August 2011

General antitrust

The US FTC issues a report on authorized generic drugs expressing concern that they are being used to delay generic competition
Gibson Dunn (New York)
U.S. FTC Scrutinizes Interplay Between Authorized Generics and Patent Settlements* The U.S. Federal Trade Commission has recently released two reports relating to the pharmaceutical industry. A significant theme in both reports is a concern that brand name pharmaceutical companies are (...)

Anticompetitive practices

The Czech Competition Authority hands out penalties to five participants in a bid rigging cartel in the construction industry (Inzet)
Braun (Prague)
Penalty for first Czech Bid Rigging Case Confirmed by Court* Bid rigging has for a long time been a merely theoretical example of criminal liability in Czech Antitrust law without any actual cases decided. Until 2010 with the introduction of criminal liability for hard-core horizontal (...)

The Argentinian Secretariat of National Commerce holds a leading sports broadcasters contractual conditions anti-competitive under national legislation and awards a cable television provider interim injunctive relief (Telecentro / Fox Sports Latina America)
Bureau Veritas (London)
Complainant Telecentro S.A., a cable television provider, was awarded interim injunctive relief by the Secretariat of National Commerce acting on findings from the national competition authority that Fox Sports Latin America S.A. breached art. 2 of the Ley 25.156 on the protection of (...)

The US District Court for the Eastern District of Michigan explains its denial of motion to dismiss in Most Favored Nation -MFN- clauses decision in the health care industry (Blue Cross Blue Shield of Michigan)
Wolters Kluwer (Riverwoods)
Federal/State Antitrust Suit Against Blue Cross Blue Shield of Michigan Can Proceed* Last week, the federal district court in Detroit denied Blue Cross Blue Shield of Michigan’s motion to dismiss a federal/state antitrust action challenging the health insurer’s use of most favored nation (...)

The Chinese NDRC in Shanxi promulgates severe rules tackling collusion to increase price
University of Melbourne
China Competition Bulletin (Beijing)
Institute of American Studies (Beijing)
The Price Bureau of Shanxi Province, a local bureau of the NDRC Bureau, has promulgated the Price Regulation of the Shanxi Province (Price Regulation) pursuant to the Price Law 1997 (Price Law). The Price Regulation will take effect on 1 October 2011 and covers matters related to price (...)

The German competition authority imposes multi-million fines for hardcore cartel in the concrete pipe sector (Berding and Betonwerk Bieren)
European Commission - DG COMP (Brussels)
Germany: The Bundeskartellamt imposes multi-million Fines for hard-core Cartel in the Concrete Pipe Sector* On 10 August 2011, the Bundeskartellamt (BKartA) imposed fines totalling € 11 860 000 on two manufacturers of concrete pipes and five individuals. The undertakings concerned are (...)

The Austrian Competition Authority files application for fines in textile-cleaning sector investigation
European Commission - DG COMP (Brussels)
Austria: The BWB files Application for Fines in Textile-Cleaning Sector Investigation* On 9 August 2011, the Federal Competition Authority (BWB) filed an application under Article 101 TFEU and Sec 1 of the Cartel Act 2005 for the imposition of fines against two undertakings which are active (...)

The US District Court for the Northern District of California receives class action lawsuit alleging price-fixing of e-books sales between five major publishers and a leading electronic devices producer (Hachette Book / HarperCollins / Apple)
Sidley Austin (Brussels)
Is Apple forcing customers to pay more for e-books? - Global developments in the alleged e-book price-fixing case* European investigations On December 6, 2011 the European Commission announced that it opened formal proceedings to examine whether five major international publishers (...)

The Italian Competition Authority imposes fines totalling €5,5 m on firms producing and selling electro-medical equipment for diagnostic imaging representing 68% of the Italian sales (Alliance / Siemens / Philips / Toshiba / AGCM)
McDermott Will & Emery (Paris)
ITALIAN COMPETITION AUTHORITY FINES SUPPLIERS OF MAGNETIC RESONANCE EQUIPMENT €5.5 MILLION * On 5 August 2011, the Italian Competition Authority levied fines totalling €5,538,750 on Alliance Medical S.r.l., Toshiba Medical Systems Italia S.r.l., Philips S.p.A. and Siemens S.p.A. Each firm (...)

The EU Commission rejects antitrust complaint concerning ban on rotary valves in motorcar and motorcycle racing engines (BRV / FIA)
Van Bael & Bellis (Brussels)
In a recently published decision, which was adopted on 4 August 2011, the European Commission has rejected a complaint submitted by BRV Pty Ltd (“BRV”) which alleged that a group of undertakings – in particular, numerous vehicle engine manufacturers – had violated Articles 101 and 102 (...)

Unilateral Practices

A US District Court denies a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of the defendant having filed an ANDA with the FDA (Shionogi Pharma / Mylan)
Sheppard Mullin (Los Angeles)
ANDA Automatic Stay of FDA Approval Does Not Defeat Standing in Sham Litigation Antitrust Counterclaim* The District of Delaware recently denied a motion to dismiss an antitrust counterclaim in a patent infringement action in the wake of defendant Mylan, Inc. ("Mylan") having filed an (...)

The Brazilian Competition Authority grants preliminary injunction against a leading banking group who engaged into exclusive dealing (Bank of Brazil / Interstate Federation of the Public Workers)
Lefosse Advogados (São Paulo)
The Brazilian Competition Authority – Conselho Administrativo de Defesa Econômica(hereinafter CADE) – has granted a preliminary injunction on an administrative procedure initiated ex officioby CADE itself, following a complaint against Banco do Brasil presented by the Interstate Federation of (...)

The Spanish Competition Commission fines the incumbent postal operator for breach of commitments agreement (Correos)
European Commission - DG COMP (Brussels)
Spain: The CNC fines CORREOS for Breach of Commitments Agreement* In its Resolution of 23 August 2011, the National Competition Commission (CNC) Council found that it was established that the Sociedad Estatal Correos y Telégrafos, S.A. (Correos) had breached the Commitments Agreement (...)

A US District Court finds that the alleged facts were insufficient to allege a plausible monopoly power maintenance claim in respect of the market for automotive refrigerant recycling and recovery machines (SPX / Mastercool)
Sheppard Mullin (Los Angeles)
Antitrust Counterclaim in Patent Infringement Action Lacks Plausible Allegations of Competitive Injury* Plaintiff SPX Corporation ("SPX") brought a patent infringement action against Master Cool U.S.A. ("Master Cool"). Master Cool answered and counterclaimed. In its counterclaim, it alleged (...)

The Indian Competition Authority issues penalty against unfair contracts for the purchase of flats and for the first time in India focuses on "exploitative" rather than "exclusionary" abuse of dominance (Belaire Owner’s Association / DLF / Haryana Urban Development Authority)
Vaish Associates Advocates (New Delhi)
DLF fined INR 630 Crores (INR 6.3 billion) by CCI for abusing the dominant position* Introduction Competition Commission of India (“CCI”) vide an order dated August 12, 2011 in Belaire Owner’s Association vs. DLF Limited and HUDA. (Case no. 19/2010) has, inter alia, imposed a penalty at (...)

The Bulgarian Competition Authority initiates ex officio investigation into aviation fuel market (Lukoil)
European Commission - DG COMP (Brussels)
Bulgaria: The Competition Authority initiates Ex Officio Investigation into Aviation Fuel Market* On 4 August 2011, the Commission on Protection of Competition (CPC) opened an ex officio investigation pursuant to Article 21 of the Law on Protection of Competition and Article 102 TFEU against (...)


The US DoJ announces it will challenge the proposed merger between two of the four largest providers of mobile wireless telecommunications services (AT&T / T-Mobile)
Wolters Kluwer (Riverwoods)
AT&T’s Planned Acquisition of T-Mobile Challenged by Justice Department* The U.S. Department of Justice today moved to block AT&T Corporation’s proposed acquisition of T-Mobile USA Inc. According to the Justice Department, the proposed acquisition would combine two of the four (...)

The Chinese MOFCOM releases the provisions on national security review of foreign mergers and acquisitions of domestic enterprises
University of California College of the Law (San Francisco)
White & Case (Hong Kong)
K&L Gates (Hong Kong)
China’s Ministry of Commerce (MOFCOM) released the Provisions on the National Security Review of Foreign Mergers and Acquisitions (M&A) of Domestic Enterprises(the “Provisions”) on August 26, 2011. They become effective on September 1, 2011. The Provisions are another step in establishing (...)

The Chinese MOFCOM publishes measures on the implementation of security review of mergers and acquisitions of domestic enterprises by foreign investors
University of Melbourne
China Competition Bulletin (Beijing)
Institute of American Studies (Beijing)
The MOFCOM published the Measures on the Implementation of Security Review of Mergers and Acquisitions of Domestic Enterprises by Foreign Investors (Measures) on 25 August 2011. The Measures are effective on 1 September 2011 and replace the Interim Measures on Relevant Matters Concerning (...)

The US Court of Appeals for the 8th Circuit upholds a lower court’s finding that the FTC failed to show the relevant market in a case concerning the acquisition of two drugs treating a similar heart defect (Lundbeck)
Scharf Banks Marmor (Chicago)
What Is a Relevant Market Anyhow?* The Eight Circuit, in FTC v. Lundbeck, Inc., No. 10-3458/3459 (Aug. 19, 2011), upheld the district court’s finding that the FTC failed to show a relevant market, and thus was unable to challenge the acquisition of the drug NeoProfen. It already owned a (...)

The U.S. Court of Appeals for the Eigth Circuit rejects the FTC’s attempt to identify a relevant product market in a pharmaceuticals related merger (Lundbeck)
Cleveland University - Marshall School of Law (Cleveland)
FTC v. Lundbeck: Why, God, Why?* What really has the world come to when a merger to monopoly followed by a 1300% price increase survives Section 7 challenge? That, sadly, seems to be the final result in Federal Trade Commission v. Lundbeck, which the Eighth Circuit affirmed last Friday. (...)

The US DoJ obtains guilty plea for obstruction of justice engaged through false documents submission in connection with a merger investigation in the automated teller machine (ATM) industry (Nautilus Hyosung)
Wolters Kluwer (Riverwoods)
Submission of Altered Documents in Merger Review Leads to Criminal Charges* Automated teller machine maker Nautilus Hyosung Holdings Inc. has been charged with obstruction of justice for submitting false documents to the government in its attempt to obtain U.S.antitrust approval of its (...)

The Italian Competition Authority blocks a proposed acquisition of two active undertakings of the electricity sector due to the parties market shares and the increased barriers to entry (Compagna Valdostana delle Acque / Deval / Vallenergie)
McDermott Will & Emery (Paris)
ITALIAN COMPETITION AUTHORITY BLOCK PROPOSED ACQUISITION* On 8 August 2011, the Italian Competition Authority blocked the proposed acquisition by Compagnia Valdostana delle Acque (CVA) of Deval and Vallenergia, both active in the retail sale of electricity in Valle d’Aosta, a mountain region (...)

The Italian Competition Authority blocks a merger in the electricity market of Italy’s smallest region and suggests the region remove existing regulatory barriers to reconsider its assessment (Compagna Valdostana delle Acque / Deval / Vallenergie)
Ministero delle Infrastrutture e Trasporti (MIT)
Introduction On the 4th of August 2011 the Italian Competition Authority (hereinafter «ICA«) brought a phase II merger to an unusual conclusion. The proceeding was opened in order to assess competition issues arising from a proposed merger involving electricity operators active in the (...)

State Aid

The West African Economic and Monetary Union Competition Authority finds that Togo infringed regional State aid law by taking actions that favor an undertaking to the detriment of its competitors doing business in the common market (Asky)
Africa University (Mutare)
1 Introduction and background This contribution reports on a case related to State Aides decided by the Competition Commission of the West African Economic and Monetary Union (WAEMU). The decision, ASKY, raises issues at the cross-road of trade, regional integration and competition law. (...)


The Dutch Trade and Industry Appeals Tribunal confirms that separation of functions must be applied within administrative authority (ETB)
Netherlands Authority for Consumers & Markets- ACM (The Hague)
1. Facts and procedure Following an extensive investigation into fraud and anticompetitive practices in the Dutch construction sector, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, hereinafter "NMa") imposed a fine on ETB Vos B.V. (hereinafter "ETB") for infringing (...)

The Hellenic Competition Commission revisits its leniency programme
Mikroulea, Staikouras & Associates (Athens)
Introduction On 30 August 2011, the Hellenic Competition Commission (Elliniki Epitropi Antagonismou, hereafter: HCC) issued Decision No 526/VI/2011 which addresses the Authority’s new Leniency Programme and, furthermore, repeals and replaces ex nunc the former Decision No 299/V/2006 relating (...)

The Paris Commercial Court orders the French Competition Authority to disclose antitrust investigation documents (Ma Liste de Courses / HighCo / Sogec)
Jones Day (Brussels)
Franklin (Paris)
On 24 August 2011, the Commercial Court in Paris ordered the French competition authority, the Autorité de la concurrence (Autorité), to disclose documents relating to the settlement of an antitrust investigation in the context of a private damages action. This order could significantly (...)

The French Commercial Court of Paris orders the French Competition Authority to disclose documents in its file regarding an antitrust investigation on private damages (Sas Ma Liste De Courses / Societe Highco / Societe Highco Data / Societe Sogec Gestion / Societe Sogec Marketing)
Franklin (Paris)
UK Competition & Markets Authority - CMA (London)
FRENCH COURT ORDERS FRENCH COMPETITION AUTHORITY TO DISCLOSE ANTITRUST INVESTIGATION DOCUMENTS* The Commercial Court in Paris has once again ordered the French Competition Authority (the Autorité de la concurrence, the "FCA") to disclose documents in its file regarding an antitrust (...)

The US Court of Appeals for the Eighth Circuit rejects FTC’s market definition (Lundbeck)
Cohen Milstein (New York)
Burns Charest (Washington)
In this case, the Eighth Circuit affirmed a trial court’s rejection of a case brought by the Federal Trade Commission based on rejection of the FTC’s proposed market definition, even in the face of clear evidence that the challenged conduct had in fact led directly to vastly increased prices, (...)

A US Court of Appeals holds that the Foreign Trade Antitrust Improvements Act imposes a substantive merits limitation rather than a jurisdictional bar (Animal Science Products/China Minmetals)
Jones Day (Cleveland)
Jones Day (Chicago)
Jones Day (Chicago)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Recent decisions by the Third Circuit and the Northern District of California make it easier for plaintiffs to bring claims under the Foreign Trade Antitrust (...)

The UK OFT publishes its market study into aggregates, cement and ready-mix concrete and proposes to refer the sectors to the Competition Commission
European Commission - DG COMP (Brussels)
United Kingdom: OFT proposes Competition Commission Investigation of Aggregates, Cement and Ready-Mix Concrete Markets* On 16 August 2011, the OFT published its market study into aggregates, cement and ready-mix concrete. It proposes to refer the sectors to the Competition Commission for (...)

The Dutch Supreme Court decides antitrust fines are not tax-deductible (Knauf)
European Commission - DG COMP (Brussels)
The Netherlands: The Supreme Court decides Antitrust Fines are not tax-deductible* On 12 August 2011, the Hoge Raad, the Dutch Supreme Court in civil and commercial matters, ended a long controversy between the Dutch tax authorities and the Dutch subsidiary of the German firm involved in the (...)

German Federal Court of Justice confirms legislative gap with regard to legal successor’s liability for cartel infringements (Versicherungsfusion)
Commeo (Frankfurt)
In its decision of 10 August 2011, the German Federal Court of Justice ("FCJ") held that a full legal successor (‘Gesamtrechtsnachfolger’) should only be liable for an infringement of competition law committed by the organ of its legal predecessor if from an economic perspective both entities (...)

The Moldovan Competition Authority releases the preliminary impact report concerning the adoption of the new Competition Act
University of Macau - Faculty of Law
On 8 August 2011 the Moldovan Competition Authority (ANPC) released its preliminary impact report on the changes that would be introduced by the adoption of the new Competition Act, which has been drafted by the ANPC and released for public consultation. The main reason behind the adoption of (...)

The Romanian Competition Authority releases the results of the sector inquiry on the market for production, transportation, distribution and supply of thermal energy in the municipality of Bucharest
University of Macau - Faculty of Law
In August 2011 the Romanian Competition Authority (CC) completed and released for public consultation the results of sector inquiry on the market for production, transportation, distribution and supply of thermal energy in the municipality of Bucharest. The CC‘s report identified technical, (...)


The US FTC issues its final report on the effect of authorized generic drugs (AGs) on competition in the prescription drug market
Wilson Sonsini Goodrich & Rosati (Washington)
This article has been nominated for the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On August 31, the Federal Trade Commission (FTC) issued its final report on the effect of authorized generic drugs (AGs) on competition in the prescription (...)

The UK OFGEM closes investigation of an electricity producer over a potential breach of the consumer protection from the unfair trading regulations 2008 (EDF Energy)
Jacobs (Glasgow)
Ofgem investigated a fault with the operation of EDF‘s Interactive Voice Response (“IVR”) telephone system and its interface with EDF‘s billing system which resulted in some customers who provided their own meter readings through the IVR system being overcharged or undercharged. Background (...)