David Henry

In October 2021, the European Commission imposed interim measures on Illumina and GRAIL to restore and maintain competition between the entities following Illumina’s decision to close its acquisition of GRAIL prior to the Commission completing its review of the transaction and in breach of the (...)

The EC’s review of Illumina’s acquisition of GRAIL raises two novel issues: the assertion of jurisdiction by the EC over transactions that do not meet any national or EU jurisdictional merger control tests, and the use of interim measures to stop parties closing a transaction where the EC has (...)

On October 25, 2021, the FTC announced a return to the practice of including prior approval provisions in consent decrees for allegedly anticompetitive mergers. This means that in addition to divesting a business, the FTC is requiring companies to obtain FTC prior approval before purchasing (...)

In May 2020, Facebook purchased Giphy, the largest provider of GIFs (a format for image files that supports both animated and static images). Giphy operates an online database and search engine that primarily allows users to search and share GIFs and can be used indirectly on third-party apps, (...)

On 9 July 2021, following a thorough review process launched in October 2018, the EC published a draft revised Vertical Block Exemption Regulation (VBER) and draft revised accompanying Guidelines on vertical restraints (Vertical Guidelines). While the basic system underpinning the assessment (...)

By decision of 20 May 2021, the EC found that Bank of America, Natixis, Nomura, RBS (now NatWest), UBS, UniCredit and WestLB (now Portigon) breached EU antitrust rules through the participation of a group of traders in a cartel on the primary and secondary markets for European Government Bonds (...)

On 20 April 2021, the EC issued its settlement decision by which it fined Deutsche Bahn (DB) and Société Nationale des Chemins de fer belges/Nationale Maatschappij der Belgische Spoorwegen (SNCB) a total of approximately EUR 48 million for participating in a cross-border customer allocation (...)

The European Commission wants to be able to block or conditionally approve transactions, mainly in the digital economy and in the pharmaceutical sector, even when the thresholds for notification are not met. In publishing its new Article 22 Guidance, the Commission has significantly expanded (...)

On 26 March 2021, the EC adopted its “Guidance on the application of the referral mechanism set out in Article 22 of the [EUMR] to certain categories of cases.” The adoption of this novel piece of guidance reflects recent concerns on the part of the EC that certain competitively significant (...)

On 25 March 2021, the CJEU dismissed all the appeals brought by Danish pharmaceutical company H. Lundbeck A/S and five generic manufacturers against the judgments of the GCEU, thus upholding a decision of the EC on patent settlement agreements between Lundbeck and five generic manufacturers (...)

On 18 March 2021, the CJEU ruled on the appeal by Pometon SpA against the GCEU’s judgment in the steel abrasives cartel case. The CJEU ruled that the GCEU had breached the principle of equal treatment when recalculating the EC’s fine imposed on Pometon, the only non-settling party in this (...)

On 20 January 2021, the EC fined Valve Corporation and five publishers, Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax, a total of EUR 7.9 million for breaching antitrust rules by partitioning the EEA market. Background Valve, together with the five publishers, restricted (...)

On 19 March 2020, the European Commission adopted a temporary framework that allows Member States to grant certain State aid to businesses to help them face the economic and financial consequences of the Coronavirus (COVID-19) health crisis. In the wake of this decision—and in a record time of (...)

This article has been nominated for the 2020 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. INTERIM MEASURES IMPOSED ON BROADCOM: THE RE-AWAKENING OF A ONCE-DORMANT TOOL?* The European Commission (EC) has found, on a prima facie basis, that Broadcom (...)

The rail sector is notorious for its complexity and its endemic competition problems. In a damning account of the state of play in this sector, the European Commission (“EC”) recently lamented the continued absence of effective competition and innovation therein. Furthermore, the risks of unlawful State aid and abusive conduct have been highlighted as serious concerns. According to the EC, therefore, and in a bid to encourage a modal shift towards greater use of the railways, the rail sector will feature highly on its list of enforcement priorities. The unsatisfactory state of affairs in the rail sector does not appear to be limited to Europe, however. Indeed, the contributions made to this work bear this out.

BIGGER IS BETTER . . . OR MAYBE NOT: THE SIEMENS/ALSTOM RAILWAY ME* The European Commission recently reaffirmed that industrial policy objectives have no role to play when it comes to applying the EU merger control rules. Despite unusually intense industrial and political pressure to get the (...)

Application of Jurisdiction Clauses to Competition Damages Actions Depends on Cause of Action* Summary The European Court of Justice (ECJ) recently ruled that a jurisdiction clause does not need to refer expressly to disputes arising from a breach of competition law where damages are (...)

European Court of Justice Provides Guidance on Scope of the Standstill Obligation Enshrined in the EU Merger Regulation* Pursuant to the EU merger control rules, a transaction that falls within the purview of the EU Merger Regulation (EUMR) must be notified to the European Commission (...)

THE LATEST: FTC CHALLENGES RETAIL FUEL STATION AND CONVENIENCE STORE TRANSACTION— REQUIRES TEN LOCALIZED DIVESTITURES IN WISCONSIN AND MINNESOTA* WHAT HAPPENED: Alimentation Couche-Tard Inc. (ACT) and its subsidiaries (including Circle K Stores, Inc.) are engaged in the retail sale of (...)

Azim Makanojiya founded Zaappaaz Inc. as a nineteen-year-old university student and quickly turned it into a multi-million dollar business. WHAT HAPPENED: On Tuesday, August 7, online retailer Zaappaaz Inc. and its twenty-nine-year-old president and founder, Azim Makanojiya, agreed to plead (...)

On July 24, 2017, the US Court of Appeals for the Ninth Circuit affirmed the dismissal of an antitrust counterclaim brought by ICTSI Oregon, Inc. (ICTSI), the operator of a marine shipping facility, against the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime (...)

SECOND CIRCUIT CLARIFIES FIFTH AMENDMENT LAW, WITH IMPLICATIONS FOR US PROSECUTION OF INTERNATIONAL CARTELS* On July 19, 2017, the Second Circuit vacated the convictions and dismissed the indictments of two individuals accused of playing a role in the manipulation of the London Interbank (...)

THE LATEST: EU Commission Fines Facebook EUR 110 million for Providing Incorrect or Misleading Information* The Commission’s EUR 110 million fine on Facebook for breach of its procedural obligations under the EU merger control rules underscores the need to submit full, accurate and reliable (...)

The FTC has entered into a final settlement with Drug Testing Compliance Group LLC (DTC Group) by order issued January 21, 2016, resolving an administrative case that alleged DTC Group had invited a competitor to collude with respect to customer allocation in violation of §5 of the Federal (...)

THE EUROPEAN UNION’S HIGHEST COURT RULES ON STANDARD-ESSENTIAL PATENTS INJUNCTIONS AND ABUSE OF DOMINANCE* The long-awaited ruling on the seeking of injunctions in the context of standard-essential patents encumbered by fair, reasonable, and non-discriminatory (FRAND) terms has been (...)

A NEW CONCEPT IN CARTEL FINING: "DIRECT EEA SALES THROUGH TRANSFORMED PRODUCTS"* On 9 July 2015, the Court of Justice of the European Union (CJEU) issued its judgment in InnoLux Corp. v Commission C-231/14P, confirming the existence of a new concept in cartel fining: “direct European (...)

FORMER TOYODA GOSEI EXECUTIVE PLEADS GUILTY TO PRICE-FIXING, BID-RIGGING* On January 6, 2015, Makoto Horie of Toyoda Gosei North America pled guilty to the United States Department of Justice (DOJ) for conspiring to fix the prices of automotive hoses sold to U.S. companies. Mr. Horie was (...)

DISTRICT COURT PARES DOWN PRICE DISCRIMINATION SUIT AGAINST CHRYSLER* On July 11, 2014, the Northern District of California dismissed one of two federal antitrust claims brought against Chrysler Group LLC under the Robinson-Patman Act, 15 U.S. C. § 13, as well as several state statutory and (...)

JUDGE RULES IN FAVOR OF DOJ FINDING BAZAARVOICE/POWERREVIEWS MERGER ANTICOMPETITIVE* On January 8, 2014, Judge Orrick of the Northern District of California ruled that Bazaarvoice’s acquisition of competitor PowerReviews violated Section 7 of the Clayton Act. The ruling was in favor of the (...)

EUROPEAN COMMISSION SIMPLIFIES ASPECTS OF EU MERGER CONTROL* The European Commission (Commission) has issued a package of measures (the Reform Package), the rationale for which is to simplify and streamline EU merger control. The Reform Package does this by extending “simplified” treatment (...)

PRIVATE ACTIONS IN COMPETITION LAW: UK GOVERNMENT CONSULTATION* On April 24, 2012, the UK government took a significant step towards private antitrust actions by publishing a consultation document on how best to encourage private sector challenges to anticompetitive behavior. This (...)

COMPETITION LAW REFORM IN BRAZIL: IMPLICATIONS FOR MERGER CONTROL* Brazil’s House of Representatives passed a long-awaited competition bill (the Competition Bill) on 5 October 2011, making significant changes to Brazilian competition law. The Competition Bill has yet to be signed into law by (...)

GERMAN FEDERAL CARTEL OFFICE CONSULTS ON SUBSTANTIVE MERGER CONTROL – DRAFT GUIDANCE FOCUSES ON MARKET DOMINANCE* On 21 July 2011, the German Federal Cartel Office (FCO) published a consultation paper on substantive merger control called “Draft Guidance on Substantive Merger Control” (Draft (...)

This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Introduction On 17 February 2011, the European Court of Justice (ECJ) – on a reference for a preliminary ruling by the Stockholm District Court (SDC) – (...)

UK COMPETITION REGULATOR ISSUES GUIDANCE ON HOW BUSINESSES CAN COMPLY WITH COMPETITION LAWS* The UK Office of Fair Trading (OFT) has issued an overview of competition law and steps that companies can take to comply with competition law. This advice was issued in response to the results of a (...)

Introduction In view of the fact that Community law regulates competition, English law is required to provide remedies for violations to persons injured thereby. Indeed, as the European Court of Justice stated in Courage v. Crehan, "the full effectiveness of Article 81 of the Treaty and, in (...)

Against the backdrop of a string of analyses of the abovementioned Act, the Danish competition authority carried out an examination of the competitive effects of Copenhagen Malmö Port’s exclusive right to offer harbour services in Copenhagen Free Port. The Danish competition authority at the (...)

In November 2004 the Danish Competition Authority received a complaint in relation to the administration of the provisions in Articles 19 and 20 of the Danish Act on Raw Material. The particular provisions relate to vessel approvals and licenses to gravel and sand pumping. Acting on the (...)

The Finnish Competition Authority held on the 17 May 2005 that the Finnish Telephone Number Service (SNOY) had abused its dominant position. The abuse entailed a practice whereby SNOY forced its customer companies offering telephone directory services not to offer their services to end (...)

Rorforeningen is an association of Danish wholesalers of plumbing and heating products. All the major wholesalers in Denmark are represented through Rorforeningen. The association carries out a range of activities but the one in casu to which the abuse pertains involved the undertaking of a (...)

On 1 March 2005 the Cypriot Commission for the Protection of Competition unanimously decided in a rather small scale case that two press distribution agencies, Hellenic and Kronos, had abused their dominant position in the market for the distribution of newspapers and magazines. The abuse was (...)

The Hungarian Competition Council initiated proceedings against T-Mobile in order to find out whether it had violated Article 8 paragraphs 1 and 2 of the Hungarian Competition Act and Article 7 paragraphs (2) (b) of the Hungarian Act on Business Advertising Activity, through advertising the (...)

On 16 December 2004, the Cypriot Commission for the Protection of Competition, following a complaint by Yeomilo Trading Ltd, issued a decision that the Cyprus Potatoes Trades Association had infringed section 6 of the Protection of Competition Law 207/89 through abusing its dominant position (...)

Danish competition authority, Wewers Belægningssten, 24 November 2004 On 24 November 2004, the Danish competition authority rendered a decision finding that the joint venture company Wewers Belaegningssten (under joint control of Ikast Betonvarefabrik and Wewers Teglvaerker) and its parent (...)

Gazdasági Versenyhivatal, Buvihír Hírlap Kereskedelmi Rt. (Magyar Lapterjesztõ Rt), Vj-45/2004/46, 9 November 2004 In Hungary, Magyar Lapterjesztõ Rt is the owner of all the wholesalers of daily, weekly, monthly and other papers. Magyar Lapterjesztõ Rt divided Hungary up geographically into (...)

The Finnish Competition Authority (“FCA”) concluded that seven asphalt companies and the Finnish Asphalt Association had violated Finnish competition law through engaging in cartel activity. The FCA stated, before proposing to the Finnish Market Court that it impose fines on these companies (...)

Fin 2004, l’autorité de concurrence finlandaise a condamné, sur le fondement de l’article 4 de la loi relative au droit de la concurrence, l’Ordre des architectes (“SAFA”) pour avoir édicté un règlement professionnel restrictif de concurrence. Selon ce règlement, si un maître d’ouvrage (...)

On 29 September 2004, the Danish Competition Council adopted a decision whereby Post Danmark A/S, the Danish national postal operator, was found to have abused its dominant position on the market for the distribution of non-addressed items and local weekly papers. The decision stemmed from a (...)

In the summer of 2002, construction works for a motorway in Hungary were put out to tender by the National Motorway Co. Ltd. The tendering process was made up of two distinct procedures as the first procedure (restricted procedure with invitations) was declared ineffective. The subsequent (...)

Le droit danois de la concurrence permet à un éditeur de déterminer un prix de vente fixe pour ses nouvelles parutions, prix qui doit être respecté par tous les vendeurs (librairies, supermarchés, marchands spécialisés, etc...). Le législateur danois entendait créer par cette loi une exception (...)

A Danish provider of fixed line telephony for business customers, Song Networks A/S, complained to the Danish Competition Authority alleging that TDC and SONOFON had engaged in illegal behaviour by: charging excessive prices for mobile termination, engaging in collusive behaviour in connection (...)

Dans sa décision du 18 mars 2004, le Conseil de la concurrence sanctionne - sévèrement ? - une entente entre entreprises du bâtiment à l’occasion d’un marché public pour l’Université de Kaposvár. En 2001, l’Etat hongrois avait lancé un appel d’offres dans le cadre d’un marché public pour la (...)