The American Bar Association (ABA) Section of Antitrust Law Spring Meeting concluded earlier this month with the traditional “Enforcers’ Roundtable,” an interview with leading competition authorities about recent highlights, ongoing cases, enforcement priorities and general trends.
This year’s participants were Bill Baer, U.S. Assistant Attorney General for Antitrust; Edith Ramirez, Federal Trade Commission (FTC) Chairwoman; Kathleen Foote, Chair of the Multistate Antitrust Task Force of the National Association of Attorneys General; Margrethe Vestager, E.U. Commissioner for Competition; and Lord David Currie, Chairman of the one-year old UK Competition and Markets Authority (CMA). Below is a summary of certain highlights from the discussion.
Recent Domestic Achievements and Enforcement Priorities
Ramirez touted the FTC’s recent U.S. Supreme Court victory in North Carolina Board of Dental Examiners[1], in which the court held that a state licensing board was not entitled to state action immunity because active market participants controlled the board, and the board was not subject to active supervision by the state. Foote noted that states are currently taking steps to ensure compliance with this ruling.
Ramirez also highlighted the FTC’s current efforts to challenge the merger between the nation’s two largest food distributors, Sysco and US Foods. Foote noted that the Sysco/US Foods[2] case is a multistate effort, with 11 state attorneys general collaborating with the FTC.
Enforcement in the pharmaceutical industry, especially pertaining to reverse payment settlements, is a priority, panelists stated. Ramirez discussed the FTC’s ongoing litigation in three reverse payment settlement cases. She noted that in the aftermath of the Supreme Court’s ruling in Actavis[3], the FTC posits that non-monetary payments, such as supply agreements, could constitute reverse payments and thus be subject to antitrust scrutiny.
Foote remarked that reverse payment settlements are also a major state focus, pointing to the recent settlement between the New York Attorney General and two generic pharmaceutical companies, Ranbaxy Pharmaceuticals Inc. and Teva Pharmaceuticals USA Inc.
Global Cartel Enforcement: a Record-Breaking Year
Baer and Vestager highlighted the increasing number and severity of fines imposed on companies engaged in price-fixing, as well as prison sentences imposed on executives in the U.S. In recent years, enforcers have scrutinized conduct in a range of industries, including financial services, agriculture, ocean shipping, consumer goods and the auto parts industry.
Baer indicated that cartel enforcement accounts for more than 40 percent of the Antitrust Division’s work. Vestager noted that the European Commission (EC) rendered 10 decisions related to cartel activity in 2014, including eight settlements. She noted that settlements are part of the EC’s “toolbox,” but the EC would continue rendering infringement decisions to develop case law.
In contrast to the U.S. Department of Justice (DOJ) and the EC, Currie said that the CMA’s 2014 cartel record was not as strong as he would have liked and that the CMA received a recent budget increase in part to enhance enforcement efforts.
International Enforcement Cooperation
Each of the panelists praised the quality of international cooperation among antitrust agencies. Vestager said that 60 percent of complex merger cases require cooperation and coordination with other competition authorities, including on remedies. Notwithstanding such cooperation, Vestager noted that in some cases law enforcement authorities in different jurisdictions appropriately reach different conclusions about conduct, often because of differences in the nature of the markets and the framework for assessing markets and conduct.
Baer and Vestager both stressed the importance of information sharing in cartel investigations to coordinate dawn raids. They also noted the increased tendency of younger competition authorities to confer with the DOJ and EC when carrying out their own cartel investigations.
Panelists also reported cooperation and regular communication with Chinese competition authorities. Baer said that the DOJ had secured agreements from China to guarantee fairness as well as equal treatment of Chinese and foreign companies in antitrust investigations.
New Technologies and New Challenges
Panelists discussed the balance between encouraging innovation and new technologies on the one hand and regulating disruptive business models on the other. Panelists said that antitrust agencies must make sure they fully understand new markets and technologies before playing an advocacy role. Panelists agreed that their role was to urge local policy and lawmakers to draft legislation strictly tailored to competition concerns.
Foote specifically referred to Uber as an example of a disruptive business model that benefitted from the absence of regulation when it first entered the market. Foote cited Airbnb in highlighting the difficulty states have of balancing freedom of competition with police powers.
Ramirez announced that the FTC will host a workshop on June 9, 2015 looking at online and mobile peer-to-peer business platforms.
[1] North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).
[2] In the Matter of Sysco Corporation, a corporation; USF Holding Corp., a corporation, and US Foods, Inc., a corporation, Docket No. 9364.
[3] Federal Trade Commission v. Actavis, Inc., 133 S.Ct. 2223 (2013).
