On 9 October 2018, the High Court of England and Wales handed down its first reasoned damages award in a follow-on antitrust damages claim (BritNed v ABB). Although BritNed had claimed damages of €180 million, the Court awarded it only €13 million plus simple interest. The claims for lost profits and compound interest were dismissed. In doing so, the Court provided important guidance to parties involved in antitrust damages claims in England, indicating an approach to economic evidence that is likely to find favour with the courts. Continue Reading
CAT upholds Ping’s fine: lessons on online sales bans
On August 24, 2017, the UK’s Competition and Markets Authority (“CMA”) fined Ping Europe Limited (“Ping”) £1.45 million for breaching UK and EU competition law by instituting a ban on online sales of Ping golf clubs. Ping challenged the CMA’s decision before the Competition Appeal Tribunal (“CAT”). On September 7, 2018, the CAT dismissed the appeal, but reduced Ping’s fine.
The European Commission Publishes Summary Decisions for On-line Resale Price Maintenance Infringements
The European Commission (“Commission”) recently fined Denon & Marantz, Asus, Pioneer and Philips (the “Individual Parties”) a total of EUR 111 million for restricting the ability of online retailers to set retail prices for their products – a hard-core restriction under EU competition law known as “resale price maintenance” or “RPM” (the “Infringement Decisions”). These Infringement Decisions are noteworthy because: (i) they are the first e-commerce infringement decisions since the Commission’s 2017 Final Report on its e-commerce sector inquiry; and (ii) the last ‘traditional’ RPM fine imposed by the Commission was fifteen years ago in Po/Yamaha COMP/37.975 (16 July 2003).
12th Annual Georgetown Global Antitrust Enforcement Symposium – Debating the Latest Issues with Covington’s Johan Ysewyn and Jim O’Connell
On 25 September 2018, Covington’s Johan Ysewyn and Jim O’Connell will speak on cartels and merger enforcement, respectively, at the 12th Annual Georgetown Global Antitrust Enforcement Symposium in Washington DC.
This Symposium serves as a leading forum for in-house and outside counsel, policymakers, corporate executives, economists and academics to discuss the most recent issues in competition law and policy. Continue Reading
The UK Government Issues ‘No-deal’ Competition and Merger Guidance
The UK Government published its highly-anticipated technical guidance on merger review and anti-competitive activity on 13 September 2018 which will apply in the case of a ‘no-deal’ Brexit (the ‘Guidance’). Although brief, it provides market players with some form of practical advice and insights on what to expect, how cases are likely to be divided between the EU and UK regimes, how UK competition law will develop, and suggests in what ways post-Brexit competition damages actions in the UK Courts may change. This Guidance follows on from the previously released ‘no-deal’ state aid guidance – as was covered in our previous Covington alert – forming part of a larger suite of ‘no-deal’ Brexit guidance papers released by the Government in recent weeks.
The Guidance provides several key pieces of practical advice for businesses regarding different types of competition law processes in the wake of a ‘no-deal’ Brexit. Continue Reading
The German Monopolies Commission’s Proposals Regarding Pricing Algorithms
The German Monopolies Commission (Monopolkommission), an independent body advising the German federal government and legislature on competition law and policy, recently published its Twenty-second Biennial Report (“Report”) in which it outlined recommendations to adapt the German legal framework to account for what it characterized as new competition challenges faced by the increasing and irreversible digitisation of many parts of the economy (please see the Summary Report here and Press Release here, both available in English). Of particular interest is the Monopolies Commission’s proposed approach to anti-competitive algorithm-based pricing. Continue Reading
Buying a Pig in a Poke: Financial Investor Antitrust Liability on the Rise
On 5 September 2018, the District Court for the Southern District of California ruled that private equity firm Lion Capital must face trial in class action litigation alongside its portfolio company Bumble Bee Seafoods, in a case alleging price-fixing in the market for canned tuna. In the wake of the European Court’s judgment in the Power Cables cartel saga over the summer, the trend that a financial investor (be it a bank or a private equity company) may be held liable for the behaviour of its portfolio company now seems to be of transatlantic proportions. Continue Reading
Apple / Shazam: Determining the value of data in merger cases
On April 23, the European Commission (“Commission”) opened an in-depth investigation of Apple’s acquisition of Shazam in order to, in the words of Commissioner Vestager, ensure that “music fans won’t face less choice as a result of this proposed merger”. On September 6, 2018, the Commission concluded its investigation, issuing an unconditional clearance.
This story’s protagonists hardly need introduction. Apple is one of the world’s major tech companies, and the provider of the ‘Apple Music’ streaming service. Shazam, in turn, provides a leading music recognition app. However, as is not unusual with consumer-facing apps, Shazam generates relatively little turnover. Continue Reading
UK’s Financial Conduct Authority gives guidance on future priorities, FinTech and Brexit
The Financial Conduct Authority (“FCA”) has published its third Annual Competition Report which focusses on its proposals for promoting competition and innovation, particularly with respect to the impact of FinTech on UK financial services. It also addresses the FCA’s ongoing role in supporting the UK Government prepare for Brexit, and uphold an orderly transition as part of the withdrawal process – avoiding any cliff edges – for UK financial markets.
UK government publishes “no-deal” state aid notice
On 23 August 2018, the UK government published a notice, committing the UK to a continued application of state aid rules even in the event of no deal being agreed with the EU on the UK’s withdrawal. The notice explains how EU state aid rules would be transposed into UK domestic legislation. The Competition and Markets Authority will take the role of enforcement and supervision for the whole UK and the rules will apply to all sectors and all businesses with operations in the UK – whether UK, EU or third country based. UK businesses and EU businesses with operations in the UK will still be able to receive state aid from UK public authorities in accordance with the UK state aid rules.
This notice is one of a first round of 25 technical notices advising businesses and citizens on how to mitigate and plan the consequences if the UK and the EU do not reach a deal by Brexit day. These “no-deal” notices are a first part of 80 technical notices to be expected in the coming weeks and cover a broad range of areas.
