Category 'US Antitrust Basics'

April 30, 2018

The Winding Road to the Supreme Court: United States v. American Express Co.

Last year’s Antitrust Annual Report described American Express’ sweeping victory over the Department of Justice (DOJ) and 17 state Attorneys General (AGs) in the Second Circuit pertaining to its use of Non-Discrimination Provisions (NDPs) in its merchant contracts – that is, contractual provisions that forbid merchants from trying to influence consumers to use lower cost forms of payment. But the Second Circuit’s decision was not the end of the dispute. The Supreme Court agreed to hear the case – only without the DOJ’s continued participation.

Categories: US Antitrust Basics, US Distribution

April 17, 2018

Antitrust Enforcement Under the Trump Administration

Divining trends in antitrust enforcement in a given presidential administration can take some time. Many commentators didn’t notice material changes in antitrust enforcement in the Obama administration – at least in merger enforcement – until the summer of 2011, when the Antitrust Division of the Department of Justice (DOJ) brought suit challenging AT&T’s acquisition of T-Mobile, more than two years into President Obama’s term. However, in the early tenures of antitrust enforcers appointed by President Trump, there are indicators worth watching to see whether and to what extent they are harbingers for antitrust enforcement.

Categories: US Antitrust Basics

April 13, 2018

The DOJ’s Evolving Approach to Consent Decrees

Our enforcement agencies are tasked with the difficult job of evaluating mergers to assess their effect on the competitive landscape. While most mergers are able to pass agency review unscathed, there are a select number that could lead to anti-competitive outcomes if allowed to proceed. It is for these mergers that remedies come into play. Traditionally, if an enforcement agency found that a merger was likely to substantially lessen competition, it would impose a structural remedy. Of course, structural remedies aren’t without their own complications, but by and large, enforcement of structural remedies are fairly straightforward: either the merger is blocked/ abandoned or the assets or portion of a business are sold to a third party.

Categories: US Antitrust Basics, US Mergers

April 12, 2018

Gun-Jumping and Procedural Compliance

Many jurisdictions across the world have mandatory notification regimes. When the relevant filing thresholds are met, the merger review process has a suspensive effect on the transaction, meaning that the parties must continue to operate as competitors and cannot integrate until they receive merger approval.

‘Gun-jumping’ refers to unlawful conduct of the merging parties before such approval is granted, including early implementation of the merger, the coordination of competitive conduct or the unrestricted exchange of competitively sensitive information.

The EU and U.S. competition authorities have been and remain active in enforcing gun-jumping cases, while in recent years other competition authorities across the world, including in China, have also become increasingly active. This is a trend we expect to continue.

Categories: US Antitrust Basics, US Mergers

April 9, 2018

2018 S&S Annual Antitrust Report

Shearman & Sterling publishes its sixth annual Antitrust Annual Report today. The 2018 Report discerns two key trends – a global resurgence of controls on foreign direct investment and the focus on ‘fairness’ developing in the European Union (EU). The report also discusses various other important developments in international competition law enforcement.

Categories: EU Antitrust Basics, EU Cartels, EU Distribution, EU Enforcement, EU Mergers, US Antitrust Basics, US Cartels, US Distribution, US Enforcement, US Mergers

May 26, 2016

Antitrust Annual Report Surveys Recent Antitrust Developments

In its 2016 Annual Report, Shearman & Sterling's Antitrust Group discusses 19 major trends in antitrust law worldwide in merger control, cartels, compliance, unilateral conduct, antitrust litigation, and state aid.

Categories: EU Antitrust Basics, EU Cartels, EU Distribution, EU Enforcement, EU Mergers, US Antitrust Basics, US Cartels, US Distribution, US Enforcement, US Mergers

December 1, 2014

Foreign Antitrust Defendants Feel Some Relief from the Reach of the Sherman Act in Civil Matters

The Seventh Circuit Court of Appeals ruled that Motorola cannot recover overcharges to its non-U.S. subsidiaries that purchased price-fixed LCD panels abroad, even though finished cellphones incorporating those panels were ultimately sold in the United States. The Court held that permitting such actions would be an unjustified interference with the right of foreign nations to regulate their own economies.

Categories: US Antitrust Basics, US Cartels

January 2, 2011

U.S. Antitrust Risk Analysis in a Nutshell

Analyzing the U.S. antitrust implications of a merger, joint venture, or new pricing model or distribution scheme can be enormously complicated and time consuming. But in most instances, a few simple principles will give you a good sense of whether an activity is likely to entail significant antitrust risk. 

1.  The purpose of the U.S. antitrust laws is to prevent the creation or exercise of market power to the detriment of customers.

2.  Some conduct is so facially anticompetitive that it is unlawful regardless of its actual effect in the marketplace.

3.  Other conduct violates the antitrust laws only when it is likely to harm customers.

4.   As a general rule, the U.S. antitrust laws are more skeptical about arrangements where two or more competitors act collectively  than about distribution or other vertical arrangements or about decisions made unilaterally by a firm.

5.  The most important evidence of competitive effect is likely to come from the company's documents, customers, and competitors.

We briefly explore each of these principles after the jump.  Of course, given the technicalities and idiosyncrasies of U.S. antitrust law, nothing truly substitutes for a full analysis, but these principles will go a long way to informing your intuitions about antitrust risk. Read more.

Dale Collins

Categories: US Antitrust Basics