Join Steptoe’s EU Competition team for a webinar on May 31, covering the opportunities and antitrust risks associated with bypassing distributors to sell directly to customers in Europe. In particular, we will discuss the growing trend of going “direct”, how to identify the related antitrust risks, and how to strike the right balance between direct and indirect channels. Participation is free of charge.

Date: May 31, 2018

Time: 4:00 p.m. – 5:00 p.m. CET
(Click here for the time in your area)

Click here to register.

If you are unable to participate in the live webinar but would like to receive a link to the recording, please let us know by requesting here.

Featured Speakers:

On February 16, 2018, the UK Court of Appeal adopted its much awaited ruling in the iiyama case. Taking stock of the Court of Justice (CoJ) ruling in Intel last year, the Court of Appeal allows plaintiffs in civil cartel damages actions to advance claims based on overcharges incurred by their supply chain operations outside of the European Union (EU), provided that such overcharges ultimately hit their finished goods sales within the EU.

This is perhaps an inevitable proposition, which will probably send shock waves way beyond the Channel. While this judgment does not bind the European Courts, this UK precedent will inspire other national courts across the EU. In addition, following Intel, the European Commission (EC) is most likely emboldened to prosecute non-EU based cartels affecting upstream activities with an indirect effect on sales of finished goods in the EU.

Read more here.

In an increasingly interconnected world, businesses that conduct cross-border transactions will continue to navigate complicated and thorny legal regimes. As long as full compatibility between these regimes is unrealized, the doctrine of international comity will remain alive and well in U.S. litigation. Comity is a choice-of-law principle that concerns the extent “to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation.”[1] Comity is different from other closely-related doctrines like the act of state doctrine (a defense designed to avoid judicial inquiry into state officials’ conduct as opposed to private actors[2]) and the foreign sovereign compulsion doctrine (a defense where “corporate conduct which is compelled by a foreign sovereign” is also protected from liability “as if it were an act of the state itself”[3]).

This article discusses one flashpoint area in comity analysis—the question of what deference to give to a foreign sovereign’s interpretation of its own law, a pending question now before the Supreme Court. Adherence to one set of laws may or may not affect a court’s decision to abstain from jurisdiction. In the United States, circuit courts disagree about the degree of deference that should be given to foreign sovereigns who offer their own interpretations of their laws in litigation. For instance, the Ninth and Second Circuits have given a strong degree of deference to such interpretations, with the Second Circuit recently stating that it is “bound to defer” to such statements.[4] In contrast, the Sixth and D.C. Circuit past approaches show that they do not always compel strong deference to a foreign government’s interpretation of its laws.[5]

Continue Reading Will the Real Conflict Please Stand Up: International Comity on the Supreme Court Stage

On January 23, 2018, the European Court of Justice (CoJ) handed down an interesting judgment in the Hoffman-La Roche / Novartis case (C-179/16). For the first time, the CoJ takes a stance on an emerging hot topic in EU antitrust law: disparagement – or, in more trendy terms, fake news. And the CoJ’s message is clear: the EU will show no mercy for businesses engaging in such practices.

In our view, the judgment conveys three key messages:

  • Disparagement can come in many forms and shapes. The Hoffmann – La Roche / Novartis case arguably features a rather unconventional and somewhat counterintuitive disparagement scenario, that is, one where the disparaged party is also part of the collusion. As such, this case illustrates the huge variety of scenarios that can fit under the header ‘disparagement.’ However, that is not to say that any form of criticism towards your competitors will get you in trouble. In practice, all cases to date deal with well-organized disparagement campaigns. Thus, a few negative comments in passing are unlikely to give rise to an investigation.
  • Disparagement goes beyond fake news, at least in certain sectors. As noted above, the concept of disparagement extends beyond the dissemination of incorrect information. The dissemination of correct information, but in a partial way, may also raise issues, especially when it impacts an economic sector that is highly risk-adverse. In this regard, we note that most precedents on disparagement – if not all – featured misleading health claims. It remains to be seen whether a similar theory of harm could be argued in relation to less sensitive sectors or in relation to practices unrelated to human health.
  • If prosecuted under Article 101 TFEU, effects do not need to be proven since disparagement can be a “by object” infringement. As a result, failed disparagement strategies may also trigger antitrust enforcement.

Want to learn more about the judgment? Check out our briefing.

A few days after the Coty judgment,[1] the German Federal Court of Justice[2] (Bundesgerichtshof or BGH) upheld the decision of the Higher Regional Court of Düsseldorf in the Asics case,[3] confirming that Asics, the sport shoes manufacturer, may not prevent its selective distributors from cooperating with price comparison engines to promote the Asics branded products.

1. Background

From 2012 to 2015, the German subsidiary of Asics set up a selective distribution system which imposed a number of limitations on the online sales activities by authorized dealers in Germany. In particular, Asics prohibited its authorized distributors from (i) selling through online marketplaces such as Amazon and eBay, (ii) using price comparison engines, and (iii) using Asics trademark on the distributor’s online search advertisements.

Continue Reading I Want to “Run” Free: Authorized Dealers Cannot Be Prevented from Using Price Comparison Websites

Following an inquiry in July 2017, the House of Lords’ European Union Committee published on February 2, 2018, a report titled – ‘Brexit: competition and State aid’ – on the future of the UK’s competition law regime after Brexit.

The House of Lords report provides a detailed account of the most pressing issues that the UK’s competition law regime is facing ahead of Brexit. It also shows the high levels of uncertainty that businesses operating between the EU and the UK face.

This uncertainty suggests that businesses should – at least for now – adopt a cautious approach, for example, when formulating their distribution and acquisition strategies in the UK.

Whatever the statutory changes to the UK’s competition law regime after Brexit are, EU law will still remain an important factor to consider when taking business decisions, especially because of the geographical proximity and close trading relationships between the UK and the EU. This means that going forward businesses need to have guidance.

Steptoe has years of experience in successfully advising businesses on their strategic decisions in the EU and the UK. Our experienced lawyers can help your business to successfully navigate the demands and potential opportunities of Brexit.  Continue Reading House of Lords Report on Brexit and Competition: What Does it Mean for Businesses?

Please join Steptoe partner Jonathan Sallet and Professor Jonathan Baker on Wednesday, February 28, for a discussion of antitrust enforcement activity in the US and what could be in store as we move into 2018.  Key issues to be discussed include enforcers’ new emphasis on vertical theories of harm when reviewing mergers; how two-sided markets should be assessed when defining product markets; and renewed questions about the nature and evidence of competitive harm that must be shown, particularly regarding prospective buyer power.

Recent mergers have prompted regulators and courts to consider how best to analyze the potential competitive effects arising from increased buyer power created by a merger.  Agencies, judges, and antitrust commentators have taken different approaches to buyer power issues in this quickly-developing landscape.  Steptoe partner Jonathan Sallet explores these perspectives in his article “Buyer Power in Recent Merger Reviews.”  Sallet frames the discussion by highlighting tension between the analyses of recent mergers before the FTC and DOJ.

The article also raises key antitrust questions for companies that may potentially augment their buying power through combination:  Continue Reading Jon Sallet Publishes “Buyer Power in Recent Merger Reviews”

Steptoe has been following the Coty case closely and is the reason why we held the first debate only 24 hours after the Court of Justice made its judgment. Therefore, we have been pleased to contribute to the developing debate by publishing our article on the Coty case for Kluwer’s Competition Law Blog.

Click here to visit their blog and to read our article.

24 hours after the delivery of the eagerly awaited Coty judgement, the Steptoe EU Competition team is pleased to invite you to an in-person event to debate with lead stakeholders on the consequences of this judgment for the online resale of branded goods in the EU.

The event will be held at our premises in Brussels on December 7 from 5:00 pm to 6:00 pm and it will also be video live streamed for those who cannot attend in person.

More information in this link.

(Participation is free of charge)