Copyright (c) 2007 Wilmer Cutler Pickering Hale and Dorr LLP All rights reserved. http://law.bepress.com/wilmer Recent documents in Wilmer Cutler Pickering Hale and Dorr Antitrust Series en-us Thu, 04 Jan 2007 16:16:26 PST 3600 http://law.bepress.com/wilmer/papers/art61 http://law.bepress.com/wilmer/papers/art61 Wed, 15 Mar 2006 11:18:22 PST 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. Claus-Dieter Ehlermann Antitrust http://law.bepress.com/wilmer/papers/art60 http://law.bepress.com/wilmer/papers/art60 Wed, 15 Mar 2006 11:18:21 PST 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. Lester Ross Antitrust http://law.bepress.com/wilmer/papers/art59 http://law.bepress.com/wilmer/papers/art59 Wed, 15 Mar 2006 11:18:18 PST 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. William Kolasky Anti-Trust http://law.bepress.com/wilmer/papers/art58 http://law.bepress.com/wilmer/papers/art58 Wed, 15 Mar 2006 11:18:16 PST 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. Sven Völcker Antitrust http://law.bepress.com/wilmer/papers/art57 http://law.bepress.com/wilmer/papers/art57 Wed, 15 Mar 2006 11:18:14 PST 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. Mark Heller Anti-Trust http://law.bepress.com/wilmer/papers/art56 http://law.bepress.com/wilmer/papers/art56 Wed, 15 Mar 2006 11:18:12 PST 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. Christian Duvernoy Antitrust http://law.bepress.com/wilmer/papers/art55 http://law.bepress.com/wilmer/papers/art55 Wed, 15 Mar 2006 11:16:51 PST 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). Ulrich Quack Antitrust http://law.bepress.com/wilmer/papers/art54 http://law.bepress.com/wilmer/papers/art54 Wed, 15 Mar 2006 11:16:50 PST The first three months of this year have witnessed extensive enforcement activity by Italy's Autoritŕ 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. Antonio Capobianco Antitrust http://law.bepress.com/wilmer/papers/art53 http://law.bepress.com/wilmer/papers/art53 Wed, 15 Mar 2006 11:16:49 PST 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. Axel Desmedt Antitrust http://law.bepress.com/wilmer/papers/art52 http://law.bepress.com/wilmer/papers/art52 Wed, 15 Mar 2006 11:16:47 PST 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. Ulrich Quack Antitrust