Reflections on the ABA Antitrust Section’s Spring Meeting: What You Need to Know

The ABA Antitrust Section’s Spring Meeting took place over three days in April in Washington DC. Keen to hear about and debate cutting edge issues in antitrust, over 3,000 antitrust lawyers attended, with more than 20% coming from outside the US. Three Baker & McKenzie attorneys participated in panels. Here are our reflections on the most noteworthy aspects:

Cartels and Criminal Enforcement

• Eric Holder became the first Attorney General to speak at any Section meeting, commending the Department of Justice Antitrust Division for its exceptional commitment and for collecting record fines of $1.2 billion in FY 2014.
• Assistant Attorney General Bill Baer reiterated that criminal enforcement continues to be the highest priority of the Antitrust Division.
• Witness preparation continues to be of importance in both civil and criminal cases. Douglas Tween from Baker & McKenzie moderated a panel that discussed the fine line between witness preparation and coaching in criminal and civil cases, with panelists providing real-life examples.
• A panel considering anti-cartel enforcement warned that ‘hub and spoke’ cartels – involving an intermediary – would continue to emerge. Particular focus was placed on brokers who, as intermediaries, might have the ability and incentive to bring about a multilateral conspiracy.  A former Antitrust Division panelist warned that the DOJ’s toolbox would continue to evolve; that the ‘corrupt purchasing agent model’ would increasingly be an area for enforcement, and that it is consequently not enough to say ‘don’t speak to your competitors’.
• An impassioned debate took place on the topic of manipulation of financial markets.  Pointing to a large and growing number of cases in numerous countries, the panel debated whether antitrust laws should even apply – given pre-existing regulatory controls, the cross-currents that result from this ‘double regulation’ and the challenges of prosecuting these cases before inexpert courts.  The counterview was also expressed:  that manipulation falls squarely within antitrust when it is collusive.  The debate is expected to move (but perhaps not rest) when judgments and decisions are published in this area in coming months – on both sides of the Atlantic.

Mergers

• The panelists on Cross-National Merger Remedies seemed to reach a consensus on the need for perseverance, flexibility and creativity when developing merger remedies and  applied this to both the merging parties and the reviewing agency. Coordination among the agencies (which might be triggered by the parties themselves) is recognized as a critical factor for securing clearance of the largest deals.
• Just last week, the International Competition Network unveiled a new guidance document which outlines how agencies might best go about conducting parallel international merger investigations.  The 14-page document describes a number of voluntary steps which antitrust enforcers can take to ensure their merger review decisions are not in conflict with one another. The panel also noted the apparent preference of China’s MOFCOM for behavioral (as opposed to structural) remedies as found in about 70% of its merger cases.
• AAG Baer commented on the recent mega-merger wave, saying that some mergers should “never get out of the boardroom.”  A point of contrast was provided by European  Union Commissioner Margrethe Vestager, who reminded the audience that sometimes complicated deals, such as Holcim/Lafarge, could be cleared, and relatively quickly, where the parties are transparent about the issues and present potential remedies at an early stage.

Investigative Process/Procedural Fairness:

• The panel – drawn from antitrust agencies and private practice – discussed what is meant by ‘due process’, with one panelist highlighting the need for (i) notice of the charges; (ii) the right to be heard; (iii) impartial decision-making and (iv) well-reasoned decisions. This is a hot topic that is not going away.  The push for increased transparency and due process comes not merely from the business community but from antitrust authorities themselves. Better processes mean better decisions reached at a lower cost.  Companies do not want to find themselves subjected to sprawling investigations, and agencies don’t want to find they have overlooked some key evidence years down the road.  Fairness also builds credibility for the agency.  The ICN Guidance Document unveiled on this topic will be an influential document. It is short but useful, reflecting the results of surveys conducted on investigative processes and setting forth a number of minimum requirements.

Global Perspectives

• Commissioner Vestager noted continued cooperation among enforcement agencies worldwide, which she says will lead to convergence.  Some 60% of the competition cases in the EU are global and require coordination. She warned that no company is too big or too small and that impartiality is at the core of the mission.
• Addressing a question about whether the EC would “not make a habit out of settlements” (since commentators have queried whether the expedience of this form of case resolution has hidden costs), the Commissioner underlined that the EC should be willing to use every tool – or enforcers may lack the insigChts needed in order for the case law to develop. The Commissioner also needs companies to appreciate that the EC is willing to proceed to enforcement and court if necessary.
• Noting the differences in competition laws, Roxane Busey from Baker & McKenzie participated in a panel that discussed the challenges of global antitrust compliance and suggested best practices and ways to minimize the risk of antitrust violations worldwide. In particular, the panel noted how technological advances have facilitated more cost effective training globally and improved auditing techniques.
• Referring to a 30% increase in budget, the chairman of the UK Competition and Markets Authority expressed a determination to enforce more civil and criminal competition cases.
• The U.S. has a memorandum of understanding with the enforcement agencies in 13 countries, including the three enforcement agencies in China, which demonstrates the importance of “procedural fairness and economically based substantive areas.”

Disgorgement

• AAG Bill Baer emphasized the government’s commitment to disgorgement in appropriate cases where relief in private actions or state enforcement is not available.  Recent examples include a “gun jumping” case and the tour bus joint venture In New York.  Having withdrawn its policy on disgorgement last Summer, the FTC has also sought and in one case actually obtained disgorgement as part of its remedy.

Federal Trade Commission Successes

• FTC Chairwoman Edith Ramirez noted the FTC’s many successes in this centennial year, including the Supreme Court’s decision in North Carolina Dental, which involved the state action doctrine, and  the 11th Circuit’s decision in McWane, which involved exclusive dealing.  Bill Kovacic in his lunch speech noted the importance of the McWane decision, as the first monopolization case in the circuit courts since 1968.
• Lee Van Voorhis from Baker & McKenzie participated in a panel that discussed the significance of North Carolina Dental to various state licensing boards and the various ways in which these boards can satisfy the active supervision requirement of the state action doctrine or otherwise minimize antitrust exposure in light of this decision.  While there was significant debate about the merits of the Supreme Court decision, there was consensus that the world has changed for state boards.  As predicted by the panel, antitrust lawsuits have begun against state boards.

State Enforcement

• Kathleen Foote from the California Attorney General’s Office commented on the role of the States in enforcement, noting in particular challenges to bid rigging, the physician/hospital merger in Idaho, product hopping in New York, poaching agreements in California, and the increased state regulation that will be required for professional boards as a result of the Supreme Court’s decision in North Carolina Dental.

Innovation/Intellectual Property

• Panelists on a program on Innovation discussed the appropriate standard to apply to innovation and new product development.  FTC Commissioner Terrell McSweeney indicated that she would likely apply a ‘rule of reason’ analysis (weighing any restriction in competition with potential consumer benefits) to determine whether the innovation, and the way in which it is introduced, benefits consumers or harms competitors.
• Chairwoman Ramirez mentioned an upcoming workshop on the sharing economy – which would look at the competition and consumer protection issues arising from the linking up of entrepreneurs directly to consumers through online and mobile business platforms.
• Pay-for-delay in pharmaceutical cases continues to be on the FTC’s agenda with at least three cases pending.

Big Data

• A number of panels picked up on the increased attention on “Big Data” and the intersection of antitrust and privacy in the U.S. and EU. The FTC implied that existing antitrust tools are sufficient to assess a data merger that could harm competition either because the data is a barrier to entry, or because non-price competition to offer enhanced privacy protections could be reduced.  Where a merger raises consumer protection issues, the privacy rules would continue to apply. The view from the EC seems to be that there is a risk of data privacy concerns spilling-over into an ill-founded desire for antitrust to solve privacy issues.
• In any event, the issues around Big Data and whether or not it is a tool for inclusion or exclusion are not going away. Data is increasingly important, as are the analytics to know how to use it. Panelists forecasted interesting mergers of analytics companies and those that own data.