Competition

On December 12, 2024, the U.S. Federal Trade Commission (FTC) authorized its staff to file a complaint against alcohol distributor Southern Glazer’s Wine and Spirits, LLC (“Southern Glazer’s”). The complaint alleges that the company engaged in price discrimination—charging higher prices to independent businesses and lower prices to large national and regional chains—in violation of Section 2(a) of the Robinson-Patman Act (“RPA”). The Commission voted 3-2 along party lines to file the lawsuit in federal district court, with the two Republican-appointed Commissioners—Commissioners Melissa Holyoak and Andrew Ferguson—issuing strongly worded dissenting statements (see here and here, respectively). Prior to this case, the federal antitrust agencies—the FTC and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”)—had not brought an enforcement action under the RPA in more than two decades.Continue Reading FTC Brings First Robinson-Patman Act Case in More Than Two Decades

Significant changes to the U.S. merger notification regime under the Hart-Scott-Rodino (“HSR”) Act are currently anticipated to go into effect on February 10, 2025, based on an update to the Federal Register publication schedule.

The Federal Trade Commission (“FTC”) announced the Final Rule implementing the changes to the HSR notification form on October 10, 2024…

Continue Reading New HSR Requirements Set to Become Effective on February 10, 2025

On October 10, 2024, the federal antitrust agencies finalized the most significant changes to the U.S. merger notification regime since the enactment of the Hart-Scott-Rodino (“HSR”) Act in 1976. The Final Rule—which was issued by the U.S. Federal Trade Commission (“FTC”) with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”) (together, “the Agencies”)—will significantly increase the burden on companies whose transactions must be notified to the Agencies pursuant to the HSR Act.Continue Reading FTC and DOJ Announce Final Rule Reshaping HSR Filing Requirements

In the past several months, two state courts in the District of Columbia and California decided motions to dismiss in cases alleging that the use of certain revenue management software violated state antitrust laws in the residential property rental management and health insurance industries.  In both industries, parallel class actions are pending in federal court alleging that the same software products facilitate per se illegal hub-and-spoke price-fixing conspiracies under Section 1 of the Sherman Act.  These two state court decisions may preview how federal courts handle similar questions in the federal cases.Continue Reading State Courts Dismiss Claims Involving the Use of Revenue Management Software in Residential Rental and Health Insurance Industries

Various national competition authorities (“NCAs”) are continuing to consider sustainability arguments in competition cases. However, NCAs are increasingly diverging in their approach as to whether, and to what extent, they are willing to allow sustainability considerations in the competition law framework. This blogpost highlights a few recent developments in jurisdictions on both sides of the Atlantic.Continue Reading Sustainability Agreements: Potential Divergence between Authorities

On April 27, 2023, the Commission presented its draft regulation on SEPs (“Draft SEPs Framework Regulation”, retrievable here).

Under the aegis of DG GROW, but in close consultation with DG COMP, the Commission seeks to address what some have perceived as lack of transparency and predictability in the licensing of SEPs.  The Commission had previously expressed its concern in its Intellectual Property (IP) Action Plan of 2020 and 2017 Communication and suggested that this situation could lead to a cumbersome and costly licensing process for both owners and implementers of SEPs.  The Commission sought feedback via a public consultation between February and April 2023.

The draft SEPs Framework Regulation would:

  • Establish a Competence Centre to register SEPs at the European Union Intellectual Property Office (“EUIPO”) and providing an electronic register and database with extensive information about SEPs;
  • Oblige the owners of SEPs to register any claimed SEP in the database;
  • Create additional essentiality checks through the Competence Centre;
  • Establish an out-of-court procedure to determine fair, reasonable, and nondiscriminatory (”FRAND”) conditions and aggregate royalties for use of a given standard.

Continue Reading Draft Regulation – The EU Commission Proposes a new Framework for the Licensing of Standard Essential Patents (“SEPs”)

On Episode 20 of Covington’s Inside Privacy Audiocast, Dan Cooper, Co-Chair of Covington’s Data Privacy and Cyber Security practice, and Christian Ahlborn, Partner in Covington’s Competition practice, discuss the recently enacted EU Digital Markets Act (DMA) in the first part of our “Competition and Privacy” mini series.

For more information on the DMA…

Continue Reading Inside Privacy Audiocast: Episode 20 – Competition and Privacy Series: The EU’s Digital Markets Act

On 22 June 2022, the EU’s General Court (“GC”) fully dismissed thyssenkrupp’s appeal against the European Commission’s (“Commission”) decision to block its proposed joint venture (“JV”) with Tata Steel in 2019.

This is the first time that the GC has considered the prohibition of a “gap” case under the EU Merger Regulation (“EUMR”) since it annulled the Commission’s prohibition of CK Hutchison’s proposed acquisition of Telefónica UK (O2) in 2020 (“CK Hutchison”) (see our previous blog post here). A “gap” case is a merger in an oligopolistic market that does not result in the creation or strengthening of an individual or collective dominant position. Rather, it risks causing a “significant impediment to effective competition”.

This result may indicate a return to a more traditional approach by the GC as regards “gap” cases than that demonstrated in the CK Hutchison judgment. The judgment also provides helpful guidance on the interpretation of the EUMR and other legal instruments (such as the Market Definition Notice and the Notice on Remedies). The key findings are:

  • Standard of proof: In order to block a “gap” merger, the Commission must show with a sufficient degree of probability that the transaction significantly impedes effective competition in the internal market or in a substantial part of it.
  • SSNIP test: The Commission is not required to apply the SSNIP (small but significant and non-transitory increase in price) test when assessing substitutability between products — it is only one of the methods available to the Commission when defining the market.
  • Remedies: When assessing remedies, it is not necessary to demonstrate that the remedies remove the entire overlap between the merging parties or re-create fully the pre-merger structure in affected markets.
  • Requests for Information (“RFI”): There is no procedural error where the Commission fails to take additional steps (beyond sending systematic reminders) to ensure that recipients respond to an RFI.

Continue Reading EU General Court Upholds Tata Steel/thyssenkrupp JV Prohibition

The UK’s NSI Act comes into force on January 4th, 2022. In these brief audio recordings, our team sets out what companies in the energy, life sciences and technology sectors need to know about the UK’s newly expanded investment control regime. For further details contact any member of our London team.

In this episode, our…
Continue Reading The UK’s National Security and Investment Act Audiocast Series: Episode 3 – Technology

The UK’s NSI Act comes into force on January 4th, 2022. In these brief audio recordings, our team sets out what companies in the energy, life sciences and technology sectors need to know about the UK’s newly expanded investment control regime. For further details contact any member of our London team.

In this episode, our…
Continue Reading The UK’s National Security and Investment Act Audiocast Series: Episode 2 – Life Sciences