© 2005 Dechert LLP 2004 - The Year in Review ABA CORPORATE COUNSELING COMMITTEE PROGRAM January 28, 2005

© 2005 Dechert LLP

2004 - The Year in Review

ABA CORPORATE COUNSELING COMMITTEE PROGRAM

January 28, 2005

2

OVERVIEW

• Mergers, Acquisitions and Section 7 Issues

– Paul Denis

• Criminal and Section 1 Issues

– Mike Farber

• Distribution, Exclusion and Section 2 Issues

– Paul Friedman

• Antitrust Litigation Issues

– George Gordon

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MERGER, ACQUISITION AND SECTION 7 ISSUES

Paul Denis

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Section 7 Highlights

• The government doesn’t always win

• Watch the deals that are not challenged

• Relevant market allegations continue to be very narrow

• Unilateral effects cases require closest substitutes, not just close substitutes

• Customer testimony has its limits

• Flexibility with remedies may increase, but parties must honor their commitments

5

Section 7 Highlights

• Ninth Circuit flashes warning light for joint ventures

• Fines for Hart-Scott-Rodino violations are rising but so are reporting thresholds

• Policymaking continues into the second term; more changes ahead

• Senior personnel have changed and others may soon change. Will enforcement change?

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The Government Doesn’t Always Win

• In three significant decisions, the government lost merger challenges:

– United States, et al. v. Oracle Corporation, 331 F. Supp. 2d 1098 (N.D. Cal. 2004) (rejecting DOJ’s market definition, competitive effects analysis and reliance on customer testimony)

– FTC v. Arch Coal, Inc., 2004 U.S. Dist. Lexis 15996 (D.D.C. Aug. 16, 2004) (rejecting FTC’s “novel” theory of “tacit coordination” to restrict output)

– United States, et al. v. Dairy Farmers of America and Southern Belle Dairy, Civ. No. 03-206 (E.D. KY Aug. 31, 2004) (ownership of 50% non-voting interest alone is insufficient to conclude that a reduction in competition is likely) (appeal pending)

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But Overall, the Government Wins More Than They Lose

• To start 2005, the government did win one, albeit in an administrative action with the Federal Trade Commission sitting in review of its own case

– In the matter of Chicago Bridge & Iron Company

• In the aggregate, the federal agencies are batting better than 0.500 in federal litigated merger cases since 2000 (5 years)

– DOJ prevailed in two of four litigated merger cases

– FTC prevailed in three of four litigated merger cases

8

Watch the Deals that are Not Challenged

• DOJ announced a new policy of attempting to explain the decision not to challenge certain deals

• The DOJ policy tracks the FTC practice begun in 2001 with the AmeriSource/Bergen transaction

• These statements provide valuable insight into the Agencies’ thought processes

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Agency Explanations of Decisions Notto Challenge Transactions in 2004

DOJ Explanations

Anthem/Wellpoint Health

Movielink (VOD JV)

UnitedHealth Group/Oxford

Arch Wireless/Metrocall

FTC Explanations

Genzyme/Novazyme

(with dissent and statement)

Caremark/Advance PCS

RJR/Brown & Williamson *

(with concurrence)

Bertelsmann/Sony JV (concurrence)

Victory Memorial/Provena

(with dissent)

*Notable for its detailed application of coordinated and unilateral effects analysis

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Relevant Market Allegations Continue To Be Very Narrow

Arch Coal – 8800 Btu SPRB coal, excluding 8400 Btu SPRB coal, is a relevant market

Southern Belle – school milk in each school district is a relevant market

Evanston Hospital Northwestern Healthcare – northeast Cook County and southeast Lake County comprise a geographic market for hospital merger analysis

Connor Bros. – Sardine snacks, as distinguished from premium sardines and ethnic sardines, constitute a relevant product market

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Unilateral Effects Cases Require Closest, Not Just Close Substitutes

• Chicago Bridge – “This case involves the acquisition of a company by its closest rival in four relevant markets;” emphasis on closest competitor repeated throughout the opinion.

• Oracle - “Plaintiff [in unilateral effects case] must demonstrate that merging parties would enjoy a post-merger monopoly or dominant position, at least in a ‘localized competition’ space;” must be a gap to competing products in the chain of substitution.

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Unilateral Effects Cases Require Closest, Not Just Close Substitutes

• RJR/B&W - Unilateral effects requires “uniquely close competitors.” “There is no market in which, and no brands for which, [B&W] and RJR are each other’s closest competitors.”

• Cingular/AT&T Wireless – parties “are likely closer substitutes for each other than the other. . . providers in the relevant geographic markets.”

• Connor Bros. – acquired company described as “main competitor” to acquiring company; other competitors describes as “fringe” players.

13

Customer Testimony Has Its Limits

• Oracle – rejecting opinion testimony of customers relating to product market definition and competitive effects as “largely their preferences;” finds that “unsubstantiated customer apprehensions do not substitute for hard evidence” regarding the costs of alternatives

• Arch Coal – rejecting testimony regarding customer preferences in favor of testimony regarding the ability of customers to substitute and historical patterns of substitution

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Flexibility With Remedies May Increase, But Parties Must Honor Their Commitments

• Most merger enforcement is still by consent decree

• Government expects you to follow through on your commitment; failure may result in fines including reimbursement to the government of the cost of investigating the violation

– Republic Services $1.5 million fine

15

Flexibility With Remedies May Increase, But Parties Must Honor Their Commitments.

• Agencies will consider modification of relief where necessary

– Alcan/Pechiney (DOJ)

– Time Warner/Liberty (FTC)

• But range of relief acceptable to the agencies is constrained by FTC and DOJ policy statements

16

Ninth Circuit Flashes Warning Light For Joint Ventures

• Pricing by joint venture may be deemed per se unlawful price fixing by venture’s parents when parents “fail to demonstrate a sufficient relationship between the price fixing scheme and furthering the legitimate aims of the venture.”

– Appearance of holding out the parents as independent entities post formation appears to have been a factor

• Dagher v. Saudi Refining Inc., 369 F. 3d 1100 (9th Cir. 2004) (motion for rehearing pending)

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Fines for Hart-Scott-Rodino Violations are Rising But So are Reporting Thresholds

• Misuse of the investment exemption remains the focus of enforcement actions

– Smithfield Foods - $2 million civil penalty for twice violating HSR in connection with purchases of IBP stock

– John Hancock - $1 million civil penalty for violating HSR in connection with purchases of Manulife

– Bill Gates - $800,000 civil penalty for violating HSR in connection with purchases of ICOS, a company for which he was a director

• Good news for filing parties is that statutory thresholds are now indexed to inflation and have been raised 6.2% for 2005

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Policymaking Continues; More Changes Ahead

• DOJ released new policy of explaining, in certain cases, its decision not to challenge a merger

• DOJ released the Antitrust Division Policy Guide to Merger Remedies, which was largely consistent with the 2003 Statement of the FTC’s Bureau of Competition on Negotiating Merger Remedies

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• The Antitrust Modernization Commission has announced 25 issues for study, including eight related to mergers

• The EC issued new Horizontal Merger Guidelines indicating greater convergence with U.S. guidelines

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• DOJ and FTC announce intention to create a commentary on the Horizontal Merger Guidelines

• FTC issues notice of proposed rulemaking to harmonize (but not equalize) the treatment of corporate and non-corporate entities under Hart-Scott-Rodino

• FTC modified its model second request to create a special version for retail industry mergers; suggesting that additional industry-specific models would be forthcoming but none yet

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New Personnel, New Direction? DOJ Antitrust Division

• Tom Barnett, formerly of Covington & Burling, replaces Deborah Majoras as Deputy Assistant Attorney General

• David Higbee is added as Chief of Staff and Deputy Assistant Attorney General

• Ken Heyer is named on an acting basis to replace David Sibley as Deputy Assistant Attorney General for Economics

• Hew Pate has now held the AAG job for over 2 years; how long will he stay?

22

New Personnel, New Direction? National Association of Attorneys General

• Mark Bennett (R-HI) takes over as Chair of NAAG’s Antitrust Committee

• Elliott Spitzer (D-NY) becomes Vice Chair

• Trish Connor from the Florida Attorney General’s Office remains chair of NAAG’s Multistate Task Force

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New Personnel, New Direction?Federal Trade Commission

• Tim Muris has stepped down as FTC Chairman and has been replaced by Deborah Majoras

– Muris was a large force on the Commission and on Commission action; explanations of decisions to not challenge mergers clearly bear his mark

– Majoras has promised continuity and appears ideologically compatible with Muris

• Jon Leibowitz replaces Mozelle Thompson

• Commission remains majority controlled by Republican appointees

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• But Chicago Bridge strikes a very different tone

– 104 page opinion by Commissioner Swindle, long regarded as a conservative

– Heavy emphasis on the structural presumption; strength of the presumption regarded as a function of concentration

– Minimal discussion of competitive effects and market circumstances that give rise to adverse competitive effects; closer to a 1984 Merger Guidelines analysis

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• Is Chicago Bridge a new direction or simply a very careful effort to avoid creating precedent that could be used against the Commission in future deals?

– Tune in to this program in the coming months to find out!

CRIMINAL AND SECTION 1 ISSUES

Mike Farber

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Criminal/Section 1 Highlights

• The Supreme Court weighs in on sentencing

• Congress enacts the Antitrust Criminal Penalty Enhancement and Reform Act

• The Department of Justice continues aggressive enforcement – in the U.S. and abroad

• The lessons of recent corporate fraud enforcement actions

• The Antitrust Division’s Amnesty Program – one step forward and two steps back?

The Supreme Court Weighs in on Sentencing

• United States v. Booker: Supreme Court holds that Blakely applies to the Sentencing Guidelines and converts them to “advisory” – not binding on sentencing courts

• Effect on sentencing in antitrust cases and on participation in the amnesty program uncertain – could have far-reaching, unintended consequences

• Is the alternate fine provision – providing that the government can seek fines of twice the gain or loss as a result of the conspiracy – still viable?

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Congress Enacts the Antitrust CriminalPenalty Enhancement and Reform Act• Maximum prison sentences increased to

ten years

• Maximum corporate fine increased to $100 million

• Maximum individual fine increased to $1 million

• Leniency program participants offered reduced civil liability for treble damages (no joint and several liability for damages suffered by co-conspirators’ customers) – provided that the participant provides “satisfactory cooperation” with private plaintiffs

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The Department of Justice Continues Aggressive Enforcement in the U.S. and Abroad

• International cartels continue to be targeted

– German and Japanese nationals sentenced to prison terms in the United States

– Worldwide pursuit and prosecution of rubber chemicals conspiracy, resulting in over $ 200 million in fines

– Department officials continue to emphasize international enforcement priorities

– Cooperation with European and other international authorities continues

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The Department of Justice Continues Aggressive Enforcement in the U.S. and Abroad

• Apparent domestic enforcement priorities in 2004:

– Telecommunications (E-Rate program) industry – charges filed against NEC and other companies and individuals for bid-rigging and related fraud

– Printing/graphics Industry

– Construction and roofing Industries

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The Lessons of Recent CorporateFraud Enforcement Actions

• The government continues to prosecute as criminal conduct that historically gave rise to only civil liability

• Statements made by corporate officials to equity analysts, employees, and/or the press may give rise to criminal fraud charges

• Lesson: Corporate officials must be refrain from making overly optimistic statements in any type of forum

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The Lessons of Recent CorporateFraud Enforcement Actions

• The prosecution of officials from Computer Associates highlights the risks of misconduct in internal investigations

– General counsel was charged with obstruction for advising employees on how to answer questions from the government or from outside counsel conducting the internal investigation

– Corporate officials were charged with obstruction for making false statements to outside counsel during an internal investigation

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The Antitrust Division’s Amnesty Program – One Step Forward and Two Steps Back?

• F. Hoffman-La Roche, Ltd. v. Empagran, S.A., 124 S. Ct. 2359 (2004)

– The Supreme Court held that the Foreign Trade Antitrust Improvements Act precluded foreign purchasers from bringing suit in the U.S. under the Sherman Act where the injuries are “independent of any adverse domestic effect”

– A contrary ruling by the Supreme Court would likely have significantly expanded civil damages exposure to companies participating in the amnesty program – which may have resulted in more limited participation in the program

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The Antitrust Division’s Amnesty Program – One Step Forward and Two Steps Back?

• Stolt-Nielsen v. United States

– District Court enjoins government for prosecuting amnesty program participant

– The company had its amnesty status revoked by the government, and, without intervention by the district court, would likely have been indicted

– Expect amnesty agreements to be more detailed and the process of negotiating such agreements to be more difficult

– As a result, it is extremely important that, at the first sign that illegal conduct may have occurred, a fast, effective and thorough internal investigation be conducted

DISTRIBUTION, EXCLUSION AND SECTION 2 ISSUES

Paul Friedman

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Non-Merger Highlights

• No special duty to deal with competitors

• List of exclusionary conduct within Sherman § 2 is growing

• Increased risk in bundled discounts

• Exclusive dealing OK in EU bidding markets

• Continuing competitive scrutiny of IP practices

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No Special Duty to Deal With Competitors

• A monopolist may refuse to do business with a competitor

– very few exceptions

– main focus of any challenge will be whether there was past dealing, which was discontinued

Verizon v. Law Offices of Curtis V. Trinko

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Historical Antitrust Theory Retired

• “Monopoly leveraging” rejected in Trinko – use of monopoly in one market to gain an advantage

in another does not state a claim

– Language of § 2 requires dangerous threat of monopoly in 2d market

– Resolves circuit split by rejecting position of 2nd, 9th Circuits

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List of Exclusionary Conduct Within Sherman § 2 Is Growing

• Obstructing competitors’ distribution can create liability for monopolization

– Microsoft in EU: Combining apps with Windows OS (appeal pending)

– Visa/MC in US: Prohibiting member banks from issuing certain cards

– Neither case involved exclusive dealing • MS permitted OEMs to add additional, competitive programs• Visa allowed banks to issue MC, vice versa

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Increased Risk in Bundled Discounts

• Discount of $X if Discount of $A + $B + volume target met $C + $D + $E if all 5

volume targets met;

otherwise, no discount

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• DOJ brief opposing cert in 3M v LePage’s advances a standard that condemns some bundled discounts

– Given muddled judicial precedent, brief may be influential until there are more decisions

(see 3rd Circuit decision (2003) (en banc))

– Cert. denied (2004)

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• DOJ rejected 3M’s argument that bundling should be legal if:

discounted price ≥ seller’s average variable cost for of the bundle all goods in the bundle

• DOJ used standard of “equally efficient competitor” for single product:

competitive product price ≥ seller’s AVC

less discounts for all for competitive product

bundled products

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– DOJ said it might adjust its standard after additional experience with bundled discounts

• Relative risks of false positives and false negatives

• Whether nature of discounting mechanism is a guide to whether bundling is procompetitive or anticompetitive

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Exclusive Dealing OK in EU Bidding Markets

• Most EU precedent condemns loyalty discounts

• EU has now concluded that exclusivity OK if customer sought requirements contract

– Exclusivity not imposed by seller

– All sellers are equally situated when bids submitted

46

Exclusive Dealing OKin EU Bidding Markets

• EU silently withdrew lengthy Statement of Objections against Crown, can manufacturer

– No EU press release or other public statement

• Oblique reference in recent announcement of EU settlement re Coca-Cola fidelity program

– Distinguishes bidding markets from those where relief imposed on Coke

– No express reference to Crown

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Continuing CompetitiveScrutiny of IP Practices

• Intellectual property decisions continue to affect competition

• Competitive concerns continue to inform IP decisions

• Do copyright protections together with the Digital Millennium Copyright Act enable OEMs to control markets for aftermarket products?

– Federal Circuit and 6th Circuit say NO• Lexmark v. Static Control, (6th Cir. 2004) (printers, cartridges)• Chamberlain v. Skylink, (Fed. Cir. 2004) (garage doors, openers)

.

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– Competition concerns significant in both of these decisions

• Decisions interpret IP law and DMCA, not Sherman Act

• Effect of 2003 FTC report, “Promoting Innovation: The Proper Balance of Competition and Patent Law and Policy” ?

– FTC urged IP courts to consider the competitive implications of their decisions

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• In standards-setting, disclosure is key– Misleading statements challenged by FTC

• Unocal: Noerr-Pennington if statements to gov’t?

– Failure to disclose when disclosure expected by other participants in private standards process also challenged by FTC

• Rambus– New Standards Development Org. Advancement Act relies on

disclosure of standards-setting process to agencies

• Rule of reason for registered standards-setting activity

• Single damages for registered activities

• Damages limitation does not extend to members of SDOs

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– Presume market power in the patented product if sale is conditioned on sale of unpatented product

• Presumption is rebuttable with expert or other evidence of lack of market power

– Existence of some competitors not sufficient

• May be response to Supreme Court’s admonition to Federal Circuit in Festo (2002) to follow precedent

• This week's decision cites old Supreme Court precedent, recent academic criticism

– invites review

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Non-Merger Issues in 2005

• Continuing attention to distribution issues at agencies

• Confusion in law over bundling, frequency of the practice, may generate more private litigation

• Further private litigation over competitive protection afforded by Digital Millennium Copyright Act

• Further litigation of pending FTC antitrust/intellectual property cases

– Schering–Plough (settlement of patent litigation) pending at 11th Circuit

– Others discussed above

ANTITRUST LITIGATION ISSUES

George Gordon

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Litigation Highlights - 2004

• International antitrust issues

• Attorney-client privilege and attorney work product

• Class certification

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International Antitrust Issues –Jurisdiction Over Claims by Foreign Plaintiffs

F. Hoffman-La Roche, Ltd. v. Empagran, S.A., 124 S. Ct. 2359 (2004)

– Foreign purchasers from foreign members of a cartel do not have a remedy under U.S. antitrust law where foreign injury is independent of domestic effects.

– Domestic effects must “give rise” to harm suffered by plaintiff(s) filing lawsuit (no “piggybacking” on others’ harm).

– Key open question: application of FTAIA when domestic effect “may help to bring about” foreign injury

• E.g., an agreement to keep U.S. prices high to prevent arbitrage from undermining cartel abroad.

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International Antitrust Issues – U.S. Discovery in Aid of Foreign Proceedings

A federal district court “may order” a person residing or found in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal … pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon application of any interested person.”

– 28 U.S.C. 1782

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International Antitrust Issues – U.S. Discovery in Aid of Foreign Proceedings

Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466 (2004)

– Non-litigant complainant may obtain discovery in U.S. courts in aid of EC investigation under 28 U.S.C. 1782.

– Foreign proceeding must be within “reasonable contemplation” but need not be pending or imminent.

– “Interested persons” not limited to government authorities or actual litigants.

– No “foreign discoverability” requirement.

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International Antitrust Issues – More Antitrust Litigation in Europe?

“Certainly, [the Commission’s] policy is having an important deterrent effect, but more private enforcement of the EC competition rules in parallel to public enforcement by the Commission and National Competition Authorities should lead to even greater compliance with EC competition rules. Greater enforcement of EC competition law would also act as a catalyst unleashing more competition across Europe …”– Mario Monti, “Private Litigation as a Key Complement to Public

Enforcement of Competition Rules and the First Conclusions on the Implementation of the New Merger Regulation (IBA Competition Conference, Sep. 17, 2004)

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International Antitrust Issues – More Antitrust Litigation in Europe?

Crehan v. Courage (U.K. Court of Appeal, 2004)

– Damages awarded to claimant for losses caused by alleged tying arrangement which violated EC competition law

Provimi Ltd v. Aventis Animal Nutrition SA, et al. (U.K. High Court, 2003)

– English or foreign claimant can sue in U.K. courts for its entire loss caused by a breach of EC competition law regardless of where loss was suffered, provided that court has jurisdiction over one of the claimants

• Numerous reforms in Member States allowing for private actions

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Attorney-Client Privilege& Attorney Work Product

In cases involving questions of intent and “counseled” conduct (e.g., “sham litigation”), defendants face a potential dilemma:

– Reliance on advice of counsel or putting such advice at issue may lead to a waiver of the privilege. See, e.g., In re Buspirone Antitrust Litigation, 208 FRD 516 (SDNY 2002); 210 F.R.D 43 (SDNY 2002)

– But, plaintiffs argue that failure to assert such a defense and reliance on the attorney-client privilege should be ground for an adverse inference as to the content of counsel’s advice

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Attorney-Client Privilege & Attorney Work Product

Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp., 338 F.3d 1337 (Fed. Cir. 2004) (dealing with willful infringement)

“[T]he assertion of attorney-client and/or work product privilege and the withholding of the advice of counsel shall no longer entail an adverse inference as to the nature of the advice”

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Attorney-Client Privilege &Attorney Work Product

Trap for the unwary: assertion of work product and the duty to preserve documents

– Rambus, Inc. v. Infineon Technologies, AG, 222 F.R.D. 280 (E.D.Va. 2004)

• Rambus formulated a document retention and destruction policy pursuant to which it held massive “shred days”

• At the same time, the employee responsible for the policy was writing strategy memos that Rambus claimed were covered by work product

• Rambus found to have engaged in a spoliation scheme and ordered to produce privileged documents

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Class Certification – Selected Cases Denying or Limiting Certification

Bradburn Parent/Teacher Store, Inc. v. 3M, 2004 WL 414047 (E.D.Pa.); 2004 WL 1842987 (E.D.Pa.); 2004 WL 2900810 (E.D.Pa.)

– Certification of direct purchaser class denied because large and small purchasers would have incentives to pursue different and conflicting damage theories

– Upon renewed motion, modified class certified, eliminating the larger purchasers with the potential conflict (purchasers of “private label” tape)

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In re Relafen Antitrust Litigation, 221 F.R.D. 260 (D. Mass. 2004); 225 F.R.D. 14 (D. Mass 2004)

– “Exemplar” class limited to end-payors (indirect purchasers) in 4 states

– Class excluded purchasers from states whose statutes contained provisions that would cause individual issues to predominate over common issues

– Class excluded end payors who would have paid same amount for product even absent challenged conduct

– Subsequent proposed nationwide settlement class must account for differences in potential recovery under state laws

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In re Terazosin Hydrochloride Antitrust Litigation, 223 F.R.D. (S.D. Fla. 2004)

– 11th Circuit vacated certification of a direct purchaser class on grounds that discovery was necessary to determine whether or not some of the class members might have benefited from the challenged conduct

– On remand, the court denied class certification because plaintiffs could not determine net “winners” and “losers” from challenged conduct

• Court said it found no evidence of antagonistic interests, but it was bound by the 11th Circuit mandate

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About the Presenters• Paul T. Denis is a partner in the Antitrust/Competition Practice Group at

Dechert LLP, where his practice is devoted primarily to business combinations and government investigations. Previously, Paul served in the Antitrust Division as Counselor to the Assistant Attorney General, Acting Deputy Assistant Attorney General for Regulation, and principal draftsman of the 1992 Horizontal Merger Guidelines.

• Michael D. Farber is a partner in the Antitrust/Competition Practice Group at Dechert LLP, where his practice is devoted primarily to government investigations and white collar criminal defense. Mike has substantial experience in conducting internal investigations and representing individuals in multi-fora investigations. He is a former trial attorney at the Antitrust Division.

• Paul H. Friedman is a partner in the Antitrust/Competition Practice Group at Dechert LLP, Paul is experienced in all aspects of antitrust litigation, ranging from complex, MDL cases to more straightforward distribution disputes to merger challenges. He is the Principal Editor of the ABA's soon-to-be published Model Civil Antitrust Jury Instructions.

• George G. Gordon is a partner in the Antitrust/Competition Practice Group at Dechert LLP, where his practice is devoted primarily to antitrust litigation and government investigations. George speaks and writes frequently on issues related to antitrust law and is the co-chair of the ABA Antitrust Section's Intellectual Property Committee.

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For more information, please contact any of the presenters:

Paul T. Denis

Dechert LLP

Washington, DC

(202) 261-3430

[email protected]

Michael D. Farber

Dechert LLP

Washington, DC

(202) 261-3438

[email protected]

Paul H. Friedman

Dechert LLP

Washington, DC

(202) 261-3398

[email protected]

George G. Gordon

Dechert LLP

Philadelphia, PA

(215) 994-2382

[email protected]

www.dechert.com

Documents

© 2005 Dechert LLP 2004 - The Year in Review ABA CORPORATE COUNSELING COMMITTEE PROGRAM January 28, 2005