Coverage

Role of intent a tricky issue in patent infringement, says Hesse

08 February 2013

Renata Hesse, deputy head of the US Department of Justice's antitrust division, today said the division is looking closely at the role that section 2 of the Sherman Act may play in policing exclusionary practices regarding patent licensing. Faaez Samadi in Miami

Global cartel settlement: is it possible?

11 February 2013

Panellists at GCR Live in Miami were split over the possibility of coordinated global cartel settlements in the future, given the increasing number of multijurisdictional investigations. Faaez Samadi in Miami

Chairs

Jason Gudofsky

Blake Cassels & Graydon LLP

Jason regularly provides strategic advice to domestic and foreign firms involved in merger and joint venture transactions, including providing risk assessments and navigating reviews through the Canadian Competition Bureau.

Margaret Sanderson

Charles River Associates

Margaret F. Sanderson has in-depth experience analyzing the economic issues inherent in a wide range of mergers, antitrust/competition, class certification, damages, finance, energy, and telecommunications projects.

Keynote Speakers

Renata Hesse

Deputy Assistant Attorney General for Criminal and Civil Operations, Department of Justice

Renata Hesse is Deputy Assistant Attorney General for Criminal and Civil Operations at the US Department of Justice. Before her selection to run the Antitrust Division, Hesse served as the Deputy Assistant Attorney General for Criminal and Civil Operations in the division for almost four years. Hesse was a career trial attorney in the division between 1997 and 2006, in the last four years of which she served as the Chief of the Networks and Technology Section.

Carl Shapiro

University of California, Berkeley

Carl Shapiro is the Transamerica Professor of Business Strategy in the Haas School of Business at the University of California at Berkeley. Shapiro served as a member of the President’s Council of Economic Advisers during 2011 and 2012. For the two years immediately prior to that, he was the Deputy Assistant Attorney General for Economics at the Antitrust Division of the US Department of Justice; he also held that position between 1995 and 1996.

Speakers

Olivier N. Antoine

Crowell & Moring

Peter T. Barbur

Cravath, Swaine & Moore

Andreas Bardong

Head of Unit Merger Control Policy, Bundeskartellamt

Alf-Henrik Bischke

Hengeler Mueller

Oliver J. Borgers

McCarthy Tétrault

Thomas Brown

Paul Hastings

Cristina Caffarra

Charles River Associates

Miranda Cole

Covington & Burling

Miguel Del Pino

Marval, O'Farrell & Mairal

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton

Lisl Dunlop

Shearman & Sterling

David Gelfand

Cleary Gottlieb Steen & Hamilton

Mark Gidley

White & Case

Axel Gutermuth

Arnold & Porter

Michael Hausfeld

Hausfeld

Matthew Hendrickson

Skadden, Arps, Slate, Meagher & Flom

Randall Hofley

Blake Cassels & Graydon

Jackie Holland

Senior Director, Policy Group, Office of Fair Trading

Youngjin Jung

Kim and Chang

George Jurch

General Counsel, Continental Tire

Hanno Kaiser

Latham & Watkins

Jonathan Kanter

Cadwalader, Wickersham & Taft

Jonas Koponen

Linklaters

Kai-Uwe Kühn

Chief Competition Economist, European Commission

Ethan Litwin

Hughes Hubbard & Reed

Andrew McBride

Principal Competition/Antitrust Counsel, BHP Billiton

Kelley McKinnon

Senior Deputy Commissioner of Competition, Mergers Branch, Canadian Competition Bureau

Samantha Mobley

Baker & McKenzie

Damien Neven

The Graduate Institute, Geneva

Peter Niggemann

Freshfields Bruckhaus Deringer

Susan Ning

King & Wood Mallesons

Joseph Ostoyich

Baker Botts

Tom Overstreet

Charles River Associates

Leonardo Peres da Rocha e Silva

Pinheiro Neto Advogados

Eduardo Pérez Motta

Chairman, Mexican Federal Competition Commission

Jason Pollack

Assistant General Counsel, Akzo Nobel

Jeffrey Prisbrey

Charles River Associates

Yvonne S. Quinn

Sullivan & Cromwell

Marc Reysen

O'Melveny & Myers

Barbara Rosenberg

Barbosa, Müssnich & Aragão Advogados

Michael Rowe

Slaughter and May

Steven Salop

Georgetown University Law Center

Fiona Schaeffer

Jones Day

Fiona Scott Morton

Yale University

Howard Shelanski

Director, Bureau of Economics, Federal Trade Commission

Scott Sher

Wilson Sonsini Goodrich & Rosati

Victor Gomes Silva

Chief Economist, CADE

Greg Sivinski

Assistant General Counsel, Antitrust Group, Microsoft

Ulrich Soltész

Gleiss Lutz

Omar Wakil

Torys

David P. Wales

Jones Day

David Went

Sidley Austin

Nick Widnell

Deputy Assistant Director, Bureau of Competition, Federal Trade Commission

Jeffrey Wilder

Assistant Chief, Competition Policy Section, US Department of Justice

Joshua Wright

Commissioner, Federal Trade Commission

Gian Luca Zampa

Freshfields Bruckhaus Deringer

CPD points

This conference has been accredited with 11.5 CPD points

Programme

Eve of conference: Thursday 7 February

7:00pm - 8:00pm: Registration and Drinks Reception at The Eden Roc.

8:30pm - 11:30pm: After party at the SLS Hotel South Beach hosted by Blake, Cassels & Graydon. Coaches will be provided to take delegates from the Eden Roc to the after party.

Friday 8 February – Day One

7:30am – 8:30am: Registration and a light breakfast

8:30am – 8:45am: Chairs’ Opening Remarks

Jason Gudofsky, Blake, Cassels & Graydon
Margaret Sanderson, Charles River Associates

8:45am – 9:15am: Keynote Address

Looking Backwards and Forwards – Reflections on Antitrust Under the Obama Administration and Expectations for the Next Four Years

  • The GCR Leaders’ Conference will be among the first opportunities to reflect on the accomplishments of the Obama administration and the results of the U.S. election and the impact, if any, it may have on U.S. antitrust policy and enforcement priorities.

Keynote Speaker:
Renata B. Hesse
, Deputy Assistant Attorney General for Criminal and Civil Operations, Department of Justice

9:15am – 10:45am: Roundtable with Agency Heads of Economics

  • The GCR Leaders’ Conference promises a lively discussion among leading agency heads of economics. The conference takes place amidst a number of interesting developments.
  • Agencies have recently increased the number of effects based prosecutions, and as a new administration is sworn in in Washington. Recent notable policy developments include (1) the FTC’s withdrawal of its policy statement on monetary remedies as an antitrust remedy in competition cases, (2) recent success of the FTC in pharmaceutical pay for delay cases, and (3) DG COMP pay for delay cases.
  • Agencies have also been making increasing use of economic tools in merger reviews. The European Commission has used a GUPPI in a phase 2 merger review, and economists are promoting new indicative tools for testing the competitive effects of mergers. In turn, the use of these economic tools raise questions about the standard of evidence used in merger reviews. Are inferences past the screening phase of merger review or from cross-section evidence appropriate?

Moderator:
Margaret Sanderson
, Charles River Associates

Speakers:
Howard Shelanski
, U.S. Federal Trade Commission
Fiona Scott Morton, Yale University
Kai-Uwe Kühn, European Commission
Victor Gomes Silva, CADE

10:45am – 11:00am: Coffee Break

11:00am – 12:45pm: (Concurrent sessions)

Merger Session: Joint Ventures, Subcontracting and Teaming Agreements – Avoiding Antitrust Risks

  • What are the key compliance procedures to take at the outset of any collaborative venture to facilitate possible ex ante (i.e., merger) or ex post (i.e., antitrust) review?
  • When competition is increasingly global, how can cooperation be safely assessed in light of the differing agency frameworks for permissible horizontal cooperation?
  • How should corporate strategists plan given ongoing developments in agency thinking about what constitutes permissible conduct?
  • What are the economic characteristics of industries where teaming is most frequent (e.g., aerospace)?

Moderator:
Olivier Antoine
, Crowell & Moring

Speakers:
Matthew Hendrickson
, Skadden, Arps, Slate, Meagher & Flom
Axel Gutermuth, Arnold & Porter
George Jurch, Continental Tire
Jeffrey Prisbrey, Charles River Associates

or

Antitrust Session: Economics of Contracts That Reference Rivals

  • U.S., U.K. and other regulators have recently cast their attention on so-called “contracts that reference rivals”. Among other things, there is some concern that companies that benefit from such agreements obtain information about competitors that can result in the exclusion of those competitors.
  • What are the competitive costs and efficiency benefits of contracts that reference rivals (using MFN clauses, meet-or-release clauses, or other common terms)?
  • Are contracts that reference rivals a concern for companies that are not dominant, or that are in the process of growing larger? Should non-dominant companies be concerned where contracts that reference rivals are standard in their industry?

Moderator:
Ethan Litwin
, Hughes Hubbard & Reed

Speakers:
Gian Luca Zampa
, Freshfields Bruckhaus Deringer
Fiona Scott Morton, Yale University
Alf-Henrik Bischke
, Hengeler Mueller
Youngjin Jung
, Kim & Chang

12:45pm – 2:00pm: Lunch and Keynote Speaker

Introduction: Fiona Schaeffer, Jones Day

Keynote Speaker:
Carl Shapiro
, Transamerica Professor of Business Strategy, Haas School of Business at the University of California, Berkeley; former member of the Council of Economic Advisers; twice former Deputy Assistant Attorney General for Economics in the Antitrust Division of the US Department of Justice

2:15pm – 4:00pm (Concurrent sessions)

Merger Session: A New Shift: The Patent Wars Move (Partially) to the Merger Context

  • In the last decade, large technology companies fought patent wars in s. 2 civil lawsuits and in complaints to the European Commission, KFTC, JFTC and other agencies. Starting in 2011, the field of battle shifted somewhat as transactions among technology companies (e.g., the sale of Nortel’s patents, Google’s purchase of Motorola) caused agencies to examine technology patent licensing behaviour in the merger context.
  • Is merger review a useful process for addressing different patent hold-up problems? For instance, can merger review be used to make ex ante FRAND commitments legally enforceable? What advantages or disadvantages does the process of merger review have over abuse of dominance/monopolization investigations?
  • Are agencies well equipped to review notoriously difficult patent licensing questions within the confines and time frames of a merger investigation? Should complaints from competitors be viewed more seriously by agencies conducting merger review when those competitors are also licensees?
  • What is the relevance of ongoing investigations into antitrust violations involving technically essential patents to merger reviews in the same industry? What is the relevance of the merger reviews to those ongoing antitrust investigations?

Moderator:
Thomas Brown
, Paul Hastings

Speakers:
Hanno Kaiser
, Latham & Watkins
Damien Neven, The Graduate Institute, Geneva
Greg Sivinski, Microsoft
Jeffrey Wilder,
U.S. Department of Justice
Maurits Dolmans
, Cleary Gottlieb Steen & Hamilton

or

Antitrust Session: Revisiting Compliance Programs and Discounts in Cartel Fines

  • Over the last two years, significant thinking has emerged about compliance programs. The OECD has published a roundtable paper on promoting compliance, and the European Commission, the U.K. OFT and other national agencies have published new compliance guidance. It may be that the context in which agencies first decided that “failed” compliance programs should not count as mitigating circumstances have changed.
  • Should agencies better acknowledge the efforts of cartel defendants to guard against cartels with sophisticated and expensive compliance programs, particularly when those compliance programs assist in uncovering improper conduct? If so, how and to what degree?
  • Are compliance programs sufficiently important from a public policy perspective to warrant discounts from criminal sanctions?

Moderator:
Yvonne Quinn
, Sullivan & Cromwell

Speakers:
Jonas Koponen
, Linklaters
Joe Ostoyich, Baker Botts
Jason Pollack, Akzo Nobel NV
Jackie Holland, UK Office of Fair Trading
Andrew McBride
, BHP Billiton

4:00pm – 4:15pm: Coffee Break

4:15pm – 5:45pm (Concurrent sessions)

Merger Session: Enforcement and Vertical Mergers

  • Recent enforcement, new agency policies and fresh academic research as regards vertical mergers make the topic one of particular interest for practitioners.
  • In the US, the agencies have imposed conditions on a number of vertical mergers, including LiveNation/TicketMaster, Graf’Tech/Seadrift Coke, Comcast/NBC Universal and Google/ITA. In Europe, the European Commission imposed conditions on Intel/McAfee and Google/Motorola and blocked Deutsche Boerse/NYSE, in part, due to vertical concerns about access by other exchanges to the merged entity’s clearing house.
  • As a reflection of its recent enforcement stance, the DOJ issued an updated policy guide for merger remedies that reflects the DOJ’s willingness to consider behavioural remedies, particularly in the context of vertical mergers.
  • Academics have also produced new research into the effects of vertical mergers, including creating indices that attempt to score the unilateral pricing incentives arising from vertical mergers.

Moderator:
Omar Wakil
, Torys

Speakers:
David Wales
, Jones Day
Steven Salop, Georgetown University Law Center
David Went, Sidley Austin
Susan Ning, King & Wood Mallesons
Kelley McKinnon, Canadian Competition Bureau

or

Antitrust Session: Developments and Status of International Cartel Settlements

  • Enforcers in ever more jurisdictions are attempting to impose fines for cartel conduct, and seeking to attach their own settlement processes to those of other jurisdictions to ensure consistent outcomes. Should the strategic benefits and risks of multi-jurisdictional settlement for cartel defendants be re-evaluated?
  • Plaintiff’s civil counsel, in the US and EU, have been proposing with increasing frequency that cartel defendants compensate their direct or indirect customers on a global or multi-continental basis. The first example of such a settlement was Parker ITR’s settlement in the Marine Hose cartel. Should the strategic benefits and risks of multi-jurisdictional settlement for cartel defendants be re-evaluated?
  • Do such global civil settlements give foreign plaintiffs a back-door to some of the benefits of US courts? Are US plaintiffs likely to recover less because of international settlements negotiated by US plaintiffs' counsel?

Moderator:
Barbara Rosenberg
, Barbosa, Müssnich & Aragao

Speakers:
Michael Hausfeld
, Hausfeld
Mark Gidley, White & Case
Randall Hofley, Blake, Cassels & Graydon
Samantha Mobley, Baker & McKenzie
Ulrich Soltész, Gleiss Lutz

Saturday 9 February – Day Two

8:30am – 10:30am: Restraining Trade Through Vertical Conduct

  • Leading agencies have increasingly focused their enforcement on vertical conduct, or framed their allegations through vertical theories of harm.
    • US state prosecution of resale price maintenance cases
    • German Federal Cartel Office’s imposition of significant fines in cases of resale price maintenance
    • Canadian Competition Bureau’s prosecution of credit card companies under price maintenance rules
    • Increased scrutiny of exclusive dealing and bundling complaints
  • Do agencies have the empirical ability and resources necessary to prove the existence of competitive effects from vertical conduct?
  • Are agency resources well spent in this context given the degree of consumer harm that is sometimes at issue?
  • Are vertical theories of harm appropriate or more effective enforcement vehicles for conduct that has more traditionally been prosecuted under horizontal theories of harm?

Moderator:
Lisl Dunlop
, Shearman & Sterling

Speakers:
Scott Sher
, Wilson Sonsini Goodrich & Rosati
Oliver Borgers, McCarthy Tétrault
Tom Overstreet, Charles River Associates
Nick Widnell, Federal Trade Commission
Marc Reysen, O’Melveny & Myers

10:30am – 10:45am: Coffee Break

10:45am – 12:45pm (Concurrent debates)

Panelists at this morning’s sessions will briefly debate important issues before opening the floor to conference participants in a free for all symposium style.

Merger Session: Bargaining and Buyer Power in Merger Review

  • As part of their merger reviews, agencies routinely request detailed information about customers and the anticipated demand response to mergers. The economic – and business – framework for dealing with large buyers is often one of bilateral bargaining. The traditional analytical framework, however, may only look at countervailing buyer power once shares have been calculated and supplier responses have been analyzed.
  • What should be the framework for assessing the influence of large buyers, bargaining, and countervailing power? How are the agencies modeling bargaining situations? How should this assessment inform the agencies’ assessment of the merging parties’ incentives in a world where diversion analysis has become prominent? Is countervailing power an “all or nothing” proposition?
  • What is the most probative evidence when agencies are considering bargaining models and countervailing power? How can countervailing power be demonstrated among buyers that are not concentrated?

Moderator:
Miguel Del Pino
, Marval, O'Farrell & Mairal

Speakers:
Michael Rowe
, Slaughter and May
Andreas Bardong, Head of Unit Merger Control Policy at Bundeskartellamt
David Gelfand, Cleary Gottlieb Steen & Hamilton
Leonardo Peres da Rocha e Silva, Pinheiro Neto
Cristina Caffarra, Charles River Associates

Antitrust Session: Antitrust, the Web and E-Commerce

  • Whereas previous antitrust enforcement in the internet and e-commerce world was generally limited to resale price maintenance concerns, very recent cases have demonstrated that the role of antitrust on the internet and on e-commerce can be broader and more profound.
  • The position of US DOJ and Apple and certain publishers in the United States and the defendants in the online hotel booking cases in the UK juxtapose very different views of how competition in e-commerce should develop. Are new e-commerce models for new technology truly the moral or economic equivalent of price-fixing? How should restrictive aspects of innovative e-commerce models be treated when they are also shown to have pro-competitive effects and/or are preferred by consumers?
  • By its very nature, the internet is a field with low barriers to entry. How should firms that are very successful in this open environment be treated by antitrust agencies? Are the recent efforts by the EC and FTC against Google likely to be effective at leveling the playing field in any fundamental sense, since the next “big thing” cannot be anticipated with any degree of certainty?

Moderator:
Jonathan Kanter
, Cadwalader, Wickersham & Taft

Speakers:
Peter Niggemann
, Freshfields Bruckhaus Deringer
Peter Barbur, Cravath, Swaine & Moore
Joshua Wright, Federal Trade Commission
Miranda Cole, Covington & Burling

12:45pm – 1:00pm: Chairs’ Concluding Remarks

Jason Gudofsky, Blake, Cassels & Graydon
Margaret Sanderson,
Charles River Associates

1:00pm – 2:30pm: Lunch and keynote address

Eduardo Pérez Motta, Mexican Federal Competition Commission

Afternoon Activities

Venue

The Eden Roc Renaissance Miami Beach, 4525 Collins Avenue, Miami, 33140, USA

Testimonials

  • "Very well organised, GCR staff always helpful and professional" - Joseph Adam, Deere & Company

  • "Excellent level of audience participation" - Michael Rowe, Slaughter and May

Prices

Registration is unavailable.