Antitrust & Competition Policy Blog

Wilmer Cutler Pickering Hale and Dorr Antitrust

The following from Professor Robert Cooter:

Announcing new papers in the Wilmer Cutler Pickering Hale and Dorr Antitrust
Series, part of the bepress Legal Repository found at
http://law.bepress.com/repository

PUBLISHER: The Berkeley Electronic Press

This email contains a table of contents, followed by abstracts and some general
information.

TABLE OF CONTENTS:
Claus-Dieter Ehlermann and Axel Gutermuth "Unilateral Effects: The Enforcement
Act under the Old EC Merger Regulation".
http://law.bepress.com/wilmer/papers/art61

Lester Ross and Kenneth Zhou "Trading and Distribution in China".
http://law.bepress.com/wilmer/papers/art60

William Kolasky "Mario Monti's Legacy: A U.S. Perspective".
http://law.bepress.com/wilmer/papers/art59

Sven Völcker "'Start-Up Aid' for Low Cost Carriers-- A Policy Perspective".
http://law.bepress.com/wilmer/papers/art58

Mark Heller, Hollie Baker, Robert Barry, James Burling, and Suyong Kim "Pharma
Bulletin - Spring 2005".
http://law.bepress.com/wilmer/papers/art57

Christian Duvernoy and Sven Völcker "Oracle in Brussels".
http://law.bepress.com/wilmer/papers/art56

Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim,
Douglas Melamed, and William Kolasky "Schering-Plough Corp. v. Federal Trade
Commission: Eleventh Circuit Rejects the FTC's Position on 'Reverse Payments'
in Patent Suit Settlements".
http://law.bepress.com/wilmer/papers/art55

Antonio Capobianco and Stefano Fratta "Antitrust Enforcement: Four New
Investigations Opened by the AGCM in the First Months of 2005".
http://law.bepress.com/wilmer/papers/art54

Axel Desmedt and Pablo Charro "Spanish Competition Tribunal Rejects Price
Squeeze Allegations in Relation to Mobile VPN Services".
http://law.bepress.com/wilmer/papers/art53

Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim,
Douglas Melamed, William Kolasky, and Janet Durholz Ridge "Antitrust and
Competition Law Update".
http://law.bepress.com/wilmer/papers/art52



ABSTRACTS:

Claus-Dieter Ehlermann and Axel Gutermuth, "Unilateral Effects: The Enforcement
Act under the Old EC Merger Regulation" (June 1, 2005). Wilmer Cutler Pickering
Hale and Dorr Antitrust Series. Working Paper 61.
http://law.bepress.com/wilmer/papers/art61

ABSTRACT:
The reform of the EC Merger Regulation was preceded by an animated debate about
whether the traditional "dominance" test allowed the Commission to challenge
mergers that did not lead to single firm or collective dominance in the
traditional sense, but nevertheless may have reduced competition to the
detriment of consumers. The authors submit that the dominance test failed to
reach such situations of "unilateral" or "non-coordinated" effects. The old
Merger Regulation therefore suffered from a potential "enforcement gap" that
was closed only by the legislative change to the "significant impediment of
effective competition" test. National jurisdictions still using variants of the
dominance test may want to consider this aspect in their legislative reform
plans.


Lester Ross and Kenneth Zhou, "Trading and Distribution in China" (April 20,
2005). Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper
60.
http://law.bepress.com/wilmer/papers/art60

ABSTRACT:
Trading and distribution rights were major issues in the negotiation of China's
entry to the World Trade Organisation, a process which took 14 years before
concluding in late 2001. Trading rights, i.e. the right to import and export
goods, had historically been mainly restricted to a small number of largely
sector-specific state-owned monopoly trading enterprises. Trading rights were
modestly liberalised in the years preceding China's entry, but generally
remained tightly restricted.


William Kolasky, "Mario Monti's Legacy: A U.S. Perspective" (April 12, 2005).
Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper 59.
http://law.bepress.com/wilmer/papers/art59

ABSTRACT:
The departure of Commissioner Mario Monti from his post as the EC Commissioner
for competition policy provides a good opportunity to reflect upon the
achievements and perceived failures of the European Commission in the field of
antitrust law over the past five years. This paper attempts to do so on the
basis of six core principles of sound competition policy. Under the first
principle, it is undisputable that the Commission under Commissioner Monti's
leadership has been at the forefront of the international efforts undertaken in
the fight against cartels. Second, despite some weaknesses in areas such as
conglomerate mergers or in its approach to the Microsoft case, the Commission's
focus now appears to be in the protection of competition, not competitors.
Third, after a string of annulments of Commission merger decisions by the EC
judiciary, the Commission has made substantial progress toward assuring that
its decisions are based on sound economics and hard evidence (including
consideration of efficiencies). Fourth, recent Commission policy confirms that
the Commission is ready to limit intervention to those cases that really cause
harm to the competition process. Fifth, despite some concerns arising from the
reform of the merger review process, the Commission is working hard to ensure
that competition laws do not become bureaucratic roadblocks to efficient
transactions. Sixth, Commissioner Monti has been instrumental in promoting
international initiatives designed to promote a better understanding of
competition policy.


Sven Völcker, "'Start-Up Aid' for Low Cost Carriers-- A Policy Perspective"
(April 12, 2005). Wilmer Cutler Pickering Hale and Dorr Antitrust Series.
Working Paper 58.
http://law.bepress.com/wilmer/papers/art58

ABSTRACT:
On 7 February 2005, the European Commission published draft "Community
guidelines on the financing of airports and start-up aid to airlines departing
from regional airports" for consultation. This article focuses on the Draft
Guidelines' statements on "start-up aid," which seek to integrate the
Commission's statements in last year's Charleroi decision into a consistent
state aid policy framework. It is submitted here that such an attempt is highly
problematic, given the absence of a coherent and objective justification for
start-up aid in its proposed form. The Commission should not depart from its
long-standing hostility to operating aid for reasons of perceived political
expediency. At the very least, the Commission should limit the distortive
effects of such aid to the greatest possible extent, in particular by limiting
it to routes to and from truly regional airports.


Mark Heller, Hollie Baker, Robert Barry, James Burling, and Suyong Kim, "Pharma
Bulletin - Spring 2005" (April 1, 2005). Wilmer Cutler Pickering Hale and Dorr
Antitrust Series. Working Paper 57.
http://law.bepress.com/wilmer/papers/art57

ABSTRACT:
FDA to Create Drug Safety Board In February 2005, the Food and Drug
Administration (FDA) announced that it will create a new independent Drug
Safety Oversight Board (DSB) to oversee the management of drug safety issues
within the Center for Drug Evaluation and Research (CDER). The FDA Commissioner
will appoint individuals from the FDA and medical experts from other Health and
Human Services agencies and government departments to the DSB, which also will
consult with other medical experts and patient and consumer group
representatives. Additionally, the FDA is proposing a new "Drug Watch" web page
for emerging data and risk information, and anticipates an increased use of
information sheets written for healthcare professionals and patients. Because
of the potential concerns associated with disseminating emerging information
prior to regulatory action, the agency has stated it will solicit public input.
The FDA will issue draft guidance on procedures and criteria for identifying
drugs and information for the Drug Watch web page.


Christian Duvernoy and Sven Völcker, "Oracle in Brussels" (March 31, 2005).
Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper 56.
http://law.bepress.com/wilmer/papers/art56

ABSTRACT:
It was hands across the water when both a U.S. district court and the European
Commission cleared the $10.3 billion merger of Oracle and PeopleSoft. The
Department of Justice, which had opposed the deal, had decided not to appeal
its defeat in the San Francisco court, and it is thought that the Commission
took this as a sign that U.S. regulators would not take it amiss if their
European counterparts also let the merger proceed. In any event, there was none
of the resentment and outrage that bubbled over not so long ago when U.S.
antitrust authorities approved the GE/Honeywell deal and their European
counterparts killed it. With Oracle/PeopleSoft, convergence was the word of the
day. But a close look at the U.S. court decision and the European regulatory
ruling in late 2004 reveals how often the San Francisco judge and the Brussels
authorities took dramatically different approaches to important components of
their decisions. Two lawyers representing Oracle before the European
Commission, Wilmer Cutler Pickering Hale and Dorr 's Sven Völcker and Christian
Duvernoy of the firm's Brussels office, identify no fewer than six key issues on
which the American court and the European Commission took diametrically opposed
positions. Fielding a team led by former Director-General of DG Competition at
the European Commission, Claus-Dieter Ehlermann, Wilmer was EU antitrust
co-counsel to Oracle together with long-standing European antitrust2004 when
the bidder announced that it had at last gained control of its target. Oracle
CEO Lawrence Ellison had been reviewing strategic acquisitions for some time
and PeopleSoft had been on his list of candidates. Larry Ellison has said
publicly that software is due for consolidation and he clearly wanted to be a
survivor.


Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim,
Douglas Melamed, and William Kolasky, "Schering-Plough Corp. v. Federal Trade
Commission: Eleventh Circuit Rejects the FTC's Position on 'Reverse Payments'
in Patent Suit Settlements" (March 22, 2005). Wilmer Cutler Pickering Hale and
Dorr Antitrust Series. Working Paper 55.
http://law.bepress.com/wilmer/papers/art55

ABSTRACT:
In recent years, the Federal Trade Commission ("FTC" or the "Commission") has
investigated several settlement agreements between pioneer and generic drug
manufacturers involving "reverse payments." In the view of the FTC, reverse
payments are cash that a pioneer drug manufacturer pays to a generic
manufacturer who has challenged the patent(s) protecting the pioneer drug, in
exchange for the generic manufacturer's agreement to delay market entry. Such
payments sometimes occur in the settlement of patent infringement actions. The
Commission has been extremely skeptical of reverse payments, viewing them as
objective indicia of intent to illegally share monopoly profits that the
delayed generic entry perpetuates. It has successfully challenged settlement
agreements that included reverse payments involving the market entry of generic
Cardizem (hypertension treatment) and generic Hytrin (hypertension and angina
treatment).


Antonio Capobianco and Stefano Fratta, "Antitrust Enforcement: Four New
Investigations Opened by the AGCM in the First Months of 2005" (March 22,
2005). Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper
54.
http://law.bepress.com/wilmer/papers/art54

ABSTRACT:
The first three months of this year have witnessed extensive enforcement
activity by Italy's Autorità Garante per la Concorrenza ed il Mercato ("AGCM").
In the closing 90 days of the chairmanship of Professor Tesauro, former Advocate
General at the European Court of Justice, the AGCM initiated a number of
investigations for infringement of EC competition rules in various key markets:
natural gas, telecommunication services, pharmaceuticals and postal services.
The cases reported below are of particular interest since they are the first
examples of enforcement of EC competition rules by the AGCM in the new
"modernised" system of European enforcement.


Axel Desmedt and Pablo Charro, "Spanish Competition Tribunal Rejects Price
Squeeze Allegations in Relation to Mobile VPN Services" (March 20, 2005).
Wilmer Cutler Pickering Hale and Dorr Antitrust Series. Working Paper 53.
http://law.bepress.com/wilmer/papers/art53

ABSTRACT:
On December 20 and 22, the Spanish Competition Tribunal (Tribunal de Defensa de
la Competencia, or TDC) dismissed three actions that were brought by Uni2 and
WorldCom (both alternative fixed operators) against the three Spanish mobile
operators (Telefonica Moviles, Vodafone, and Amena) for abuse of a dominant
position. The complaints alleged that the three mobile operators applied a
price squeeze on the corporate market segment and discriminatory pricing
practices as regards mobile termination services. In particular, according to
Uni2 and WorldCom, during the period of 2000-2002, the three Spanish mobile
operators offered retail services to corporate clients (including pricing terms
for fixed-to-mobile calls) that were lower that the wholesale call termination
prices imposed on other telecommunications operators, and in particular fixed
telecommunications operators. The factual issues in the three cases brought
before the TDC against Telefonica Moviles, Vodafone, and Amena are slightly
different, but the legal conclusions are essentially the same.


Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim,
Douglas Melamed, William Kolasky, and Janet Durholz Ridge, "Antitrust and
Competition Law Update" (March 14, 2005). Wilmer Cutler Pickering Hale and Dorr
Antitrust Series. Working Paper 52.
http://law.bepress.com/wilmer/papers/art52

ABSTRACT:
The US Federal Trade Commission(FTC) has announced sweeping changes to the
Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those
governing transactions involving partnerships and LLCs, that will come into
effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to
reconciling the HSR analysis of LLCs, partnerships and other unincorporated
entities with that of corporations, the new rules will make a number of
technical adjustments and codify some informal FTC interpretations. The changes
will make some transactions reportable that have historically be exempt; this
effect will be offset to some extent by new exemptions from filing, most
notably a significant expansion of the exemption for acquisitions of voting
securities of entities whose assets would be exempt if acquired directly. We
discuss all of these changes in more detail below.



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