USCIB Competition Committee Hosts DOJ Antitrust Division Deputy

USCIB’s Competition Committee held its fall meeting on October 28 in a virtual format due to the ongoing COVID-19 pandemic. Following welcome and introductory remarks by Dina Kallay (Ericsson) and Jennifer Patterson (Arnold & Porter), Chair and Vice Chair of the Committee, respectively, the group received an update on the upcoming meetings of the OECD Competition Committee from John Taladay (Baker Botts), Chair of the Business at OECD (“BIAC”) Competition Committee, and on the current work of the ICC Competition Commission from USCIB Senior Director for Trade, Investment, and Financial Services Eva Hampl.

The meeting featured Alexander Okuliar, deputy assistant attorney general, Antitrust Division, U.S. Department of Justice (DOJ), as the main speaker. Okuliar recently returned to the DOJ following two decades at both federal antitrust agencies and the private sector, and is responsible for civil merger and conduct investigations and litigation. He delivered remarks to USCIB members that included the DOJ’s recent work regarding competition in digital markets; the recent DOJ Business Review Letter to IEEE; and China, including due process challenges in China’s antimonopoly agencies and the new China Standards 2035 policy. Following his remarks, DAAG Okuliar engaged in an open Q&A session with committee members.

The Committee, under the direction of Kallay also discussed various issues of concern, including on advocacy for international convergence re compliance. Finally, Lisa Kimmel (Crowell & Moring) provided the group an update of the recent report of the House Judiciary Committee, Subcommittee on Antitrust, Commercial and Administrative law, on the Investigation of Competition in Digital Markets.

 

USCIB Competition Committee Hosts FTC Antitrust Expert

USCIB’s Competition Committee held its spring meeting on April 16 in virtual format due to the COVID-19 crisis. The meeting included distinguished speaker Gail Levine, deputy director of the Bureau of Competition at the U.S. Federal Trade Commission (FTC). Jennifer Patterson (Arnold and Porter), who serves as vice chair of the USCIB Competition Committee, introduced Levine and USCIB Competition Committee Chair Dina Kallay (Ericsson) moderated the discussion with members.

“The off-the-record exchange included an update on antitrust enforcement in the time of COVID-19, as well as on recent cases, and the recent Draft Vertical Merger Guidelines, to which USCIB provided comments,” noted USCIB Senior Director for Trade, Investment and Financial Services.

Another issue of interest to members was the technology task force the FTC created in February 2019, which has since then been converted into a “Technology Enforcement Division” (TED) that now has 25 FTEs. The TED was created to monitor competition and investigate potential anticompetitive conduct in markets in which digital technology is an important dimension of competition.

Following the exchange with the government official, the Committee received an update from John Taladay (Baker Botts), chair of the Business at OECD Competition Committee on the upcoming OECD Competition Committee meetings in June. Lisa Kimmel (Crowell & Moring), also provided a summary of USCIB comments on the Department of Justine (DOJ)/FTC Draft Vertical Merger Guidelines, and Eileen Cole (White & Case) provided an update on the recent hearing of the 1-800 Contacts case, for which USCIB submitted an amicus brief, urging the reversal of the FTC ruling.

USCIB Comments on Draft Vertical Merger Guidelines

USCIB submitted comments recently on the Draft Vertical Merger Guidelines announced in January by the U.S. Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ).

In the submission, USCIB indicated that members understand the tremendous procompetitive benefits and efficiencies that can be associated with vertical mergers.

“Our members value transparency and predictability in vertical merger enforcement policy and welcome the agencies’ joint effort to clarify the analytic framework and methods they employ to review vertical mergers,” said USCIB Senior Director for Investment, Trade and Financial Services Eva Hampl. “USCIB applauds the agencies for proposing draft vertical merger guidelines based on the well-established economics of vertical relationships and grounded in the consumer welfare standard.”

The comments are intended to support final guidelines that foster transparency and eliminate unnecessary regulatory obstacles to efficient vertical transactions.

USCIB member Lisa Kimmel, Ph.D., senior counsel, Crowell & Moring LLP, was also invited to participate in one of the public workshops announced by the agencies in February. Unfortunately, those workshops which were scheduled to take place this month, were cancelled due to COVID-19 related measures.

USCIB Discusses Online Platforms With Department of Justice

USCIB hosted a meeting with officials from the U.S. Department of Justice (DOJ) on the “Big Tech” review of online platforms on December 18. The meeting brought together USCIB members, staff as well as specialists who spoke on these issues, including Associate Deputy Attorney General and Senior Advisor for Technology Industries Ryan Shores and Counsel to the Attorney General Lauren Willard.

In July of 2019, the DOJ announced the review of market-leading online platforms. This review is considering competition and other issues related to online platforms, including a recently-announced review of Section 230 of the Communications Decency Act. Shores was appointed to his position in October of this year to lead this review effort.

“Wednesday’s meeting provided a great opportunity for members to exchange views with the DOJ officials on these important issues,” said Eva Hampl, senior director for investment, trade and financial services, who leads USCIB’s work on competition policy.

USCIB Meets With DOJ on Global Competition Issues

L-R: Mike Murray, Deputy Assistant Attorney General; James Fredricks, Section Chief, Criminal Section II, U.S. Department of Justice; Dina Kallay, Ericsson and USCIB Competition Committee Chair; Eva Hampl, USCIB Senior Director, Investment, Trade and Financial Services; and Jennifer Patterson, Arnold & Porter and USCIB Competition Committee Vice-Chair.

Department of Justice (DOJ) Deputy Assistant Attorney General for Appellate Mike Murray met with USCIB’s Competition Committee, chaired by Dina Kallay (Ericsson), during its fall meeting on September 25 at the offices of White & Case LLP.  Following an introduction and welcome by Vice Chair Jennifer Patterson (Arnold & Porter LLP), USCIB members participated in an active agenda that included updates on important developments on global competition issues.

Murray discussed the issue of indirect purchasers DOJ Antitrust Division brief and position in Apple v. Pepper. His complete remarks can be found here. DOJ Section Chief Jim Fredericks, Criminal Section II then presented and answered member questions regarding the DOJ Antitrust Division new policy to incentivize compliance programs.

Members also received an update from Bryan Gant from White & Case on the status of the amicus brief USCIB filed in the 1-800 Contacts case, which urges reversal of the FTC ruling on antitrust liability for trademark settlements. Finally, John Taladay (Baker Botts), Chair of the Business at OECD Competition Committee, provided an overview of the upcoming OECD Competition Week taking place December 2-6 in Paris. The latter part of that week will be the Global Forum on Competition, covering issues such as competition provisions in regional trade agreements and merger control in dynamic markets.

USCIB Urges Reversal of 1-800 Contacts FTC Ruling

USCIB filed an amicus brief with regards to 1-800 Contacts, Inc. case to highlight the challenges American businesses would face under the recent Federal Trade Commission’s (FTC) decision’s approach to antitrust liability for trademark settlements, and explain the potential negative impacts the decision would have on businesses, consumers and competition if left to stand.

USCIB General Counsel Nancy Thevenin led the process for USCIB. “The Commission’s decision creates substantial uncertainty regarding the enforcement and settlement of intellectual property rights, increases the risk of arbitrary enforcement against even routine settlements, and potentially exposes settlements to such risk for decades,” warned Thevenin. “The decision should be reversed.”

Earlier this year, the FTC decided to impose antitrust liability against 1-800 Contacts, the largest online retailer of contact lenses in the U.S., on the basis that 1-800 Contacts’ settlements of trademark infringing lawsuits against at least fourteen competing online contact lens retailers restricted trade. Among other things, USCIB’s amicus argues that the Commission’s decision ignores the critical importance to business of intellectual property rights and its enforcement and would unfairly require the lawful exercise of such rights to a higher pro-competition standard.

USCIB thanks Eileen M. Cole, Bryant D. Gant and Seiji Niwa of member firm White & Case for their work with the amicus.

 

OECD Competition Week

OECD Competition Week will take place June 3-6, 2019 in Paris.

The week will include meetings of the OECD Competition Committee (CC) and its Working Parties (WP2, WP3).

Below please find detailed information from Business at OECD on the various meetings taking place that week, as well as papers Business at OECD plans on contributing to the meetings.

The topics of the papers include:

  • Standard of Review by Courts in Competition Cases
  • FinTech and Disruptive Innovation in Financial Markets
  • Licensing of IP Rights and Competition Law
  • Vertical Mergers in Technology, Media & Telecom Sectors
  • Publicly Funded Education markets
  • Analyzing Competition Issues in Labor Relations

If you are interested in participating or need more information, contact Chris Olsen (colsen@uscib.org).

18th Annual Conference of the International Competition Network (ICN) 

18th Annual Conference of the International Competition Network (ICN)

May 15-17, 2019

Cartagena, Colombia

The Colombian Superintendence of Industry and Commerce will host the 2019 International Competition Network (ICN) Annual Conference. The venue for the conference will be Hotel Las Americas, Cartagena. The 2019 Annual Conference will be the 18th annual conference hosted under ICN auspices. During the conference, discussions will focus on strategies related to digital economy, innovation, market definitions and the role of the competition policy since the different perspectives of the ICN.

The ICN Annual Conference is an invitation only event. The admission will be reserved for ICN Competition Authorities members and NGAs. The Colombian Superintendence of Industry and Commerce looks forward to welcoming ICN member agencies and NGAs from across the globe to Cartagena in May 2019.

Please contact Chris Olsen (colsen@uscib.org) for more information.

ICC & the International Bar Association Pre-ICN Forum

The International Chamber of Commerce (ICC)  & the International Bar Association (IBA) Pre-ICN Forum at the Hotel Las Americas will be held on May 14 in Cartagena, Colombia. This event offers attendees an opportunity to participate in discussions on competition law enforcement and policy and get insights directly from regulators and business experts.

Confirmed speakers include:
Andreas Mundt, ICN Chair
Andrés Barreto Gonzalez, Superintendent of Industry and Commerce of Colombia
Frederic Jenny, Chair, OECD Competition Commission
Alejandra Palacios Prieto, Chair, COFECE
Ricardo Riesco, Head, Fiscalia Nacional Economica
Alvaro Ramos, Senior Legal Director and Head of Global Antitrust, Qualcomm

The sessions include:
• Plenary: In search of a road map. Distinguishing key trends in Latin American antitrust developments
• Plenary: On the road to compliance – are we there yet? Achieving cultural change in antitrust compliance
• Plenary: Driving on the left or the right? Do we need a common approach to Procedural Rights?
• Plenary: We know “consumer harm” when we see it – or don’t we? Substantive assessment of High Tech and National Champions.

Please contact Chris Olsen (colsen@uscib.org) for more information.

USCIB Competition Committee Meeting

USCIB Competition Committee Meeting
Tuesday, April 16, 2018
9:00 – 11:30am
Milbank
1850 K Street, NW, Suite 1100, Washington DC

Speakers will include:

  • Mr. Thomas Kramler, Head of the Digital Single Market Task Force, DG COMP
  • Mr. Roger Alford, DAAG for International Affairs, DOJ
  • Ms. Yumiko Takahashi, Washington D.C. attaché of the Japan Fair Trade Commission (JFTC)

If you would like to attend the meeting, and have not already done so, please RSVP to Chris Olsen (colsen@uscib.org).