september 21, 2005 antitrust update for in-house counsel aba section of antitrust law corporate...

September 21, 2005

Antitrust Update for In-House Counsel

ABA Section of Antitrust LawCorporate Counseling Committee

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Agenda

• Washington NewsDebra J. Pearlstein

• Horizontal Restraints, Vertical Restraints and MonopolizationScott Martin

• Mergers and AcquisitionsSteven K. Bernstein

• Antitrust and Intellectual PropertyAdam C. Hemlock

• Consumer ProtectionHelene D. Jaffe

• EU UpdateDoug Nave

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Washington News

Debra J. Pearlstein

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Washington News

Department of Justice

Tom Barnett, now Acting Assistant Attorney General, has been nominated to fill the post

In the acting position since June 2005 and previously Deputy Assistant Attorney General for Civil Enforcement since April 2004

He led the DOJ’s team on Oracle/Peoplesoft. Safe assumption is that DOJ will take a hard look at Oracle/Siebel deal just announced.

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Washington News


Personnel Changes Gerald F. Masoudi named as Deputy Assistant Attorney

General for International, Policy and Appellate matters on September 1st

• Comes to DOJ from Deputy Chief Counsel post at FDA (joined FDA in 2004)

• Previously a partner at Kirkland & Ellis

• Clerked for Frank Easterbrook on the Seventh Circuit

• Represented Beech-Nut in the “Baby Food Case” when Beech-Nut and Heinz (#2 and #3) attempted to combine. District court denied the FTC’s preliminary injunction request, but D.C. Circuit blocked the deal.

• Other clients include GTE and pharmaceutical companies

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Washington News


Recent DOJ Activity

Opposed antitrust immunity for Delta/Northwest participation in SkyTeam consortium

• SkyTeam includes Alitalia, Czech Airlines, Delta, KLM, Northwest and Air France

• First time an international alliance has sought immunity for two U.S. airlines (as compared, for example, to immunity for KLM/Northwest alliance)

• DL and NW have largely overlapping domestic networks

• DOJ found “significant risk that the requested immunity would reduce . . . domestic competition related to the immunized international routes.”

• DOJ concluded that alliance members could integrate to a legitimate degree without immunity and therefore immunity could permit anticompetitive activity

DOT gets last word

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Washington News


Recent DOJ Activity (Cont’d) Brought lawsuit against National Association of Realtors

• DOJ and FTC have announced a one-day workshop on antitrust and the real estate industry for October 25th in Washington

Signed consent decree with two digital jukebox companies

Filed amicus brief (with FTC) in the Dagher case calling for reversal of Ninth Circuit decision

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Washington News

Federal Trade Commission

Personnel changes One vacancy at the Commission now (Orson Swindle’s seat); William

Kovacic, former FTC general counsel and professor at George Washington University has been nominated

Commissioner Thomas Leary’s term expires this month, but he is expected to stay until his successor is named

Recusals Chairman Majoras is recusing herself from matters relating to Jones Day,

her former (and husband’s current) law firm. If Kovacic’s nomination is approved, it is uncertain if he too will have to recuse himself from Jones Day matters because his wife is a partner at Jones Day.

Currently having only three commissioners on many matters has resulted in some anomalies, with the Democrat Jon Liebowitz and Independent Pamela Jones Harbour able to outvote the Republican Leary

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Washington News

Federal Trade Commission

Recent FTC Activity Cleared Federated/May merger

Sought cert in Schering-Plough case

Issued report on pharmacy benefit company mergers

Testified on initiatives to preserve competition in the petroleum industry

Dismissed Aloha Petroleum case

Proposed new HSR rules

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Washington News

The Supreme Court

Chief Justice Rehnquist’s death combined with Justice O’Connor’s announced retirement leaves possibility of a vacancy on the Court when the new term begins

Supreme Court docket already includes several potentially significant antitrust cases Dagher – whether per se test can be applied to joint venture participants

setting price at which joint venture sells products (briefing on merits now underway)

Independent Ink – whether patent creates presumption of market power in tying case (hearing: 11/11)

Volvo – Robinson-Patman secondary line case (hearing: 10/31)

Potential cases (requests for certiorari filed) Schering-Plough – petition for cert filed 8/29

Dentsply – petition for cert filed 9/14

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Washington News

Antitrust Modernization Commission

Upcoming hearing (9/29) on state action doctrine Scheduled panelists include a representative from the FTC and

several private lawyers

Upcoming hearing (9/29) on refusals to deal and loyalty discounts Scheduled panelists include Bob Pitofsky, Tim Muris, Hew Pate,

Prof. Steve Salop, and Ken Glazer from Coca-Cola

Next round of hearings (10/26) will cover government institutions (dual federal/state antitrust enforcement)

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Horizontal Restraints, Vertical Restraints and Monopolization

Scott Martin

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Horizontal Restraints Update

National Association of Realtors

Multiple Listing Service policy favors brick-and-mortar?

Internet delivery of brokerage services more efficient?

Alleged NAR working group admission: Opt-out right vs. web-based brokers would be “abused beyond belief” and “not in sellers’ best interest.”

NAR tried 11th hour fix (customer’s written consent) to no avail

Does DOJ “get” MLS and Virtual Office Websites? What about market demands? What about Realtor.com?

Where are the private suits?

United States v. National Association of Realtors, No. 05C-5140 (N.D. Ill.)

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Horizontal Restraints Update

In re: Canadian Import Antitrust Litigation

Consumers brought federal and state claims that drug companies colluded to suppress import of Canadian prescription drugs for personal use

Drugs are misbranded when introduced into U.S. commerce (e.g., “Rx only” symbol)

Federal antitrust laws not designed to protect unlawful activity, therefore consumers lack standing; supplemental state law claims consequently dismissed

2005 WL 2082934 (D. Minn. 2005)

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Vertical Restraints and Monopolization Update

In re: Wireless Telephone Services Antitrust Litigation

Question: Requiring customers to purchase specifically approved phones constitutes unlawful tying under Section 1?

Judge Cote: No genuine issue of necessary market power in wireless market to coerce purchase of phones and no showing of anticompetitive effect on phone market

No collusive behavior

Faulty economics from plaintiffs

2005 WL 2143335 (S.D.N.Y. 2005)

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Class Certified: Cox v. Microsoft

NY GBL § 349(a): no “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” in the State of New York

Microsoft: No exposure to/deception by challenged conduct

Microsoft: Don’t certify because not every member of the class suffered damages. (Don’t hold your breath . . .)

Reliance not an element of the New York General Business Law claim; it’s causation between the alleged deceptive act and injury that must be shown class-wide

Importance of consumer choice

No. 105193/00 (N.Y. Sup., released Sept. 2, 2005)

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Denial of Class Certification Upheld: Rodney v. Northwest Airlines, Inc.

Class alleged harm from attempted monopolization of travel to/from NW hubs; named plaintiff flew only one allegedly monopolized route

Sixth Circuit affirmed finding of no predominance on issues of monopoly power, antitrust injury and damages; plaintiff inadequate representative

74 routes at issue: Substitutes? Monopoly power? Injury? Representativeness?

2005 WL 2009178 (6th Cir. 2005)

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Mergers and Acquisitions Update

Steven K. Bernstein

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FTC v. Aloha Petroleum, Ltd and Trustreet Properties, Inc.

Because of changed circumstances, the FTC asked the District Court in Hawaii to dismiss the FTC’s preliminary injunction action seeking to block Aloha’s $18 million acquisition of certain Trustreet petroleum assets in Oahu, Hawaii. The complaint had alleged that the acquisition would substantially lessen competition in two markets: the marketing of gasoline by bulk suppliers, by reducing the

number of marketers with ownership, or guaranteed access to, a refinery or import-capable terminal from five to four; and

the retail sale of gasoline on Oahu and geographic subdivisions within Oahu, by reducing from three to two the number of bulk suppliers willing to sell to un-integrated retailers

No. CV05 00471 HG KSC (Ha. D. 2005)

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The Commission asked the court to dismiss its case after Aloha announced that it would enter into a 20-year throughput agreement giving Mid Pac Petroleum rights to use Aloha’s gasoline import terminal

According to the FTC, Mid-Pac would essentially substitute for Trustreet as a bulk gasoline marketer in Hawaii

The agreement would enable Mid-Pac “to import virtually unlimited quantities of gasoline into Hawaii.”

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FTC action shows that even small, non-reportable transactions may be challenged by the antitrust agencies

The FTC continues to take a close look at petroleum mergers

FTC dismissed complaint without requiring a consent order

FTC noted close cooperation with the Hawaii Attorney General’s Office

Chairman Majoras was recused from the matter. Original vote to challenge was 2-1.

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FTC Federated Department Stores, Inc./The May Department Stores Company

FTC closed its investigation of this $17 billion proposed acquisition

Federated owned or operated 456 stores under the Macy’s and Bloomingdale’s names

May owned or operated 491 stores under names that included Marshall Field’s, Lord & Taylor and Hecht’s

FTC noted that the transaction would “create by far the largest chain of so-called ‘traditional’ or ‘conventional’ department stores in the country” and would “create high levels of concentration among conventional department stores in many areas of the country.”

FTC File No. 051-0111

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FTC found that product market could not be limited to conventional department stores:

“product market must be defined to include, at the very least, all department stores and all specialty stores that collectively sell substantially similar products to those offered by Federated and May.”

Precedent for separate relevant product market comprised only of department stores (The Bon-Ton Stores, Inc. v. The May Department Stores Company, 881 F. Supp. 860 (W.D.N.Y. 1994))

FTC noted the rapid evolution of retail markets

FTC found no evidence that the merging companies priced their goods strategically in relationship to one another. Instead, they charged uniform prices over broad geographic areas and those prices did not vary based on number of department stores in the area.

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FTC noted that the geographic market depended on the type of merchandise being purchased

FTC concluded that the geographic market was at least as broad as an MSA, and may be larger in some areas of the country

Even though Federated had announced plans to divest 75 overlapping department stores, the FTC did not require them to do so in a consent order

Federal/State enforcement

FTC noted that in cases with multiple diverse geographic areas, participation by state agencies, which are familiar with specific local conditions may be particularly helpful

State antitrust agencies in NY, California, Pennsylvania, Massachusetts and Maryland announced settlements that involved divestitures

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The FTC is willing to consider changes in industry conditions even when there is established precedent

In the retail industry, pricing data may be given significant weight by the antitrust agencies

Even if the FTC does not take action, state agencies provide another level of scrutiny

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Other Notable Merger Clearances

Pfizer/Vicuron Pharmaceuticals $1.9 billion transaction

Biopharmaceutical company focused on development of anti-infective products

Scansoft/Nuance $221 million transaction

Voice automated solutions

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Pending Mergers

Number of significant mergers are still pending at the antitrust agencies: Procter & Gamble/Gillette Johnson & Johnson/Guidant Whirlpool/Maytag Intelsat/PanAmSat UnitedHealthCare/Pacificare Oracle/Siebel

Several of these transactions under review in the U.S. are also being reviewed, or have been reviewed, by the European Commission and other foreign antitrust agencies

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Pending Mergers

Critical that when dealing with multi-jurisdictional investigations to have a coordinated legal strategy. Timing

Waivers

Encourage cooperation

Consistency of arguments

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Other Procedural Developments

FTC proposes amendment to HSR rules to allow internet links to SEC filings, instead of hard copies

FTC proposes amendment to HSR rules provide for expiration of merger notifications after 18 months if a second request remains outstanding

Growing efforts by merging parties to contact agencies early and provide information up-front in hopes of avoiding a second request

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Antitrust and Intellectual Property

Adam C. Hemlock

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FTC Files Supreme Court Petition for Writ of Certiorari in FTC v. Schering-Plough Corp.

FTC v. Schering-Plough involves the antitrust legality of so-called “reverse payment” settlements (settlement between brand and generic in which generic agrees to keep its product off market for certain period, and in exchange brand pays generic)

Overview of Hatch-Waxman

Permits Abbreviated New Drug Applications (ANDA) which allows generic to obtain FDA approval by showing that generic is [bioequivalent] to brand drug

Requirement to make “Paragraph IV” certification as to whether branded drug’s patent(s) are invalid or uninfringed

If brand sues for infringement within 45 days of receiving Paragraph IV certification, FDA automatically institutes 30 month delay on the generic’s ANDA approval

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In Hatch-Waxman patent litigation, the generic defendant has not yet sold the infringing product In contrast to traditional patent litigation, when defendant has

already made infringing sales for which the patentee seeks to recover damages

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Eleventh Circuit opinion Schering-Plough Corp., et al. v FTC, 402 F. 3d 1056 (11th Cir. 2005) Neither per se rule nor rule of reason are appropriate standards

for determining antitrust legality in this case

Proper analysis of antitrust liability requires an examination of: (1) the scope of the exclusionary potential of the patent; (2) the extent to which the agreements exceed that scope; and (3) the resulting anticompetitive effects

Reverse payments are a natural by-product of the Hatch-Waxman process

No evidence on the record that generic could have attained an earlier entry without the reverse payments

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Two questions presented in FTC’s petition Whether an agreement between a pharmaceutical patent holder

and a would-be generic competitor, in which the patent holder makes a substantial payment to the challenger for the purpose of delaying the challenger’s entry into the market, is an unreasonable restraint of trade

Whether the court of appeals grossly misapplied the pertinent “substantial evidence” standard of review, by summarily rejecting the extensive factual findings of an expert federal agency regarding matters within its purview

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FTC’s main arguments 11th Circuit’s approach conflicts with pro-consumer policy goal

of Hatch-Waxman to encourage speedy entry of low-cost generic drugs

While 11th Circuit focused on “exclusionary potential” of the patent, FTC notes that generics prevailed in 73% of ANDA patent litigations

Payment must have reflected a quid pro quo for a delayed entry, and absent the payment, the generic would have entered earlier to compete against the branded drug

Only third time in FTC’s history that it has represented itself in front of Supreme Court

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Eleventh CircuitAndrx Pharmaceuticals Inc. v. Elan Corp. PLC

Facts Generic #1 filed first ANDA to manufacture generic version of

controlled release naproxen, and Brand sued for patent infringement; Brand and Generic #1 settled, and Brand granted license to Generic #1

Generic #2 filed ANDA and was sued by Brand for patent infringement

Hatch-Waxman grants 180-day exclusivity period to first generic to file ANDA. 180-day period starts when first generic starts marketing its product. Generic #2 alleges that Generic #1 had no intention to market product, thus never triggering the 180-day period and precluding Generic #2’s entry into market.

No. 03-03481 (11th Cir. 2005)

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Generic #2 filed suit under Sections 1 and 2 of Sherman Act and the Florida antitrust laws, claiming: Brand’s patent action against Generic #2 was baseless, due to

invalidity of patent, and therefore was filed solely to preserve its monopoly over “controlled release naproxen market in the US” (Sherman Act section 2 claim)

Settlement agreement between Brand and Generic #1 was illegal restraint of trade (Sherman Act section 1 and 2 claims)

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District Court for Southern District of Florida granted judgment on the pleadings pursuant to rule 12(c) Patent litigation was protected by Noerr-Pennington doctrine,

and did not fall within sham exception because two previous courts rejected basis for Generic #2’s claim of invalidity

Generic #2’s allegations regarding license agreement were insufficient to support claims under Sections 1 and 2

Denied motion for leave to amend

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11th Circuit Opinion Affirmed dismissal of claims based on patent litigation, agreeing

that Noerr-Pennington shielded Brand from Sherman Act liability

Reversed and remanded on dismissal of claims based on settlement agreement

• Repeat of standard in Schering-Plough for evaluating patent litigation settlement

• Plaintiff sufficiently pled violations of Sherman Act Sections 1 and 2

No abuse of discretion in denial of motion to amend

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Proposed Consent DecreeUS v. Ecast, Inc.

DOJ settles with two suppliers of “digital jukebox platforms” (NSM and Ecast)

Ecast was one of two US suppliers of platforms when it learned of NSM’s plans to enter

Ecast and NSM entered agreement whereby NSM would manufacture digital jukeboxes with only Ecast’s platform, and not with NSM’s own platform

DOJ alleges that NSM’s entry into US market for digital jukebox platforms would have stimulated competition

No. 1:05CV01754 (D.D.C.)

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Consumer Protection

Helene D. Jaffe

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Consumer ProtectionDeceptive Advertising: Fraudulent Weight Loss Claims

FTC is increasing scrutiny of clinical study results cited in ads for weight-loss supplements FTC Assistant Director of Advertising Practices, Richard

Cleland, said in the World Obesity & Weight Loss Congress that the FTC would evaluate such studies to determine whether the results were accurately reflected by the ad and whether it was a legitimate study

Cleland also stated that the FTC is closely monitoring the use of expert endorsers in product advertisements to verify their credentials and determine whether they have substantiation for the endorsement

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FTC settled false advertising suits against U.K. based defendants concerning weight-loss claims about seaweed-based patches

FTC in 2003 sued the producers of Hydro-Gel Slim Patch and Slenderstrip for allegedly false and unsubstantiated weight-loss claims for these two patches

U.K. based defendants were added to the original complaint when the Commission discovered that they were allegedly orchestrating the manufacturing, advertising, and selling of the patches in the United States

Original U.S.-based defendants settled in September 2004

The U.K.-based defendants settled in September 2005

FTC v. No. 1025798 Ontario, Inc., 03-CV-00910A (SC) (W.D.N.Y. 2005)

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Under the announced settlement, the U.K. based companies will pay $150,000. However, if it is found that they misrepresented their financial status, defendants will be responsible for the full judgment of $5.3 million – the total U.S. sales of the two patches.

Defendants will be banned in the U.S. from making, advertising, or selling any dietary supplement, food, drug, or weight-loss product, and from making claims about other health-related products or services unless the claims are backed by scientific evidence.

The settlement also requires the defendants to give the FTC a list of people who bought the patches, and prohibits them from disclosing their mailing lists to others, except as required by law.

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FTC filed a complaint against Robert Chinery, Jr., Tracey Chinery and RTC Research and Development LLC over allegedly false and misleading claims made in ads for the popular dietary supplement Xenadrine EFX According to the FTC, since its introduction in 2002, Xenadrine EFX’s sales

have topped $160 million The allegedly misleading ads relied heavily on testimonials from supposedly

satisfied customers, some of whom claimed to have lost over 100 pounds

On the date the complaint was filed, the FTC announced a settlement with another group of entities: Cytodyne, LLC, Evergood Products Corp., and Melvin Rich, for their role in the advertising and marketing of Xenadrine EFX The settlement prohibits making any claims that “Xenadrine EFX or any other

substantially similar product causes rapid and substantial weight or fat loss and . . . that any weight-loss product causes rapid and substantial weight loss without diet or exercise.”

The settlement also requires a payment of $100,000 to the FTC

FTC v. Chinery, No. 05-3460 (D.N.J. 2005)

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Consumer ProtectionDeceptive Advertising: Smoking Related Health Claims

FTC settled with the marketers of “Smoke Away,” a dietary supplement product that was advertised as a smoking cessation product Defendants required to pay $1.3 million

The settlement prohibits the defendants from making any claims about the benefits, performance, efficacy, safety, or effects of Smoke Away or any other smoking cessation product or program unless those claims are true, non-misleading, and substantiated

FTC v. Emerson Direct, Inc., No. 2:05-CV-377-FtM-33 (M.D. Fla. 2005)

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Consumer ProtectionDeceptive Advertising: Smoking Related Health Claims

Nine states and the District of Columbia filed suit in Vermont against R.J. Reynolds alleging that the company’s claims that its Eclipse brand of cigarettes may carry less risk of cancer and other health ailments were misleading Reynolds claims that smokers’ risk of contracting cancer,

chronic bronchitis, and possibly emphysema are reduced compared with conventional cigarettes because of how Eclipse cigarettes work – smokers do not light tobacco

State of Vermont V. R.J. Reynolds Tobacco Co., Nos. 744-97 CnC & S-816-98 (Chittenden Sup. Ct. 2005)

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Consumer Protection

“Do-Not Call” Issues

Federation of the Blind v. FTC, No. 04-1378 (4th Cir. 2005) FTC’s amended Telemarketing Sales Rule (TSR) was within the

FTC’s authority The TSR did not violate charitable organizations’ First Amendment

rights because organizations were still permitted to make telephone solicitations

United States v. Columbia House Co., No. 05C4064 (N.D. Ill. 2005) Columbia House settled FTC charges that it violated the Do-Not-Call

law by calling existing and past subscribers of its home entertainment clubs after the subscribers had placed their telephone numbers on the National Do-Not-Call Registry and specifically requested that the company not call them

Columbia House will pay a $300,000 civil penalty and is barred from making illegal calls in the future

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Consumer Protection

Spyware

The FTC continues to pursue injunctions against companies that falsely lead consumers to believe that their computers are infected with spyware in order to sell consumers ineffective programs to remove the spyware

FTC won an injunction against Trustsoft, Inc. to prevent it from promoting its “SpyKiller” program The FTC alleged that the defendant used pop-up and e-mail

messages that informed consumers that spyware had been “detected” on their computer through a remote scan. The defendant would then direct consumers to a website for a free scan, at which point it would inform consumers that their computers were infected and would advise them to purchase SpyKiller software.

FTC V. Trustsoft, Inc., No. 05-1905 (S.D. Tex. 2005)

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EU Update

Doug Nave

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EU Update: Mergers and Acquisitions

Johnson & Johnson / Guidant

Acquisition with horizontal overlaps in cardiovascular medical products

Parties agreed to remedy Commission concerns through divestiture:

Guidant’s endovascular stent business is to be divested (parties were found to be the two leading suppliers in EEA, with high barriers to entry)

No divestiture was required in coronary stents, where J&J was found to be one of two “major” suppliers and Guidant was viewed as a potential entrant, because other companies were deemed to be likely entrants as well

Divestitures were also agreed in two smaller businesses (coronary guidewires and endoscopic vessel harvesting systems)

Transaction cleared prior to completion of US review

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EU Update: Mergers and Acquisitions

Other EC Decisions

Substantive clearances – horizontal: BenQ/Siemens – mobile telephones Flint Ink/Aster 2 – printing inks Gaz de France/Centrica/SPE – supply of electricity and gas

(Belgian regions) Lauritzen/NYK Reefers – JV in refrigerated sea transport (#2

worldwide, leading position in various geographical corridors to EU) Sun Microsystems/StorageTek – data storage solutions Tele2/Versatel Telecom – fixed/mobile telephony (Benelux)

Substantive clearances – vertical: CVC Capital/Ruhrgas Industries – utility meters / meter data collection Rheinmetall/Diehl/AIM – infrared components / German

defence products

Numerous clearances under simplified procedure (no “affected markets”)

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EU Update:

EU Cartel Challenges – Industrial Threads

Industrial thread producers fined €43 million (in total). Outcome of “dawn raids” in November 2001

Sixteen participants

Regular meetings/bilateral contacts to agree price increases and target prices, exchanges of customer-specific pricing

Fines for 11-year cartel against Benelux/Nordic industrials and 2-year cartel against EEA automakers

• 6-year cartel re UK industrials found outside statute of limitations

Range of fines: €18 million to €175,000

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EU Update:

EU Cartel Challenges – Dutch Brewers

Statements of Objections sent to four brewers alleging cartelization of Dutch beer markets in 1996-99

Outcome of a “dawn raid” on Heineken in 2002

S/Os concern alleged price fixing, customer allocation, and improper information sharing

Part of ongoing examination of sector: France: Two brewers fined €2.5 million in 2004

Belgium: Four brewers fined €91 million in 2001 (on appeal)

Luxembourg: Three brewers fined €450,000 in 2001

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EU Update: EU Court Cases

Case C-176/03, Commission v. Council (ECJ 13 Sept 2005): Commission (with approval of the European Parliament and qualified majority of Member States) may require Member States to establish criminal sanctions for serious infringements of EC law Decision concerned environmental law and conflict between

decision-making powers of the Commission and Council – but appears broader in scope

Commission President José Manuel Barroso promises “careful and proportionate” use of power to address “particularly serious offences.”

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EU Update: EU Court Cases

Case T-325/01, DaimlerChrysler AG v. Commission v. Council (CFI 15 Sept 2005): Reduces fine from €72 million to €10 million

Instruction that German agents not sell outside their territories, and require 15% deposit for out-of-territory orders, did not infringe Art. 81 (there was no agreement between independent parties)

Commission’s determination that the “agents” bore sufficient commercial risks to be deemed independent traders lacked factual support

Limits on Spanish dealers’ supply to leasing companies was found lawful because it complied with Spanish law

Agreements restricting the grant of discounts in Belgium was found an infringement of Art. 81 (€10 million fine upheld)

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EU Update: EC Commission Communication

Competition in Professional Services

Part of Lisbon Strategy (improving regulation, ensuring competition, etc)

“Informal” counterpart to sector inquiries in energy and financial services

Focus on national and professional bodies’ regulations:

Lawyers, notaries, engineers, architects, pharmacists, accountants

Competition restrictions (e.g. monopoly rights, price fixing, advertising bans)

Commission occasionally intervenes, but looks primarily to NCAs for --

Justification (explicitly stated public interest objective)

Proportionality (least restrictive means to effectively attain objective)

Commission finds that overly restrictive regulation remains common

Denmark, Netherlands, and UK lead in reforms

Minor reforms and “analytical work” are underway in many Member States (including Benelux, France, Germany, Hungary, Ireland, and Poland)

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EU Update: EC Commission

Significant Policy Initiatives

Article 82 (“abuse of dominance”) The last major element in modernization of the rules

• Continuing debate inside the Commission over the relative importance of per se rules and economics/effects

Draft guidelines to be published before year’s end

Private enforcement (damage actions) Part of ongoing effort to expand local (national/private) action

Green Paper to be published before year’s end

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Weil, Gotshal & Mangesand its Competition Practice Group

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Weil Gotshal Has One of the World’s

Leading Competition Practices

One of the top three antitrust firms in the world - Chambers Global: The World’s Leading Lawyers, 2004

Shared # 1 rank among New York antitrust practices and over 50 attorneys recognized by Chambers USA: America’s Leading Lawyers for Business, 2004

“Law firm of the Year” for the Americas – Global Counsel, 2002

One of the top six litigation firms in the US; the only New York based firm recognized - American Lawyer, 2004

Ranked # 4 among the top US firms; with over 40 partners individually recognized – Chambers Global: The World’s Leading Lawyers, 2003

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Panelists

Adam C. Hemlock is a partner in the firm’s Antitrust practice. He represents clients in a variety of antitrust, intellectual property, commercial litigation, and other legal matters, and has particular experience in the antitrust/intellectual property and international antitrust areas. Mr. Hemlock also has extensive experience working with Japanese clients on a wide variety of litigation, transactional and counseling matters. Mr. Hemlock has represented clients in various transactions involving Hart-Scott-Rodino (HSR) filings and federal government antitrust investigations. Mr. Hemlock was a member of the Weil Gotshal team that obtained Department of Justice clearance of American Airlines’ acquisition of TWA. He and other Weil Gotshal attorneys represented NYNEX in its merger with Bell Atlantic, and Hughes Aircraft in its merger with Raytheon. Mr. Hemlock recently represented a major motion picture studio in a Department of Justice investigation of a joint venture that was closed without any enforcement action. Mr. Hemlock has developed a strong antitrust/intellectual property practice and has advised US and foreign clients on the antitrust implications of various technology transactions, including joint ventures, technology licensing, joint development agreements, patent pooling, standard setting, information sharing, and other joint conduct.

Steven K. Bernstein is a partner in the Washington, DC office of Weil, Gotshal & Manges LLP. Mr. Bernstein’s practice focuses on antitrust counseling and litigation, with an emphasis on mergers and acquisitions. He joined the firm in January 2004 after serving more than 12 years at the Federal Trade Commission, most recently as Assistant Director of the FTC’s Bureau of Competition, where he oversaw the Bureau’s Mergers I Division. While at the FTC, Mr. Bernstein was involved in supervising the FTC’s merger enforcement program in a wide range of industries, including aerospace and defense, healthcare, and industrial products. Mr. Bernstein played a significant role in a number of important antitrust enforcement actions in these industries, including the successfully litigated challenge of Alliant Techsystems’ proposed acquisition of Olin’s Ordnance Division. He was also responsible for negotiating numerous consent agreements, including settlements in Lockheed Martin/Loral, Astra/Zeneca, Boeing/Rockwell Aerospace and Defense, ABB/Elsag Bailey, Illinois Tool Works/Hobart Brothers, and S.C. Johnson/DowBrands. Mr. Bernstein received numerous awards at the FTC and in 2002 was recognized by Corporate Board Member Magazine as one of the nation’s best and brightest attorneys under the age of 40.

[email protected]: 202 682 7502


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Panelists

Helene D. Jaffe is the Global co-head of the firm's Antitrust/Competition practice and has as principal areas of practice the transactional, counseling and litigation aspects of advertising, marketing and antitrust issues (particularly regarding mergers, acquisitions, and Hart-Scott-Rodino matters). Ms. Jaffe has been involved in numerous Lanham Act advertising, trademark, and trade dress cases (injunctions as well as judge/jury trials) involving a broad spectrum of consumer products and services, such as over-the-counter drugs, cosmetics, and foods, as well as challenges for these products, among others, at the networks, industry self-regulatory boards, and various international, federal, and state regulatory agencies. She appears regularly before both the international, federal, and state antitrust enforcement agencies and the federal judiciary representing clients who are either buying or selling companies here or abroad as well as clients whose pricing, promotional, or marketing practices are under investigation. She lectures and writes extensively on antitrust, merger, advertising, and marketing issues. Ms. Jaffe has been recognized in Chambers USA, Chambers Global, The International Who’s Who of Competition Lawyers and Economists, The Best Lawyers in America and The Euromoney Expert’s Guide. She is ranked among the Top 100 Women in Antitrust by Global Competition.

Scott Martin is a partner in the Litigation/Regulatory practice of the New York office focusing in the areas of antitrust and complex commercial litigation. Mr. Martin has extensive experience in complex litigation and class actions, including bench and jury trials in federal and state courts. Mr. Martin has been involved in many of the most significant antitrust class action litigation and civil and criminal international cartel cases in recent years. His experience spans industries including graphite electrodes, carbon fiber, textiles, and health care, and consumer goods such as recorded music, apparel, and automotive parts, among many others. Mr. Martin’s matters frequently involve complexities of federal multidistrict actions, FTC or DOJ investigations, opt-out actions, multiple state indirect purchaser actions, parens patriae cases brought by multiple states’ attorneys general, proceedings in other countries, and even qui tam litigation. He is a frequent speaker on these and other antitrust and litigation issues before the Practising Law Institute, ABA, Conference Board, and elsewhere. He also has written, co-authored, or edited articles and treatise chapters on issues of international antitrust litigation, business torts, and price discrimination. Mr. Martin currently serves as Vice-Chair of the Business Torts and Civil RICO Committee of the ABA Section of Antitrust.



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Panelists

Doug Nave heads up the European Competition Law practice in our London office. A US-qualified partner who has practiced in London and Brussels since 1998, he has a broad regulatory practice focusing on EC, UK and US competition and international trade law. Mr Nave has represented companies in numerous economic sectors, including emerging technologies, heavy industrial products, consumer branded goods, and public media. Transactions of note in the past year include Kodak’s acquisition of Creo (cleared by the European Commission), Great Lakes Chemical Corp’s merger with Crompton Corp (cleared by the European Commission), Staples’ acquisition of Office World (cleared by the UK Office of Fair Trading), and numerous strategic acquisitions in the food and beverage sector. Mr Nave has acted for Coca-Cola Enterprises and others in regulatory inquiries regarding possible abuse of dominance and other rules of competitive conduct. He also has a broad advisory practice under the competition laws, sector-specific regulations (e.g. the EU automotive block exemption regime) and rules governing the licensing and use of intellectual property.

Debra J. Pearlstein specializes in antitrust litigation and counseling. At Weil Gotshal since 1985 and a partner since 1993, she has extensive experience in complex private antitrust litigation (including concurrent federal and state class actions), lawsuits brought by the federal antitrust agencies, and merger investigations. Understanding her clients’ business needs and making practical assessments of litigation and enforcement risk are key strengths of Ms. Pearlstein’s practice. Ms. Pearlstein’s counseling practice covers joint ventures and other collaborations with competitors, trade associations, Hart-Scott-Rodino regulations, gun jumping concerns, relations with distributors and customers, and the antitrust aspects of patent licensing. Her industry knowledge ranges from retailing to hi-tech, from airlines to managed care, and issues arising for companies ranging from local businesses to international megafirms. Ms. Pearlstein was named as one of the New York area’s best lawyers in the August 1, 2005 issue of New York magazine. She is listed in Woodward/White, Inc.'s Best Lawyers in America (2006). She was named by Global Competition Review’s “GCR 100” (2004) to its elite list of the top 100 women lawyers in the world specializing in competition. She was named among the leading competition lawyers in New York in Chamber’s Global 2004-2005 The World’s Leading Lawyers.). She is a frequent speaker at the ABA, Practicing Law Institute, and Conference Board antitrust programs. She was the editorial chair of Antitrust Law Developments (5th ed. 2002), the leading treatise on antitrust law, and currently is an officer of the ABA’s Section of Antitrust Law.

[email protected]: +44 20 7903 1288


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Weil Gotshal Lawyers

Advise on All Aspects of Competition Law

Provide antitrust counseling and compliance programs to ensure our clients the best chances of avoiding antitrust problems

Trusted with some of the largest mergers in the decade

Global presence and international experience to handle multi-national regulatory issues, particularly involving US and EU competition laws and enforcement

Represent clients in major government criminal and civil investigations and litigations

65

Weil Gotshal Lawyers

Advise on All Aspects of Competition Law

Handle private antitrust litigation for some of the largest corporations in the world, in US federal and state courts, as well as before European and national competition agencies and courts

Significant expertise in antitrust claims and misuse defenses in intellectual property cases

Special expertise defending complex class actions

Advise clients in competition policy, distribution, dealer relations, emerging technology and intellectual property, and legislative initiatives both in the US and Europe

Our team has been at the forefront of antitrust policy and procedure for many years, assisting in drafting the federal Merger Guidelines used today, influencing the body of HSR rulings and designing the FTC merger discovery process

september 21, 2005 antitrust update for in-house counsel aba section of antitrust law corporate...

Documents

jones day matters

requested immunity

antitrust update

ftc general counsel

international alliance

appellate matters

day workshop

deputy chief counsel