Belgium: Global Enforcement Trends And Priorities: An Update From The 2019 ABA Spring Meeting

Last Updated: 24 May 2019
Article by Edith Ramirez, Joseph G. Krauss and Logan M. Breed
Most Read Contributor in Belgium, July 2019

Representatives from antitrust enforcement agencies around the world converged in Washington, D.C. last week to attend the American Bar Association's 67th Spring Meeting of the Section of Antitrust Law. Over 3,000 delegates attended the conference, including government officials from a number of international antitrust agencies. Represented agencies used this opportunity to communicate their enforcement priorities, as well as weigh in on key issues in merger review, antitrust litigation, and cartel enforcement. We provide key highlights below.

MERGER ENFORCEMENT 

Close scrutiny of vertical mergers will continue

Vertical mergers remained a hot topic at this year's Spring Meeting. In the wake of the D.C. Circuit's recent affirmance of the district court's decision not to block the AT&T/Time Warner merger and the Federal Trade Commission's (FTC) votes to allow the Staples/Essendant and Fresenius/NxStage deals to go forward, officials from both agencies stated they will continue to closely scrutinize deals that present potential vertical issues. Department of Justice (DOJ) officials emphasized that the D.C. Circuit in AT&T/Time Warner acknowledged that the fundamental theory of vertical harm presented by DOJ was valid, that vertical mergers can harm competition, and that harm can also be shown by demonstrating nonprice effects (e.g., decreased product quality and reduced innovation). FTC Chairman Joe Simons likewise emphasized the willingness of the FTC to challenge deals on the basis of vertical theories where the documents, testimony, and economics work support such a challenge.

FTC and DOJ officials also discussed that they are considering efforts to revise the vertical merger guidelines, which were last revised in 1984 and are widely acknowledged to be of limited relevance today.

Officials from antitrust agencies outside the United States echoed much of what was said by DOJ and FTC officials. In particular, panelists acknowledged that while vertical theories of harm are similar in both the European Union and the United States, other jurisdictions such as China may scrutinize these issues even more closely.

Merger review timing remains a mixed bag

Another issue that was addressed was the timing of merger reviews in the United States. DOJ officials reported on the agency's progress in implementing new policies first announced by Assistant Attorney General Makan Delrahim in September 2018 to streamline merger reviews.

According to Antitrust Division Deputy Assistant Attorney General Barry Nigro, since the policy change was announced, the agency has opened 30 investigations, all of which are already closed or are on track to close within six months.

The FTC also clarified its perspective with respect to timing agreements. While noting that timing agreements are not required and that negotiations are not conditioned on the execution of a timing agreement, Bureau of Competition Director Bruce Hoffman made clear that if a party does not enter into a timing agreement, the FTC will treat the matter as though both sides are preparing for litigation.

The FTC's Technology Task Force will closely examine acquisitions of nascent competitors

FTC Chairman Joe Simons also discussed the new Technology Task Force within the FTC's Competition Bureau, initially announced in February, to target digital platforms and technology issues, including in particular the acquisition of nascent competitors. He noted that the Technology Task Force, which currently has 17 dedicated staff attorneys, will examine both consummated and unconsummated mergers.

ANTITRUST LITIGATION

Technology companies are receiving increasing scrutiny

Tech issues were one of the major themes of this year's Spring Meeting.

From discussions of the indirect purchaser rule in the Apple, Inc. v. Pepper case before the Supreme Court to broader discussions of whether and to what extent regulators and courts should intervene in the operations of global technology companies, tech was a major focus of the panels. As many speakers noted, the outcome of Apple v. Pepper will affect not only technology companies but also any company that offers a platform for selling goods or services.

If the Supreme Court decides in favor of plaintiffs, platform-based businesses could face suits from multiple interrelated groups of users. Antitrust Division Principal Deputy Assistant Attorney General Andrew Finch indicated that DOJ has begun thinking about whether standards like the indirect purchaser rule should be applied mechanically, or if it makes sense to step back and look at the purpose of the rule. As many authorities conduct investigations into a wide range of tech companies' practices, from Google's shopping service to Facebook's data-gathering arrangements, the effects of changing legal standards will have far-reaching implications for everyday consumers, the economy, and other companies. Staying on top of these changes is imperative for all companies.

Companies facing a surge in state antitrust enforcement should consider early advocacy to address the policy concerns underlying investigations

Several panelists noted an increase in state antitrust litigation. States are also coordinating their enforcement efforts more than ever, with an uptick in large multistate cases. According to the state enforcers who attended the Spring Meeting, state enforcement priorities have been (1) investigations where the federal agency investigation has stalled; (2) cases that are instrumental to state policy (like the generics cases); and (3) cases of particular importance to state constituents such as data security and health care investigations. The National Association of Attorneys General (NAAG) continues to be active, starting a new task force within NAAG to review technology and antitrust related issues. State enforcers indicated a willingness to work with defense counsel who wanted to address the policy concerns underlying investigations. Defendants faced with state enforcement action should consult experienced antitrust counsel who can assist in assessing how to defend against investigations, particularly multistate coordinated efforts.

Companies should stay abreast of FTC guidance and state consumer protection laws

Consumer protection lawyers have been busy recently with both state and private enforcement on the rise. The FTC prioritized four key enforcement efforts: (1) privacy and data security; (2) actions against brands, influencers, and associated third parties that are not complying with the FTC's social media guidance; (3) deceptive pricing cases, such as where a retailer lists a higher price of an item along with a lower sales price, or where consumers allege that surcharges are hidden; (4) investigation of companies falsely offering student debt relief. It is important for companies to remain up-to-date with FTC guidance and state consumer protection laws, particularly if they collect consumer data, engage in social media advertising, or have a pricing structure that is not fully transparent to consumers.

CARTEL ENFORCEMENT

Throughout the Spring Meeting, antitrust and competition agencies around the world emphasized their commitment to investigating and prosecuting cartels. Several countries announced new or enhanced cartel enforcement regimes generally, while other agencies described specific improvements to their leniency regimes.

Given the globalization of cartel enforcement, companies need to ensure antitrust compliance globally

Several agencies either announced their first cartel enforcement action or said they were actively looking to bring their first case. Malaysia Competition Commission (MyCC) CEO Iskandar Ismail announced the resolution of the MyCC's  first bid-rigging case and Australian Competition and Consumer Commission (ACCC) Chair Rod Sims explained that after years of ramping up, the ACCC is ready to bring cartel enforcement actions. Other jurisdictions, like Myanmar, Brunei, and Thailand, have recently passed new or updated competition laws that expand their cartel enforcement ability. Companies should review their compliance programs globally to ensure that they are in compliance with every region in which they operate or their goods are used.

Leniency remains a key component of cartel enforcement programs

Agencies around the world emphasized the continued importance of leniency programs as an enforcement tool. Multiple agencies described changes designed to enhance the effectiveness of their leniency programs or announced new or updated leniency programs altogether. For example, Japanese Fair Trade Commissioner Reiko Aoki explained that instead of providing a reduction in fines for the first five companies to come in for leniency, the Japanese Fair Trade Commission would now provide a fine reduction for all companies that self-reported cartel conduct. The Philippine Competition Commission described its newly instituted leniency program.

DOJ, however, recognized that as the number of jurisdictions with leniency programs grows, so does the cost for companies to apply for leniency. DOJ is developing a "best practices" guide for working with leniency applicants in cross-border investigation to increase the efficiency of crossborder investigation as well as to avoid duplicative fines and penalties.

The European Commission has new digital cartel-detection tools and DOJ is focused on government procurement cases

European Commissioner for Competition Margrethe Vestager announced that the European Commission is investing in digital tools to help detect cartels and has created a new whistleblower tool for agencies to alert the commission to cartel conduct. The DOJ provided two key updates. First, DOJ Deputy Assistant Attorney General for Criminal Enforcement Richard Powers emphasized that companies must timely cooperate with investigators to receive credit at sentencing. Timely cooperation is considered cooperation that begins at the start of the investigation. To timely cooperate, companies do not have to admit guilt but rather must work with investigators to uncover key facts. Second, DOJ is prioritizing the prosecution of companies whose anticompetitive conduct harms the government.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions