Perspectives on Innovation, Information Exchange, and Antitrust in a Global Context
Recent government challenges of proposed and consummated mergers and enforcement actions and investigations against companies engaged in price fixing or exclusionary contracting have taken antitrust scrutiny to new levels. In a complex and dynamic economy, the issues can involve intellectual property rights, investments in innovation, and relationships with distributors and customers.
The Knowledge Group is assembling a panel of key experts and thought leaders to help companies understand and manage the antitrust risks and issues that they may encounter before they embark on an acquisition strategy or a contract negotiation with key customers, distributors, and suppliers. In a two-hour LIVE webcast, speakers will provide an in-depth analysis of the key antitrust issues of the day and their implications. Panelists will also discuss how companies can effectively deal with potential antitrust scrutiny and provide practical guidance on how companies can remain in compliance with the antitrust laws.
Albert A. Foer, President,
American Antitrust Institute
- The DOJ Statement in its February review of two large scale acquisitions of patents begins an important clarification process
- The benefits and risks of standard-setting in the presence of standard-essential patents.
- Should FRAND (fair, reasonable, and non-discriminatory) commitments travel with the patent?
- What conditions would be unreasonable re price or grantbacks?
- Would it be inconsistent with FRAND to seek injunctions, e.g. before the International Trade Commission?
- What should be the role of standard-setting organizations in clarifying concepts and requirements?
Lawrence Wu, Senior Vice President,
NERA Economic Consulting
Merger Analysis from an Economist’s Perspective
- By the end of the summer, we will have two years of experience in understanding how the 2010 Merger Guidelines are being used. How are the U.S. antitrust agencies assessing the competitive effects of proposed mergers and acquisitions? How are the courts analyzing competitive effects?
- What do some of the recent litigated and approved transactions (e.g., LabCorp, AT&T/T-Mobile, H&R Block/Tax Act, Express Scripts/Medco) tell us about the types of evidence that the agencies are looking at to assess competitive effects?
- Looking ahead, what are the key challenges for merger policy? One area, is how we analyze competitive effects in markets where there is high innovation. Another area is non-price competition.
- Pre-transaction advice and planning: what can acquiring and target firms do to assess the potential competitive risks and antitrust issues prior to a transaction agreement?
Matthew Wright, Corporate Vice President,
Economics of Information Sharing
- What are the potential economic benefits from information sharing? How can information sharing improve efficiency?
- What are the potential competitive risks from information sharing?
- What are the implications of the uncertainty associated with antitrust enforcement in this area? What factors are relevant when considering the potential costs and benefits associated with enforcement actions in this area?
- How should industry-specific factors affect a rule-of reason analysis of information sharing?
- Perspectives on recent enforcement activity in this area.
Andrea Agathoklis Murino, Of Counsel,
Wilson Sonsini Goodrich & Rosati
- The Supreme Court will take on two antitrust cases in the Fall term: Behrend v. Comcast, which addresses the appropriateness of awarding treble damages on a class-wide basis, and FTC v. Phoebe Putney Health System, which addresses whether an acquisition of a hospital is exempt under the state action doctrine. Respectively, both cases could result in a substantial shift on the success of private plaintiffs’ victories in antitrust class actions, and the ability of the Agencies to intervene in certain acquisitions that may otherwise prove anticompetitive. What are the possible outcomes? What are the right outcomes?
- Merging parties continue to wilt under Agency demands for ever more voluminous documents and data. Should the Agencies work to better improve the merger review process? If so, how? What kinds of tangible improvements can be provided to make life easier for the merging parties? For the Agencies?
- The “internationalization” of antitrust and competition laws is very real. What is the appropriate way in which jurisdictions should work together? What limitations make sense? What is the appropriateness of instituting joint remedies? What are the risks?
- Conduct or behavioral remedies are increasingly in fashion at DOJ, and have been consistently used at the FTC. Do the Agencies need to be more clear about the boundaries and appropriateness of instituting conduct remedies? What kinds of boundaries make sense? What kinds of risks are present in using conduct remedies, especially as to enforcement and monitoring compliance?
- Section 5 of the FTC Act is often talked about as a potential avenue to bring enforcement actions that are not easily covered by the Sherman Act. FTC Chairman Leibowitz and Commissioner Rosch are on the record very regularly on this point. In recent years, however, the FTC has only rarely brought an action under Section 5 alone, and when they have, it is only in the posture of a negotiated consent agreement (not a litigated judgment). Why is this the case? What can we expect to come? And how might an Article III court consider Section 5 in light of its history?
Who Should Attend:
- General Counsel
– Antitrust Lawyers
– Business Consultants
– Senior Management
The President of the American Antitrust Institute is Albert A. (“Bert”) Foer, whose career has included private law practice in Washington, DC (Hogan & Hartson, Jackson & Campbell); the Federal Senior Executive Service (as Assistant Director and Acting Deputy Director of the Federal Trade Commission’s Bureau of Competition); CEO of a mid-sized chain of retail jewelry stores for 12 years; trade association and non-profit leadership; and teaching antitrust to undergraduate and graduate business school students. Foer has published numerous articles, book chapters, and reviews relating to competition policy. He is editor of The Next Antitrust Agenda and co-editor of The International Handbook on Private Enforcement of Competition Law and of Private Enforcement of Antitrust Law in the United States (forthcoming). He is a graduate of the University of Chicago Law School, with an A.B. (magna cum laude) from Brandeis University, and an M.A. in political science from Washington University.
The President of the American Antitrust Institute is Albert A. (“Bert”) Foer, whose career has included private law practice in …
Dr. Wu’s expertise is in the economics of antitrust and intellectual property. He has testified in US district courts and in a variety of regulatory proceedings. Prior to joining NERA, he was a staff economist in the Bureau of Economics of the Federal Trade Commission (FTC).
In the area of antitrust, Dr. Wu has evaluated the competitive effects of numerous mergers and acquisitions. These include proposed and consummated transactions. He also has been retained as an economic expert to testify on issues related to antitrust class certification, liability, and damages. He has testified on issues related to price fixing, as well as market definition and market power in antitrust litigations involving allegations of exclusive contracting, price discrimination, and anticompetitive exclusionary conduct. Dr. Wu has analyzed these and other competitive issues in a variety of retail, manufacturing, and service industries, but he is particularly well known for his work in the area of health care, which includes health insurance, hospital services, physician services, and a variety of medical devices and technologies.
With respect to intellectual property economics, Dr. Wu has testified on reasonable royalties, and he has written and consulted on issues involving patent pools.
Dr. Wu is the editor of two books on the economics of antitrust. His publications, which have appeared in Antitrust, The Antitrust Bulletin, Antitrust Chronicle, Antitrust Report, The Antitrust Source, European Competition Law Review, Journal of Business Venturing, and Medical Care, include articles on merger analysis, market share-based merger screens, empirical methods in merger analysis, patent pools, and the multiple dimensions of market power. He also is frequently invited to speak at conferences and seminars.
Dr. Wu earned his PhD from the University of Chicago Graduate School of Business and his BA from Stanford University.
He also is currently a Visiting Scholar at the Stanford Institute for Economic Policy Research (SIEPR) at Stanford University.
Dr. Wu’s expertise is in the economics of antitrust and intellectual property. He has testified in US district courts and …
Matt Wright is a Principal and Corporate Vice President at Economists Incorporated. Dr. Wright’s work as a consultant has included analysis of mergers, vertical restraints, price-fixing claims, monopolization, damages, price discrimination, and intellectual property matters. He has experience in a wide range of industries, including pharmaceuticals, ocean shipping, cable programming, music rights, tobacco, food industries, electronic equipment, and a variety of branded consumer goods.
Dr. Wright has provided economic testimony on antitrust liability, damages, Robinson-Patman, and intellectual property matters. Dr. Wright has also represented clients before the U.S. Department of Justice, the Federal Trade Commission, and the European Commission. Prior to joining Economists Incorporated, Dr. Wright served for seven years as an economist with the U.S. Department of Justice’s Antitrust Division. Dr. Wright has served as a technical advisor on competition policy to six foreign governments.
Matt Wright is a Principal and Corporate Vice President at Economists Incorporated. Dr. Wright’s work as a consultant has included …
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American Antitrust Institute
AboutNERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For half a century, NERA
Website: NERA Economic Consulting
About American Antitrust Institute
About NERA Economic Consulting
NERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For half a century, NERA’s economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world’s leading law firms and corporations. With its main office in New York City, NERA serves clients from more than 20 offices across North America, Europe, and Asia Pacific.
About Economists Incorporated
Founded in 1981, Economists Incorporated (www.ei.com) is a premier economic consulting firm in the fields of law and economics, public policy, and business strategy. EI offers expert consulting and testifying services in the context of litigation, arbitration, proposed mergers and acquisitions, regulatory hearings, and business planning. EI’s clients include legal counsel, businesses, trade associations, government agencies, and multilateral organizations.
EI economists hold advanced degrees from leading universities, and many have held senior positions in government agencies. EI economists have the academic credentials and practical experience required to devise competitive strategies, conduct rigorous analysis for litigation, and formulate public policy. Throughout its existence, EI has established a reputation for delivering consistently high-quality economic analysis while participating in path-breaking and high-profile antitrust, commercial litigation, and regulatory matters. EI has offices in Washington, D.C. and San Francisco.
About Wilson Sonsini Goodrich & Rosati
With long-standing roots in Silicon Valley and 11 offices in technology, business, and regulatory hubs worldwide, Wilson Sonsini Goodrich & Rosati has a national presence with a global reach. Over the past five decades, WSGR has developed a wide-ranging international practice, with particular strength in North America, Asia, and Europe. WSGR’s global experience includes the representation of both U.S. and international clients in such matters as litigation, cross-border mergers and acquisitions, joint ventures, competition law, intellectual property counseling, and branch operations. WSGR clients span a broad array of industries, from energy to media and Internet, medical devices to food services, pharmaceuticals to many technology sectors.