The Best of MLex 2014...Letter from the Editor in Chief Last year saw regulation and policy impact business more than ever, with themes of privacy, multilateral trade pacts, new financial

The Best of MLex 2014

MLex REVIEW

J A N U A R Y - D E C E M B E R 2 0 1 4

Letter from the Editor in ChiefLast year saw regulation and policy impact business more than ever, with themes of privacy, multilateral trade pacts, new financial services rules, a glut of mergers in telecom and pharmaceuticals, a new European Commission, and the relationship between geopolitics and energy production all dominating the global news agenda. Europe, meanwhile, is set to witness a new wave of private claimants joining together to file competition suits, following the adoption of a damages litigation law in November.

To help our subscribers prepare to win new business, we held the latest in our series of specialist seminars on Damages Litigation and were delighted to welcome speakers including Peter Freeman, chairman of the UK’s Competition Appeal Tribunal, and Joaquin Almunia, in his final speech as competition commissioner at the European Commission. Similar changes promoting private litigation are emerging in China and elsewhere.

In the year ahead, we expect privacy to remain a key issue thanks to increasing awareness that the price we pay for social media, easier payments, personalized online services, mobile connectivity and big data is our own personal data. Another focus area will be rising nationalism in Europe especially, which could complicate coordinated EU responses to issues such as trade, mergers and financial services regulation.

From all of us at MLex, we wish you and your families a Happy New Year. We look forward in 2015 to bringing you more insight, commentary and analysis on the impact of regulatory risk on your business.

Best wishes,

Robert McLeodEditor in Chief and CEOMLex Market Insight

01 Th e Be s T o f MLe x | 2014

We hope you enjoy this complimentary special report, encompassing MLex’s top

commentary, analysis pieces and scoops of 2014.

The stories, originated in Europe, China, Brazil, Canada and the US, demonstrate our

coverage of the world’s most dynamic regulatory regimes.

Across all of our expertise areas, MLex journalists consistently lead the pack, and in this

edition we bring you selections from Global Antitrust, as well as Digital Risk, Telecoms

& Media, Intellectual Property and Damages Litigation.

Please note that these articles have been edited and cut to fit the format.

To find out how to receive this coverage in full, including all the background case files

that accompany our articles, or to enquire about access to MLex’s other global services,

please contact us at [email protected].

Best of MLex 2014

MLe x Cov e r ag e 02

Contents

SolarWorld sues EU over Chinese solar-panel price agreement pg 04

EU strikes deal on new law to spur damages lawsuits pg 05

Goldman’s cartel fine signals EU warning to investors pg 07

Capacitor manufacturers under antitrust scrutiny in US, China pg 10

Federal prosecutor recommends blocking Kroton-Anhanguera deal pg 11

When feds wiretap, who else can listen in, Canada’s Supreme Court to decide pg 13

NDRC to release decisions on Japanese car-parts makers soon pg 16

EU countries might retain power to set certain card fees pg 17

Iosco chief blasts staff report for exaggerating US securitization risk pg 18

Wired Sweden offers EU a recipe for more broadband pg 21

EU may draft LNG strategy to cut dependence on Russia pg 24

Privacy struggles of Uber, Lyft hold lessons for companies that collect location data pg 25

EU, not Spain, to rule on Orange, Jazztel merger pg 29

Design patents take center stage as Apple and Samsung argue $930 million appeal pg 30


SolarWorld has asked a European court to annul an accord that allows Chinese solar-panel producers to avoid extra EU import duties by selling in the bloc above a certain price. The German solar-panel maker says the agreed minimum price isn’t high enough to protect European industry. Last October, the EU imposed a tariff on Chinese panels to counter unfair pricing methods known as dumping. The taxes were set at up to 64.9 percent, and averaged 47.7 percent, on Chinese solar panels and photovoltaic cells. The European Commission and Chinese companies agreed last summer that imports could avoid the levies provided producers promised not to sell panels below 56 euro cents (76 US cents) per kilowatt hour of power produced. This included an annual cap of 7 gigawatts covering all Chinese companies that signed up to the accord, or “undertaking.” SolarWorld says the commission breached EU trade-defense law because the undertaking doesn’t remove the harmful effects of dumping. Under EU rules, an undertaking is acceptable if “the injurious effect of the dumping is thereby eliminated.” The undertaking doesn’t remove dumping, SolarWorld says, because the minimum price in the agreement and the price at which Chinese producers dumped their modules in Europe are the same. The German company made a similar appeal to the EU’s General Court when the deal was still in draft form. The EU has since officially adopted the regulation allowing for the duties and the undertaking. SolarWorld has lodged two cases at the General Court, one against the antidumping tariffs and another on duties linked to unfair government subsidies.


SolarWorld sues EU over Chinese solar-panel price agreementby Poppy Bullock | 7 March 2014

“the undertaking doesn’t remove the harmful effects of dumping”

The EU’s three main institutions struck a deal this evening on the shape of new legislation aimed at helping the victims of price fixing sue for damages.

Negotiators agreed on a compromise to ensure that sensitive cartel information won’t be disclosed to plaintiffs. A further agreement covers how national judges should view cartel decisions reached in other European countries.

After a shorter-than-expected meeting tonight, representatives of the European Commission — which drafted the bill — members of the European Parliament, and the Greek ambassador representing EU governments agreed on the final form of the legislation.

The compromise provisions maintain a “black list” of whistleblower evidence that won’t be handed over to plaintiffs. But they allow national judges to review the documents, to ensure that they fall within the given category.

Under the compromise, cartel decisions in one EU state will also be given the weight of “prima facie” evidence before foreign judges.

The commission proposed the law in June 2013. The bill seeks to facilitate damages actions across Europe but also to protect whistleblowers, who are important in the fight against price fixing.

After a series of technical talks earlier this year, the three sides found common ground on many of the provisions in the law. But two main sticking points remained: how to protect the confessions of whistleblowers; and how judges in one EU country should view a cartel decision from another state.

The commission and EU governments were keen to create a “black list” that would protect from disclosure the confessions of whistleblowers and the voluntary submissions of companies seeking cartel settlements. This was crucial, they said, to ensuring that public enforcers could continue to hunt down price fixers.

Some lawmakers opposed such an absolute rule, saying it was illegal and could make claims more difficult.

This evening, all sides discussed a compromise under which a judge would be able to review documents to ensure that they fell within the “black list.” Although the judge wouldn’t be able to disclose the document, the review would act as a further judicial check.

EU strikes deal on new law to spur damages lawsuitsby Lewis Crofts | 18 March 2014


This formulation was agreed on by all sides, participants told MLex after the meeting.

During discussions, EU governments had also watered down a provision that originally required a judge in, say, Hungary, to be bound by a cartel decision in, say, Slovakia. This endangered the independence of judges, the governments argued.

The commission said the provision was needed to ensure that cartel decisions, which were made in one country, weren’t disputed all over again before a foreign judge.

This evening, the EU’s three institutions agreed on a compromise under which a foreign cartel decision would count as “evidence,” but wouldn’t tie the hands of a judge.

“This is a very important step forward for the enforcement of competition policy,” EU antitrust chief Joaquín Almunia told MLex after the meeting.

“Public enforcement needs to be complemented by a strong private-enforcement legal framework,” he said. “It exists in some EU states, but we badly needed EU-wide legislation for private enforcement.”

Andreas Schwab, a center-right lawmaker in charge of drafting the parliament’s version of the bill, told MLex: “We struggled to find the right balance, but in the end we did it.”

After tonight’s agreement, lawmakers and the Greek government must take the compromise back to their institutions — the European Parliament and EU Council respectively — for formal approval. Tomorrow, the Greek government is expected to present the compromise to ambassadors. But they may need more time to review the text in full.

Bernhard Rapkay, a center-left parliament member who shared responsibilities with Schwab on parts of the dossier, said he was “unsatisfied” with the outcome. But he said he would need to look at the dossier as a whole to decide on the next steps.

The full assembly of the European Parliament is expected to sign off on the law next month. But if there is dissatisfaction on certain parts of the bill, some lawmakers could push the plenary session to vote again on some sections.

This could cover provisions dealing with curtailing the exposure of whistleblowers to larger payouts, for example. There are said to have been some sharp exchanges on this point during the meeting.

Today’s agreement marks the last step in a lengthy discussion over whether Europe needs legislation to help the victims of anticompetitive lawsuits. This has featured several policy papers from the European Commission as well as a 2009 report from Schwab suggesting legislation action.

...continued

“…we badly needed EU-wide legislation for private enforcement”


Private-equity firms would do well to heed the message from Brussels today: Investments in cartel members can lead to millions of euros in fines, even though the shareholders may think they are miles away from the price fixing.

Today’s decision to impose a fine of 37.3 million euros ($51.4 million) on Goldman Sachs in an undersea-cable cartel isn’t the first time the European Commission has sanctioned an investor, but it signals its clear willingness to do so again.

EU antitrust chief Joaquín Almunia unveiled 302 million euros in fines today, hitting manufacturers including Nexans, Exsym, Brugg Kabel and Viscas for their involvement in a decade-long cartel for high-voltage cables.

The decision is notable because the commission ruled that Goldman Sachs could also be held liable for the conduct because a fund it managed, GS Capital Partners, had purchased a stake in Milan-based manufacturer Prysmian.

The EU regulator has imposed this kind of fine on at least two previous occasions. But both involved much smaller cartels, and the investors had nowhere near the size and power of Goldman Sachs.

In assessing the Goldman fine, the commission first looked at Prysmian’s role in the price fixing, calculating a penalty of 104.6 million euros, based on the length of its participation and the volume of products it sold during the cartel.

It then considered which companies had “decisive control” over the manufacturer’s business, finding Pirelli and Goldman Sachs jointly liable for roughly two-thirds and one-third for the fine, respectively. Both companies held investments in Prysmian at various times.

Almunia said his staff had evidence that Goldman Sachs had been involved in the “management decisions of Prysmian” through voting rights and board representation. The manufacturer, in turn, was “directly involved in the cartel,” he said.

“This was not [the] normal involvement of a financial investor,” Almunia added.

GS Capital Partners invested in Prysmian between 2005 and 2009. The bank said today there was “no suggestion that Goldman Sachs or its people had any knowledge or involvement in the purported collusive behavior.”

Goldman’s cartel fine signals EU warning to investors by Lewis Crofts and Matthew Newman | 2 April 2014


The commission didn’t find that Goldman Sachs participated directly in the cartel, so it couldn’t fine it directly. Instead, it traced links between the investment bank and the company’s management, judging that its shareholding gave it “decisive influence” over commercial policy.

GS Capital Partners reduced its investment over the three and a half years it held a stake. But the commission found that individuals on Prysmian’s board were from Goldman Sachs itself, and not just the fund.

“In our investigation, we have concluded that Goldman Sachs held, for almost two years, 100 percent of the voting rights,” Almunia said. “They could revoke the board of directors. They could nominate the new board of directors at any time.”

“They were regularly updated on Prysmian business through monthly reports,” he said.

In the past, the commission has fined Gigaset, a German investor, and 1. garantovaná, a Slovak investor, for their links to a calcium-carbide cartel. Judgments from the EU courts in appeals against those fines have affirmed that EU officials can sanction investors who have shareholdings in manufacturers.

The commission has long targeted holding companies that aren’t involved in the cartel themselves but are still responsible for the illegal activities of their subsidiaries.

The EU watchdog can find that a parent company is responsible for cartel conduct when it owns 100 percent of a subsidiary. EU courts have also upheld fines against parents when the commission has proved that the parent has “decisive influence” over the subsidiary.

Today, the regulator has shown that it’s unlikely to see much of a difference between the liability of a traditional holding company and that of a financial investor. Both must bear responsibility for the businesses they control.

Almunia told journalists today that investment companies “should take a careful look at the compliance cultures of companies they invest in.”

Goldman Sachs said it was considering an appeal. The question of decisive influence could become a focal point of any potential courtroom fight.

...continued


Even though EU case law appears to support the commission’s view, future litigation could flag the differences between a small-time Slovak investor and a fund managed by one of the world’s largest investment banks.

— Sales —

Two other manufacturers, Pirelli and NKT, have already announced they will appeal the fines.

While the commission tried to show a strong case on liability, it will also face questions over how it calculated fines for some of the companies, basing its math on worldwide sales. In typical cartel cases, the commission uses sales based on a company’s business in Europe when setting the fine.

However, the commission said that the Asian companies in the power-cable cartel had very little or no sales in Europe, because of the conspiracy’s market-sharing agreement. As a result, the EU executive said these figures didn’t reflect their involvement in the cartel. The regulator therefore took the total sales of the cartelists in Europe and assigned a value based on their respective worldwide sales. The commission used a similar approach in a marine-hose cartel.

This is likely to be a point of dispute for some of the non-European companies that received fines today.

...continued

“This was not [the] normal involvement of a financial investor”


The US Department of Justice and China’s National Development and Reform Commission are probing anticompetitive conduct among capacitor manufacturers, MLex has learned.

Japan-based NEC Tokin confirmed that it has been contacted by Chinese, US and European regulators as part of an investigation into capacitors and is cooperating with the probes.

It is understood that the NDRC conducted a dawn raid in the probe on March 19. The European Commission declined to comment on the probe.

The DOJ’s investigation is understood to originate out of the antitrust division’s San Francisco office, where prosecutors have spent the past decade investigating cartels in the computer parts industry that led to millions of dollars in fines against makers of memory, LCDs, cathode ray tubes, optical disk drives and lithium-ion batteries.

It is understood that a grand jury empaneled in San Francisco federal court has issued subpoenas to several capacitor manufacturers.

“The Antitrust Division is investigating the possibility of anticompetitive conduct in the capacitor industry,” DOJ spokeswoman Gina Talamona said Wednesday. She declined to confirm any specific companies under investigation.

Capacitors are used to store energy and are commonly used as parts of circuits in many common electronic devices such as computers and mobile phones.

Nichicon, another large maker of capacitors in Japan, said it hadn’t been contacted regarding the probe.

In 2002, Tokin merged with NEC’s electrical components business and became NEC Tokin.

The next year, NEC disclosed that it had received subpoenas from the DOJ related to an investigation into price-fixing of dynamic random access memory, or DRAM. In 2010, the European Commission fined the company 10.2 million euros (about $14.2 million) for the participation of its joint venture with Hitachi in the DRAM cartel.

NEC has also been implicated by US plaintiffs — though not charged or penalized by any regulators — in cartels involving LCDs, optical disk drives and lithium-ion batteries.

Capacitor manufacturers under antitrust scrutiny in US, Chinaby Leah Nylen | 2 April 2014


Federal prosecutor recommends blocking Kroton-Anhanguera dealby Flavia Fortes | 10 April 2014

The Federal Prosecutor’s Office for the Brazilian competition authority recommended that the regulator block Kroton’s acquisition of rival education company Anhanguera.

The prosecutor said that the combined company would have to dispose of assets related to the Anhanguera brand — a condition that would be tantamount to disapproval of the transaction outright.

However, if the regulator’s Tribunal decides otherwise, the prosecutor recommended that Anhanguera assets in the market for on-campus undergraduate courses would have to be divested, as would an Anhanguera institution because of concerns about the market for long-distance undergraduate courses. Other remedies might also be necessary, according to the prosecutor’s opinion.

The Administrative Council for Economic Defense, or CADE, on Wednesday denied a request by the parties to keep confidential the federal prosecutor’s rejection of the deal.

The prosecutor suggested a conservative analysis of the transaction because it has the potential to affect competition in the education sector, and education is a fundamental right under Brazil’s constitution. The opinion identified as one of its main concerns the quality of education offered to consumers.

The opinion said that the existing regulation in the education sector prevents timely entry of new players in the market. The prosecutor also rejected the possibility that efficiencies compensate for the risk of anticompetitive effects arising from the transaction.

“The Federal Prosecutor’s Office considers undesirable, from a competition perspective, the combination of the companies’ activities in the markets where there are concerns,” the opinion said.

While the parties argued that the relevant geographic market for long-distance undergraduate courses shouldn’t be defined as national, the prosecutor disagreed, citing economies of scale.


CADE’s lower unit, the Superintendence, has said that remedies are necessary in the market for on-campus undergraduate courses, and CADE’s attorneys have said that the transfer of an institution is required because of concerns about the market for undergraduate long-distance courses.

However, the prosecutor said it’s unclear how such remedies would affect the companies’ other activities, such as the production and distribution of course materials, on-campus undergraduate courses in those markets not identified as problematic, and on-campus and long-distance courses for graduate students.

Economies of scale such as trademark, investments in publicity, capacity management, overall expenditures, and infrastructure, among others, were not properly addressed by the Superintendence, the prosecutor said.

The prosecutor’s opinion said that other aspects of the transaction are unclear and “require further instruction as to how the possibility of economies of scope affect the proposed remedies suggested by the agency’s lower unit and its [legal] office.”

The Federal Prosecutor’s Office has two representatives within CADE who can issue opinions on mergers and acquisitions or conduct investigations on its own or by request of a councilor. Its opinion is not binding on the final decision by CADE’s upper-level tier, the Tribunal.

...continued

“The Federal Prosecutor’s Office considers undesirable, from a competition perspective, the combination of the companies’ activities in the markets where there are concerns.”


Canada’s Supreme Court will hear arguments Thursday on whether private litigants should gain access to wiretaps that competition regulators obtained in a gas price-fixing investigation.

The case, which pits privacy against the courts’ truth-seeking function, could reshape the country’s antitrust enforcement.

Defendants are pushing the high court to overturn an order from a Quebec trial judge that would supply class-action plaintiffs with about 5,000 wiretapped conversations obtained as part of an investigation into gas retailers in Quebec’s Eastern Townships region.

The defendants argue that an affirmation of an order to turn over intercepted calls would dramatically curtail privacy rights. Civil plaintiffs, they argue, shouldn’t have access to evidence, normally reserved for criminal investigations, gathered in such an invasive manner.

Canada’s Competition Act, though, explicitly relies on private litigants to help with enforcement, making the Supreme Court’s task of balancing the defendant rights against public policy concerns a tricky one.

“The evidence only comes into existence as a result of highly invasive powers. To just make that available willy-nilly to plaintiffs in civil suits is potentially quite problematic,” said Michael Osborne, a partner at Affleck Greene McMurtry LLP. “In favor of disclosure is the equally very strong idea that the courts are seekers” of truth, “and evidence should be made available for that purpose.”

The disputed decision, issued in June 2012 by a Quebec trial judge, would provide plaintiffs access to wiretaps obtained in 2005 and 2006 against gas sellers in four Quebec communities east of Montreal. Individuals allegedly passed information on planned price movements over the telephone.

Canada’s Competition Bureau used the wiretaps — it gathered some 220,000 after a career criminal prosecutor leading the investigation suggested they tap phones — to direct tactics for stakeouts of gas stations suspected of involvement in the conspiracy and evidence for raids on 88 premises.

More than 50 businesses and individuals were ultimately charged in 2008 and 2010, and as of August 2013, 33 individuals and seven companies had pleaded or been found guilty.

When feds wiretap, who else can listen in, Canada’s Supreme Court to decideby Richard Vanderford | 23 April 2014


Quebec Superior Court Judge Dominique Belanger ordered that civil plaintiffs who sued later be given access to about 5,000 of the wiretaps, all of which had already been disclosed to the defendants, finding that the Competition Act allowed “certain measures” be taken to ease the burden on private litigants.

That decision was a mistake, the defendants have argued.

Canada’s wiretapping laws allow “the state, and only the state, to resort to electronic surveillance, but only for investigating specific crimes in cases of true necessity while respecting strict conditions and under judicial control,” gasoline-station chains Couche-Tard, Irving Oil, Ultramar and other defendants said in a brief to the Supreme Court.

Violations of the right to privacy should be limited to cases where important government objectives are at play, such as the fight against crime and maintenance of national security, they said.

A decision for the defendants could have serious implications not just for privacy but also on the Competition Bureau’s own immunity program, under which applicants can reveal anticompetitive conspiracies in exchange for protection from prosecution.

If the bureau is required to turn over wiretaps — and potentially other investigative materials — for use against defendants in civil cases, cartel members might rethink using the program, undercutting the bureau’s law enforcement effectiveness.

“To make the whole criminal regime work well, having a confidential process is important,’” said Richard Annan, a competition lawyer at Goodmans LLP who worked at the bureau for 22 years.

“If you change that calculus and have the state basically compelled to turn over all that evidence to civil litigants, it makes it more difficult to make the call to go into the program in the first place,” he said. Law enforcement agencies across the country, already resource-strained, might find themselves additionally taxed if the Supreme Court makes one of their job functions sifting through and producing evidence for civil discovery.

...continued


Canada’s federal prosecution service has cautiously endorsed aspects of Belanger’s reading, saying the law doesn’t prohibit the disclosure of intercepted communications to a private litigant involved in a court case.

“It is in the interest of the administration of justice in general that litigation, civil and otherwise, be able to be decided on the basis of a complete proof,” the Public Prosecution Service of Canada wrote in a brief.

Contrary to what the appellants argued, Canadian law allows the fruits of electronic surveillance to be disclosed to a private party, it said.

But the service urged “caution and restraint” given the privacy implications and potential burden on law enforcement.

Ontario’s attorney general, who has intervened in the case, took a similar tack, saying that the law allows wiretap information to go to private litigants but urging the Supreme Court to require restraint by trial judges in doling it out. The federal prosecutors and Ontario AG will both make arguments at the court.

For the plaintiffs, the issue is simple: fairness for Canadians scammed by cartels.

“Despite legislators’ efforts, Canada like many other western countries has faced numerous cartels in the past years, among them chocolate, DRAM, air freight, gasoline, polyurethane foam, car parts and vitamins,” they said in a written submission to the court. “Conspiracies and other forms of arrangements between competitors at the root of cartels’ very existence are serious economic crimes that have to be treated accordingly,” they said.

...continued

“The evidence only comes into existence as a result of highly invasive powers. To just make that available willy-nilly to plaintiffs in civil suits is potentially quite problematic.”


China’s National Development and Reform Commission is set to announce soon the results of its antitrust investigation into suspected price fixing in the Japanese auto-parts sector.

Administrative decisions on the 12 companies involved in the probe could be released as soon as this week, it is understood.

The NDRC has received four rounds of leniency applications from the companies under investigation, it is understood. At least one company self-reported and applied for leniency by May, as previously reported by MLex.

On Aug. 6, the NDRC confirmed that it has probed a dozen Japanese companies in the parts and bearings sectors for price fixing.

According to the state-run Economic Information Daily, the 12 companies will face a penalty over one billion yuan ($163 million).

Earlier this month, Japanese car-parts manufacturer Yazaki has confirmed to MLex that it is under investigation. Sumitomo Electric and Furukawa are also understood to be among the dozen companies facing penalties.

The NDRC has been following other jurisdictions including the US, EU, Japan and Singapore, and looking into price fixing in the auto-parts industry in what would be its second global cartel case.

World-wide probes into cartels among car-part manufacturers take in more than 100 products and 70 companies, with regulators in North America, Asia and Europe pursuing makers of car components for several years, suspecting them of rigging bids for components.

The range of products includes heating systems, ignition technology, car-wiring, sound systems and safety equipment.

NDRC to release decisions on Japanese car-parts makers soonby MLex Staff | 18 August 2014


EU countries could tighten national caps on card-transaction fees but wouldn’t be bound by a lower limit pushed by the European Parliament, under a compromise governments are considering.

EU legislators are weighing a bill to set a maximum on the fees banks collect when their customers use MasterCard, Visa Europe and other payment cards in the region. Tomorrow, negotiators for national governments plan to debate a draft of amendments, obtained in advance by MLex.

The European Commission proposed the draft law in July 2013, suggesting the charges on payment-card transactions — known as “interchange fees” — should be capped at 0.2 percent of the value of a purchase for debit cards and 0.3 percent for credit cards. The fees are paid from the retailer’s bank to the cardholder’s to cover the cost of electronic payments.

Card networks and banks have warned against the caps, saying they will harm the rollout of new payment methods. National governments and the European Parliament must agree on the law before it can come into force.

The parliament set its official stance in April, tightening the proposed caps with a seven-cent fee limit for debit-card purchases. Lawmakers also said cards destined for corporate use — which typically have higher fees — should be subject to caps.

Representatives of the EU’s 28 national governments are in talks over further changes to the bill, under the chairmanship of Italy, which holds the EU’s rotating presidency until the end of the year.

A text prepared by Italian officials for tomorrow’s meeting of national negotiators would let governments adopt the seven-cent cap, but wouldn’t require them to do so.

The latest text also leaves intact the proposed method for computing the percentage cap. A prior memo circulated to negotiators had suggested that the rate could be revamped as a weighted average over a period of time, rather than a hard ceiling on each individual swipe. But governments have further negotiations to come.

The governments could also tone down a commission proposal to split the operation of a card-payment network from the processing of transactions, to allow for competition from other payment services. That goal could be met by requiring card networks to have an organizational wall between the two, and separate accounts, without a difference in ownership, according to the Italian text.

EU countries might retain power to set certain card feesby John Rega and Lewis Crofts | 8 September 2014


[A draft bill] would let governments adopt the seven-cent cap, but wouldn’t require them to do so

An International Organization of Securities Commissions report that shows a surge in complex securitizations has split the regulatory group, with Chairman Greg Medcraft saying the report is inaccurate and vastly overstates the potential risk.

Medcraft told MLex that Iosco’s research report, published last week, exaggerates the extent to which the risky structured-debt products have returned since the financial crisis.

Medcraft’s challenge to the report’s accuracy was given independent support by the Dealogic private research firm that was the source of the data.

However, no correction is planned, an Iosco spokeswoman said Monday. The Iosco research department stands by its report, she said, though it is checking further into the figures.

Iosco’s “Securities Markets Risk Outlook 2014-2015” said that the complex securitization products that contributed to the meltdown have surged eight-fold in popularity in the last few years, mostly in the United States.

These shadow-banking instruments are securitized products that are themselves securitized — repackaged pools of asset-backed securities that become new products.

Iosco consists of securities regulators across the globe, including the US Securities and Exchange Commission.

— Interview leads to clash —

Doubts about the report were triggered when an MLex reporter asked Medcraft about the data during an interview on the sidelines of Iosco’s annual conference in Rio de Janeiro last week.

Medcraft, who also heads the Australian Securities and Investment Commission, reviewed the two charts on securitized securitized products.

“That can’t be correct,” he told MLex. “No one is issuing them.”

He stormed into the office of a senior aide.

“This is a serious issue, a massive mistake,” Medcraft told the aide.

“This is a big problem for us,” he added.

Iosco chief blasts staff report for exaggerating US securitization riskby Neil Roland | 6 October 2014


Medcraft said he was reviewing for the first time the securitization figures published on page 68 of the report Wednesday. The 129-page report had been posted on the Iosco website, accompanied by a press release.

Medcraft developed a securitization expertise while on Wall Street. He rose to become Societe Generale’s global head of securitization.

— Dealogic faults charts —

The Iosco report sourced the statistics to the Dealogic research firm.

But a spokesman distanced the London-based firm from the two charts on securitized securitized products.

“I wouldn’t re-use either chart if I were you,” Dealogic spokesman Edward Jones told MLex on Friday.

He said the Iosco chart showing a three-year surge in issuances “looks somewhat inaccurate to me.”

Another chart showing that the vast majority of recent issuances took place in the United States is “not something we are able to track so not sure how they did that one,” Jones’s email said.

In an email on Monday, he added that both charts “refer to securitized ‘securitized’ issuance, which we don’t track.”

— Eight-fold rise —

The Iosco report displayed charts showing a projected eight-fold increase, to $86 billion, in securitized securitized issuances since 2011. Among them are products known as collateralized debt obligations squared that were popular during the financial crisis.

The projected 2014 level of $86 billion tops the $52 billion issued in 2007, before their use plummeted, according to a chart in the report.

...continued


This reported resurgence is a “particularly concerning development” that is “worthy of continuous monitoring,” the publication said.

About 85 percent of the issuances between 2012 and mid-2014 took place in the United States, according to another Iosco chart.— Research chief stands firm —

Iosco’s research director, Werner Bijkerk, who is responsible for the report, stood his ground Friday when asked about Medcraft’s criticism.

“The data is correct,” he said in an email. “Dealogic is the standard in the market.”

In a follow-up interview on Monday, the research chief said he contacted Dealogic in response to Medcraft’s concerns to try to obtain more detail about the figures.

The firm wouldn’t cooperate, Bijkerk said.

“I have no clue why,” he said. “We’re kind of disappointed with Dealogic.”

The research director said he will try to obtain more information about the products from issuers and credit-rating agencies in the weeks ahead.

...continued


“This is a serious issue, a massive mistake,”

When asked how to ramp up the rollout of high-speed broadband, telecom regulators tend to mention vectoring, virtual unbundling and megabits per second. Göran Marby prefers to talk about cows lining up to be milked by machines. “Cows are not stupid animals,” Sweden’s top telecom cop says, leaning back in a purple chair at his desk in central Stockholm and putting up his feet. “They are one of the few animals that queue.” Sweden is home to broadband networks so extensive that basic broadband was available to more than 99 percent of the population by early this year. Fiber-optic cables stretch deep into the country’s forests and farmland, slithering all the way to rural stations, where cows are fed and milked by robots that send farmers an instant text message if something is amiss. And therein lies a lesson for the rest of the EU, as it struggles to reach a goal of making fast Internet access available for all by 2020. In 2013, less than 2 percent of EU households subscribed to broadband of 100Mbps or more. In Sweden, more than 10 percent had taken up such connections, and subscriptions were available to 60 percent of households. Only 390 Swedish households now lack a decent Internet connection, and the regulator has a list of their addresses. It’s just a few pages long. The secret to Sweden’s digital success lies in getting local communities involved, Marby says during an interview in his office at the Swedish Post and Telecom Authority overlooking Stockholm’s wide, leafy Valhallavägen boulevard. “The regions and cities were key,” he says. “It was when we started to reach them — when a city [or a region] developed its own digital agenda — that is when things started happening.” As in Sweden, so in the EU, Marby argues: The rollout of superfast broadband across Europe could get a boost if local communities knew where to turn to share expertise, get fresh ideas, and identify barriers to building the networks they need to join the digital economy. What Marby has in mind is a pan-European version of the Swedish Broadband Forum — a group instrumental in ensuring that high-capacity networks have spread across the farms and woodlands that carpet the frigid northern state. Hence his reference to queuing cows and milk robots.

Wired Sweden offers EU a recipe for more broadbandby Magnus Franklin | 30 October 2014


The robots feed and milk cows at remote stations, analyzing the results in real time, says Marby, who grew up in rural southwestern Sweden. But the technology is so data-intensive that it depends on high-capacity fiber-optic links, he says. The milking station was connected during a wider rollout of fiber-optic cable in the region of Umeå, in the far north of Sweden, allowing the new technology to be installed. “It is totally magical, how this technology can develop, and it’s these examples that drive development,” says Marby, who once ran the Swedish business of network-equipment maker Cisco Systems. This kind of rollout can easily be replicated elsewhere, he says. “It could just as well be Romania. Given the investment to refurbish the whole farm, the cost of the fiber was negligible.” — Everything but regulation — Marby has doubled this year as the chairman of an umbrella group of European telecom authorities, putting him in close contact with colleagues from Portugal to Finland and from Cyprus to Ireland. Next year, the top Portuguese regulator, Fátima Barros, takes over the mandate at the Body of European Regulators of Electronic Communications, or Berec. Marby stresses that he wasn’t seeking to foist a grand policy plan onto the European stage in his final months atop Berec. But he has experienced a model that has worked well in Sweden, and he thinks it might be a template for the EU, he says. And with a new team of EU Commissioners taking office next week, now is a particularly ripe time to float new policy ideas. The Swedish Broadband Forum grew out of the government’s 2009 Internet strategy. Its secretariat is housed in the premises of the regulator PTS, and its board includes representatives from telecom operators, broadcasters, tech companies and municipalities. Over the years, the forum has tackled questions ranging from how to keep broadband networks secure and resilient, to how to line up financing. The group has reached conclusions that have, at times, been far removed from traditional telecom territory. “This doesn’t have anything to do with [telecom] regulation, but rather a practical approach,” Marby says. Imagine, for example, that a network is built and operated by a club of farmers, he says: “Who goes out at 5 a.m. on New Year’s Day because someone has cut through a fiber cable?”

...continued


“When a city [or a region] developed its own digital agenda — that is when things started happening.”

— Location, location, location — Marby’s description of the broadband-forum model is — in many ways — the antithesis of EU telecom policy in recent years, which has gravitated toward a cookie-cutter approach in the name of building a single telecom market. “At the end of the day, it comes down to a shovel,” Marby says. Despite the many differences across Europe — in how towns are laid out, how municipalities are administered and how much demand exists for digital services — “there are many similar problems,” he says. To make the Swedish Broadband Forum model work at the EU level, the initiative would need the political backing of a European commissioner in Brussels. The commissioner could then appoint a board to run the body, but the forum should be overseen by an organization with deeper roots in local communities, such as the EU’s Committee of the Regions, Marby argues. “It is at that level that we need to solve these issues,” he says. The model also requires the creation of a separate secretariat to ensure “continuity” of the forum’s work. In Sweden, this has meant that the Broadband Forum has survived an election in which a left-wing government has displaced the center-right politicians who founded the forum. Housing minister Mehmet Kaplan took over the chairmanship of the group last week. The secretariat should set clear timelines for each topic to be worked through and wrapped up, Marby suggests. There should be no dawdling before conclusions are drawn up, he says. One possibility — should the idea take root — would be to have Berec host the secretariat. Berec was born out of the EU’s 2009 telecom framework law, and has since grown into a highly influential institution in shaping the evolution of telecom policy and law. Because superfast broadband is such a local issue, it will inevitably spawn different models in different places, Marby says. “In Sweden, we have the municipal network model, alongside investors and the incumbent [telecom operator], and there will surely be other variants,” he says. “But above all, demand is always key.” “I don’t think this solves all of Europe’s problems,” he says. “But it all links together.”

...continued


The European Commission will probably propose recommendations for the development of liquefied natural gas in Europe, MLex has learned.

EU officials say it’s increasingly difficult to justify the low level of policy attention given to the liquid fossil fuel, which could provide an alternative to Russian gas.

Europe’s need to increase energy sources — along with the infrastructure available for imports — means an “LNG strategy” will likely be proposed within the next two years, an official told MLex.

The strategy will probably look to increase the use of LNG and examine whether existing EU energy infrastructure is suitable to import and transport the gas within the bloc. The strategy would also consider which countries could supply LNG to Europe.

LNG is natural gas that has been liquefied and compressed, so it can be transported by boat instead of through a pipeline. The US and Australia hope to be major exporters of the gas by the end of the decade, opening up potential new supply routes to Europe.

Europe has more than 20 LNG terminals, with five more under construction. But the terminals aren’t spread evenly across the 28 member states, and there aren’t enough pipelines to transport supplies around the bloc.

A European LNG strategy would probably follow EU plans to create an “energy union.” The commission is working on policy guidelines for an energy union, to reduce dependency on Russian gas and give Europe more bargaining power with foreign gas suppliers.

MLex understand that an LNG strategy isn’t on the commission’s work program for 2015, but that experts have begun to outline recommendations for the next two years.

EU may draft LNG strategy to cut dependence on Russiaby Emily Waterfield | 27 November 2014


A European LNG strategy would probably follow EU plans to create an energy union

Few pieces of information are more sensitive than a person’s physical location and his or her movements. An entity that controls that information can track where a person goes, how frequently she goes there, and even log the times she tends not to be at home.

An entity that held that kind of location information on large numbers of people could even develop patterns of association between people, linked to the places they frequent, developing a digital portrait that might be far more intimate and revealing than tracking the Internet pages they visit. Imagine the rich possibilities for marketers, for law enforcement, or for spouses who suspect an unfaithful partner.

The value of that location data is one reason why fast-growing mobile app transportation companies like Uber and Lyft have created such a powerfully disruptive business model, one that is pressuring legacy taxi companies in cities around the world. Uber celebrated its fourth birthday earlier this year by announcing a venture capital funding round that valued the company at about $17 billion.

Uber and Lyft may well be offering better, cheaper — and, they argue, safer — transportation services than traditional taxis. But the sensitivity of the personal data they have been collecting about their users has been on display in recent days like never before, as reports surfaced that an Uber executive had suggested the location data held by his company could be used to dig up dirt on a journalist critical of the company. Another report said that an internal software tool called “God view” that allows real-time tracking of the movements of any Uber customer is widely available to workers at the San Francisco-based startup.

The reports about Uber swiftly drew the attention of US Senator Al Franken, one of the key privacy hawks in Congress, and the backer of a bill that would restrict the disclosure of location information to third parties without user consent.

“To whom is the so-called ‘God view’ tool made available and why?” Franken demanded in a confrontational letter to Uber CEO Travis Kalanick that included a long list of pointed questions about Uber’s privacy practices. Uber has until Dec. 15 to respond.

Uber quickly went into damage-control mode, announcing the same day that it had hired Hogan Lovells lawyer Harriet Pearson, “one of the most respected data privacy experts in the world,” to advise its in-house legal team.

Privacy struggles of Uber, Lyft hold lessons for companies that collect location databy Mike Swift | 28 November 2014


No doubt Pearson will have her hands full. It is virtually certain that the US Federal Trade Commission and perhaps state attorneys general are investigating whether Uber violated its stated privacy policies through “God view” or other abuse of location data about its users. An FTC spokesman, following agency policy, declined to comment about a possible investigation.

Both Uber and Lyft are already in trouble with the California Public Utilities Commission by refusing to share with regulators the same kind of granular location and ride data they collect about their users.

Such information, one Lyft executive told the CPUC at a recent hearing, is the proprietary “crown jewels” of the companies. It is simply too sensitive to be shared with regulators, said David Estrata, Lyft’s vice president for government relations, even though the CPUC requested it under seal. As a result of that stance, senior executives with both Uber and Lyft have been ordered to attend separate hearings Dec. 11 before the CPUC under the threat of fines or even the revocation of their approval to operate in California.

Lyft subsequently provided information that it said was responsive to the CPUC. But that has not excused Lyft executives from the show-cause hearing; Uber has yet to provide the information to the CPUC. “Part of being responsive is filing on time. The hearing is an opportunity to look at whether there ought to be any sanctions,” said CPUC spokesman Christopher Chow.

The lesson for US Internet and mobile app companies is that any location data they collect and store about consumers is a regulatory and litigation powder keg. They must not only be exceedingly careful about sharing it with third parties such as advertising networks and data brokers, but they must also erect walls within a company to make sure that such information is only available to a limited number of employees for specific business purposes.

They would also be well advised, following the FTC’s recent push for the de-identification of data, to make sure that their data is anonymized or aggregated whenever possible, so it is not possible to trace information back to a particular individual.

Lyft did make a move like that last week, saying in a press statement that it had developed “tiered access controls that further limit access to user data to a smaller subset of employees and contractors. Ride location data is restricted to an even smaller subset of people.”

...continued


— Garcia suit —

Lyft has one problem Uber does not: It is facing litigation filed this year in US district court in San Francisco in which plaintiff Miguel Garcia alleges that the company shared personal information such as his gender, age, zip code and other data with a third-party analytics company called Mixpanel.

Garcia, under Ninth Circuit case law, does not have to show harm from Lyft’s information-sharing. To win standing to pursue litigation in privacy cases like this, an allegation of a statutory violation of the type Garcia alleges is sufficient to confirm Article III standing in the Ninth Circuit.

Lyft has not denied that it shared Garcia’s information with Mixpanel. Rather, the company argues in a motion to dismiss Garcia’s lawsuit that the California privacy statute cited in the suit does not apply to Lyft’s purpose in sharing Garcia’s information with Mixpanel, something done to help Lyft and co-defendant Enterprise Holdings “in optimizing their ridesharing service.”

“Plaintiff attempts to fabricate a class action lawsuit based on the thinnest of allegations and a strained reading of a narrowly-tailored provision of the California Privacy Act that has no application to the facts alleged,” Lyft and Enterprise said.

The suit focuses on a former Lyft service called Zimride, which offers ridesharing services for commuters. A Lyft spokeswoman said “the lawsuit is without merit and we look forward to resolving it quickly and effectively.”

The motion to dismiss is awaiting a ruling by US District Judge Saundra Armstrong, which is expected sometime during the first two months of 2015. In the meantime, a US magistrate judge, saying Armstrong’s ruling is not likely to be dispositive of the full case, has allowed evidence discovery to begin in the case.

One of Garcia’s lawyers, Jay Edelson, said in an interview that the sharing of Garcia’s information shows that the ridesharing companies don’t value consumers’ privacy in the same way as other industries do.

“You never see hotel companies saying, ‘We’re going to disclose, for any purpose, what guests were staying in our hotels at one time.’ You never see airline companies saying, ‘These were the people flying with us.’ It is a different sensibility with these new technology companies. They view private information as a commodity that can be exploited,” Edelson said.

Google and Apple both learned hard lessons about the sensitivity of location data in 2011, when security researchers discovered that Apple’s iPhone and Google’s Android mobile software were both relaying back location data about their users.

...continued


The problem blew up so rapidly that a seriously ill Apple CEO Steve Jobs, on medical leave and just a few months before his death later that year, had to get involved to de-escalate the controversy.

Google and Apple satisfied regulators and the public by showing that the location they collected was anonymized, was not stored indefinitely, that users could opt out of the data collection and that the location information was not used for any purpose but to fine-tune the accuracy of the valuable location services offered on the companies mobile platforms.

Uber and Lyft would be wise to declare that they follow similar practices with their rapidly growing storehouse of location data.

...continued

“To whom is the so-called ‘God view’ tool made available and why?”


The European Commission has decided that it will rule on Orange’s plan to buy Spanish broadband provider Jazztel, rebuffing a request from Spain’s competition authority to investigate the deal at the national level, MLex has learned.

The EU watchdog is expected to either clear the merger or open an in-depth review of the transaction by this Thursday, Dec. 4.

Commission officials are believed to favor a phase II investigation, it is understood. New EU competition chief Margrethe Vestager will make the final decision.

Last month, the commission extended its initial investigation by 10 working days following a request from the Spanish regulator to take over the review.

In response, Orange submitted concessions to the EU authority to ease potential concerns that the deal might hinder competition. That move indicated that the French telecom operator would prefer to see the EU rule on the deal. No details about the package were made public.

The commission hasn’t asked customers and rivals for feedback on the remedies, MLex has learned.

Orange agreed in September to buy Jazztel in a deal worth 3.4 billion euros ($4.2 billion).

Announcing the merger, Orange Chief Executive Stéphane Richard said it would be “appropriate” for the EU to approve the deal during an initial, phase I investigation. But the commission was expected to take a close look at agreements Orange and Jazztel have with rivals concerning access and network development (see MLex comment here).

Jazztel’s shares trade on the Bolsa de Madrid. Orange is listed in Paris and New York.

EU, not Spain, to rule on Orange, Jazztel merger by Dafydd Nelson and Christiaan Nelisse | 2 December 2014


Rarely does so much money ride on so few words in a courtroom.

With $930 million at stake, one lawyer representing Apple and one representing Samsung will get 30 minutes before the nation’s top patent court in Washington Thursday to argue why the verdict for Apple following the first patent and antitrust trial before the smartphone giants in 2012 should either be preserved, reduced or swept away.

While William F. Lee for Apple, and Kathleen M. Sullivan for Samsung, certainly have detailed presentations ready for the three-judge panel on the US Court of Appeals for the Federal Circuit, they are highly unlikely to get the chance to deliver them in full. Before either of the lawyers can unload more than a few carefully freighted sentences, they are sure to be interrupted by questions from the judges. The three circuit judges have had time to chew over the written pleadings submitted by each company, and will be looking to expose or zero in on weaknesses in the arguments of each side.

The questions asked by the judges will likely provide clues as to whether the Federal Circuit is likely to embrace Samsung’s argument that the “unprecedented” $930 million in damages for infringement of Apple’s design patents, trade dress and utility patents should be reduced or wiped out, or whether it will accept Apple’s argument that the damages should be affirmed.

History suggests that a reduced award is the most likely possibility. Samsung hopes the Federal Circuit judges will focus on its estimate that 84 percent of the $930 million verdict for Apple — $781 million — is due to Samsung’s infringement of Apple’s design patents and trade dress. That is intellectual property the Korean electronics giant says was improperly enforced by two juries and US District Judge Lucy Koh, who presided over the original trial in August 2012, and a damages retrial in November 2013, which dealt with Apple’s claims that Samsung “slavishly copied” the iPhone and iPad to compete with the runaway popularity of Apple’s mobile devices.

Samsung has told the Federal Circuit that it was in large part Koh’s improper failure to instruct the jury to “factor out” functional elements of the design of the iPhone and iPad that led to such a massive award, Samsung said in the initial brief it submitted to the Federal Circuit. Unlike utility patents that cover software and other functional elements of a product such as a smartphone, design patents allow a patent-holder to recover all of the profits earned by the infringer’s sales, not just compensation for the lost sales of the patent-holder.

Design patents take center stage as Apple and Samsung argue appealby Mike Swift | 3 December 2014


Samsung says the effect of the verdict is to give Apple a permanent monopoly over the rounded, rectangular shape of an iPhone, when a shape is something that is not patentable under US law.

“Such a verdict is unprecedented, and Samsung should not now be held liable under the Patent Act or trade-dress laws for designing and producing a rectangular, round-cornered, flat-screened, touch-screened phone,” the company argued in its appeal brief. “Those shapes and concepts may not be monopolized under patent law, nor through the back door under the guise of trade-dress dilution law.”

At a minimum, Samsung says, it should be granted a new trial by the Federal Circuit.

Apple answered in its brief to the Federal Circuit that Samsung “tellingly” never challenged the validity of Apple’s design patents in its arguments.

“Samsung also tries to downplay the extent of its mimicry, but overwhelming evidence demonstrated that Samsung faced a ‘crisis of design,’” Apple said, quoting an internal Samsung document that was an important piece of evidence in the trial, “and addressed it with shameless copying.”

Samsung’s interpretation of design patent law is incorrect, Apple has told the Federal Circuit, in holding that functional aspects of a product cannot be protected by a design patent only if the design element is necessary to the function of the product.

The degree of functional necessity is a gray area the Federal Circuit will have to delineate. One design patent at issue is Apple’s D’305 patent, which protects the graphical user interface, or GUI, of the colorful icons that launch apps from the home screen of an iPhone or iPad. Samsung says they are functional, arranged to be just the right size to allow a human finger or thumb to launch a piece of software. Apple executive Phil Schiller testified during the trial that a primary reason for the iPhone’s success was that “people find the iPhone designs beautiful.” The iPhone’s design, Apple said, was intuitive for consumers and made its products so attractive and easy to use.

The role of design patents in the case is being closely watched by patent scholars and companies ranging from toilet-makers to the makers of uniquely shaped Crocs shoes, who have submitted amicus briefs regarding the significance of design patents in the case (see here and here).

“I think the most anticipated aspect of the appeal is what, if anything, the Federal Circuit will say about damages for design patent infringement,” said Brian Love, co-director of the High Tech Law Institute at Santa Clara University in Silicon Valley.

The names of the three judges who will hear the Apple-Samsung appeal won’t be revealed by the Federal Circuit until Thursday morning.

...continued


“I can assure you…I’m not smoking crack, your honor.”

— Formidable lawyers —

Both Lee and Sullivan, who will stand before the three judges Thursday morning, are formidable lawyers by any standard. Sullivan, the former dean of the law school at Stanford University where she remains on the faculty, has been mentioned as a candidate for the US Supreme Court, and has argued nine cases before the high court.

A specialist in Constitutional law and appellate practice, Sullivan is a named partner of the firm Quinn, Emanuel, Urquhart and Sullivan. Before an appellate court, the strength of her intellect can almost seem relentless. She seems to have the ability to effortlessly call up lines of argument and case references when hit by an unexpected question by an appellate judge.

Lee, meanwhile, has argued more than 75 cases before the Federal Circuit over a 35-year career in which he also served as associate counsel to Independent Counsel Lawrence E. Walsh in the Iran-Contra investigation in the late 1980s.

As co-managing partner of WilmerHale, a law firm with close ties to Apple, Lee has been cited by groups such as American Law Institute as the first Asian-American to lead a major US law firm. Lee this year became a senior fellow of the Harvard Corporation — Harvard University’s top governing body.

In court, Lee unfailingly projects an even-keeled presence, even during tense moments, and his pairing with the more mercurial Harold McElhinny during all three Apple-Samsung trials in San Jose was one reason why Apple was so successful.

During the first Apple-Samsung trial, Koh, frustrated by the voluminous filings of the combatants, angrily exploded in court one day that Lee must be “smoking crack” if he expected her to immediately rule on a 75-page motion filed by Apple.

“I can assure you,” an unruffled Lee replied without missing a beat, “I’m not smoking crack, your honor.”

...continued


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The Best of MLex 2014...Letter from the Editor in Chief Last year saw regulation and policy impact business more than ever, with themes of privacy, multilateral trade pacts, new financial