If we needed any reminder that the competitiveness of e-commerce was high on the European Commission’s enforcement agenda, we now have unequivocal proof of this. The Commission today launched three separate investigations under the competition rules against companies operating in the (i) consumer electronics, (ii) video games and (iii) hotel sectors. It is looking into whether these companies are breaching EU competition rules by unfairly restricting retail online prices and/or by excluding customers from certain online offers because of their nationality or location.
In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7
The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).
Practitioners interested in the real world application of an attempt to monopolize claim under Section 2 of the Sherman Act, will find Savory Pie Guy a “good read” for the New Year. Savory Pie Guy, LLC v. Comtec Industries, Ltd., No. 14-CV-7527, 2016 U.S. Dist. LEXIS 179317 (S.D.N.Y. December 28, 2016). Since the passage of the Sherman Act in 1890, attempted monopolization as a distinct legal theory of liability has received scant attention. It is usually bundled with a set of other but related antitrust theories of liability, including concerted activities in restraint of trade, and often tying and refusal to deal claims. For most of its existence, the theory of attempted monopolization has been under-analyzed intellectually. Savory Pie Guy provides a good and succinct analysis of the distinct elements of an attempt to monopolize claim, and their inter-relationship to the over-arching concept of “monopolization.”
Today, the UK Competition and Markets Authority (CMA) published a 60-second summary for company directors to avoid disqualification for breaches of competition law. Please see the full text of the guidance here. This is part of a series of CMA short and simple guides on competition law and is relevant to all directors whose companies fall within the scope of EU or UK competition law.
The Supreme Court of the United Kingdom by a majority of 8 to 3 has today confirmed that triggering the exit procedure from the European Union requires an Act of Parliament.
As such the Supreme Court disagreed with the current UK Government which had argued that Government ministers could rely on their prerogative powers to trigger Article 50 of the Treaty on the European Union without prior authorisation by Parliament. Scottish Parliament, Welsh and Northern Ireland assemblies had argued that they too should be consulted. The judges did not agree with that view.
Sheppard Mullin’s EU team has created a list of major legal shifts that await General Counsel and Compliance Officers in the areas of competition, EU regulatory and trade in 2017. These challenges may have an impact on your corporate and commercial strategies.
Our predictions include:
1. Higher Thresholds For HSR Filings
On January 19, 2017, the Federal Trade Commission announced revised, higher thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in gross national product and will be effective thirty days after publication in the Federal Register. Publication is expected within one week, so the new thresholds will likely become effective in late February 2017. Acquisitions that have not closed by the effective date will be subject to the new thresholds.
The center of gravity when it comes to private litigation of international antitrust disputes is still in the United States, but two trends affecting the legal landscape in the U.S., U.K., and EU are shifting it across the Atlantic. In this article originally published in Competition – The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California (Vol. 25, No. 2, Fall 2016), we address these trends and further discuss their implications for lawyers handling major antitrust disputes that have global footprints. Much of the discussion will focus on cartel litigation because those cases often involve global issues and present the most obvious examples for our discussion.
By the votes of a nation’s electors, the future of U.S. antitrust enforcement moved from “pragmatic aggressive enforcement as usual” to “too early to call.” The unexpected election of President-elect Donald J. Trump opened wide the speculation or mystery of what he and his advisors are planning as his administration’s antitrust policy. Given the paucity of his statements on antitrust policy, and the random nature of his few comments, we must dig deeply to formulate the outline of his enforcement plans or speculate about practices and policies in the spirit of the campaign’s “America First” rhetoric.
The U.S. Antitrust Agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) recently issued a document entitled “Antitrust Guidance For Human Resource Professionals” intended to alert HR professionals to potential antitrust violations involving hiring and compensation decisions.
The Guidance states that firms that compete to hire or retain employees are competitors in the “employment marketplace,” regardless of whether they make the same products or compete to provide the same services. It advises that it is unlawful for competitors to expressly or implicitly agree not to compete and notes that the Antitrust Agencies have taken enforcement actions against employers that have agreed not to compete for employees. To underscore this, the Guidance briefly discusses the enforcement actions that the Antitrust Agencies have taken against entities for agreeing not to compete for employees or agreeing to uniform compensation terms, including actions against high profile technology companies.