Global Antitrust Developments: A JD Supra Legal Reader

“Health care, media, technology and communications, and financial services all are industries where we have seen merger and nonmerger antitrust activity; for financial services, there even has been cartel behavior… The intersection of intellectual property and antitrust also is likely to be active, as we have witnessed in the public statements of government officials around the world on standard essential patents and through related, ongoing litigation.” (Skadden Arps)

For your reference, here’s a broad roundup of recent writings on antitrust and trade regulation matters, from global law firms publishing on JD Supra. Covers a multitude of legal issues in China, the European Union, the Americas, and elsewhere:

Global Antitrust Cooperation: EU’s Top Regulator Signs MoU with China (McDermott Will & Emery):

“On 20 September 2012, European Commission officials concluded a Memorandum of Understanding (MoU) with Chinese officials in respect of antitrust law. Signed by the Directorate General for Competition and two of China’s antitrust law enforcement authorities, the National Development and Reform Commission and the State Administration of Industry and Commerce, the MoU strengthens the relationship between the two jurisdictions’ respective antitrust authorities.” Read on>>

The Global Competition Landscape: A Conversation With Sharis Pozen (Skadden, Arps, Slate, Meagher & Flom LLP):

“In particular, of great importance was the Memorandum of Understanding (MOU) that the DOJ and FTC signed with the China’s antitrust agencies while I was in the leadership of the Division. It was a challenge, given that China has three antitrust agencies, and we wanted to ensure we coordinated with all three agencies. The MOU provides for specific high-level communication among the DOJ, FTC and China’s three agencies, as well as additional cooperation and communication.” Read on>>

China Trade Disputes (King & Spalding):

“The United States and China have filed dueling complaints at the World Trade Organization (WTO) in recent weeks. The United States complaint charged the Chinese with providing its auto parts makers with hundreds of millions of dollars annually in improper export subsidies. China countered with a WTO complaint alleging that the U.S. Commerce Department is deliberately and inappropriately targeting Chinese goods as the subject of anti-dumping complaints.” Read on>>

U.S. Challenges China’s Automobile and Auto Parts Export Policies at the WTO While Leaving the Door Open for Additional Trade Actions (Skadden, Arps, Slate, Meagher & Flom LLP):

“The United States has filed a request for consultations at the World Trade Organization (WTO) challenging China’s export policies for automobiles and auto parts. A request for consultations is the first step in the dispute settlement process at the WTO and could lead to formal dispute settlement proceedings between the United States and China over the challenged policies.” Read on>>

China Bulletin – Business, Trade and Competition (White & Case LLP):

On September 17 2012, China requested World Trade Organization (WTO) consultations with the United States regarding US Public Law 112-99, ‘An Act to apply the countervailing duty provisions of the Tariff Act of 1930 to nonmarket economies, and for other purposes’, as well as certain antidumping (AD) and countervailing duty (CVD) measures imposed by the United States on imports from China.” Read on>>

Commerce Department Upholds Tariffs on Chinese Photovoltaic Cells (Ballard Spahr LLP):

“The U.S. Department of Commerce (Commerce) is upholding tariffs it proposed earlier this year on imports of Chinese crystalline silicon photovoltaic (PV) cells and panels. The decision is the agency’s final determination in an investigation of dumping and inappropriate subsidies by Chinese PV cell and module manufacturers.” Read on>>

European Commission Considers Sector Inquiries as a New Procedural Tool in State Aid Law (McDermott Will & Emery):

“The European Commission eyes sector inquiries as a new tool in European State aid law. In European antitrust law Sector inquiries are already successfully employed to detect cartelist activities. This could allow the European Commission to proactively investigate whole sectors for illegal subsidies and to subsequently open new cases.” Read on>>

EU Competition Compliance Program Implications for U.S. Companies (Foley & Lardner LLP):

“Acting to rid European Union markets of restrictive trade practices like seemingly endemic industrial cartels, the European Commission has long sought to employ an arsenal of weapons to deter violations of European competition law. The Commission has prosecuted scores of cartels. It has levied very substantial fines and penalties. It has employed so-called dawn raids to capture evidence from the unwary. It has lobbied EU member states to criminalize cartel activity by business.” Read on>>

French Competition Authority Opinion on Car Repair and Maintenance (McDermott Will & Emery):

“The French competition authority (FCA) released on 8 October 2012 an opinion in relation to the car repair and maintenance sector… The opinion, which is more than 200 pages long and available only in French, contains several statements and proposals aimed at increasing competition in the car repair and maintenance sector that will may substantial implications for market participants.” Read on>>

Argentine Protectionism (King & Spalding):

“On August 21, 2012, the United States and Japan both initiated complaints against Argentina at the WTO because of Argentina’s use of trade protectionist measures. The two complainant nations took particular exception to Argentina’s import licensing requirements that discriminate against foreign imports. On August 27, Mexico initiated its own complaint against Argentina citing the same discriminatory rules. The European Union initiated a similar complaint against Argentina in May 2012.” Read on>>

Greek Public Power Company Wins EU Court Challenge (King & Spalding):

“The EU General Court has decided in favour of the Greek state-owned power company Public Power Corporation (PPC) against a European Commission decision sanctioning the utility’s continued virtual monopoly rights over lignite or ‘brown coal.’ The European Commission found that Greece had infringed EU law by granting PPC quasi-exclusive rights for access to lignite deposits in Greece.” Read on>>

Parental Liability: The Importance of Following the Rebuttal Procedure Carefully (McDermott Will & Emery):

“Rights of the Defence in the Context of Parental Liability – Ballast Nedam Infra BV v European Commission judgment illustrates how a formal point of procedure can be an effective weapon to pierce the fortress created by the strict case law on parental liability for cartel infringements.” Read on>>

Competition Commission of India goes full power with investigation against Coal India— A Study in Contrast to a Recent European Commission Decision (King & Spalding):

“The Competition Commission of India (CCI) has started an investigation against Coal India Limited (CIL) alleging unfair trade practices and abuse of a dominant position in the supply of coal to power producers. If the allegations are substantiated, the CCI may impose fines of up to 10 per cent of the average turnover of CIL for the last three years and may order CIL to modify its commercial practices.” Read on>>

Under Agency Law, Standard Setting Organizations May Be Liable for Antitrust Violations of Their Members (Howard Ullman):

“… in TruePosition, Inc. v. LM Ericsson Telephone Co., the court held that a Standard Setting Organization (SSO) known as 3GPP may be liable for alleged Sherman Act Section 1 antitrust claims involving the wrongful actions of persons who acted on behalf of the SSO, even when those persons are representatives of the SSO’s corporate members… The case is a useful reminder that an SSO has potential antitrust exposure for the activities of its members when the members act under color of authority of the SSO.” Read on>>

Clearance: Proskauer’s Quarterly Antitrust Update – Fall 2012 (Proskauer Rose LLP):

“The exchange of wage-related information between two competitors may not be a per se violation of antitrust laws, according to a Federal court in Michigan. The decision … follows two cases filed by the Department of Justice in 2010 that alleged firms conspiring to fix the terms of employment had committed per se violations of § 1 of the Sherman Act. The more recent case characterized the issue as a ‘very close question.’ An analysis of the decisions shed some light on how to avoid allowing employment related information exchanges cross the line into a violation of the Sherman Act under either the per se rule or the rule of reason.” Read on>>

Criminal Antitrust Update – October 2012 (Patton Boggs LLP):

“Following its settlement with the U.S. Justice Department’s Antitrust Division regarding price-fixing allegations related to electronic book sales, HarperCollins Publishers forged new pricing agreements with retailers. The initial allegations focused on distribution contracts that imposed limits on e-book pricing and contractual ‘most favored nation’ clauses that retailers used to ensure competitors would not get more advantageous agreements or prices.” Read on>>

Associations Can Run Afoul Of Anti-Trust Rules (Venable LLP):

“Antitrust law – or competition law as it is known elsewhere in the world – is really just about ensuring that our largely free-market economy works for consumers. The goal is not to turn you into an antitrust lawyer, or even a lawyer (and certainly not an economist). The goal is to help you keep your eyes peeled for potential antitrust issues so that if a competition issue arises you can call someone who can help.” Read on>>

Price-Cost Test Does Not Apply in Exclusive Dealing Cases Where Pricing Is Not the Exclusionary Tool, Third Circuit Holds (Ballard Spahr LLP):

“The U.S. Court of Appeals for the Third Circuit in ZF Meritor, LLC v. Eaton Corporation affirmed a jury’s verdict in favor of ZF Meritor LLC and Meritor Transmission Corporation finding that Eaton Corporation, a leading supplier of heavy-duty truck transmissions in North America, entered into unlawful exclusive dealing agreements with the primary direct purchasers of transmissions.” Read on>>

Third Circuit Upholds Finding of Antitrust Liability for Above-Cost Pricing Arrangement (Mintz Levin):
“While recognizing the Supreme Court’s general safe harbor for above-cost discounting, the Third Circuit found that market-share discounts by a monopolist could amount to a de facto exclusive dealing arrangement that violates the antitrust laws even when prices remained above-cost.” Read on>>

Looking for additional antitrust and trade regulation law news? Find it at JD Supra>>