reasons for companies to disclose seemingly sensitive information publicly. “Our market investigation … doesn’t say announcements would ensure enforcement actions,” Enser said. “We haven’t taken an enforcement case yet” 37 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Regulatory Approach Officials must be mindful of drawnout cartel probes, Italian antitrust official says Italian antitrust officials have to be “very careful” to ensure that antitrust investigations don’t last too long and harm companies’ rights, Italian antitrust official Salvatore Rebecchini has said. The Italian official said his authority had to respect strict deadlines or risk seeing decisions quashed. “In opening an investigation … we are obliged to indicate the length of the investigation. This is a very important point to ensure fairness,” Rebecchini said. Merger reviews have strict deadlines, and conduct investigation should only take about a year, he said. While officials may postpone deadlines for cartel investigations, that requires a formal decision from the authority’s decision-making board that such a move is thoroughly justified. “The authority’s board takes a formal decision, and it must be motivated because it can be challenged in court if postponement is harmful. We have to be very careful,” the official said. Defendants can ask the regulator to postpone the deadline to complete a conduct investigation, but the stakes are higher if the authority requests the extension. “A lengthy investigation per se is not fair in my opinion,” he said. “A lengthy investigation per se is not fair in my opinion” 38 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Sector/Case-specific Google-like companies don’t always break law by promoting own services, lawyer says Platforms such as Google don’t necessarily break antitrust law if they promote their own products, said Maurits Dolmans, a lawyer who represents Google, but who stressed he wasn’t speaking for the company. Dolmans spoke about applying antitrust law to platforms such as Google, which are known as two-sided platforms because they operate free services that are funded by paid ones. Google’s search services are funded by a lucrative ad service. “It’s very difficult to prove dominance on two-sided markets. Users will switch. If quality lowers, users switch” “European case law says that if a company owns an essential facility they cannot discriminate by favoring their own product. If they don’t have an essential facility, the rule doesn’t apply,” Dolman said. He suggested that advertising a company’s own products can be a rational and justifiable choice for platforms and therefore shouldn’t automatically be seen as an abuse. “Favoring by placing ads to advertise own products, is that an abuse? It’s a rational behavior that non-dominant companies also engage in,” he said. In order to find an abuse, strict precedents set by the European Court of Justice would have to be met, Dolmans said. “Those kinds of practices can’t be seen as an abuse unless specific conditions of case law imposed by the court are met,” he said. “Design choices are not an abuse if there is an objective justification or rationale.” Dolmans spoke about the difficulties of proving that businesses such as Google hold market power. “It’s very difficult to prove dominance on two-sided markets. Users will switch. If quality lowers, users switch,” Dolmans said. 39 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Sector/Case-specific Distribution restrictions ‘high on agenda,’ says EU’s Italianer Potentially anticompetitive restrictions on how goods and services are distributed will be “high on the agenda” of European antitrust enforcers in the coming year, said Alexander Italianer, the head of the European Commission’s competition department. Under EU law, it can be illegal to restrict the way products are sold — for example, by limiting the distribution of goods through online retailers. Agreements between suppliers and retailers that contain “vertical restraints” can be anticompetitive because they limit choice and protect prices. Italianer said solving the questions raised by such restraints will be a focus of antitrust enforcers in Europe. “Vertical restraints in general will be featuring high on the agenda,” he said. Italianer pointed to a sector-wide probe to be launched next month, in which the European Commission will analyze potential problems with consumers buying goods and services online. Regulators around the globe will also be working on the issue within a network of competition agencies that meets next month in Sydney, he said. “There is a lot of concern on online content,” Italianer said, also mentioning online booking platforms that are under scrutiny in about a dozen European countries. “We see a lot of restrictions in distribution among member states,” he said. “There is a lot of concern on online content” 40 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Sector/Case-specific Distribution arrangements need antitrust scrutiny, Belgium’s Steenbergen says Restrictive agreements between producers and suppliers pose a challenge to antitrust authorities in Europe and require close study, the head of Belgium’s competition authority has said. Regulators in some EU states may have underestimated the potential impact of such “vertical restrictions,” Jacques Steenbergen said, adding that they warranted scrutiny. “A number of us — the Germans, the French, ourselves and the British — had to face the fact that we underestimated the impact of vertical restrictions,” said Steenbergen. “We thought they were a thing of the past [and] that with the completion of the [EU’s] internal market we could focus on other things,” he said. “But a number of complaints [and] also reports on differences in price levels in memberstate markets have forced us to look back again on vertical restrictions.” Such agreements often feature in online markets where owners of branded goods seek to manage the distribution of their products over sales channels. They also feature among suppliers and retailers in, for example, sale of consumer goods. “A number of the economists, who were very skeptical about the relevance of these cases, have come to the conclusion that we can no longer afford to ignore [these cases].” Steenbergen said there were a number of “traditional” investigations into supplierretailer arrangements, and there were also “major” cases in France and Germany in the online sector. “We can no longer afford to ignore [these cases]” 41 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Sector/Case-specific Banks’ signaling of interest rates needs scrutiny in Norway, regulator says The way banks signal interest rates and other financial information among themselves warrants further attention in Norway, the head of the national competition authority said. “What we have been looking at, and what we need to investigate more is: is there a form of signaling practice in the financial industry which is detrimental to competition?” said Christine Meyer, director general of the Norwegian Competition Authority. “We just started but there are signs that [there’s] a signaling practice,” Meyer said. Under some competition laws, if a company signals its behavior to the market and helps other companies to adapt their behavior, it can be seen as anticompetitive. “In investor presentations, [banks] should be allowed to talk about interest rates and so forth,” Meyer said. “But when they signal about the future in the media, then we see there is behavior where the interest rates are much higher and much more equal then they should be.” “The margins are higher than they should be,” Meyer said. “We are still grappling with this and how we should go about it.” “Is there a form of signaling practice in the financial industry which is detrimental to competition?” 42 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Europe | Sector/Case-specific Energy monopolies complicate national antitrust enforcement in EU, Polish regulator says A lack of competition among companies supplying energy to Europe poses problems for national regulators and their aim to create better-functioning domestic markets, said Adam Jasser, the head of Poland’s antitrust authority. “Dealing with some of the incumbents would certainly be easier if Europe as a whole sorted out its issues with some of the suppliers” Many East European countries depend heavily on natural-gas supplies from Russian energy giant Gazprom, meaning they struggle to negotiate fair prices and provide greater choice for gas users. The European Commission has opened an antitrust probe into state-controlled Gazprom, and the regulator has adopted liberalization measures meant to loosen Russia’s grip on Europe. At the same time, regulators are trying to ensure that national incumbents inside Europe don’t dominate national markets. “In the energy sector, this is complicated by the fact that Europe is grappling with a supplier that doesn’t necessarily play by market rules,” Jasser said. “So, the question [arises] of how to enforce competition when you have an outside force that doesn’t play by rules.” Jasser said it was “worth keeping in mind that this is an imperfect market. Not just because of the incumbent’s market power. There are other monopolists at play here.” “Dealing with some of the incumbents would certainly be easier if Europe as a whole sorted out its issues with some of the suppliers,” Jasser told MLex. “As we know, the commission is looking at that.” “There is so much distortion in this market and it is such an imperfect market that competition tools alone are not going to create the greatest benefits for consumers.” 43 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | China | Regulatory Approach Conduct, not price, is central to antitrust probes, says NDRC official China’s antitrust regulator focuses on behavior that could lead to excessive pricing, rather than the price itself, an official at the National Development and Reform Commission has said. “It’s not possible to determine a reasonable price. Enforcement agencies shouldn’t set a price for a commodity,” said Liu Jian, a deputy director at the NDRC’s Price Supervision and Anti-Monopoly Bureau. “The focal point of enforcement should be the fairness of conduct, not how high the price is of final products,” he said. The official said the Antimonopoly Law is not anti-high profit law, and enforcement agencies do not have the right to set exact prices for licensing royalties. But the agency can investigate whether conduct is unfair and unreasonable, and leads to high pricing directly or indirectly, rather than the result of a fair market negotiation. “We do not care about price itself, we care about those behaviors that arise from competition concerns and lead to unfair pricing” 44 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 Regarding the regulator’s antitrust remedies for such a violation, he said a remedy shouldn’t impose a lower price, but instead change the conduct that led to a higher price. “We do not care about price itself, we care about those behaviors that arise from competition concerns and lead to unfair pricing,” Jian said. He also said a focal point of the NDRC’s enforcement is the licensing of standard essential patents, or SEPs. SEP licensing should be open and fair, and licensing conditions should be reasonable. Refusing to license SEPs would be prohibited, Jian added. He said the regulator would take a prudent approach in carrying out enforcement in the intellectual property rights area. RETURN TO CONTENTS I. Antitrust | China | Regulatory Approach NDRC needs ‘more active’ enforcement and further study of digital industries A senior antitrust official at China’s National Development and Reform Commission said the regulator will prioritize “more active” enforcement, improve its procedures and do additional study of emerging sectors. “First, most importantly, we have to enforce the competition law as actively as possible,” said Zhu Zhongliang, director of the Competition Policy and International Cooperation Division at the NDRC’s Price Supervision and Anti-Monopoly Bureau. He said the agency needs to carry out more study into the e-commerce and Internet sectors because it is difficult to define a relevant market, determine violations and apply the theory of harm in the rapidly evolving industry. He also said the agency intends to improve its working procedures - such as its settlement commitment program, exemption rules and calculation of fines — in order to make its enforcement more effective and transparent. “We will make a study on how to suspend investigations, how to exempt some anticompetitive activities,” he said. The NDRC is also researching the use of its leniency program so as to make it more effective in enforcement, the official said. “We will make a study on how to suspend investigations, how to exempt some anticompetitive activities” 45 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | China | Regulatory Approach SAIC to apply ‘rule-of-reason’ principle in antitrust enforcement in IP China’s non-price related antitrust regulator would stick to a “rule-of-reason” approach in carrying out antitrust enforcement in the intellectual property sphere, an official has said. “When conducting enforcement regarding intellectual property, we will be extremely cautious,” said Song Yue, an official at the Antimonopoly and Anti-Unfair Competition Bureau of the State Administration for Industry and Commerce. The regulator would conduct comprehensive analysis, including considering evidence provided by target companies and third parties in its enforcement, she said. On April 13, SAIC announced that it officially passed the long-waited “Regulation on the Prohibition of Abuse of Intellectual Property Rights to Eliminate or Restrict Competition,” which will take effect on Aug. 1. The main purpose of the regulation is to draw a clear line so that companies can understand the agency’s concerns and implement their intellectual property rights safely. In response to questions on whether such regulation may jeopardize innovation, Song said the rule is a reflection of China’s transitional market features. “Personally, I would want more and more antitrust enforcement [activity] in the future” 46 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 She also vowed to ramp up enforcement and deterrence against antitrust violators because competition policy hasn’t received enough attention in China. “There is still a lot of room for antitrust authorities to enforce the law,” Song said. “Personally, I would want more and more antitrust enforcement [activity] in the future.” She also said the regulator’s enforcement is obscured by the tight staffing levels at the agencies, and so far a majority of its enforcement cases are triggered by complaints lodged by companies. RETURN TO CONTENTS I. Antitrust | China | Regulatory Approach China urged to observe international antitrust norms US antitrust enforcers on Friday urged Chinese authorities to ensure procedural protections in their antitrust probes and focus on anticompetitive effects rather than how conduct affects particular rivals. Bill Baer, the assistant attorney general for antitrust, noted that the DOJ and its sister agency, the US Federal Trade Commission, have had more than 100 years to develop their competition policies and procedures. But those developments occurred in a different, entirely domestic economic situation, not in today’s globally interconnected economy, he said. “We can’t wait to let other developing antitrust regimes ... get to international norms over a leisurely period of time,” Baer said. “It affects investment. It affects business.” Those concerns led the Obama administration, and President Barack Obama himself, to seek commitments from China regarding transparency and due process last year, Baer said. FTC Chairwoman Edith Ramirez, speaking at the same panel, said that while jurisdictions do sometimes reach different conclusions by applying their local laws to the local market conditions, China and other developing antitrust enforcers should adopt the same “core values” as other jurisdictions — procedural fairness and an emphasis on economic evidence that anticompetitive conduct is affecting consumers. “It’s really crucial that the focus be on how should we as competition authorities advance long-term consumer welfare,” Ramirez said. “I’ve expressed concerns, particularly when it comes to the application of antitrust laws to matters that involve intellectual property, that they are ensuring that long-term consumer welfare ... as opposed to other policy objectives. This really goes to the heart of the legitimacy of our entire competition policy enterprise.” “This really goes to the heart of the legitimacy of our entire competition policy enterprise” 47 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Japan | Regulatory Approach Japan to designate antitrust hearing officer this month Japan’s antitrust authority is expected to designate an independent official to oversee investigations and ensure their fairness, the former chairman of Japan’s regulator said. The new official is expected to oversee investigations and report to decision-makers about the interaction between investigators and defendants. Final rulings on cases will remain a prerogative of the decision-making commission. “This month the hearing officer will be designated,” Kazuhiko Takeshima . The official will belong to Japan’s Fair Trade Commission but will retain some independence, Takeshima said. In 2013, the Japanese government set up a group within the Cabinet Office to study rights of defense and procedural fairness in investigations. The group was tasked with making recommendations for legislative changes, if needed. The creation of the working group followed criticism by the Japan Business Federation, known as Keidanren, and the American Chamber of Commerce in Japan of the JFTC’s investigative procedures. The groups said the procedures were lacking in due process and failed to meet the standards for transparency and fairness that exist in US and European antitrust probes. The 15-member committee released its recommendations in December and suggested the JFTC create public guidelines regarding its standard investigative procedures. The official will belong to Japan’s Fair Trade Commission but will retain some independence 48 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Regulatory Approach No cartel-fine discounts for compliance programs, says Brazilian antitrust chief Brazil’s antitrust authority doesn’t intend, for now, to grant companies discounts on cartel fines for having compliance programs, the regulator’s president told MLex. Companies may still benefit from reductions in fines indirectly if their compliance programs spot improper behavior and facilitate their cooperation in investigations, he said. The regulator plans to issue guidance on how companies can ensure staff don’t breach antitrust laws. “If you have a very effective compliance program and you get involved in a cartel, the company can sign a leniency agreement” The plan is to launch a first draft of that document by July, said Vinicius Marques de Carvalho. “What we don’t intend to do, at least for now, is set a discount level for the existence of a compliance program.” Carvalho acknowledged that programs cost companies money, but said they can still be advantageous. “If you have a very effective compliance program and you get involved in a cartel, the company can sign a leniency agreement,” Carvalho said. Cartel whistleblowers typically get full immunity from fines in Brazil. If another cartelist is first in line, a company that identifies a cartel can still cooperate with officials and secure reductions of up to 50 percent, Carvalho said. “If you have a good program, you’ll surely be able to cooperate a lot with the investigations. Collaboration … is a factor when we evaluate the amount of a fine a company receives,” Carvalho said. If companies show good will and help in a probe they may also face more lenient fines, the regulator said. 49 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Regulatory Approach Brazilian regulator warns of impasse without nominations for new councillors Brazil’s antitrust regulator has warned the government that it may be unable to make decisions in August if President Dilma Rousseff doesn’t nominate new councillors by then. The Administrative Council for Economic Defense, or CADE, is awaiting the nomination by Brazilian President Dilma Rousseff of several top-level decision-makers for its Tribunal. The regulator’s work could be paralyzed starting in August if Rousseff fails to appoint enough new members to allow the Tribunal to conduct its business. “CADE has done all it can. The Brazilian government is aware that this may happen. We have warned of the possibility,” CADE President Vinicius Marques de Carvalho told MLex in an exclusive interview. “We hope that by the middle of the year the names of new councillors will be forwarded [to the Senate for approval]. I’m sure it will happen,” he said. “CADE has done all it can” 50 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Regulatory Approach CADE open to ‘mix’ of professionals in top agency positions The president of Brazil’s antitrust authority said he is open to seeing more private practitioners appointed to top positions in the agency. Vinicius Marques de Carvalho suggested that a “mix” of experience among high officials could be positive for the institution. The antitrust regulator, the Administrative Council for Economic Defense, is awaiting the nomination by Brazilian President Dilma Rousseff of several top-level decisionmakers for its Tribunal. The regulator’s work could be paralyzed starting in August if Rousseff fails to appoint enough new members to allow the Tribunal to conduct its business. “Let’s see if we can manage this situation related to bringing people from the private sector to be [Tribunal] Commissioners or bring in people that had experiences in the private sector,” Carvalho said. “It’s important to have a mix among private sector, governmental enforcers and people with an academic profile,” he said. Most of the regulator’s top officials come from governmental bodies, and a revolving door between private practice and public service can be controversial. The regulator also faces a shortage of staff. But Carvalho said that given Brazil’s economic situation, it may not be the best time to request backup forces. “I can say we have now … 0.4 case-handlers for a single merger. The European Commission’s DG Competition has almost three case-handlers for each merger. It’s a huge difference,” Carvalho said. “It’s important to have a mix among private sector, governmental enforcers and people with an academic profile” 51 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Regulatory Approach Brazil’s antitrust comfort process can’t circumvent antitrust investigations, watchdog’s president says Companies seeking reassurance from Brazil’s antitrust authority that corporate plans don’t breach competition law can’t use that “advance consultation” process to avert enforcement in complex cases, the agency’s head told MLex. Advance requests for guidance, known as consultations, can give companies some validation for decisions, but don’t replace full reviews if the matter is complex, Vinicius Marques de Carvalho said. “Consultations can’t substitute the analysis of a merger or a conduct,” Carvalho said. “Companies can’t try to use the tool to circumvent the [investigatory] Superintendence and obtain a waiver from the [decision-making] Tribunal for their strategy.” “I think it’s legitimate for companies to try to get some comfort about their commercial strategies” Companies can ask the Tribunal of the Administrative Council for Economic Defense, or CADE, to state whether business plans comply with competition laws. While the regulator is keen to give companies guidance, there are limits to what it can review, Carvalho said. Carvalho said if the Tribunal realizes a request to clarify the law is too complex and needs a more in-depth review, it won’t take it on. “I think it’s legitimate for companies to try to get some comfort about their commercial strategies,” he said. He said companies may not be aware that certain legitimate strategies could have anticompetitive effects, and it’s appropriate for them to seek validation. “Often, an anticompetitive effect derives from a competitive strategy by companies,” he said. The consultation option was recently revived after CADE published new guidelines on how to approach the authority with requests. “Let’s see if [the tool] works out. I hope it will,” he said. 52 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Sector/Case-specific CADE will fight to reinstate cartel fine on Abbott, Eli Lilly, Bayer, others “In my opinion, we have voluntarily adopted a stricter standard to get more robust evidence” Brazil’s antitrust authority will initiate a new court challenge to to reinstate fines against several drug companies for allegedly colluding to block generic alternatives from the market, an agency official has said. In 2005, the Administrative Council for Economic Defense, or CADE, fined drug companies, including Abbott Laboratórios do Brasil, Eli Lilly do Brasil, Merck Sharp & Dohme and Bayer, for allegedly seeking to block distributors that also handled generic alternatives. In 2011, a federal court quashed the regulator’s decision. CADE failed to convince an appeals court in March to reinstate the decision. The case turned on whether the companies agreed to collude during an industry meeting in 1999. The March ruling came as a blow to the regulator, which usually sees its decisions stand the test of the courts. In an exclusive interview with MLex, CADE’s top investigator, Eduardo Frade, said the regulator has taken steps in recent years to ensure its decisions are robust and are upheld by courts. “In my opinion, we have voluntarily adopted a stricter standard to get more robust evidence,” Frade said. “Indirectly, some of the concerns raised in this case raised by the court have already been incorporated as self-criticism in general,” he said. Frade said the specific case is still open because the agency will appeal. 53 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Sector/Case-specific Still premature to hold settlement talks in Petrobras probe, CADE’s top investigator says It’s too early to engage in settlement talks with construction companies involved in a probe into collusion at Petroleo Brasileiro, but Brazil’s antitrust authority will keep an open mind, the agency’s top investigator told MLex. In March, the Administrative Council for Economic Defense, or CADE, signed a whistleblower agreement with construction company Setal Engenharia e Construções and its affiliate SOG Óleo e Gás over an alleged cartel targeting Petrobras. CADE is reviewing the evidence provided by the whistleblowers, but hasn’t yet opened a formal investigation. The regulator is one of many authorities investigating wrongdoing at Petrobras. “We already have a lot of evidence. We have a robust leniency, in our view, (and) access to a series of evidence apprehended at company premises, in addition to our own investigations,” Frade told MLex. Despite the wealth of evidence in its hands, CADE hasn’t ruled out requests by other companies to collaborate with the probe, he said. “It’s not an evaluation which is possible to make now, because we will only reveal what we have or don’t have at a more advanced stage of the investigation,” Frade told MLex. But a successful settlement would depend on a company being able to collaborate “significantly” in the probe, Frade said. “We will only reveal what we have or don’t have at a more advanced stage of the investigation” 54 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Brazil | Sector/Case-specific Petrobras probe won’t dominate CADE’s year, regulator says A high-profile cartel investigation into bid-rigging at state-controlled oil giant Petroleo Brasileiro won’t dominate the Brazilian antitrust authority’s agenda for the year, President Vinicius Marques de Carvalho told MLex. Like many Brazilian authorities, the Administrative Council for Economic Defense, or CADE, is investigating allegations that construction companies colluded and paid bribes to Petrobras officials to secure contracts. While the case has taken on monumental proportions in the country, Carvalho said it won’t dominate CADE’s agenda. “It won’t, in no way,” Carvalho told MLex. “When a large conduct or merger case arrives … sometimes the team will have to prioritize one thing over another. That’s normal,” Carvalho said. “That can happen to any agency in the world.” “Sometimes the team will have to prioritize one thing over another. That’s normal” 55 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS I. Antitrust | Mexico | Regulatory Approach Mexico’s competition woes not down to anticompetitive conduct Competition issues in Mexico are not a result of anticompetitive conduct, but rather due to historical bottlenecks in sectors that were closed to competition, the country’s antitrust chief has said. The Federal Economic Competition Commission, known as Cofece, is being proactive in sectors that have recently opened up by assessing new regulations and alerting the government of structural issues, agency President Alejandra Palacios Prieto said. Cofece is also focused on its advocacy role through informal market investigations, she said. “Certain sectors are important because of the impact on the economy as a whole, such as finance, transport, health and agriculture. We decided to take a look at those sectors in particular to understand those sectors as a whole,” Prieto said. The agency performed an investigation of the financial sector, making 36 recommendations, and it plans to publish the results of an investigation into the agricultural industry in August, she said. Also on the agenda is more cooperation, especially with other Latin American authorities. “We received a lot of support from the US Federal Trade Commission and US Department of Justice in terms of capacity building, and they would like to do the same to their Latin American partners,” Prieto said. The agency will be receiving interns from fellow antitrust agencies this year, she said. “Certain sectors are important because of the impact on the economy as a whole, such as finance, transport, health and agriculture” 56 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach US merger filings, in-depth antitrust reviews on the rise Merger transactions, particularly aggressive ones with complex antitrust issues, are on the upswing, senior officials with the US Department of Justice said, cautioning that the antitrust division will challenge any that “push the envelope too far.” Pre-merger notification filings are up 10 percent this year, said David Gelfand, the division’s deputy assistant attorney general for litigation. The number of mergers that receive an in-depth second request is also up more than 10 percent, he said. “We’re seeing a lot of transactions with difficult, complex antitrust issues,” he said. In response to a question about the DOJ’s recent merger challenges, Gelfand said he believes that companies are attempting more potentially problematic transactions. “There are some transactions that, lets face it, shouldn’t have gotten to the point they got to. People are trying some aggressive transactions,” he said. “Maybe there are instances where companies are trying to push the envelope too far, and our job is to protect consumers.” Gelfand said he was referring to several recent cases that were essentially mergers to monopoly, such as the DOJ’s challenge of Twin America, a tour bus joint venture in New York City between Coach USA and City Sights, and the agency’s block of the proposed tie-up of the two largest national cinema advertising companies, National CineMedia and ScreenVision. “Maybe there are instances where companies are trying to push the envelope too far, and our job is to protect consumers” 57 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Timid merger enforcement could prompt price rises, warns Brill The US Federal Trade Commission and other antitrust agencies need to be careful not to be too timid in challenging mergers because of fears about over-enforcement, the senior Democratic member of the agency said Thursday, pointing to research that showed significant price increases in some cases where the agencies didn’t challenge potentially anticompetitive mergers. “We spend so much time in Washington thinking about Type 1 errors,” where an agency challenges a merger or conduct that is ultimately found to comply with antitrust laws, Commissioner Julie Brill said. “Type 1 errors are serious. I think we need to start having a conversation of Type 2 errors — when we pass on an issue, consumers pay the price.” Brill pointed to research by economist John Kwoka, which looked at mergers that would have been close to the line for enforcers. Sixty percent of the mergers led to price increases, on average of about 5 percent, according to Kwoka’s analysis. Brill said that the FTC needs to make sure it is “taking appropriately aggressive action in mergers.” “When you’re on the fence [thinking about] type 1 errors [is] important...But there are also problems when you don’t go after [a merger] because the market can suffer. Prices will go up,” she said. “I think we need to start having a conversation of Type 2 errors — when we pass on an issue, consumers pay the price” 58 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Regional offices will handle more merger cases, FTC’s Feinstein says The Federal Trade Commission’s regional offices will handle more mergers in the future, the head of the agency’s Bureau of Competition said. The office may also need to reassign staff to balance out the workload. Deborah Feinstein said “we will see, probably, in the coming days more mergers moving to the regions, and you also will be totally flummoxed about why you’re getting a call from Merger II on an oil merger.” The Bureau of Competition has four merger shops, numbered one through four, that investigate transactions in different industries. Mergers I, for example, is primarily responsible for reviewing transactions in healthcare industries, and Mergers II usually handles a variety of industries, including coal mines, chemicals, and computer hardware and software. The coming redistribution is “simply because the workload is such that we’re doing the best we can,” Feinstein said. When the agency moves a matter from one group to another, it keeps the managers of the group that has had a longer history with it involved in the case day-to-day so they don’t lose the knowledge the group has, Feinstein said. Feinstein said there will also be more cross-staffing of matters. “I don’t believe in silos,” she said. “I don’t believe that just because the industries that Mergers I handles are busy that those people should all be working a million hours a day when a different merger shop may be quiet, so we have a lot of different people working on different cases.” “I don’t believe in silos” 59 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach DOJ is performing systematic analysis of remedies imposed, top economist says The antitrust division of the US Department of Justice is doing a systematic analysis of remedies imposed on transactions that have settled, the division’s top economist said. “We are not doing statistics in [every] market right now, [but] the division is doing a systematic look back at remedies,” said Nancy Rose, deputy assistant attorney general. The division is looking at how successful divestiture remedies have been, especially in the airline industry. Rose said that carriers that acquired divested assets in the American Airlines and US Airways settlement made great use of them by building up their schedules and capacities. For example, he said, in some capacity-restricted airports, statistics show year-over-year capacity growth of as much as 10 percent. Lower cost carriers have been able to make more effective use of slots despite restrictions on the number of flights per day. “We are very excited by the impact we’ve seen,” Rose said. The division is looking at how successful divestiture remedies have been, especially in the airline industry 60 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Hertz-Dollar Thrifty deal has affected how FTC considers divestitures The failure of the buyer of the divested assets in the Hertz and Dollar Thrifty merger has had an impact on how the US Federal Trade Commission thinks about remedies in merger cases, a commissioner said. In May 2013, the FTC approved Hertz’s $2.3 billion acquisition of Dollar Thrifty Automotive Group on condition that the combined entity sell Advantage Rent a Car to Franchise Services of North America, which folded that business into its Simply Wheelz subsidiary. Just a few months later, Simply Wheelz filed for Chapter 11 bankruptcy protection. “I think our experience in the Hertz merger is informing the way that I and others in the agency are looking at potential remedies and how effective they may or may not be,” Commissioner Julie Brill said. “I think the failure there had to do with the particular entity.” While merger decisions are highly fact-specific, Brill said, important considerations for buyers of divested assets include whether and how long they have been in the market and their financing. “We have to be really careful to make sure that whatever we’re doing will alleviate the substantial lessening of competition,” she said. “We have to be really careful to make sure that whatever we’re doing will alleviate the substantial lessening of competition” 61 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Courts unlikely to allow efficiencies defense if FTC rejects it, commissioner says If the US Federal Trade Commission rejects an efficiencies defense of a merger being challenged as anticompetitive, skeptical courts are unlikely to reverse that, the senior Democratic member of the agency said, citing the agency’s recent appellate win in a hospital case. Courts tend to require “extraordinary efficiencies” before they will accept that as a defense to a merger, Julie Brill said, pointing to a recent decision by a federal appeals court to order the unwinding of the merger of hospital groups St. Luke’s Health System and Saltzer Medical Group. The Horizontal Merger Guidelines used by the commission to assess an efficencies defense are easier on merging parties than courts have been, Brill said. “I actually think the guidelines are more generous at least than the courts have traditionally been” in considering efficiency arguments, Brill said. “I do think the courts are more skeptical. There have been courts that have looked at efficiency arguments and said, ‘We’re going to need to see extraordinary efficiencies in order to overcome what we’re seeing as an anticompetitive merger in this context,’” she said. The February decision Brill referenced, a ruling by the US Court of Appeals for the Ninth Circuit, upheld an order requiring St. Luke’s to unwind its buy of Saltzer. The FTC opposed the merger because it said the deal would hurt the market for adult primary care services. Efforts to overturn Ninth Circuit’s ruling are ongoing. “I do think the courts are more skeptical” 62 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach FTC should issue more closing statements, says commissioner The Federal Trade Commission should issue more statements explaining its reasoning for closing investigations, the agency's junior Republican commissioner said. “I would like to see us do them more often,” Commissioner Joshua Wright said in comments on the sidelines of a conference in Washington Thursday. Wright noted that in the recent merger of online real estate sites Zillow and Trulia, he released a statement on the approval alongside Commissioners Maureen Ohlhausen and Terrell McSweeny. In the statement, the commissioners noted that FTC’s review showed that the sites face significant competition from other web portals that have the same or similar data, such as Realtor.com and Redfin, leading the agency to conclude the transaction didn’t raise competition concerns. While there are sometimes confidentiality considerations, Wright said he was strongly in favor of issuing more information about the FTC’s decision-making. “I would definitely like to do more,” he said. “I would like to see us do them more often” 63 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Mega-merger trend presenting increased antitrust risk, DOJ enforcer says Some merger ideas should “never get out of corporate headquarters,” according to the head of the US Department of Justice’s antitrust division. The recent burst of mega-deals has resulted in “companies investing in strategic acquisitions,” of which “a higher percentage have the potential to have antitrust, competition concerns associated with them,” he said. Baer referenced National Cinemedia’s failed attempt to buy rival Screenvision, although it’s not one of the recent multi-billion dollar transactions. The companies are the only two national providers of pre-show advertising in movie theaters in the US. National Cinemedia and Screenvision pulled the plug on their deal after the DOJ filed suit to block it last November. Edith Ramirez, chairwoman of the US Federal Trade Commission, said that some big deals, such as in the pharmaceutical industry, have been “resolved by having targeted divestitures.” However, she cautioned that “while a lot of these mega-deals are the ones that end up getting a lot of the attention,” regulators should “not lose sight of the fact that we have a lot of smaller deals that do create [problems] and its important for us to take action.” Ramirez emphasized that every deal has to be assessed on its own merits. Some merger ideas should “never get out of corporate headquarters” 64 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach Defendants are unharmed if denied access to agency’s ‘work product,’ DOJ top litigator says Defendants in merger litigation are not at a disadvantage if they lack access to information collected by the agency during the deal’s investigation, the top litigator of the Department of Justice’s antitrust division said. “I don’t think there’s a good basis for defendants in these cases to get wholesale disclosure of our interview notes and facts heard from third parties. That’s core work product, and we are going to fight to protect it every time,” said David Gelfand, the DOJ’s deputy assistant attorney general for litigation. “Everybody has a lot of time to prepare,” Gelfand said. “You go into discovery in a case and you can learn through discovery. I don’t think it disadvantages defendants.” In February, the department won a battle in federal court in the National CinemediaScreenvision litigation, in which the companies were seeking disclosure of all persons who communicated factual information about the merger to DOJ and whether they expressed concern. The federal judge denied the request, finding that defendants have not met a burden of showing a ‘substantial need.’ NCM and Screenvision ultimately abandoned their deal. “We are going to fight to protect it every time” 65 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach CEO often shouldn’t be initial defender of deal to regulators, US enforcer says CEOs of merging companies often should resist defending their deals in initial discussions with antitrust authorities, a US enforcer said. The top officials of companies sometimes don’t have the detailed knowledge antitrust authorities need to deciding whether a deal is anticompetitive, said William H. Stallings, chief of the Transportation, Energy and Agriculture Section of the Department of Justice’s antitrust division. If a CEO says, “this is such a great deal” and it is “complementary,” but company documents later contradict that view, “there’s a credibility hit” from which it’s difficult to recover, he said. External and company counsel should deal upfront with potential problems, said Mike Moiseyev, head of the Mergers I unit of the Federal Trade Commission’s Bureau of Competition. “If it looks like there are going to be issues, starting the process early is important,” he said. “There’s a credibility hit” 66 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Regulatory Approach CFIUS risk explained A US government official today set out the wide-reaching nature of the Committee on Foreign Investment in the United States, a secretive body that vets takeovers by foreign companies of businesses with US operations. Recently, companies doing deals in areas as benign as the food industry have had to get deals approved by CFIUS. They include privately held holding company Shuanghui International’s $7.1 billion merger with meat processor Smithfield Foods. Shawn Cooley, director of foreign Investment for the US Department of Homeland Security, said that “one of the things that we do first and foremost is try to identify whether or not the department does or could use the product and services of the acquired company in the normal course.” Cooley manages the Department of Homeland Security’s participation on CFIUS. Critical infrastructure includes “information technologies, communications, chemical, nuclear, emergency services, government facilities, chemical facilities, critical manufacturing and dams” 67 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 Products and services that could trigger a review “usually take the form of government contracts.” He said it is also necessary to consider “whether or not the target company is involved with the critical infrastructure sectors for which [the department] has responsibility.” “That would include information technologies, communications, chemical, nuclear, emergency services, government facilities, chemical facilities, critical manufacturing and dams,” he said. Cooley, speaking in a personal capacity, identified further risk factors, including the “proximity [of assets] to sensitive government facilities” as well as possible “supply disruptions.” “Would the new foreign owner disrupt an otherwise steady supply of products and services to the US government?” Cooley also encouraged companies to set up a “courtesy meeting” with CFIUS on a transaction that may raise US national security issues. RETURN TO CONTENTS II. Mergers | US | Sector/Case-specific Comcast, TWC merger faces probes in 25 US states Twenty-five states across the US are investigating the proposed Comcast-Time Warner Cable merger, propelled by consumer concerns about the combination of the nation’s top two cable companies, a Maryland state official said Thursday. “There are constituents who are saying, ‘We are concerned about content. We are concerned about service issues,’” said Schonette Jones Walker, a former assistant attorney general in antitrust for the attorney general’s office. Jones Walker recently took a position in the state comptroller’s office and said she is not working on the Comcast-Time Warner Cable probe. The US Department of Justice, after deposing executives at the cable companies and gathering thousands of documents from Comcast and Time Warner Cable, is now deciding whether it should legally challenge the $45.2 billion merger or approve it with conditions. The Federal Communications Commission is conducting its own review of the deal and is closely coordinating with the DOJ. “There are constituents who are saying, ‘We are concerned about content. We are concerned about service issues’” 68 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | US | Sector/Case-specific Denying public access to documents in St. Luke’s trial was ‘tough’ call A senior Idaho official said it was a “tough decision” to move to bar the press from seeing court documents in the government’s antitrust challenge to St. Luke’s Health System’s acquisition of a physician group. Brett DeLange, Idaho deputy attorney general, said that it was a difficult move because the state’s attorney general, Lawrence Wasden, is “for openness.” On the other hand, DeLange said that when his office served subpoenas on industry players, it promised to keep their information confidential in order to get candid testimony. “Part of the ability to be candid is that they think ‘my competitors are not going to see what I am telling you,’” DeLange said. “The press here wanted every last item made public, and we objected,” he added. “We wanted to keep some things confidential so that we would get candid stuff and not canned stuff.” “Whether we walked the line right in how we defined it — maybe people could decide differently where that line was drawn,” DeLange conceded. “Interestingly enough, as the judge took it upon himself to look at all the assertions, I bet he didn’t agree with about 60 percent of them,” and those documents were ultimately released. The battle by the media to get access to the documents came during and after the trial in 2013 in which the court found that St. Luke’s acquisition of Saltzer Medical Group in Nampa, Idaho, would harm competition — a decision upheld by a three-judge panel of the US Court of Appeals for the Ninth Circuit. St. Luke’s recently asked the full panel of judges on the court to rehear the case. “We wanted to keep some things confidential so that we would get candid stuff and not canned stuff ” 69 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Europe | Regulatory Approach Vague German, UK rules jeopardize minority shareholding investments, lawyer says Vague rules on whether acquisitions of minority shareholdings trigger the need for regulatory approval could deter companies from making investments, a lawyer for one of one of the world’s largest media companies said today. Cerry Darbon, senior regulator counsel for Liberty Global, said that merger rules in Germany and the UK both involve concepts that are “quite difficult to define with any degree of certainty.” “There is a need for a change in the rules to cover an existing gap” German merger law requires companies to file purchases of shares that give rise to a “competitively significant influence,” she said. Darbon, speaking in a personal capacity, said that “in Germany it’s a breach of law to have missed a notification,” which could be difficult to determine given the “very vague test.” “In my view that does have real-world effects, and is likely to deter investments that would otherwise happen,” she said. Darbon’s comments come as the European Commission is weighing how best to regulate purchases of minority shareholdings. Speaking at the same event, Carles Esteva Mosso, acting deputy general for mergers at the EU’s competition directorate, said “there is a need for a change in the rules to cover an existing gap.” The EU watchdog cannot at present review minority share purchases that don’t confer control. The regulator recently sought views on an amendment to its rules, but the responses “prompted us to decide not to come forward immediately with a reform,” Mosso said. The commission will do some further reflection “before we decide what will be the next steps,” he said. 70 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Europe | Regulatory Approach Authorities could pitch merger remedies to ease reviews, Italian official says Antitrust officials should be able to suggest remedies in complex merger cases if companies fail to come up with an offer to see a deal through, an Italian antitrust official said. Salvatore Rebecchini, a decision-maker at the Italian competition authority, said officials should be able to make suggestions to ensure a deal is reviewed quickly. “Obviously, it’s best if parties come up with a backup strategy,” Rebecchini said. But if companies fail to make a proposal because they didn’t understand the regulator’s concerns, officials should be able to propose an alternative, the decision-maker said. “Why not try to suggest, to foster good remedies on the party so we can clear the deal and everybody can go home,” Rebecchini said. “I don’t feel like we are compelling the party.” “Obviously, it’s best if parties come up with a backup strategy” 71 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | China | Regulatory Approach Behavioral fixes account for 70 percent of Mofcom’s deal remedies, lawyer says China’s top merger regulator, the Ministry of Commerce, still prefers the use of behavioral remedies to resolve anticompetitive transactions, and that approach accounts for 70 percent of the regulator’s total remedies, a leading Chinese antitrust lawyer said. “Mofcom is becoming more and more aggressive and active, and to a certain extent more creative,” said Susan Ning, a senior partner and the head of the antitrust group at King & Wood Mallesons. She said the regulator has shown a preference for behavioral remedies over structural remedies, but that causes heavy burdens for both the companies involved and the regulator itself. She said that Mofcom is developing its own pattern for behavioral remedies, especially the use of hold-separate remedies, which have become “a formal form of remedy,” she said. Hold-separate remedies require companies to maintain the independence of certain operations and erect a firewall to maintain competitive operations. The adoption of such remedies is partly a result of the special concerns in the Chinese market that competitors or end-users may have. “Mofcom is becoming more and more aggressive and active, and to a certain extent more creative” 72 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Regulatory Approach Brazilian antitrust watchdog to offer further merger-review clarity with new guidelines The president of Brazil’s competition authority expects to have four new guidelines published by the end of his term next May, including guidance on gun-jumping, compliance, horizontal mergers and merger remedies. Vinicius Marques de Carvalho told MLex that he expects to release, within the next two weeks, guidelines on transactions that close before receiving antitrust approval, a practice known as gun-jumping. The head of the Administrative Council of Economic Defense, or CADE, also plans to have in the second half of the year a draft on guidelines for compliance. “We want to release a first draft soon so lawyers can discuss their provisions and maybe hold seminars on the topic,” he said. The agency is also planning by the end of the year to issue new guidelines for reviewing horizontal transactions, and by May next year, when Carvalho’s term expires, to have guidelines on merger remedies. “We want to release a first draft soon so lawyers can discuss their provisions and maybe hold seminars on the topic” 73 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Regulatory Approach Cooperation with agencies abroad guides Brazilian competition policy The president of the Brazilian antitrust authority said today that cooperation with other national authorities has helped shape the country’s competition policy. The agency cooperated with other countries on 13 cases last year and has already engaged this year on seven cases, he said. The new competition regime, established about three years ago, helped Brazil establish a better relationship with other countries in terms of coordinating on merger analysis, Vinicius Marques de Carvalho said. “Maybe it’s the most important way to move forward in terms of competition policy,” Carvalho said. The president specifically mentioned a dialogue with China and the importance of competition advocacy with developing countries that have similar challenges. This year, the regulator received waivers from Novartis and GlaxoSmithKline allowing for an information exchange with the European Commission in the review of the companies’ over-the-counter medicine joint venture. “Maybe it’s the most important way to move forward in terms of competition policy” 74 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Regulatory Approach CADE could again consider changing associative contracts resolution, president says The Brazilian competition authority is open to reviewing a rule that requires arm’slength “associative contracts” between companies to be notified for approval under merger law, the agency’s chief said. Some concerns have been raised by practitioners about the breadth of the resolution, but the president of the Administrative Council for Economic Defense, or CADE, said if the number of notifications rises too much the agency could tweak it. “We will have to see how the notifications will develop along the year, to see the number of cases we will receive and if the concerns are really meaningful,” President Vinicius Marques de Carvalho said. He said that if the number rises from 400 notifications to 800, the agency would have to consider reviewing the language for requiring the notification of these types of contracts, but if the increase were only to 450 cases, then it would not. The agency could also refine the rule through its interpretation in cases, he said. “We could create exceptions through jurisprudences,” Carvalho told MLex. “We don’t have any attachment to the resolution. We changed the resolution on investment funds because we realized that we were receiving more filings than necessary, so if needed, we would change this one too,” he said. “We could create exceptions through jurisprudences” 75 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Regulatory Approach Brazil may need to cut back on minority-shareholding notifications Brazil may need to review rules governing which minority acquisitions need regulatory approval, to cut back on the number of filings, a leading practitioner has said. “The analysis is very objective, but it means everything has to be filed,” said Cristianne Zarzur, who worked as external counsel for Vivendi on the Telefonica transaction in Brazil, but wasn’t speaking for the company on this occasion. Zarzur is president of the Brazilian law institute IBRAC. The new competition law in the country is only two years old, so the presumption is that minority acquisitions between competitors may be a problem, she said. The agency may need to perform a more sophisticated analysis so in the future fewer notifications are required. The rules governing minority acquisitions are provided in a separate regulation on notification of mergers and acquisitions that was amended last October. In the Telefonica transaction, in which it acquired the Brazilian Internet provider GVT from French conglomerate Vivendi, the regulator required Vivendi to gradually sell the 11.3 percent stake in Telefonica Brasil that it acquired as part of the GVT agreement. Minority acquisitions in Brazil trigger a filing if a 5 percent stake is acquired of a competitor or vertically related company, or more than a 20 percent stake is acquired of companies that are neither competitors nor vertically related. “It means everything has to be filed” 76 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Regulatory Approach Brazilian antitrust watchdog has no preference of merger-remedy type Brazilian antitrust officials reviewing problematic mergers don’t necessarily favor solutions that involve divestments over behavioral remedies, the country’s competition chief has said. “CADE doesn’t have a preference for remedies, but rather it seeks to formulate remedies that are proportional to the concerns identified in the transaction,” Vinicius Marques de Carvalho told MLex. Marques said that behavioral remedies can resolve issues when structural restrictions fail to take into account the economic context of the country and the world. For example, divestitures can’t work without a buyer for the assets. He said the majority of remedies imposed by the Administrative Council for Economic Defense, or CADE, have been structural, with divestitures required. CADE has used behavioral remedies in recent cases, including Videolar’s acquisition of Petrobras petrochemical unit Innova. The agency approved the deal solely on commitments from the parties, including requirements to invest in research and development, to license technology and pass on efficiency gains to consumers. The agency said that although the deal will combine two of three national producers of polystyrene, the restrictions will be enough to address competition concerns. “Behavioral remedies can resolve issues when structural restrictions fail to take into account the economic context” 77 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS II. Mergers | Brazil | Sector/Case-specific CADE probes several non-reportable transactions Brazil’s competition authority is investigating the potential for anticompetitive effects of several transactions that didn’t meet the threshold for agency notification. “We have a lot of activity, which is still confidential. We have been sending lots of questionnaires [to parties],” the agency’s top investigator, Eduardo Frade, told MLex. The Administrative Council for Economic Defense, or CADE, may require notifications about transactions that didn’t meet the financial threshold established by the law up until one year after the deal has closed. The procedure would have to occur through an investigation of the transaction, known as APAC, which can be started by CADE’s Superintendent or any of its councillors, according to a draft of the relevant regulation, which hasn’t been formally released by the agency. The draft provides that the agency would be able to enter into an agreement with the companies that guarantees the reversibility of the transaction in case the agency decides it should be notified of the deal because of competition concerns. CADE President Vinicius Marques de Carvalho told MLex that the agency plans by the end of May to release regulation on investigating non-reportable transactions. “This regulation will be another step towards more transparency and the guarantee of standard due process [to the parties],” said Carvalho. “This regulation will be another step towards more transparency and the guarantee of standard due process” 78 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS III. Digital & Data | US | Regulatory Approach Federal judge expresses skepticism of FTC’s authority over data breaches US District Judge Rosemary M. Collyer of the US District Court for the District of Columbia said that she was “very pessimistic” that the US Federal Trade Commission could keep up with the flood of data breach attacks that is occurring and said the agency was “really stretching” its unfairness authority to claim jurisdiction over such breaches. Her comments came at the conclusion of a mock hearing in which the FTC was seeking to find a company in contempt stemming from its failure to protect sensitive consumer data, which had been hacked repeatedly. Though Collyer said she would “punt” the mock trial to the appeals court to let that court decide the issue, she went on to opine that there was a “serious question” involving the FTC’s jurisdiction. The FTC has long claimed that under Section 5 of the FTC Act, it has authority to pursue “unfair” acts that it defines as including a failure by companies to safeguard sensitive consumer information. “I think it’s really stretching it,” Collyer said of its use of unfairness authority in this context. She noted that the FTC had filled this space “for a long time,” but added that it was “very hard” to protect privacy against hackers in Russia and China. Despite her personal skepticism, Collyer said she knew that administrative law worked in favor of federal agencies so that she predicted that the FTC would ultimately prevail in challenges to its authority. “I think it’s really stretching it” 79 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS III. Digital & Data | US | Regulatory Approach Action under online-shopper law to ‘grow,’ say enforcers Companies that sell products or services on the Internet need to be aware of the new Restore Online Shopper’s Confidence Act, whose emergence as an enforcement tool has been one of the 2014 enforcement highlights. “I’ve been talking to a lot of businesses in the last year, telling them to watch out for ROSCA. This is an important thing to be aware of,” said Lesley Fair, senior attorney with the US Federal Trade Commission’s Bureau of Consumer Protection. The FTC has now brought four enforcement actions using ROSCA, which became law in 2011. The law was applied, for example, by the FTC and the attorneys general of Illinois and Ohio in a joint $22 million settlement in November with FreeScore360.com and other websites that allegedly lured consumers with promises of “free” credit reports, which actually cost $29.95 a month. ROSCA prohibits so-called “negative options,” in which consumers that make an initial online purchase cannot be automatically charged for other online goods or services without their express consent. In the past, the FTC might have alleged an “unfair” or “deceptive” business practice under Section 5 of the FTC Act, but ROSCA gives the agency an enforcement tool with prohibitions of specific behavior. The FreeScore360.com settlement was one of a number of joint federal-state consumer protection settlements that Richard Lawson, director of the Consumer Protection Division of the Florida Office of the Attorney General, said marked a growing trend of federal-state enforcement work. “I can only imagine this is going to grow, that we’re going to do more of this,” said Lawson. He said having both federal and state enforcers sitting across a negotiation table from a defendant “has a very persuasive effect” in settlement talks. He and Fair stressed they were speaking in their personal capacities and not on behalf of their agencies. “I’ve been talking to a lot of businesses in the last year, telling them to watch out for ROSCA” 80 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS III. Digital & Data | US | Regulatory Approach Digital advertisers need to consider disclosures for ‘ordinary consumer’ Digital advertisers who rely on social media and mobile devices to drive their advertising must continue to incorporate ad disclosures that consider consumers less familiar with online and mobile technology, an official with the US Federal Trade Commission said. Regulators will not allow online or mobile ad disclosures that are exclusively geared to the expectations of younger, more technically savvy people, said Richard Cleland, assistant director of the FTC’s Division of Advertising Practices. Rather, consumer disclosures in digital ads must be based on the FTC’s long-standing standard that disclosures are clear from the “perspective of a consumer acting reasonably” in the marketplace, the FTC said in a policy statement it made in 1983. “The reasonable consumer is the ordinary consumers who are out there, and there are a lot of people who aren’t technically savvy and they use the same things we use,” Cleland said. “They don’t always get all this.” That means digital advertisers are going to have to design their advertising with older, less technology savvy consumers in mind “until this millennial generation becomes the ordinary consumer in the marketplace,” Cleland said. “There are a lot of people who aren’t technically savvy” 81 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS III. Digital & Data | US | Regulatory Approach FTC to issue more guidance on native advertising, Rich says The US Federal Trade Commission will issue additional guidance on native advertising later this year, a senior agency official said Friday. “In the coming year, we are going to be giving some guidance and possibly a report on native advertising,” said Jessica Rich, the director of the FTC’s Bureau of Consumer Protection. “We are seeing different forms of native advertising. We are seeing more and more difficulties in distinguishing content from advertising.” Native advertising refers to the situation where content sponsored by a particular company or entity may appear to be editorially neutral news or entertainment content. “We just think the explosion of opportunities for native advertising, both on mobile devices and the Internet, etcetera, and the expansion of that makes it timely for us to provide guidance in this area,” Rich said. “We did a workshop last year on native advertising that provided us with a lot of information to work from.” “We are seeing more and more difficulties in distinguishing content from advertising” 82 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS III. Digital & Data | US | Regulatory Approach Growth in national data-localization rules a ‘pernicious’ trend, US trade official says An official with the US Trade Representative on Wednesday called a growing trend of nations requiring data about their citizens to be physically stored within that country a “pernicious” development, and singled out China as a country whose new laws have US officials particularly concerned. “We see data localization as extremely pernicious and something that is very much on our radar screen,” said Christine J. Bliss, assistant USTR for Services and Investment. Bliss said the USTR is tracking the trend, and has found there are now at least 24 countries that maintain some kind of requirement that data be stored or processed on servers within that country, “and they are growing.” Bliss and other members of a panel on data localization agreed that one country of concern is Russia, which has a law due to take effect Sept. 1 that will require that all personal data gathered or processed about Russian nationals be stored on servers that are physically located within that country. Other countries, ranging from Indonesia to Nigeria are — for economic development, national security, privacy or other reasons — also slapping restrictions on where data can be stored and processed, or limiting how it can be transferred across international boundaries. At least 24 countries maintain some kind of requirement that data be stored or processed on servers within that country 83 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS IV. Corruption & Compliance Judgment against Siemens executive over compliance failure triggers broader concerns The judgment against a former top Siemens executive, found liable for compliance failings at the firm, has raised concerns at German companies about the risks for management related to cartel cases. Heinz-Joachim Neubuerger, the former chief financial officer at Siemens, reportedly committed suicide. Neubuerger left the company in 2006 after a corruption scandal that involved bribes paid in Iraq, Venezuela, Bangladesh, Russia and other countries. In 2008, the German engineering company pleaded guilty in the US to violating the Foreign Corrupt Practices Act, and agreed to pay a total of $1.6 billion in penalties to US and German authorities. Siemens subsequently brought a damages suit against Neubuerger and in 2013 won a 15 million euro judgment against him. The judgment said that executives have a duty to establish and effectively monitor a proper internal compliance program, said Hans-Jörg Niemeyer, a partner with Hengeler Mueller. The judgment could have greater implications, such as for price-fixing or bid-rigging violations, he said. “This judgment in Germany has made top management extremely nervous, also in cartel cases,” Niemeyer said. The judgment could have greater implications, such as for price-fixing or bid-rigging violations 84 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS IV. Corruption & Compliance Reckitt Benckiser moves to ‘prevention’ model of compliance Smart technology has allowed UK-based consumer goods company Reckitt Benckiser to move from a “cure”-focused compliance program to one that prevents problems, the company’s general counsel said Wednesday, describing a company compliance program that has drawn plaudits. Apps that give business staff more control in contracting — a time-consuming task for legal departments — have let the company automate much of its contracting, Claire Debney said. “We’re definitely moving to prevention, where I’m spending the last 30 years doing cure,” Debney said. The company’s program, known as i-legal, is aimed at integrating compliance more thoroughly in the business and has drawn notice from business press that have commented on its innovative qualities. The program includes an app that provides business users with templates for contracts and a few red-flag questions — such as “is the other side related to you? Is it a public official” — that if not triggered let business staff complete a contract without involvement from the legal department, Debney said. The company uses the program in its Slough, England, headquarters and intends to deploy the program globally over the next two years, she said. i-legal is aimed at integrating compliance more thoroughly in the business 85 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS 86 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS FIRST TO UNCOVER REGULATORY RISK MLex is an independent media organization providing exclusive market insight, analysis and commentary on regulatory risk. Our customers, the world’s leading law firms, corporations, advisory firms and regulators, rely on our reporting to ensure they are well positioned to take advantage of the opportunities posed by regulatory change as well as to mitigate the risks. We have a track record of uncovering regulatory risk before it breaks in other news outlets. Offering up-to-the-minute coverage of regulatory threats and opportunities from the perspectives of M&A, antitrust and trade defense, as well as data privacy and security, we also specialize in sector-specific regulation across TMT, energy and financial services. MLex’s coverage spans the world’s foremost regulators in the US, Europe, Asia and Latin America. All of your strategic regulatory information on one platform: • Incisive commentary and predictive analysis • Tailored email alerts • A fully searchable database of legislative case files • View proposals and enforcement actions • Personalized interface To find out more, please visit www.mlexmarketinsight.com or contact [email protected] 87 | A n t i t ru s t L aw S p r i n g M e e t i n g 2015 RETURN TO CONTENTS