Antitrust and Competition Newsletter - December 2013

by Orrick, Herrington & Sutcliffe LLP

Top Story

European Commission Advances Proposal for Acquisition of Minority Shareholdings
In June 2013, the European Commission launched a consultation on its proposed reform of the EU Merger Regulation (EUMR), which included a proposal to extend the scope of the EUMR to cover acquisitions of non-controlling shareholdings between undertakings. This article provides an overview of the Commission’s proposal and the issues raised by the consultation, and sets out next steps in the legislative process. Read more >>

Global Developments

United States

Another District Court Sets RAND Rates for Standard-Essential Patents
In April 2013, Judge James Robart of the U.S. District Court for the Western District of Washington issued a 200-plus-page opinion determining RAND royalty rates for SEPs asserted by Motorola against Microsoft—the first such opinion by a district court. On Sept. 27, 2013, Judge James Holderman of the Northern District of Illinois issued a lengthy ruling that suggests that Judge Robart’s methodology likely will influence other courts in determining RAND rates. Read more >>

AUO Executive Acquitted in LCD Price-Fixing Criminal Prosecution
On Oct. 15, 2013, following a three-week trial in the Northern District of California, a jury found AU Optronics executive Richard Bai not guilty of charges that he engaged in price fixing of Thin Film Transistor-LCD panels. Read more >>

DOJ and FBI Provide Congressional Testimony Regarding Efforts to Uncover Cartels and Punish Cartel Participants
On Nov. 14, 2013, the DOJ, together with the FBI, provided testimony to Congress regarding, “Cartel Prosecution: Stopping Price-Fixers and Protecting Consumers.” The testimony provides a useful summary of the agencies’ recent investigations into price-fixing cases. Read more >>

American Airlines’ Merger with US Airways Receives Green Light
On Nov. 27, 2013, a U.S. bankruptcy judge overseeing a bankruptcy proceeding involving AMR Corp. (American Airlines’ parent company) approved a settlement with the federal government allowing AMR to complete its merger with US Airways Group Inc. Read more >>

FTC Revises Rules Relating to the Reportability of Patent License Transfers for Pharmaceutical Companies
The FTC has finalized a rule requiring pharmaceutical companies to report more exclusive patent licenses for antitrust approval under the Hart-Scott-Rodino Act. Read more >> 

Chief Justice Roberts Puts Cy Pres Settlements on the Supreme Court’s Radar
In Marek v. Lane, 571 U.S. ___ (2013), the U.S. Supreme Court refused to grant review of the 9th U.S. Circuit Court of Appeals’ denial of a challenge to a cy pres settlement, but Chief Justice John Roberts issued a statement regarding cy pres settlements that sets the stage for the Court to take up the propriety of such settlements in the future. Read more >>


Commission Clarifies Policy on the Suspensory Effect of the EU Merger Regulation
The European Commission recently published a decision that describes when it allows mergers to be completed prior to EU Merger Regulation clearance being granted, particularly where continued suspension of the deal poses a risk of the target failing to secure continued business. Read more >>

Commission Again Authorizes Acquisition on “Failing Firm” Grounds
On Oct. 9, 2013, following a Phase II investigation, the European Commission cleared, under the EU Merger Regulation, the acquisition of Olympic Air by Aegean Airlines under the “failing firm” defense, whereby the Commission may approve a merger if deterioration in the competitive market structure would result even if the merger did not occur, through the forced exit of a market operator. Read more >>

UK Competition Commission Publishes Proposals to Increase Competition in UK Audit Market
On Oct. 16, 2013, the UK Competition Commission published proposals to facilitate greater competition in the UK audit market. Read more >>

EU Legislation on Copyright for the “Digital Age” Faces Uncertainty
On Oct. 25, 2013, the European Council held a summit to discuss European Union policy developments including the creation of an effective “Digital Single Market” designed to overcome fragmentation of digital services along national lines. It concluded that provision of digital services and content across the single market requires the establishment of an updated copyright regime for the “digital age,” targeting a completion date for its review of the current EU copyright framework of spring 2014. Read more >>

French Competition Authority Takes Action in Online Horse Race Betting
Following a complaint lodged by Betclic Everest Group with the FCA, the dominant betting provider, Pari Mutuel Urbain, proposed commitments on Oct. 30, 2013 to separate horse racing bets registered in physical outlets (bar-tobacco shops, newspaper stands, etc.) from those registered in its online horse race betting channel ( Read more >>


Beijing No. 2 Intermediate Court Issues First Horizontal Agreement Ruling in Seafood Cartel Lawsuit
On Nov. 21, 2013, Beijing No. 2 Intermediate Court issued the first Chinese court ruling in favor of a plaintiff in a horizontal agreement antitrust lawsuit, against Beijing Seafood Wholesale Industry Association. Read more >>

Japan’s METI Submits Amicus Brief in the TFT-LCD Litigation Seeking to Limit the Extraterritorial Reach of U.S. Antitrust Laws
On Oct. 31, 2013, Japan’s Ministry of Economy, Trade and Industry submitted a brief in support of the defendants in one of the TFT-LCD Flat Panel Antitrust Litigation cases, requesting the U.S. District Court for the Eastern District of Illinois to reconsider a ruling of the U.S. District Court for the Northern District of California, which held that the U.S. Foreign Trade Antitrust Improvement Act did not preclude U.S. liability for sales of price-fixed LCD panels that never entered the United States. Read more >>

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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