Antitrust and Competition Newsletter - June 2013

by Orrick, Herrington & Sutcliffe LLP

Top Story

Competition and Innovation: Application of European Competition Law to a Rival’s Demand for Access to a Competitor’s Data
The Internet has given rise to information-based businesses that create value by accumulating pools of data captured from many sources. As Internet firms grow ever larger and their stores of data grow exponentially, questions regarding the control of, and access to, these data have emerged. Firms seeking to gain or ensure continued access to these data have asserted antitrust theories as basis for doing so. Read more >>

Global Developments

United States

Court Issues Ruling Establishing Framework for RAND Royalty Rates for SEPs
On April 25, 2013, in Microsoft Corp. v. Motorola, Inc., Case No. C10-1823 (W.D. Wash.), U.S. District Judge James Robart issued the first-ever detailed determination by a U.S. district court of a “reasonable and non-discriminatory” royalty rate for standards-essential patents, which have been the subject of antitrust scrutiny by enforcement agencies examining mobile device markets. Read more >>

Anheuser-Busch and Grupo Modelo Settle Merger Challenge
On April 22, 2013, the U.S. District Court for the District of Columbia approved Anheuser-Busch’s and Grupo Modelo’s settlement with the U.S. Department of Justice, resolving the Department’s antitrust lawsuit that threatened to prohibit Anheuser-Busch’s multibillion-dollar acquisition of its competitor, Grupo Modelo. Read more >>

DOJ Stops Naming Carveouts in Cartel Plea Agreements
On April 12, 2013, the U.S. Department of Justice announced that it would no longer publicly name the executives excluded from immunity granted as part of cartel plea agreements. Read more >>


ECJ Confirms Parent Liability for Actions of Subsidiaries in Certain Circumstances
On May 8, 2013, the European Court of Justice confirmed that control of a subsidiary by a parent may be presumed solely on the basis of a 100 percent shareholding. With such control, liability for an infringement of competition law may be imputed to its parent. Read more >>

General Court Rejects Commission’s Interpretation of the “Economic Continuity” Rule
In May, the European Union’s General Court issued its judgments in an appeal brought by Parker ITR, Trelleborg and Manuli against a 2009 European Commission decision imposing fines on these companies for their participation in a worldwide cartel in the marine hose market. Read more >>

UK High Court Orders French Cartel Defendants to Reveal Information Despite French Law Prohibiting Disclosure
In a damages action brought by National Grid Electricity Transmission plc, the UK High Court has ordered Alstom and Areva to disclose documents to National Grid in the face of a French law prohibiting documents of a commercial nature from being disclosed as evidence in foreign judicial proceedings. Read more >>

European Commission to Market Test Additional VISA Commitments
As part of an ongoing investigation into Visa Europe Limited, European Commission Vice President Joaquín Almunia recently welcomed Visa’s proposed commitments designed to assuage the Commission’s competition concerns about the company’s business, and announced that the Commission would market test some of the commitments. Read more >>


MOFCOM Approves Tie-up Between Glencore and Xstrata with Conditions
On April 16, 2013, China’s Ministry of Commerce (MOFCOM) approved Glencore’s tie-up with Xstrata with conditions. MOFCOM was the last global regulator to approve the transaction. Read more >>

MOFCOM Approves Marubeni’s Buyout of Agricultural Trader Gavilon
On April 23, 2013, MOFCOM approved Japanese trading house Marubeni’s $5 billion acquisition of U.S. grain merchant Gavilon, subject to significant conditions in the Chinese soya bean market. Read more >> 

MOFCOM Issues Tentative Provisions on the Criteria Applicable to Simple Cases of Concentrations of Business Operators
The draft contains only seven articles that are mainly focused on setting out the criteria for concentrations suitable for treatment under the simplified review procedure. Read more >>

MOFCOM Issues Provisions on Appending Restrictive Conditions on Concentrations of Business Operators
The draft is intended to replace the Interim Provisions of the Ministry of Commerce on Implementing Asset or Business Disposals Related to Concentration of Business Operators, which were issued in 2010. Read more >>

Guangdong Higher People’s Court Releases Decision in Abuse of Dominance Case
On March 28, 2013, the Guangdong Higher People’s Court ruled against Qihoo 360 in its long-running dispute with Tencent over market dominance. This is the first antitrust case to be heard by a higher people’s court in China. 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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