Yesterday, the European Commission published its proposals for the Digital Markets Act (“DMA Proposal”) and Digital Services Act (“DSA Proposal”), proposing new regulation of “intermediary services” and “designated gatekeepers”. The proposals would impose new obligations on providers of digital services and augment enforcement powers. Continue Reading
Expansion of the Procurement Collusion Strike Force
Just over a year after launching the Procurement Collusion Strike Force (“PCSF”), the U.S. Department of Justice’s Antitrust Division (“DOJ”) announced new measures to further its pursuit of antitrust and related crimes in government procurement, grant, and program funding. These changes expand the PCSF’s enforcement capacity and signal DOJ’s enduring—and intensifying—commitment to the PCSF’s mission.
The PCSF has added 11 new national partners: the Department of Homeland Security Office of the Inspector General, the Air Force Office of Special Investigations, and nine new U.S. Attorneys. As a result, the growing PCSF coalition now includes 29 agencies and offices, including U.S. Attorneys in 22 federal judicial districts; the Federal Bureau of Investigation; and Offices of Inspectors General at six federal agencies. The PCSF also named the Antitrust Division’s Daniel Glad as the Strike Force’s first permanent director, solidifying the PCSF’s institutional role at DOJ. Glad previously served as an Assistant Chief at the Antitrust Division’s Chicago Office. Continue Reading
Antitrust Division Brings First Criminal Wage-Fixing Charge
On December 10th, the Antitrust Division of the U.S. Department of Justice announced its first criminal indictment targeting an alleged conspiracy to reduce employee wages. The DOJ charged the former owner of a therapist staffing company with conspiring to reduce pay rates for healthcare worker contractors, but did not charge the company itself. Specifically, the indictment alleges that, for a six-month period in 2017, the defendant and his co-conspirators exchanged non-public information on rates paid to healthcare workers; discussed and agreed to decrease rates paid to healthcare workers; implemented rate decreases in accordance with their agreement; and paid healthcare workers at collusive and noncompetitive rates. The indictment alleges that the defendant’s behavior constitutes a per se violation of the antitrust laws and seeks penalties including fines and potential imprisonment. The indictment also includes an obstruction of justice charge, stemming from allegedly false or misleading information the defendant provided the Federal Trade Commission during the agency’s investigation of the same subject matter. Continue Reading
Presentation of the results from the Covington/Brussels School of Competition immunity and leniency survey 2020
We recently presented to DG COMP the findings of the immunity and leniency survey 2020, which was conducted jointly by Covington and the Brussels School of Competition. The survey ran from December 2019 to March 2020 and asked competition law practitioners, enforcers and in-house counsels to share their observations on the perceived decline in immunity and leniency applications in the EU.
GCR’s interview discussing the results of the survey with Johan Ysewyn and Maria Jaspers (Director of Cartels at DG COMP) can be found here. Covington Competition blog readers can access the slidedeck which presents the results from the survey here.
UK Supreme Court lowers the bar for collective actions
The UK Supreme Court has today ruled in favour of Walter Merricks, the former head of the UK Financial Ombudsman Service., in a hotly-anticipated judgment in the first opt-out competition class action brought in the UK.
Background
Mr Merricks is the proposed class representative for 46.2 million people who, between 22 May 1992 and 21 June 2008, purchased goods and/or services from businesses in the UK that accepted MasterCard cards. Mr Merricks has valued that claim at in excess of £14 billion (and this sum will likely now be even greater, with interest having continued to run since the claim was filed in September 2016). Our commentary on the earlier Court of Appeal decision in the case, with which the Supreme Court largely agreed, can be found here. Continue Reading
UK CMA Published Recommendations for the Regulation of Digital Markets
The UK Competition and Markets Authority (“CMA”) has published advice to the UK Government on the design and implementation of a new regulatory regime for digital markets. The new regime, if implemented, will apply to certain digital businesses that are designated as having Strategic Market Status, or “SMS”. It will provide for ex ante regulation that governs the conduct of key aspects of SMS firms’ activities, including a mandatory merger filing regime for SMS firms. The new regime will be administered by a new Digital Markets Unit (“DMU”) that will sit within the CMA.
The CMA’s recommendations are released at a time when scrutiny of, and regulatory changes for, digital markets are common across a number of jurisdictions. This includes the EU where the Digital Services Act and Digital Markets Act are expected to be published before Christmas. This blog post highlights some key elements of the proposed new digital markets regime. Continue Reading
Brexit On-Demand Webinar – The CMA after the Brexit Transition Period
Covington’s Brexit Task Force is pleased to offer the next installment in a series of on-demand briefings focused on the impact of Brexit on business.
The CMA after the Brexit Transition Period
In this briefing, James Marshall and Thomas Reilly discuss the impact of Brexit on the future role of the UK CMA and highlight trends in competition enforcement in the UK. Click here for the on-demand briefing.
Foreign Direct Investment – German Government Prohibits Acquisition By A Chinese Buyer
On 2 December 2020, the German government prohibited the acquisition of German company IMST GmbH, Kamp-Lintfort (“IMST”) by a Chinese investor. This is the second high profile prohibition decision issued by the German government this year on the grounds of Foreign Direct Investment (“FDI”) rules. Read in conjunction with the upcoming legislative tightening of the existing Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, the German FDI law), expected to come into force during Q1 / 2021, and other measures like the ‘golden share’ taken in Curevac (a company heavily invested in Covid-19 research), the IMST decision demonstrates the mounting willingness by Germany to step in and protect what it perceives to be its national interests. Continue Reading
General Court partially annuls dawn raid decisions
In three related judgments of October 5, 2020 (T-249/17, T-254/17 and T-255/17) the General Court (the “GC”) partially annulled European Commission inspection decisions which were the basis for dawn raids on several French retailers. The judgments further develop the position adopted in Czech Railway and Nexans where the GC confirmed that, to launch an inspection (also more commonly referred to as a “dawn raid”), the European Commission (the “EC”) needs to have “reasonable grounds” for suspecting an infringement. Continue Reading
UK FDI: National Security and Investment Bill is Published
Major Development in UK Foreign Investment Law and Policy
The UK government has published long-awaited draft legislation that, if made law, will introduce significant new powers to scrutinise Foreign Direct Investment (“FDI”). The National Security & Investment Bill (the “NSI Bill” or the “Bill”), is proposed to introduce mandatory filing obligations and pre-clearance requirements for all transactions in the most sensitive sectors, irrespective of transaction value and without the application of any other de-minimis thresholds. Continue Reading
