High-Tech Mergers: FTC’s Apple of the Eye – Antitrust Enforcement in 2015
Antitrust enforcement in high-tech industries ventures is a top priority for the Department of Justice (DOJ) and Federal Trade Commission (FTC). There have been numerous challenges to non-Hart–Scott–Rodino (HSR) deals such as the US v. Bazaarvoice case. These cases highlight that understanding the implicit importance of federal regulations, intellectual property, innovative competition, network effects, and follow on biologics, among others is essential to avoiding antitrust violations in high-tech mergers.
In this two-hour LIVE webcast, a panel of distinguished professionals and thought leaders assembled by The Knowledge Group will help high-tech industry and antitrust specialist understand the reasons for the Federal Trade Commission’s focus upon High-Tech Mergers. Speakers will also offer best practices and strategies in ensuring compliance with Trade and Antitrust Laws.
Key topics include:
- High-Tech Mergers
- Common Antitrust Violations
- High-Tech Merger Requirements and Practical Implications
- Hart–Scott–Rodino (HSR) Reporting Obligations
- Exclusive Marketing Periods
- Pre-litigation Settlement Post-Lundbeck
- Merger Enforcement Remedies
- Best Compliance Practices and Antitrust Enforcement Strategies
- Possible Lawsuits
- Role of Innovation in Antitrust Assessment
- No Deal Too Small – Non-reportable Tech Deals
- Distinct Entry Characteristics – Double-Edged Sword
- Trends in Pharma/Life Sciences Enforcement
- Remedies in Tech Deals – Opportunities and Pitfalls
Analysis Group, Inc.
The US v. Bazaarvoice case highlights a number of key economic issues that economic analyses are intended to evaluate in the context of any merger. Regardless of the size, profitability, or penetration of an industry, it is important for an economist to weigh the potential synergies from a deal against the potential for increased pricing power given barriers to entry and the nature of competition between the parties prior to the merger. Internal statements at Bazaarvoice about actual competition from PowerReviews, the potential for improved pricing and margins post-merger, and the minimal threat from other parties made it clear that the merger needed to be challenged. The interesting question from an economist’s perspective is what does this challenged deal tell us about the future.
- High-tech mergers (and significant acquisitions) can often involve intellectual property issues related to the nature of innovation in the industry. Apart from large patent portfolio mergers triggering HSR thresholds, and the difficulty of assessing non-price innovation competition, the agencies have also been active in voicing concerns about the anticompetitive effects of licensing Standard Essential Patents in compliance with RAND obligations.
- I will discuss this with respect to the Google / Motorola Mobility FTC settlement regarding the licensing of SEP’s, along with underlying FTC/DOJ studies and the important precedent of the Microsoft v Motorola Mobility case determining a RAND rate – recently affirmed by the Ninth Circuit.
- High-tech mergers also frequently involve industries where the future path of competition is intrinsically difficult to predict, as the path of innovation is so novel.
- I will discuss this difficulty from the perspective of the Google/AdMob acquisition and its review by the Commission. The mobile advertising market, based on the suddenly ubiquitous smartphone platforms, was highly disruptive and almost without precedent, making competition modelling particularly challenging.
Who Should Attend:
- Antitrust Lawyers
- In-House M&A Practitioners
- Technology Lawyers
- Trade Counsel
- IP Attorneys & Related Consultants
- High-Tech Industries
Jacqueline Grise is a Partner in Cooley’s Antitrust & Competition practice. Her practice focuses on the defense of corporate clients in connection with domestic and international mergers and acquisitions, as well as antitrust counseling and other non-merger matters. She regularly represents clients before the FTC, the DOJ and numerous foreign antitrust enforcement agencies. She has extensive experience counseling clients through the HSR merger review process, including advocating before the agencies, responding to second requests and coordinating antitrust defense strategies in countries around the world. Her clients span a broad range of industries, including an array of high-tech industries, digital health/e-health, healthcare/pharmaceuticals, consumer and food products, computer and data storage, music recording and publishing, book and magazine publishing, industrial equipment, automotive parts, retail including Internet sales and distribution, and aerospace and defense.
Jacqueline Grise is a Partner in Cooley’s Antitrust & Competition practice. Her practice focuses on the defense of corporate clients …
Ms. Kirk Fair has conducted economic analysis and managed large case teams in support of academic experts in a broad range of cases, including intellectual property, false advertising, tax, class certification, and major U.S. and international antitrust litigation. Her antitrust work includes assisting in all phases of litigation, from pre-trial discovery to trial testimony in large-scale matters involving alleged multinational and domestic cartels in financial services, high-technology, consumer products, and transportation. She also has extensive experience analyzing questions of market definition, market power, and pricing in competition matters, including mergers and monopoly antitrust investigations. Ms. Kirk Fair has served as an expert witness in matters involving the design and implementation of consumer surveys, as well as the evaluation of plaintiffs’ surveys. She has also supported academic experts in undertaking analyses of and surveys related to consumer perception, feature value, and marketing procedures in connection with IP and antitrust disputes, fraudulent claims suits, and trademark matters. Ms. Kirk Fair has provided deposition and trial testimony, and has assisted in several arbitrations. She has been invited to speak on survey and competition issues in several high-profile venues, including in front of the American Bar Association and the New York State Bar Association.
Ms. Kirk Fair has conducted economic analysis and managed large case teams in support of academic experts in a broad …
Matt Lynde provides expert testimony and consulting in applied economics. His work covers a range of cases, including intellectual property, antitrust and competition, securities litigation, and breach of contract. He has served as an expert witness in more than twenty trials or arbitrations, in state and federal courts, foreign courts, and both domestic and international arbitrations. These matters have mainly been in high-tech industries, such as computer and telecommunications hardware and software, medical and military devices, and pharmaceutical and biotech products. His testimony includes the calculation of reasonable and nondiscriminatory (RAND) royalties for standard essential patents in Microsoft v. Motorola and other high-profile cases. He also consults with high-tech clients regarding intellectual property valuation matters.
Matt Lynde provides expert testimony and consulting in applied economics. His work covers a range of cases, including intellectual property, …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
Specialized Knowledge and Applications
NY Category of CLE Credit:
Areas of Professional Practice
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About Cooley LLP
Cooley’s attorneys solve legal issues for entrepreneurs, investors, financial institutions and established companies. Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and bet-the-company litigation, often where innovation meets the law. Cooley has more than 800 lawyers across 11 offices in the United States and China. Cooley’s Antitrust & Competition team is recognized as one of the top-tier practices in the area of antitrust by Chambers USA: America’s Leading Business Lawyers and Global Competition Review. Providing a full range of counseling, litigation, agency representation, and arbitration services, we handle all aspects of antitrust and trade regulation matters for Fortune 500 corporations, as well as growing companies, in virtually every sector of the economy including telecommunications, software, computer hardware, ecommerce, social media, biotech, pharmaceuticals, medical devices, aerospace, defense, oilfield services, industrial manufacturing, consumer products, and financial services.
About Analysis Group, Inc.
Analysis Group provides expertise in economics, finance, health care analytics, and strategy to top law firms, Fortune 500 companies, global health care corporations, and government agencies. Our work is grounded in a collaborative approach that allows us to effectively integrate the best ideas from leading academic and industry experts with our more than 600 professionals. As a result, our clients receive thoughtful, pragmatic solutions to their most challenging business and litigation problems. Through our work in thousands of cases across multiple industries, we have become one of the largest economics consulting firms in North America, with 11 offices in the United States, Canada, and China.
Antitrust and competition have been at the core of Analysis Group’s work since our inception in 1981. We integrate industrial organization theory, econometrics, and industry-specific expertise, along with the latest quantitative analytical methods, to understand the conduct and market dynamics at issue in antitrust litigation and merger investigations. Clients rely on us and our affiliated experts to provide in-depth analyses of issues relating to class certification, antitrust liability, antitrust damages, and the competitive effects of proposed mergers and acquisitions.
About Cornerstone Research
Cornerstone Research provides economic and financial consulting and expert testimony in all phases of complex litigation and regulatory proceedings. The firm works with an extensive network of prominent faculty and industry practitioners to identify the best-qualified expert for each assignment. Cornerstone Research has earned a reputation for consistent high quality and effectiveness by delivering rigorous, state-of-the-art analysis for over twenty-five years. The firm has more than five hundred staff and offices in Boston, Chicago, London, Los Angeles, Menlo Park, New York, San Francisco, and Washington.