Antitrust Treatment of Loyalty Discounts in Europe and the U.S.
In a two-hour LIVE Webcast, a panel of key thought leaders and professionals assemble by The Knowledge Group will help the audience better understand the fundamentals as well as updates of Loyalty Discounts in the European and United States Antitrust Laws. The panel will provide the audience with the best practices and practicalities in order for companies and firms to avoid common risks and pitfalls with regards to EU and US antitrust treatments to Loyalty Rebates.
Key topics include:
- Loyalty Rebates in EU and U.S. – An Overview
- Loyalty Rebates and US Antitrust Law
- Conceptual Framework in Analyzing Loyalty Rebates
- Elements of Loyalty Rebates
- Impact and Implication of Loyalty Rebates to Consumers
- Up-to-the minute Regulatory Developments
William Michael, Partner
Paul, Weiss, Rifkind, Wharton & Garrison LLP
- What are “loyalty” discounts?
- U.S. antitrust treatment of discounts generally
- When are prices “predatory”?
- Should loyalty discounts be treated differently?
- The predatory pricing approach
- The “discount attribution” approach
- The “rule of reason” approach
- Applicable test may depend on whether price is the alleged “vehicle of exclusion”
Brian Sher, Partner
Rebates and discounts in Europe Part 1 – where is the law now ?
- Dominance - recap
- Different types of rebates
- European courts pre-Intel
- Commission Guidance Paper 2009
- Intel (Commission 2009; GC 2014)
- Post Danmark II, Court of Justice, 6 October 2015
Simon Holmes, Head of EU, Competition & Regulatory
King & Wood Mallesons
The Competition / Antitrust treatment of Loyalty Discounts in Europe Part 2: Assessing the risks: what can we still do?
- What Risks?
- Theory: Effects based approach
- As efficient competition test
- Relevant range
- Cost benchmarks
- Efficiency defence
- Harsh Reality : form based approach
- What discounts can we give?
Sean Durkin, Vice President
Charles River Associates
- The discount attribution test is based on implied framework of competition that can be used to illustrate the impact of loyalty discounts on competition
- Comparing outcomes in a situation in which sellers can offer loyalty discounts to one in which they cannot yields the following results
- Loyalty discounts induce sellers to compete more aggressively for a buyer’s contested purchases leading to lower buyer costs
- Loyalty discounts give an advantage to the more preferred seller that offsets, to the benefit of buyers, an advantage that the less preferred seller has when sellers cannot offer loyalty discounts
- Loyalty discounts cannot exclude an equally efficient rival if they pass the discount attribution test
Who Should Attend:
- Antitrust Lawyers
- Consumer Rights Lawyers
- Top Level Management
- In-house Counsel
- Legal Advisers
- Economy Watchers
- Private and Public Companies
- Multinational Companies
- Other related/interested Professionals and Organizations
Bill Michael is a partner in the Litigation Department at Paul, Weiss. Bill has extensive experience in antitrust litigation, including both civil and criminal government investigations, as well as other complex commercial litigation and appellate matters.
Bill has significant experience representing companies in various antitrust litigations and investigations. He has represented clients in cases involving competitor allegations of monopolization, exclusive dealing, tying and bundled discounting, as well as in purchaser class actions and in bid-rigging investigations by the U.S. Department of Justice. Bill previously served as Chair of the Editorial Board of The Antitrust Practitioner, a publication of the ABA’s Section of Antitrust Law Civil Practice and Procedure Committee. Prior to joining Paul, Weiss, Bill was a trial attorney in the Antitrust Division of the U.S. Department of Justice, where he focused on civil merger and non-merger investigations in the telecommunications and media industries. He also served as a law clerk to the Honorable Barrington D. Parker of the United States Court of Appeals for the Second Circuit. Bill received his B.A. from Columbia University and his J.D. from Yale Law School.
Bill Michael is a partner in the Litigation Department at Paul, Weiss. Bill has extensive experience in antitrust litigation, including …
Simon is head of King & Wood Mallesons’ EU, Competition & Regulatory Department in Europe. He is recognized as a ‘Leading Lawyer’ in Chambers, a ‘legal expert’ in Legal 500 and features in the Guide to the World’s Leading Competition and Anti-Trust Lawyers.
Although based in London, Simon has spent extensive periods in Brussels and, as a result, has close contacts with the European Commission and the UK’s Competition and Markets Authority.
For over 30 years, Simon has advised on contentious and non-contentious competition law and international trade and customs including bringing, defending and settling all types of competition disputes, dominance, pricing, discounts, promotions, standard setting, essential facilities, refusals to supply, information exchange, trade associations cartels, dawn raids, compliance programmes, parallel trade, state aid, public procurement and the application of competition law to a wide range of commercial agreements.
He regularly advises on mergers under UK and EU law, acting for either one of the merging parties or third parties. Through this latter work, he has advised on a very high proportion of the largest deals.
Simon is head of King & Wood Mallesons’ EU, Competition & Regulatory Department in Europe. He is recognized as a …
Brian Sher is a partner with Nabarro LLP with 20 years’ experience of EU and UK competition law. His practice spans EU and UK merger control, joint ventures, distribution strategy, pricing and dominance issues, compliance advice, competition litigation, state aid and public procurement. He represents clients before the UK and EU competition authorities and courts in merger investigations, cartel and conduct cases and market / sector inquiries. He is particularly well known as one of the leading thinkers on abuse of dominance matters in the EU and UK and advises international corporates extensively in this area including on a number of on-going cases. Brian is an active member of the Joint Working Party of the Bars and Law Societies of the UK on Competition Law and has two years’ prior business analysis training with the management consultancy McKinsey & Co. He is an annual visiting lecturer on the Kings College, London competition LLM. He frequently chairs or speaks at conferences and has published widely on competition law. He is listed as a leading adviser in Chambers & Partners.
Brian Sher is a partner with Nabarro LLP with 20 years’ experience of EU and UK competition law. His practice …
Sean Durkin specializes in antitrust economics, damage analysis, econometrics, microeconomics, and international economics. Dr. Durkin has served as a testifying expert on damages and liability in class action, antitrust, patent, and unfair competition cases and has testified before the International Trade Commission and the Illinois Commerce Commission. He has extensive consulting experience on both competitor and class action cases involving a wide range of antitrust issues, including collusion, bundling/tying, exclusive dealing, and predatory pricing. He has worked on cases involving price fixing, quantity restrictions, and non-compete agreements. Dr. Durkin has consulted on a variety of merger cases for government agencies in the US and Canada and also for merging parties in both horizontal and vertical mergers. He has also consulted for a major retailer examining retail expenditures across different target groups and a trade association estimating the impact of proposed changes in EPA regulations. Dr. Durkin is a lecturer at the Harris Graduate School of Public Policy Studies at the University of Chicago. Dr. Durkin was recognized with a 2015 Antitrust Writing Award for Best Economics Article in the Business Articles category for his publication, “The Discount Attribution Test and the Competitive Effects of Loyalty Discounts."
Sean Durkin specializes in antitrust economics, damage analysis, econometrics, microeconomics, and international economics. Dr. Durkin has served as a testifying …
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About Paul, Weiss, Rifkind, Wharton & Garrison LLP
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As the first and only global law firm to be headquartered in Asia, King & Wood Mallesons is connecting Asia to the world, and the world to Asia. With unparalleled depth of both inbound and outbound capability, KWM is uniquely placed to support regional clients as they internationalise and international clients as they look to invest or expand into Asia. Strategically positioned in the world’s growth markets and financial capitals, the firm is powered by more than 2,700 lawyers across more than 30 international offices spanning Asia, Australia, Europe, the Middle East and North America. As a top 10 global firm by lawyer numbers and the only firm in the world able to practise PRC, Australian, Hong Kong, English law and US law as an integrated global law firm brand, KWM is providing clients with deep legal and commercial expertise, business acumen and real cultural understanding on the ground where they need it most.
King & Wood Mallesons’ market-leading competition law practice is a global powerhouse, encompassing three of the top competition practices in the world, including the UK, China and Australia. With nearly 30 partners (including former regulators) and 100 lawyers, the team advises on all aspects of competition, trade and regulatory law. Third-party awards include The Lawyer Competition Team of the Year (2013) as well as the GCR Behavioural Team of the Year.
Nabarro is a leading UK and international law firm which delivers the highest quality, business-focused advice to clients, clearly and concisely, no matter how complex the situation. Nabarro is an energetic partnership with over 100 partners and 300 lawyers, offering a broad range of legal services to major national and international clients from FTSE 100 and Fortune 500 companies to private, fast growth businesses and the public sector. The firm’s headquarters are in central London, with offices in Brussels, Dubai, Manchester, Sheffield and Singapore. Through the Broadlaw group, the Firm's European alliance, Nabarro can provide the highest quality legal advice across borders through over 1,000 lawyers operating from 32 offices in 10 jurisdictions.
About Charles River Associates
Charles River Associates is a leading global consulting firm that offers economic, financial, and business management expertise to major law firms, corporations, accounting firms, and governments around the world. With proven skills in complex cases and exceptional strength in analytics, CRA consultants have provided astute guidance to clients in thousands of successful engagements. We offer litigation and regulatory support, business strategy and planning, market and demand forecasting, policy analysis, and risk management consulting. Our success stems from the outstanding capabilities of our consultants, many of whom are recognized as experts in their respective fields; our close relationships with a select group of respected academic and industry experts; and from a corporate philosophy that stresses interdisciplinary collaboration and responsive service. Headquartered in Boston, the firm has offices internationally.