Cartel Digest


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United States Supreme Court Upholds Rejection of the Government’s Antitrust Challenge to American Express’ Merchant Contracts

On June 25, 2018, the U.S. Supreme Court, in a 5-4 decision by Justice Thomas, held that provisions in American Express Company’s (“American Express”) and its operating subsidiary’s contracts with merchants that restricted the ability of these merchants to steer customers to other credit or charge cards did not violate the Sherman Act. Ohio v. American Express Co., 585 U.S. __, slip op. at 1 (2018). The Court held that plaintiffs—the United States Department of Justice and the Attorneys General of several states—failed to satisfy their burden of proving anticompetitive effects in the relevant market under the rule of reason. 

To Control or Not to Control? That Is the Question

The “standstill obligation” under Article 7 of the Regulation 139/2004 on Merger Control (EUMR)[2] prevents parties from implementing their transaction before receiving merger clearance from the European Commission (EC). Failure to comply with this obligation (known as “gun-jumping”) may result in fines up to 10% of their aggregate worldwide turnover and the obligation to reverse any step taken by the parties.

Unsteady Foundations: The European Commission’s New Approach to Infrastructure State Aid

Traditionally, the European Commission’s (EC) approach towards public funding of infrastructure was that such aid fell outside the scope of State aid rules. Recent investigations  show that this approach is changing, as the scope for commercial exploitation of infrastructure has increased due to increased liberalization, privatization, market integration and technological progress.

The Winding Road to the Supreme Court: United States v. American Express Co.

Last year’s Antitrust Annual Report described American Express’ sweeping victory over the Department of Justice (DOJ) and 17 state Attorneys General (AGs) in the Second Circuit pertaining to its use of Non-Discrimination Provisions (NDPs) in its merchant contracts – that is, contractual provisions that forbid merchants from trying to influence consumers to use lower cost forms of payment. But the Second Circuit’s decision was not the end of the dispute. The Supreme Court agreed to hear the case –only without the DOJ’s continued participation. 

Reverse Payment Patent Settlements in the Pharmaceutical Industry: A Year in Review

This past year has seen renewed challenges to reverse payment settlement agreements in the pharmaceutical industry. Since the Supreme Court’s Actavis decision in mid-2013, potentially anti-competitive agreements are reportedly down, enforcement continues and more plaintiffs are seeing success as private class actions move forward at both the class certification and summary judgment stages.

The Intel Ruling: A New Dawn?

In perhaps the most hotly anticipated judgment in the European competition law world this year, the Court of Justice of the European Union (CJEU) handed down its landmark ruling on September 6, 2017 in Intel’s appeal against its €1.06 billion European Commission (EC) fine for abuse of dominance.

Abuse of Dominance Concerning Online Platforms

Large online platforms such as Amazon, Facebook and Google have a strong presence in Europe. Although general competition law principles apply to them, cases concerning online platforms give rise to a lot of novel questions in respect of the application of Article 102 of the Treaty on the Functioning of the European Union (TFEU) compared to  traditional ‘analog’ markets.

Vertical Agreements in the Online Sales of Goods

The growth of e-commerce and the resulting increase in price transparency and price competition have a significant impact on companies’ distribution strategies and consumer behavior.

An Update on Brexit and (Current) Implications on Trade

It has been a year since Article 50 was triggered on March 29, 2017, and if no extension is given, the U.K. will leave the European Union (EU) on March 29, 2019. This means that negotiations are now at the half-way point, but we are still no closer to figuring out what Brexit means Brexit actually means.

Antitrust Enforcement Under the Trump Administration

Divining trends in antitrust enforcement in a given presidential administration can take some time. Many commentators didn’t notice material changes in antitrust enforcement in the Obama administration – at least in merger enforcement – until the summer of 2011, when the Antitrust Division of the Department of Justice (DOJ) brought suit challenging AT&T’s acquisition of T-Mobile, more than two years into President Obama’s term.

The DOJ’s Evolving Approach to Consent Decrees

Our enforcement agencies are tasked with the difficult job of evaluating mergers to assess their effect on the competitive landscape. While most mergers are able to pass agency  review unscathed, there are a select number that could lead to anti-competitive outcomes if allowed to proceed. It is for these mergers that remedies come into play. 

Gun-jumping and Procedural Compliance

Many jurisdictions across the world have mandatory notification regimes. When the relevant filing thresholds are met, the merger review process has a suspensive effect on the transaction, meaning that the parties must continue to operate as competitors and cannot integrate until they receive merger approval. 

Foreign Investment Control: Trade Protectionism or Reasonable Control Over a Nation’s Industries?

2017 witnessed a wave of foreign investment control reform in Europe, both at Member State and European Union level. Across the Atlantic, the Committee on Foreign Investment in the United States (CFIUS) has recommended blocking one foreign transaction, which may portend increasing trade protectionism in the United States as part of the Trump administration’s ‘America First’ policy.

What Role For Fairness in EU Competition Policy and Enforcement?

The role of fairness in EU competition policy and enforcement has been the subject of renewed debate. A perception has emerged among commentators that the European Commission’s (EC) enforcement priorities under the current Competition Commissioner, Margrethe Vestager, seem to have become increasingly focused on ‘fairness,’ rather than the more traditional competition objectives of promoting consumer welfare and an efficient allocation of resources.

FTC Warning: Don’t Overshare in Pending Deals

The Federal Trade Commission (FTC) has recently re-emphasized the potential risks of antitrust violations stemming from the exchange of competitively sensitive information during pre-merger negotiations and due diligence. Although the FTC recognizes the legitimate need for sharing and accessing detailed information about a company for the purposes of an M&A transaction, they cautioned that the exchange of competitively sensitive information such as pricing information, strategic plans and costs has to follow appropriate procedural safeguards, and noted enforcement actions when the parties did not comply with them.

Bayer/Monsanto: European Commission Continues Its Trend of More Aggressive Divestments to Address Innovation Concerns

The European Commission has routinely considered potential harm to innovation as part of its merger assessments, particularly in R&D driven sectors such as pharmaceuticals and technology. In recent years, however, the Commission’s traditional innovation concerns have developed into broader, more far-reaching concerns, requiring divestments of assets and R&D related to early stage pipeline products as well as of entire R&D capabilities. Such an approach has been applied most recently in the Commission’s conditional approval of Bayer/Monsanto.

The Future of Libor: Implications for the Loan Market

The London Interbank Offered Rate (ICE LIBOR, often referred to colloquially as Libor) is an important interest rate benchmark. It is currently set with reference to the rate at which certain large and financially sound Libor “panel” banks indicate that they can borrow short-term wholesale funds from one another on an unsecured basis in the interbank market. The benchmark is now administered by ICE Benchmark Administration Limited (IBA)[1], which is a regulated benchmark administrator, based in the U.K. Libor was previously administered by the British Bankers’ Association. Various scandals concerning alleged manipulation of the benchmark led to regulation of the activity of its administration and to IBA, an independent subsidiary of Intercontinental Exchange, Inc. (ICE) (a global operator of exchanges and clearing houses and a global data and listings provider) taking on the administrator role.

FTC Increases HSR Thresholds for 2018

On January 26, 2018, the U.S. Federal Trade Commission (FTC) announced the annual changes to the thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”). The new size of transaction threshold is $84.4 million.  This change and the other related increases are expected to go into effect in late February/early March 2018, 30 days after publication in the Federal Register, and will apply to all transactions closing on or after the effective date.