Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Wednesday, May 12, 2010

Global Antitrust Enforcement & Compliance Summit

Posted by D. Daniel Sokol

Global Antitrust Enforcement & Compliance Summit

An Advanced Forum to Address Increased International Agency Cooperation & Current Compliance Challenges Facing Antitrust Counsel

Tuesday, July 20 to Wednesday, July 21, 2010
Westin Washington, Washington, DC, United States

Never Before Has There Been Such a Convergence of Antitrust Enforcement Activity Around the Globe

Antitrust practitioners all around the world are watching how Joaquín Alumnia will develop the European Commission’s competition agenda as the new Commissioner for Competition, particularly given the Commission’s recent (and sometimes divergent) enforcement activity in the area of merger review. In the United States, the Federal Trade Commission under Chairman Jon Leibowitz continues to focus on key areas of antitrust enforcement, particularly within the pharmaceutical and technology industries. U.S. Attorney General Eric Holder has called for stepped-up antitrust enforcement of the agriculture industry. In China, antitrust practitioners are still struggling to determine how implementation of the 2008 Anti-Monopoly Law will take shape. Meanwhile, those concerned with criminal antitrust enforcement activity are keeping an eye fixed on Brazil and Canada, both of which have turned their attention to greater criminal punishments for price fixing violations.

Increased information sharing, international agency cooperation, and multi-jurisdictional antitrust investigations have made structuring an international antitrust compliance program a nearly impossible task.

Given recent international antitrust enforcement trends, staying abreast of foreign regulation in this area has become an increasinglyimportant priority for U.S.-based antitrust and compliance counsel. In direct response to your requests, American Conference Institutehas developed the Global Antitrust Enforcement & Compliance Summit to provide you with practical compliance strategies for tackling these challenges while still maintaining your company’s global business operations.

Don’t make the mistake of disregarding (or leaving it up to your foreign counsel to monitor) international developments in competition law. Learn to assess the scope of your company’s exposure to foreign antitrust enforcement while learning what you can do to proactively prevent government inquiries.

Hear directly from the Federal Trade Commission, U.S. Department of Justice, Ministry of Justice of Brazil and the Competition Commission of Canada, as they provide you with firsthand information regarding what their respective agencies are turning their attention in terms of both civil and criminal antitrust enforcement

Reserve your space now by calling 888-224-2480, faxing your registration to 877-927-1563, or registering online at www.AmericanConference.com/Antitrust.

Tuesday, July 20, 2010

8:00 Registration Begins & Morning Coffee

9:00 Co-Chairs’ Opening Remarks

Deborah A. Garza
Co-Chair, Antitrust and Consumer Law Practice Group
Covington & Burling LLP (Washington, DC)

Trevor Soames
Co-Chair, Worldwide Antitrust Practice Group Managing Partner,
Brussels Office, Howrey LLP (Brussels, Belgium)

9:15 FTC Keynote Address: Expansion of Antitrust Enforcement under Section 5 of the FTC Act

Richard Feinstein
Director
Bureau of Competition Federal Trade Commission (Washington, DC)

9:45 Focus on China - Responding to Increased Merger and Market Dominance Scrutiny & How China’s Anti-Monopoly Law Affects your Business

Lester Ross
Co-Managing Partner,
Beijing Office
Wilmer Hale LLP (Beijing, China)

Xiaolin Zhou
Managing Partner, New York Office
Jun He Law Offices (New York, NY)

  • Assessing the significance of the anti-monopoly law in China on your Chinese acquisitions and operations strategy
    • analyzing what may constitute
      • “abuse of intellectual property”
      • “market abuse position”:
      • how is market position determined
      • monopoly agreement
    • complying with pre-concentration notification obligations
  • What may trigger enforcement by MOFCOM under the new AML
  • What are the powers of the Anti-Monopoly Law Enforcement Authority?
  • Identifying current enforcement theories and priorities of Chinese antitrust regulators – liabilities for companies and individuals under China’s AML
  • Understanding the Chinese mindset and cultural differences to improve your global competition policy
  • Evaluating the implications of recent decisions in abuse of dominance and merger cases
    • failed/pending mergers:
      • Tengzhong-General Motors’ Hummer brand
      • Sina Corp-Focus Media
      • Coca-Cola-Huiyuan Juice
    • cleared mergers:
      • Panasonic-Sanyo
      • General Motors-Delphi Corp
      • InBev-Anheuser
      • Mitsubishi Rayon - Lucite international
    • other recent cases

10:45 Coffee Break

11:00 Structuring, Implementing and Monitoring a Global Antitrust Compliance Program Policy

Henry Thaggert
Senior Counsel
Northrop Grumman Corporation (Arlington, VA

Stephen Donovan
Chief Counsel,
International Compliance International Paper Company (Memphis, TN)

Darren A. Bowie
Legal Director,
North AmericaNokia Inc. (White Plains, NY)

Martha Rees
Vice President & Assistant General Counsel
DuPont Company (Wilmington, DE)

Moderator: Trevor Soames
Co-Chair, Worldwide Antitrust Practice Group Managing Partner,
Brussels OfficeHowrey LLP (Brussels, Belgium)

  • Managing the paper trail – establishing guidelines within the company regarding what should – and should not be – put in writing
  • Lessons learned from internal investigations that should be incorporated into your global compliance program
  • Structuring an effective global compliance program that will not drain your company’s budget
  • Ensuring your staff knows what to do when the government shows up – who to call immediately, what to do and not do
  • Processes, procedures and training
    • establishing timelines for revisiting -and auditing compliance
    • obtaining management buy-in and support -of your compliance program
    • managing world-wide business practices – tackling -cultural and generational issues that may present challenges for compliance

12:15 Focus on Japan - Overview of Current Antitrust Enforcement Initiatives & Key Regulations in Japan

Hideto Ishida
Partner
Anderson Mori & Tomotsune (Tokyo, Japan)

  • Understanding the implications of recent changes to Japan’s Anti-Monopoly Law addressing
  • increased monetary fines and criminal sanctions -for collusive market conduct
  • longer statute of limitations for cartel conduct -and bid-rigging
  • exclusion type of monopolization
  • introduction of prior notification for share acquisition

12:45 Networking Luncheon for Attendees and Speakers

2:00 International Cartel Enforcement: What Triggers Investigations in the US, Canada and Brazil

Lisa M. Phelan
Chief, National Criminal Enforcement
U.S. Department of Justice, Antitrust Division (Washington, DC)

Randal T. Hughes
Leader, National Competition/Antitrust Law Group
McCarthy Tétrault LLP (Toronto, Ontario)

Mariana Tavares de Araujo
Secretary of Economic Law
Ministry of Justice of Brazil (Brasília, Brazil)

Moderator:
J. Brady Dugan

Partner
Akin Gump Strauss Hauer & Feld LLP (Washington, DC)

  • Discussion of how leniency is obtained in different jurisdictions
  • Examining the increased coordination among enforcers in investigating and prosecuting cartels
  • Update on US DOJ’s criminal cartel enforcement activities
    • how international cartel investigations and foreign -defendants prosecutions are conducted
    • The Antitrust Division Recovery
  • Update on recent changes to the Canadian Competition Act
    • Competitor Collaboration Guidelines -(final published in December 2009)
    • Enforcement Guidelines on the Abuse of Dominance -Provisions (draft updated January 2009)
    • changes to the regulations governing resale price -maintenance and cartel provisions
  • Update on the current status of criminal cartel enforcement in Brazil
      • the roles of SDE and CADE in cartel enforcement
      • increased use of dawn raids
    • Analysis of recent trends in international enforcement
      • implications of the Ian Norris extradition
      • for international enforcement discussion of the growing number of jurisdictions criminalizing cartel offenses
      • best practices for avoiding enforcement

3:00 Ensuring International Merger Clearance: Structuring and Coordinating Cross-Border Mergers & Reviews

Deborah A. Garza
Co-Chair, Antitrust and Consumer Law Practice Group
Covington & Burling LLP (Washington, DC)

Mark Clough QC
Head, Competition Practice, London Office
Addleshaw Goddard LLP (London, UK)

  • Critical factors to concider when seeking merger clearance internationally
    • knowing where to (and where not to) file
      • jurisdiction tests
      • filing fees and non-filing fines
      • impact on deal structure, including closing date and conditions precedent
      • impact on deal timetable (filing procedures, first and second phase clearance time limits, commitments and divestment, appeals)
  • Determining who has the burden of proving that the proposed merger is pro-competitive
  • Case management (the core merger fling submission, local lawyers, local markets - customers and regulators, preparing the local filing)
  • Regional differences (watch for JVs in the EU, the EU one stop shop or 27 national filings, US second requests, language and translations)
  • Substantive issues (impact of different tests - SLC, SIEC, unilateral, co-ordinated, conglomerate and vertical effects)
  • Third party complaints and information requests- US/EU co-operation and convergenceEvaluating emerging theories addressing unilateral conduct by dominant fi rms in the context of M&A transactionsExamining the increased and strategic use of defense mergers
  • Evaluating perceived threats to competition in horizontal vs. vertical mergers
  • Responding to acquisition activity by a competitor
  • Contrasting U.S. with overseas merger enforcement activity
    • Oracle-Sun
    • Cisco-Tandberg
    • Pfizer-Wyeth & Merck-Schering-Plough
    • lessons learned from other recent cases
      • Microsoft
      • Qualcomm

4:00 Afternoon Refreshment Break

4:15 Responding to Multi-Jurisdictional Government Investigations & Agency Cooperation

Elizabeth Kraus
Deputy Director for International Antitrust
Federal Trade Commission (Washington, DC)

Robbert Snelders
Partner
Cleary Gottlieb Steen & Hamilton LLP (Brussels, Belgium)

  • Steps to take immediately if your company is raided by the government
  • Understanding how international authorities cooperate and collaborate on cases
    • transfer and sharing of information
    • varying rules on confidentiality and attorney-client privilege
      • understanding how the EU treats privilege for in-house counsel
    • managing conflict of laws and comity issues when faced with government investigation in multiple jurisdictions
    • examining sources of tension and areas of cooperation -between US and foreign regulators
  • Coordinating a response when faced with simultaneous multi-jurisdictional investigations
    • implementing the best strategy to deal with multiple investigations
    • knowing what law governs and when
    • managing conflicting requirements of national and foreign agencies
  • Meeting the demands of law enforcers working beyond their national reach
  • Communicating with government authorities: balancing cooperation with maintain an effective defense
  • Trends in international cooperation among enforcement officials
  • Analysis of recent multi-jurisdictional cases against companies and individuals

5:15 Conference Adjourns to Day Two

Wednesday, July 21, 2010

8:15 Continental Breakfast

9:00 Co-Chairs’ Remarks

9:15 Vertical Restraints: Preventing Resale Price Maintenance, Distribution, and Other Pricing Arrangements That May Raise Global Antitrust Scrutiny

Alice Detwiler
Senior Attorney, Antitrust
Microsoft Corporation (Redmond, WA)

Elaine Foreman
Director, Antitrust and Worldwide Channel Sales
Cisco Systems (San Jose, CA)

Jonathan Jacobson
Partner
Wilson Sonsini Goodrich & Rosati (New York, NY)

Moderator: Robert Rosenfeld
Chair, Antitrust and Competition Group
Orrick, Herrington & Sutcliffe LLP (San Francisco, CA)

  • Addressing pricing in international distribution agreements
  • how to establish pricing arrangements that will withstand antitrust scrutiny in various jurisdictions
  • Contrasting European acceptable pricing practices with what is permissible in the US
  • analyzing differences in the EU approach to Microsoft
  • applying Article 83 of the EC Treaty
  • Offering refunds/rebates to customers that may be construed to squeeze competitors out of the marketarguments for an against loyalty discounts
  • Avoiding triggers for resale price maintenance concerns and potential claims relating to vertical restraints
  • Understanding what types of practices can be considered predatory
  • what current activities can be considered abuse of dominance
  • price drops and what needs to be established to show predatory practices
  • Structuring pricing for combination products
  • Overcoming antitrust challenges raised by exclusive dealing, tying and bundling
  • Evaluating developments in recent caselaw concerning pricing
  • Pacific Bell Telephone Co. v. Linkline Communications - antitrust duty to deal and price squeezing
  • Resale price maintenance, -Leegin, and the Leegin repealer statutes

10:30 Morning Coffee Break

10:45 Antitrust Internal Investigations: Conducting Reasonable and Responsible Investigations of Suspected Violations AND What to Do With the Information That Is Discovered

Christoph Leibenath
European Counsel
Nestlé SA (Paudex, Switzerland)

Howard Bergman
Assistant General Counsel
3M Company (Saint Paul, MN)

Jonas Koponen
Partner, Competition/Antitrust
Linklaters LLP (Brussels, Belgium)

  • Assessing the potential antitrust risk and defining the scope of the investigation appropriately
  • Coordinating the investigation between in-house and outside counsel
    • unique issues surrounding attorney-client privilege -when conducting internal investigations in Europe
  • How to conduct internal investigations cost-effectively
  • Maximizing credibility to the government
  • Deciding whether you’ve investigated “enough”
    • how much is enough?
  • Whether and how to prepare a report of investigation
    • what to do with the findings
    • what should, should not go in writing

12:00 Focus on Germany - Overview of Current Antitrust Enforcement Initiatives & Key Regulations in Germany

Christina Hummer
Partner,
Saxinger Chalupsky & Partners (Brussels, Belgium)

  • Overview of sectors subject to ongoing investigations by the German Federal Cartel Office
  • Current developments in merger control, abuse of dominance and private litigation
  • Potential future changes in the fining policy of the German Federal Cartel Office

12:30 Networking Lunceon

1:45 Emerging Trends in Private Antitrust Litigation in the U.S. and Europe: Evaluating the Evolution of Pleading Standards and Class Action Litigation

Gail Levine
Assistant General Counsel
Verizon Communications Inc. (Washington, DC)

Aaron Panner
Partner
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. (Washington, DC)

  • How have Twombly and Iqbal been applied by district courts in antitrust cases – a check of the scoreboard
    • Are patterns emerging?
    • Is success a matter of luck-of-the-draw?
  • Comparing motion-to-dismiss practice pre-Twombly and post-Twombly
  • Twombly and Iqbal in the courts of appeals – are the circuits diverging?
  • How can a plaintiff satisfy the new pleading standards?
  • What are the pitfalls for defendants?

Europe

Rino Caiazzo
Partner
Ughi e Nunziante – Studio Legale (Rome, Italy)

  • Examining current global trends in private antitrust class action litigation and enforcement in Europe
  • Europe: approach of main Member States and common issues
  • European Commission White Paper harmonization scope: proposals
  • Update on the private antitrust litigation in
    • Italy – effective January 2010 Italian consumers can bring class actions to recover damages caused by anti-competitive and unfair commercial practices
    • Other main European countries

3:00 Afternoon Refreshment Break

3:15 Focus on India - Current Antitrust Enforcement Initiatives & Key Regulations in India

Anand Pathak
Partner-in-Charge
P&A Law Offices (New Delhi, India)

  • Applicability of the India Competition Act’s substantive provisions on
    • the conduct and behaviour of companies
    • mergers and acquisitions
  • Analyzing pitfalls for the unwary under the competition laws governing the prohibition of cartels, abuse of dominant position and merger control
  • Update on the current enforcement practices of the Competition Commission of India
  • Discussion of issues created by the regulatory framework for foreign investment in India

3:45 How IP Triggers Global Antitrust Scrutiny: Lessons Learned from Recent Patent Misuse and Standard Setting Cases

Richard S. Taffet
Partner
Bingham McCutchen LLP (New York, NY)

Thomas Lavelle
Vice President & General Counsel
Rambus (Los Altos, CA)

  • Weighing the pros and cons of compulsory license agreements
  • Evaluating IP licensing royalty rates
    • identifying acceptable ranges and triggers for antitrust scrutiny
    • licensee improvements and the impact on royalty payments
  • Studying emerging theories in abuse of market power cases, particularly in the context of IP licensing transactions
  • Mapping out terms of use and licensing restrictions that will not raise antitrust concerns
  • Cross-licensing between and among competitors – understanding what the antitrust implications are
  • Determining what types of license terms are problematic
  • Defining what may constitute exclusionary conduct
  • Contemplating whether there is a duty to license intellectual property
  • Addressing when innovation may be considered predatory
  • Understanding when product innovation leads to product-hopping
  • Lessons learned from recent antitrust cases involving royalty rates and standard setting
    • Rambus
    • Qualcomm

4:45 Conference Concludes

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