Coverage

Competitors needed for competition, DG Comp deputy says

Competitors needed for competition, DG Comp deputy says

04 February 2019

An ethos that dominant players need to leave space for rivals because competitors are necessary to provide competition, low prices and choice may explain some differences between EU and US enforcement, Cecilio Madero Villarejo has said.

Canadian chief economist urges simple analyses

Canadian chief economist urges simple analyses

04 February 2019

The chief economist for Canada’s Competition Bureau has a clear message for companies facing merger review: keep it simple.

Ex-OFT economist warns of retrospective misuse

Ex-OFT economist warns of retrospective misuse

06 February 2019

The former director of economics at the UK’s competition enforcer emphasised the importance of analysing the buyer’s rationale for a deal when evaluating a merger, but questioned how much insight could be extracted from a retrospective review.

Uber counsel: Amex is no game-changer

Uber counsel: Amex is no game-changer

04 February 2019

It is too early to see the US Supreme Court’s ruling on two-sided transaction platforms as a change in the competition landscape, in-house counsel at Uber has indicated.

Wilson sees little need for vertical merger guidelines

Wilson sees little need for vertical merger guidelines

01 February 2019

If the US Federal Trade Commission does heed calls to issue guidance on its review of vertical mergers, it should do so only to identify and codify existing agency practices, FTC commissioner Christine Wilson has said.

Enforcers give too much weight to efficiencies, says AAI president

Enforcers give too much weight to efficiencies, says AAI president

05 February 2019

The US antitrust agencies’ acceptance of claims that mergers will result in innovation and lower costs has led to underenforcement of the competition laws, American Antitrust Institute president Diana Moss has said.

Focus on competition for the market, says DG Comp deputy economist

Focus on competition for the market, says DG Comp deputy economist

08 February 2019

The rise of “superstar” companies means the focus of antitrust enforcers has shifted from “competition in the market to competition for the market” – and thus potential competition, Hans Zenger has said.

UK models antitrust alternatives

UK models antitrust alternatives

15 February 2019

As some US officials call for the development of competition policy by means other than antitrust enforcement, current and former members of the UK’s Competition and Markets Authority have touted market investigations as such a tool.

Going global

Going global

03 June 2019

Changes in law and legal norms are driving the spread of antitrust litigation around the world. GCR’s eighth annual Antitrust Law Leaders Forum in Miami dug into the damages debate.

Chairs

Margaret Sanderson

Vice President, Charles River Associates (Toronto)

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.

Jason Gudofsky

Partner, McCarthy Tétrault LLP (Toronto)

Clients look to Jason to provide legal advice, devise strategies and offer creative solutions to achieve their business goals, whether it involves complex business transactions or governmental investigations, and he does so efficiently and responsively, always putting his clients’ needs first.

Keynote Speakers

Alexandre Barreto de Souza

President, Administrative Council for Economic Defense (CADE) (Brasília)

Nominated to be CADE’s President until June 21st, 2021, Alexandre Barreto holds a Master degree in Management, a specialization in Public Management and a Bachelor degree in Management from the University of Brasília (UnB). He is a Federal Auditor of External Control of the Brazilian Federal Court of Accounts (TCU). At TCU, he worked as Chief of Staff of the Minister and was the Director responsible for the monitoring of state-owned financial institutions and the Director of the areas responsible for the control over public bids and contracts. His work involved rationalization of the procedures, fraud prevention and fight against bid rigging.

Martin Coleman

Non-Executive Director and Panel Chair, Competition and Markets Authority (London)

Martin Coleman was appointed Panel Chair and Panel Inquiry Chair of the Competition and Markets Authority on 19 September 2018 and has been a Non-Executive Director of the Board since 1 October 2017. He is also a member of the Remuneration Committee. Martin currently serves as Deputy Chair of the Office for Students, the regulator for higher education in England, and a trustee of Police Now, whose mission is to transform communities, reduce crime and increase the public’s confidence in policing. Martin is a Fellow of Hughes Hall, University of Cambridge.

Christine Wilson

Commissioner, Federal Trade Commission (Washington, DC)

Christine Wilson was sworn in on September 26, 2018 as a Commissioner of the Federal Trade Commission. President Donald J. Trump named Wilson to a term that expires on Sept. 25, 2025. Christine previously served at the FTC as Chairman Tim Muris’ Chief of Staff during the George W. Bush Administration, and as a law clerk in the Bureau of Competition while attending Georgetown University Law Center.

Speakers

Maria Cecília Andrade

Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)

Olivier Antoine

Crowell & Moring LLP (New York)

Andrea Appella

Deputy General Counsel, Europe & Asia, 21st Century Fox (London)

Antonio Bavasso

Allen & Overy LLP (London)

Matthew Bennett

Charles River Associates (London)

Marin Boney

Kirkland & Ellis LLP (Washington, DC)

Cristina Caffarra

Charles River Associates (Brussels and London)

Étienne Chantrel

Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)

Alastair Chapman

Freshfields Bruckhaus Deringer LLP (London & Brussels)

Maria Coppola

Counsel for European Affairs, Federal Trade Commission (Washington, DC)

Eric Cramer

Berger Montague (Philadelphia)

Bruno de Luca Drago

Demarest (São Paulo)

Miguel del Pino

Marval, O'Farrell & Mairal (Buenos Aires)

Jessica Delbaum

Shearman & Sterling LLP (New York)

Adam Di Vincenzo

Gibson, Dunn & Crutcher LLP (Washington, DC)

Jordan Ellison

Slaughter and May (Brussels)

Rebecca Farrington

White & Case LLP (Washington, DC)

Adam Fanaki

Davies Ward Phillips & Vineberg LLP (Toronto)

Debbie Feinstein

Arnold & Porter LLP (Washington, DC)

Thomas Funke

Osborne Clarke (Cologne & Brussels)

Mark Hamer

Baker McKenzie (Washington, DC)

Ted Hassi

Debevoise & Plimpton (Washington, DC)

Renata Hesse

Sullivan & Cromwell LLP (Washington, DC)

Moritz Holm-Hadulla

Gleiss Lutz (Stuttgart)

Pierre Honoré

Bredin Prat (Paris)

Donald Houston

McCarthy Tétrault LLP (Toronto)

Anne-Claire Hoyng

Senior Manager, Competition Policy, Booking.com (Amsterdam)

Paul Johnson

T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)

Gabrielle Kohlmeier

Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)

Eric Lipman

Senior Counsel, Litigation and Global Competition, Uber (San Francisco)

Cecilio Madero Villarejo

Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)

Ioana Marinescu

Assistant Professor of Economics, School of Social Policy & Practice, University of Pennsylvania (Philadelphia)

Philip Marsden

Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)

Preston McAfee

Charles River Associates (Los Angeles)

Deirdre McEvoy-Cappock

Lead US Antitrust & Regulatory Counsel, Siemens (New York)

Diana Moss

President, American Antitrust Institute (Washington, DC)

Kristina Nordlander

Sidley Austin LLP (Brussels & London)

Julie North

Cravath, Swaine & Moore LLP (New York)

Michael Perry

Baker Botts LLP (Washington, DC)

Edith Ramirez

Hogan Lovells (Washington, DC & Los Angeles)

Kenneth Reinker

Cleary Gottlieb Steen & Hamilton LLP (Washington, DC)

Barbara Rosenberg

Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)

Marc Rysman

Professor of Economics, Department of Economics, Boston University (Boston)

Yianis Sarafidis

Charles River Associates (Washington, DC)

Carl Shapiro

Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley)

D. Daniel Sokol

Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville)

Joshua Soven

Wilson Sonsini Goodrich & Rosati (Washington, DC)

Marguerite Sullivan

Latham & Watkins LLP (Washington, DC)

Isabel Tecu

Charles River Associates (Washington, DC)

Gerwin Van Gerven

Linklaters LLP (Brussels)

David Vann

Simpson Thacher & Bartlett LLP (London)

Faustine Viala

Willkie Farr & Gallagher LLP (Paris)

Suzanne Wachsstock

Vice President and Chief Antitrust Counsel, American Express (Washington, DC)

Craig Waldman

Jones Day (San Francisco & Silicon Valley)

David Wales

Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)

James Wilson

Vorys, Sater, Seymour and Pease LLP (Columbus)

Thomas Wollmann

Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

Hans Zenger

Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)

Programme

Thursday, 31 January 2019

7.00pm - 9.00pm: Welcome reception - hosted by McCarthy Tétrault LLP

Friday, 1 February 2019

7.30am - 8.30am: Registration / light breakfast

8.30am - 8.45am: Chairpersons' opening remarks

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

8.45am - 9.15am: Keynote address

Christine Wilson, Commissioner, Federal Trade Commission (Washington, DC)

9.15am - 10.45am: PlenaryMulti-sided platforms: Clarity, or confusion?

Multi-sided platforms were front and centre at the FTC hearings in the fall, and have raised a host of questions on how antitrust is applied to markets with multiple sides. Earlier in 2018, the US Supreme Court decision in American Express’ “anti-steering” rules of credit card networks has left many wondering what happens next when addressing competitive effects in markets with multiple sides. Is the emphasis on market definition warranted for cases involving exclusionary conduct?   

  • How will differing effects on multiple sides of a platform be weighed? What does economics teach us about the potential trade-offs?
  • Does the Amex decision create an insurmountable burden of proof for plaintiffs in US antitrust cases involving multi-sided platforms? 
  • How is the Court’s decision expected to affect other important platforms such as those in industries involving e-commerce, ride-sharing, social media, and search engines
  • Will the Supreme Court’s ruling create even greater divergence between US and European review of exclusionary practices and vertical restraints?

Moderator:
Mark Hamer, Baker McKenzie (Washington, DC)

Panel:
Cristina Caffarra, Charles River Associates (Brussels and London)
Eric Lipman, Senior Counsel, Litigation and Global Competition, Uber (San Francisco)
Kristina Nordlander, Sidley Austin LLP (Brussels & London)
Marc Rysman, Professor of Economics, Department of Economics, Boston University (Boston)
Suzanne Wachsstock, Vice President and Chief Antitrust Counsel, American Express (Washington, DC)
James Wilson, Vorys, Sater, Seymour and Pease LLP (Columbus)

10.45am - 11.15am: Coffee break

11.15am - 12.30pm: (Concurrent sessions)

Merger: Merger review and economics: The next frontier 

Decades ago merger review was all about critical loss analysis. Since the release of the latest merger guidelines, the focus has been on upward pricing pressure indices. Margins and diversion ratios have been important throughout. Extensive data is now routinely available, allowing for quantifications that were not possible previously. But econometric analysis is based on past practice, and many merger concerns today are about removing nascent competition and foreclosure. Bargaining models are the latest de rigour economic analysis. This panel will discuss “the best of the best” economic models to use in merger review and how these are used effectively in various jurisdictions.

  • What is the best economic model to deploy in particular cases? Will this be the same economic model in all jurisdictions?
  • Does available data always lead to an econometric analysis?
  • How are bargaining models used when addressing horizontal effects, vertical foreclosure concerns?

Moderator:
Rebecca Farrington, White & Case LLP (Washington, DC)

Panel:
Andrea Appella, Deputy General Counsel, Europe & Asia, 21st Century Fox (London)
Marin Boney, Kirkland & Ellis LLP (Washington, DC)
Paul Johnson, T.D. MacDonald Chair in Industrial Economics, Competition Bureau (Canada)
Yianis Sarafidis, Charles River Associates (Washington, DC) 
David Vann, Simpson Thacher & Bartlett LLP (London)

Antitrust: Is Europe setting the antitrust enforcement agenda today?

Europe has been marching ahead of the world with antitrust enforcement action on multiple fronts in respect of unilateral conduct and vertical restraints. While there has been less enforcement by US federal agencies, the FTC hearings have considered a wide range of unilateral conduct covering vertical restraints, predatory pricing and exclusionary conduct. This panel will review recent developments in the treatment of unilateral conduct and vertical restraints.

  • What are the practical implications of the discussions at the FTC hearings for future antitrust enforcement actions related to unilateral conduct?
  • What are the implications of the EC Final Report on E-Commerce for treatment of vertical restraints in Europe?
  • In the US, did the earlier lens focused on contracts that reference rivals lead to any different enforcement actions?
  • How should companies deal with allegations of excessive pricing given the different approaches in Europe and the US?
  • What are the implications of the Qualcomm decision for abuse of dominance cases?

Moderator:
Debbie Feinstein, Arnold & Porter LLP (Washington, DC)

Panel:
Cristina Caffarra, Charles River Associates (Brussels and London)
Maria Coppola, Counsel for European Affairs, Federal Trade Commission (Washington, DC)
Jordan Ellison, Slaughter and May (Brussels)
Cecilio Madero Villarejo, Deputy Director-General for Antitrust, DG Competition, European Commission (Brussels)
Joshua Soven, Wilson Sonsini Goodrich & Rosati (Washington, DC)

12.30pm - 2.00pm: Networking lunch and lunchtime keynote address

Alexandre Barreto de Souza, President, Administrative Council for Economic Defense (CADE) (Brasília)

Introducer:
Bruno de Luca Drago, Demarest (São Paulo)

2.00pm - 3.15pm: (Concurrent sessions)

Merger: Mergers in the digital economy

Antitrust practitioners believe we have a modern merger review process, but the popular press is concerned that tech companies are too big. What does this mean for future acquisitions? The FTC hearings are considering whether different analytical or procedural frameworks are needed to address nascent competition. Are our approaches for addressing the removal of potential competition effective in today’s modern era? Are efficiencies more or less important in such circumstances? This panel will consider merger review in the digital economy.

  • Should different standards apply to notification thresholds and enforcement competencies for digital companies, or just the big ones?
  • What standards will apply to entry and efficiencies in nascent competition or prevent cases?
  • Does the DOJ’s challenge of the AT&T/Time Warner transaction indicate greater convergence among agencies on vertical issues that may be a more prevalent concern in the digital economy?
  • Will merger remedies in the digital age be oriented toward easing entry and switching costs as opposed to structural remedies?

Moderator:
Olivier Antoine, Crowell & Moring LLP (New York)

Panel:
Antonio Bavasso, Allen & Overy LLP (London)
Matthew Bennett, Charles River Associates (London)
Étienne Chantrel, Rapporteur Général Adjoint, Head of Mergers, Autorité de la Concurrence (Paris)
Gabrielle Kohlmeier, Associate General Counsel, Antitrust & Strategic Projects, Verizon (Washington, DC)
Edith Ramirez, Hogan Lovells (Washington, DC & Los Angeles)

Antitrust: Platform regulation and antitrust

The rise of platforms such as Amazon and Google have changed the way that consumers obtain goods and suppliers supply them. Regulators worldwide are grappling with how to assess the impact of mega-platforms through antitrust law. In the United States, at least one FTC Commissioner has argued for increased regulation of platforms through rulemaking, but as recent cases have shown, courts remain sceptical of the dangers of below-cost pricing and vertical integration. In Europe, there is extensive discussion going on and legislative proposals have been made not only by the European Commission but also at the member state level to issue platform-specific regulation, including a proposed EC regulation that addresses issues like transparency on algorithms, preferential treatment of own services or MFN practices regardless of dominance/market power. This panel will debate the efficacy and ability of antitrust law to address platform competition. 

  • Does the traditional consumer welfare analysis apply to antitrust issues involving companies like Google, Facebook and Amazon?
  • Should antitrust be used to address labour monopsony, privacy and other concerns involving tech?
  • With operations spanning the globe, how would regulation apply?
  • Where antitrust laws are violated, but remedies are ineffective, is there any other option except regulation?

Moderator:
Michael Perry, Baker Botts LLP (Washington, DC)

Panel:
Moritz Holm-Hadulla, Gleiss Lutz (Stuttgart)
Anne-Claire Hoyng, Senior Manager, Competition Policy, Booking.com (Amsterdam)
Philip Marsden, Deputy Chair, Enforcement Decision Making Committee, Bank of England and HM Treasury, Digital Competition Experts Panel (London)
Preston McAfee, Charles River Associates (Los Angeles)
Craig Waldman, Jones Day (San Francisco & Silicon Valley)

3.15pm - 3.45pm: Coffee break

3.45pm - 5.00pm: (Concurrent sessions)

Merger: Minority interests and institutional investors 

In today’s global economy, it is commonplace for large, institutional investors and private equity firms to own shares in multiple competitors. While it is well-established that a firm’s partial ownership of a competitor may raise antitrust concerns, it is less clear whether this concern also applies to partial ownership of competitors by investors. Recent empirical studies suggest that widespread common ownership of competitors may soften rivalry and lead to higher prices for consumers. As a result, there are calls for antitrust enforcement against common ownership. Critics of this view counter that the economic evidence of harm is ambiguous, and that over-enforcement could chill investment and hurt shareholders that otherwise provide much-needed oversight of corporate management.    

  • Is there evidence that common ownership harms competition and consumers, even where minority shareholders do not communicate or direct management?
  • What are the current views of antitrust enforcers and courts in the United States, Europe, Brazil, Canada, and elsewhere? 
  • What practical problems do antitrust enforcers encounter in investigating and imposing remedies?
  • Is it feasible to impose clear legal standards that address anticompetitive common ownership without harming shareholder rights or deterring investment? 
  • How should antitrust practitioners advise private equity firms and other institutional investors that own shares in multiple competitors? 

Moderator:
Adam Di Vincenzo, Gibson, Dunn & Crutcher LLP (Washington, DC)

Panel:
Alastair Chapman, Freshfields Bruckhaus Deringer LLP (London & Brussels)
Adam Fanaki, Davies Ward Phillips & Vineberg LLP (Toronto)
Kenneth Reinker, Cleary Gottlieb Steen & Hamilton LLP (Washington, DC)
Barbara Rosenberg, Barbosa Müssnich Aragão (São Paulo & Rio de Janeiro)
Isabel Tecu, Charles River Associates (Washington, DC)

Antitrust: “Oh no! We got nailed” – compliance after the worst case scenario

How do you create an effective compliance program, deal with follow on litigation and ensure future as part of ongoing compliance after a cartel infringement? This panel will discuss what happens when your company falls on the wrong side of competition law, and how to develop a robust compliance program to keep the worst from happening. What happens when the antitrust violation becomes fraud and corruption charges?

  • How does the compliance and enforcement landscape vary in the different areas of the world? In light of recent global changes, what are the key compliance issues facing in-house counsel today?
  • How do you create, and what monitoring tools are recommended, for an effective in-house compliance program?
  • Are compliance programs worthwhile? What are the costs and benefits of having these types of compliance systems? What is the current landscape with respect to discounts or “credits” for an effective compliance program?
  • What steps should you take if your compliance procedures find evidence of an antitrust infringement? Should you consider a leniency application? What should in house counsel do to mitigate their company’s exposure/liability?
  • Argentine Notebook Case Study: what happens when fraud and corruption charges develop into an antitrust investigation? 

Moderator:
Jessica Delbaum, Shearman & Sterling LLP (New York)

Panel:
Maria Cecilia Andrade, Antitrust, Compliance and Governmental Affairs, Odebrecht Engenharia & Construção (São Paulo)
Miguel del Pino, Marval, O'Farrell & Mairal (Buenos Aires)
Pierre Honoré, Bredin Prat (Paris)
Deirdre McEvoy-Cappock, Lead US Antitrust & Regulatory Counsel, Siemens (New York)
Marguerite Sullivan, Latham & Watkins LLP (Washington, DC)

5.00pm: Conclusion of day one

Evening: All delegates are invited to attend an all-conference dinner hosted by Charles River Associates, followed by an after-party hosted by Shearman & Sterling LLP.

Saturday, 2 February 2019

7.30am - 8.30am: Registration / light breakfast

8.30am - 9.00am: Keynote address

Martin Coleman, Non-Executive Director and Panel Chair, Competition and Markets Authority (London)

9.00am - 10.15am: (Concurrent sessions)

Merger: Under-enforcement or ineffective remedies?

Rising corporate mark-ups are being linked to negative macro-economic effects including increasing inequality. Weak antitrust is cited as one cause. But would blocking more mergers change anything? Are there other remedies that might be more effective, assuming there is a problem to solve? What remedies have been used in other jurisdictions or in other regulatory proceedings? The remedy debate outside mergers is that fines are ineffective in correcting conduct which suggests it may be all the more important to get merger review right before industries become too concentrated.

  • Is the skepticism on behavioural remedies in mergers ill-placed?
  • How do we know if we are blocking the right “amount of mergers”?
  • Would reform of our remedies in respect of dominant firm conduct take some of the pressure off merger review?

Moderator:
Renata Hesse, Sullivan & Cromwell LLP (Washington, DC)

Panel:
Gerwin van Gerven, Linklaters LLP (Brussels)
Diana Moss, President, American Antitrust Institute (Washington, DC)
Faustine Viala, Willkie Farr & Gallagher LLP (Paris)
David Wales, Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)
Thomas Wollmann, Assistant Professor of Economics, The University of Chicago Booth School of Business (Chicago)

Antitrust: Civil litigation: A multijurisdictional view

Civil litigation issues are more prominent now that we are seeing active plaintiffs in Europe, the US, and Canada. This panel will provide a comparative view on class certification issues, private antitrust damages and other issues, including economic views.

  • Has the rejection of multiple damage awards resulted in a slower development of private damage recoveries and antitrust litigation in Europe and elsewhere?
  • What lessons can be learned from significant multijurisdictional litigation such as the Air Cargo case?
  • How does damages litigation elsewhere in the world compare to the US and Europe?
  • Is greater private enforcement making companies less likely to apply for immunity/leniency?

Moderator:
Ted Hassi, Debevoise & Plimpton LLP (Washington, DC)

Panel:
Eric Cramer, Berger Montague (Philadelphia)
Donald Houston, McCarthy Tétrault LLP (Toronto)
Thomas Funke, Osborne Clarke (Cologne & Brussels)
Julie North, Cravath, Swaine & Moore LLP (New York)

10.15am - 10.45am: Coffee break

10.45am - 12.15pm: Plenary: Economist plenary

Moderator:
D. Daniel Sokol, Research Foundation Professor and University Term Professor, Levin College of Law, University of Florida (Gainesville) 

Panel:
Ioana Marinescu, Assistant Professor of Economics, School of Social Policy & Practice, University of Pennsylvania (Philadelphia)
Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Carl Shapiro, Professor of the Graduate School, Walter A. Haas School of Business and Department of Economics, University of California (Berkeley) 
Hans Zenger, Deputy Coordinator Mergers, Chief Economist Team, DG Competition, European Commission (Brussels)

12.15pm: Chairpersons' closing remarks

Margaret Sanderson, Vice President, Charles River Associates (Toronto)
Jason Gudofsky, Partner, McCarthy Tétrault LLP (Toronto)

12.30pm onwards: Close of conference and networking lunch

Venue

W South Beach, 2201 Collins Avenue, Miami Beach, FL, 33139, United States

Testimonials

  • "This conference brings together top practitioners and academics to explore topical issues in antitrust" - Cecile Kohrs, TIG Advisors

  • "A very strong event." - Robert Mahnke

  • "The conference provides updated and useful information on key issues and trends" - Xavier Rosales, CorrelRosales

  • "In general, discussion was very good and lively" -Etienne Chantrel, Autorité de la concurrence