Archives: Antitrust & Competition

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FTC eyes contact lens trademark settlement agreements

Over a spirited dissent, and in a 3–1 decision issued on November 14, the Federal Trade Commission (FTC) Commissioners held that 1-800 Contacts violated Section 5 of the FTC Action by entering into settlement agreements with competitors that (1) harmed consumers in the online sale of contact lenses and (2) harmed search engines by artificially … Continue Reading

“Not So Fast!” District Court orders divestiture of assets in private Clayton Act case six years after DOJ clears deal

Increasingly, the antitrust agencies have been challenging unreported transactions post-closing under the Clayton Act, seeking an unwinding of the transactions or at least divestitures of some of the assets purchased. Until recently, however, the threat that a private plaintiff would obtain a court order requiring an unwinding or divestiture once the deal has closed has … Continue Reading

Agreements and algorithms can add up to antitrust liability

Last week in a hearing before the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights, Assistant Attorney General (AAG) Makan Delrahim announced that the Department of Justice (DOJ) is pursuing criminal charges against competitors who allegedly engaged in a price-fixing scheme facilitated by the use of search algorithms. While he did not reveal further … Continue Reading

Platform bans under competition law – a German perspective

Digital transformations in commerce steadily increase the variety and availability of products and give consumers access to retail offers beyond geographic boundaries on a 24/7 basis. While the increase of e-commerce might enhance inter- and intra-brand competition, it heavily impacts the traditional retail landscape. Brand manufacturers suffer from less price stability and retailers find it … Continue Reading

ALJ Upholds FTC Judgement of Antitrust Violations for Ad Tech Agreements Against 1-800 Contacts

With the holiday marketing season upon us, marketers launch the month-long, relentless scramble for consumer visibility and coveted advertising space on high-traffic inventory. One matter likely not on marketers’ radars? Antitrust violations. A recent ruling on a case brought by the Federal Trade Commission (“FTC”) against 1-800 Contacts scrutinizes the brand’s ad tech playbook through … Continue Reading

UK Investment Consultants and Fiduciary Management Services Under Investigation

The UK competition regulator, the Competition and Markets Authority (CMA), will be conducting in-depth investigations of investment consultancy and fiduciary management services after the Financial Conduct Authority (FCA) initiated an investigation.  The CMA has a wide range of powers enabling them to investigate and impose remedies.  Industry participants should expect requests from the CMA to … Continue Reading

On the brink of protectionism? Germany tightens rules on foreign investment controls to block unwanted takeovers

On 12 July 2017, the German government adopted new provisions amending the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung – “AWV”). By implementing the new rules, Germany is trying to stop losing know-how to foreign countries by blocking unwanted takeovers by non-European companies. The amendments are regarded as a response to the takeover of German … Continue Reading

The European Commission Publishes Final Report on E-commerce Inquiry – What it Means for Brand Owners

On 10 May 2017, the European Commission published its final report on its two-year e-commerce sector inquiry (the Final Report).  Many of the conclusions in the Final Report closely follow the Commission’s preliminary report, which were analysed and summarised in our last client alert on the e-commerce inquiry, and were also featured in our webinar … Continue Reading

Online sales restrictions continue to be top enforcement priority in EU

The European Commission recently published its long-awaited final report on its E-commerce Sector Inquiry launched two years ago. Therein, the Commission identifies that pricing limitations, dual pricing (i.e., charging different prices according to the channel through which a product is sold) and platform bans are among the most widespread vertical competition restraints in e-commerce implemented … Continue Reading

Facebook Is Fined US$122 Million by European Commission for Misleading Information in WhatsApp Merger Review

Facebook is faced with a fine of EUR110 million (US$122 million) for providing misrepresentative or incorrect information to the European Commission when it filed the acquisition of WhatsApp for merger approval in 2014. In the notification, Facebook stated it would not be able to reliably link Facebook users’ accounts and WhatsApp users’ accounts. However, two … Continue Reading

DOJ Casts Shade on Proposed Chicago Sun-Times Newspaper Sale

The Department of Justice Antitrust Division (DOJ) announced May 15 that it is investigating the proposed acquisition of the Chicago Sun-Times newspaper by the owner of rival publication the Chicago Tribune. As a condition of proceeding with the sale, the DOJ has required that the Chicago Sun-Times advertise for an alternative buyer. The investigation demonstrates … Continue Reading

Germany updates competition rules to deal with digital markets

The “Digital Strategy 2025”, adopted by the German Federal Government on March 1, 2016, aims to ensure that Germany remains a growing, modern and significant financial marketplace in an increasingly digitalized environment. Measures proposed under the Digital Strategy 2025 include the further development of Germany’s regulatory landscape, in particular in the areas of competition and … Continue Reading

Independent Health Care Providers Beware – FTC Actions Against Group Contracting Efforts Continue

The Federal Trade Commission (“FTC”) recently charged a Puerto Rico ophthalmologist cooperative with organizing a group boycott of a health plan in violation of section 5 of the FTC Act.  This action demonstrates the need for providers to be heedful of the antitrust laws when engaging in group contracting efforts.  While agreements among independent providers … Continue Reading

Private Equity Firm Held Responsible for Portfolio Company’s Antitrust Violations

In January of 2017 a private equity firm, Bencis, was found liable for a portfolio company’s involvement as one of 14 cartelists producing flour in the Netherlands, Belgium, and Germany. The Authority for Consumers and Markets (ACM) ruled that while company was a member of Bencis’s portfolio, Bencis was accountable for their antitrust violations.  This … Continue Reading

The FTC and DOJ Update the Antitrust Guidelines for the Licensing of Intellectual Property

The Federal Trade Commission and Department of Justice have made their first amendments to the Antitrust Guidelines for the Licensing of Intellectual Property since their origin in 1995.  The guidelines were updated in light of the fundamental changes in statutory and case law, agency enforcement, and policy work. The updates support innovation while incorporating the … Continue Reading

Duke Energy Forced to Pay Large Fine in HSR Gun Jumping Settlement

Duke Energy Corporation (Duke) agreed to pay $600,000 to settle a DOJ claim that it violated the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) by failing to comply with the HSR waiting period requirement.  The complaint from the DOJ originated from Duke’s acquisition of the Osprey natural gas power plant from Calpine Corporation, which … Continue Reading

Antitrust Update: 2017 HSR Thresholds

On January 19, 2017, the Federal Trade Commission (FTC) announced the revised thresholds for determining whether companies are required to notify federal antitrust authorities about a transaction under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act).  The new minimum filing threshold will be $80.8 million. All of the revised thresholds are higher … Continue Reading

Individual Investors Pay Civil Penalties for Failing to Report Acquisitions of Voting Securities to the Federal Trade Commission

The Hart-Scott-Rodino Act (“HSR Act”) requires companies and individuals to report large transactions above certain thresholds to the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”), and then to observe a 30-day waiting period before closing their transactions. In two recent cases, investors resolved FTC allegations that they failed to observe these requirements … Continue Reading

U.S. Antitrust Agencies Update International Enforcement Guidelines

The Department of Justice and Federal Trade Commission have revised the Antitrust Guidelines for International Enforcement and Cooperation after twenty years.  These revisions, effective on January 13th, 2017, stress the need for collaboration between competition agencies in a globalized economy.  To read more about the guidelines please click here.… Continue Reading

Competition Authorities Focus On The Retail Sector

Competition authorities at both European and national levels are turning their attention to markets affecting the retail sector. The shift in focus is illustrated by the recent inquiries by the European Commission into e-commerce and by the UK Competition and Markets Authority (CMA) into the modelling agencies sector, in an effort to discover instances of … Continue Reading

What the European Court has to say about discount structures used by dominant firms

In a case regarding Post Danmark’s rebate structure, the European Court provided further guidance on the legality of rebates and discounts offered by dominant firms.  While this case involves bulk mail services, the lessons learned are applicable to a wide variety of industries in determining whether discount structures practiced by market leading firms comply with … Continue Reading

Federal Trade Commission Announces Adjusted HSR Thresholds for 2015

On January 15, 2015, the Federal Trade Commission announced the annual threshold adjustments for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. § 18a) (“HSR”). The new thresholds have increased the dollar amount required to trigger HSR notification for both the size-of-transaction and size-of-person tests. Click here to read the full … Continue Reading
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