Antitrust & Competition Policy Blog

The European Antitrust Review 2009

Posted by D. Daniel Sokol

The Global Competition Review has released The European Antitrust Review 2009.  Contributors include:

Introduction
Philip Lowe Directorate General for Competition, European Commission

EU substantive areas

Cartels
Julian Joshua, Kristian Hugmark and Ief Daems Howrey LLP

Compliance
Kiran Desai Mayer Brown

Joint Ventures
Ted Henneberry and Douglas Lahnborg Heller Ehrman LLP

Judicial review
Javier Ruiz Calzado and Eric Barbier de La Serre Latham & Watkins LLP

Efficiencies and Remedies
Michael Rosenthal, R Hewitt Pate and Alexandros Papanikolaou Hunton & Williams LLP

Monopolies and Market Dominance
Alexander Böhlke Kemmler Rapp Böhlke

Private Antitrust Litigation
Tim Reher CMS Hasche Sigle

State Aid
Paris Anestis and Eleftheria Psaraki Howrey LLP

Vertical Agreements
Astrid Ablasser-Neuhuber and René Plank bpv Hügel Rechtsanwälte

EU–Canada Cooperation
Susan M Hutton Stikeman Elliott LLP

EU industry sectors

Chemicals
Flavia Distefano McKenna Long & Aldridge LLP

Energy
Riccardo Celli, Christian Riis-Madsen and Philippe Noguès O’Melveny & Myers LLP

Private Equity
Pierre-André Dubois and Arabella Hinton Kirkland & Ellis International LLP

Technology
Pierre-André Dubois and Arabella Hinton Kirkland & Ellis International LLP

Country chapters

Austria
Astrid Ablasser-Neuhuber and Florian Neumayr bpv Hügel Rechtsanwälte

Czech Republic
Arthur Braun and Stepan Svoboda bpv Braun Haškovcová

Denmark
Jesper Fabricius and Asser Rung-Hansen Accura

Finland
Anna Kuusniemi-Laine, Sari Hiltunen and Anne Laine Castrén & Snellman

France: Cartels
Marc Lévy and Natasha G Assadi-Tardif SJ Berwin

France: Merger Control
Antoine Choffel and Yann Utzschneider Gide Loyrette Nouel AARPI

Germany: Overview
Andreas Weitbrecht and Susanne Zühlke Latham & Watkins LLP

Germany: Cartels
Alexander Rinne and Tilman Siebert SJ Berwin

Germany: Merger Control
Martina Maier and Philipp Werner Howrey LLP

Germany: Private Antitrust Litigation
Alexander Rinne and Tatjana Mühlbach SJ Berwin

Greece
Despina D Samara Calavros & Partners

Hungary
László Kelemen and Geoff Bennett Szabó Kelemen & Partners Attorneys

Ireland
Helen Kelly Matheson Ormsby Prentice

Israel
Eytan Epstein and Tamar Dolev-Green Epstein Chomsky Osnat & Co

Italy: Cartels
Davide Balboni and Laura Matilde Cerri SJ Berwin

Italy: Telecoms and Media
Eutimio Monaco and Domenico Siciliano Bird & Bird

Latvia
Liga Hartmane and Martins Gailis Klavins & Slaidins LAWIN

Luxembourg
Philippe-Emmanuel Partsch Arendt & Medernach

Netherlands: Cartels
Esther Glerum-van Aalst, Marleen de Putter and Andre Reznitchenko Kneppelhout & Korthals

Netherlands: Merger Control
Michel Chatelin and Simone Schippers Eversheds Faasen

Norway
Henrik Svane, Camilla Tellefsdal Robstad and Marianne Elind Kvale & Co

Poland
Magorzata Modzelewska de Raad, Pola Ciupa and Joanna Kruk-Kubarska Wierzbowski Eversheds

Portugal
Mário Marques Mendes and Pedro Vilarinho Pires Marques Mendes & Associados

Romania
Silviu Stoica Popovici Nitu & Asociatii

Russia
Tapani Manninen, Kseniya Sirotenko and Elena Sokolovskaya Hannes Snellman

Spain: Overview
Juan Jiménez Laiglesia, Alfonso Ois and Gerard Pérez Olmo DLA Piper

Spain: Cartels
Ramón García-Gallardo SJ Berwin

Spain: Merger Control
Marcos Araujo, Konstantin J Jörgens and Crisanto Pérez-Abad Garrigues

Spain: Telecoms and Media
Blanca Escribano and Sofía Fontanals Bird & Bird

Switzerland
Franz Hoffet, Marcel Dietrich and Katrin Ivell Homburger

Turkey
Seçil Abali and Merve Öralay Cerrahoglu Law Firm

United Kingdom: Overview
Becket McGrath and Simon Albert Berwin Leighton Paisner LLP

United Kingdom: Cartel Regulation
Simon Holmes, Philipp Girardet and Amanda Butler SJ Berwin

United Kingdom: Private Enforcement
Lesley Farrell and Sarah Ince SJ Berwin

FTC Workshop on Hart-Scott-Rodino Premerger Notification Program

Posted by D. Daniel Sokol

The FTC will host a very worthwhile half day program on the Hart-Scott-Rodino Premerger Notification Program called "Back to the Basics."

       

When: October 23, 2008, 9:00am - 1:00pm

Where:  FTC Conference Center

  601 New Jersey Avenue, NW
  Washington, DC 20001

and via webcast

In recognition of the 30th Anniversary of the implementation of Hart-Scott-Rodino Antitrust Improvements Act, the Bureau of Competition's Premerger Notification Office will host a half-day public workshop on the basics of HSR premerger notification, covering such topics as how to determine whether premerger notification is required and how to prepare an HSR filing.  The workshop is free and open to the public.  Due to space limitations, registration is limited to practitioners with less than one year of experience with premerger notification rules and filings.  The workshop will be webcast live; check the link on this page on the day of the workshop to view.  For more information about the workshop, contact Kathryn E. Walsh at (202) 326-2977.

The workshop will be held at the FTC’s satellite building conference center, located at 601 New Jersey Avenue, N.W., Washington, D.C. All attendees will be required to display a current driver's license or other valid form of photo identification.

Whole Foods Saga Continues Before DC Circuit

Posted by D. Daniel Sokol

Below are links to Whole Foods team  motion and reply brief filed in the D.C. Circuit this week related to their petition for rehearing en banc.

Download 20081006_wfm_motion_for_leave_to_file_reply.pdf
Download 20081006_wfm_reply_on_p.pdf

Update - The WSJ Law Blog has a new twist on this story on how the appeals team transcends political boundaries.

Slotting Allowances and Manufacturers' Retail Sales Effort

Posted by D. Daniel Sokol

Oystein Foros, Norwegian School of Economics and Business Administration, Hans Jarle Kind, Norwegian School of Economics & Business Administration, and Jan Yngve Sand, University I Tromso have a new paper on Slotting Allowances and Manufacturers' Retail Sales Effort.

ABSTRACT: A manufacturer's incentives to undertake non-contractible investments depend on the profit margin on her sales to the retailer, and slotting allowances can facilitate such incentives by increasing unit wholesale prices. At first glance, it is tempting to conclude that slotting allowances should be particularly prevalent for product categories where the manufacturer's scope for undertaking non-contractible sales effort is relatively large. At odds with this, The Federal Trade Commission, among others, reports that slotting allowances are more commonly used for product categories where the scope for non-contractible effort by the manufacturer is presumably relatively small. To scrutinize this puzzle we set up a simple model with one manufacturer and one retailer, where the manufacturer undertakes noncontractible demand-enhancing investments. The predictions from the model are consistent with the market observations. In particular, we show that even a retailer with complete bargaining power may actually find it optimal to pay the manufacturer a franchising fee if demand is highly sensitive to the manufacturer's non-contractible sales effort. For product categories where the scope for non-contractible effort is relatively small, on the other hand, we are more likely to see slotting allowances.

A Flexible Approach to RAND Licensing

Posted by D. Daniel Sokol

Mikko Valimaki, Helsinki University of Technology, University of Eastern Piedmont - A. Avogadro, Swedish School of Economics and Business Administration describes A Flexible Approach to RAND Licensing.

ABSTRACT: This article discusses the meaning of reasonable and non-discriminatory (RAND) licensing terms in standards from European competition law perspective. Building on the Microsoft case, the article argues that the competition law assessment of RAND must take into account the licensing environment where the standard is used. The proposed flexible case-by-case approach to RAND would be also economically justified.

Cartel Enforcement in Australia

Posted by D. Daniel Sokol

Bob Baxt (Freehills) & Gillian McKenzie (Freehills) give us an update of Cartel Enforcement in Australia.

ABSTRACT: Historically cartel behavior in Australia has been subject to a civil penalty regime under the Trade Practices Act 1974 (“the Act”). Since the 1974 enactment of the legislation, price fixing and similar anticompetitive contracts, arrangements, or understandings have been treated as per se illegal under the Act. However, the penalties for breaching these provisions were historically quite low until 2007 when the civil penalties were increased significantly. There is now a very determined effort on the part of the new Federal Labor Government to introduce criminal sanctions against serious cartels and to bring Australia in line with the developments in the U.S., Canada and in other countries.

The relevant regulator, the Australian Competition and Consumer Commission (“ACCC”), has actively pursued stronger enforcement powers and harsher sanctions to address cartel conduct. Graeme Samuel, Chairman of the ACCC, once described cartels as a ‘cancer on our economy’, stealing ‘billions of dollars…from business, from taxpayers and ultimately from…consumers’.

This paper considers both the existing civil regime for enforcing prohibitions on cartel behavior, as well as noting certain aspects of the foreshadowed criminal sanctions.

Yom Kippur and Antitrust

Posted by D. Daniel Sokol

Sundown tonight begins Yom Kippur, the holiest day of the year in the Jewish religion.  I will not be blogging till tomorrow night as I spend this solemn 24 hour period fasting and atoning for my sins.  WARNING: This is one of the rare posts in which I do not have an antitrust or larger competition spin on a a posting.  Maybe one of my co-bloggers will post something on an antitrust topic.

As I think about deep issues and reflect back upon the past year, I try to explain to my daughters how we have a commitment to making the world a better place.  For us, this is a biblical calling.  To be sure, there are many important Jewish contributions to the world- with Nobel prize season upon us, I note that the 12 million Jews of the world have produced nearly a quarter of all Nobel Prize winners.  However, I want to focus on the contribution to making the world a better place by one of my personal Jewish heroes - comedian Mel Brooks.  Mel has made me laugh very hard with his 2000 Year Old Man skit, and with movies Blazing Saddles, Young Frankenstein and The Producers.  In this video clip he explains why he is proud to be a Jew.  I found a passage from a book in which Brooks provides us with how his Jewish heritage impacted his comedy:

Look at Jewish history. Unrelieved, lamenting would be intolerable. So, for every 10 Jews beating their breasts, God designated one to be crazy and amuse the breast-beaters. By the time I was five I knew I was that one.... You want to know where my comedy comes from? It comes from not being kissed by a girl until you're 16. It comes from the feeling that, as a Jew and as a person, you don't fit into the mainstream of American society. It comes from the realization that even though you're better and smarter, you'll never belong.

American-Jewish Filmmakers: Traditions and Trends (University of Illinois Press)

Have an easy fast and Gmar Chatima Tova.

25th PURC/World Bank International Training Program on Utility Regulation and Strategy

Posted by D. Daniel Sokol

January 12 - 23, 2009
Gainesville, Florida, USA

Utility regulators, policy-makers and infrastructure managers around the world will travel to Gainesville, Florida to participate in the University of Florida PURC/World Bank International Training Program on Utility Regulation and Strategy. They will learn problem-solving techniques and exchange ideas and experiences during an international forum for the dissemination of relevant best practices and research.

The international training program is an intensive, two-week course specifically tailored to the professional requirements of utility regulators and regulatory staff. The course is designed to enhance the economic, technical, and policy skills required for implementing policies and managing sustainable regulatory systems for infrastructure sectors.

The program is a collaborative effort between the World Bank and PURC and is offered each January and June in Gainesville, Florida. Each program encompasses more than 50 sessions that include case studies, practical exercises and panel discussions with leading experts and international faculty.

More than 1,800 utility professionals from 133 nations have participated in the course since 1997.

Apply online here.

The End or the Means? The Pursuit of Competition in Regulated Telecommunications Markets

Posted by D. Daniel Sokol

Bronwyn E. Howell, NZ Institute for the Study of Competition and Regulation Inc. and Victoria Management School, Victoria University of Wellington asks, The End or the Means? The Pursuit of Competition in Regulated Telecommunications Markets.

ABSTRACT: Economic analysis takes as its defining performance benchmark the pursuit of increases in welfare (efficiency). Competition is merely one of a variety of means of achieving the efficiency end, especially in industries where the underlying economic circumstances predispose them towards greatest efficiency when competition (in the form of many market participants) is restricted. Typically, regulatory intervention in these industries is justified by the imperative to increase efficiency. Competition law and industry-specific regulation provide two competing means of intervention whereby the pursuit of efficiency can be enhanced. The challenge is in determining how to allocate responsibility for governance of industry interaction between these two institutional forms. Whilst competition law can govern interaction in most industries, where the underlying economic conditions are sufficiently different, industry-specific regulation offers advantages. However, its weakness is the risk of capture, leading to the subjugation of the efficiency end to the pursuit of other objectives (e.g. competition - the means - as an end in itself). But if the regulatory institution could be bound in some way to pursue an efficiency objective, could the risk of capture be averted?

By exploring the attempts to prioritise the pursuit of efficiency via both competition law and industry-specific regulation in New Zealand over the past twenty years, this paper concludes that such an endeavour is unlikely to be successful in the long run. As politicians ultimately control the rules by which the regulatory responsibilities are allocated, and politicians are themselves pose a potential risk of capture for the industry-specific regulatory processes, the inability of a government prioritising efficiency objectives to bind its successors to the same objectives means that the efficiency objective is not stable. From the New Zealand experience, the outcome could be total subjugation of industry-specific regulation to direct political control and the abandonment of efficiency as a primary regulatory objective. This suggests that, imperfect though it may be, competition law overseen by a judiciary with greater independence of the political process, offers the best chance of enshrining pursuit of efficiency into the governance of industry interaction, even in industries normally the focus of industry-specific regulation.

Are “Online Markets” Real and Relevant? From Monster/Hotjobs to Google/DoubleClick

Posted by D. Daniel Sokol

Bruce Abramson, President, Informationism, Inc.; Senior Consultant, CRA International has a new piece titled Are “Online Markets” Real and Relevant? From Monster/Hotjobs to Google/DoubleClick.

ABSTRACT: This article examines two Internet merger investigations from 2001 and 2007 to answer the question of whether there is such a thing as a distinct "Internet market," and if so, how an antitrust analysis of such a market should differ from parallel analyses applied to more conventional markets. A quick comparison of two Internet advertising mergers from different stages of the Internet's existence demonstrates two things. First, as the novelty of the Internet wears off, online merger analysis looks increasingly like offline merger analysis. Second, most of the things that make online mergers interesting have little to do with competition law.