Court overturns CMA decision on excessive pricing 08.06.18
On Thursday 7 June, the UK Competition Appeals Tribunal (“CAT”) set aside the CMA’s 2016 decision which had determined that Pfizer and Flynn breached competition law by charging unfair prices for phenytoin sodium capsules. The CAT found that the CMA had “not correctly apply the legal test for finding that prices were unfair; it did not appropriately consider what was the right economic value for the product at issue; and it did not take sufficient account of the situation of other, comparable, products”. RBB acted for Pfizer throughout the CMA investigation and the appeal. The court found that RBB’s written evidence in expert testimony put forward by Derek Ridyard was “clear and persuasive”.
RBB expert testifies in interest rate manipulation case in Australia 25.05.18
RBB provided expert testimony in the Federal Court in Melbourne in November 2017 in relation to allegations from ASIC that Westpac manipulated the Bank Bill Swap Rate. An RBB team led by Simon Bishop and supported by George Siolis and Chris Whelan produced two expert reports responding to both ASIC’s allegations and expert reports produced for ASIC. A key point of disagreement was on whether the econometric analysis presented by Professor Putnins, one of ASIC’s experts, could be used to determine effects of the alleged manipulation. During the hearing, Simon Bishop testified in two hot tubs with experts acting for ASIC and was cross-examined on his expert evidence. The Federal Court judge Justice Jonathan Beach found that ASIC failed to show the trades amounted to market manipulation. Justice Beach agreed with Mr Bishop’s analysis on most points. The judgement is available here.
Public Interest Considerations and Competition Law – ABA Conference 30.04.18
The Antitrust Section of the American Bar Association (ABA) has organized a conference on Public Interest Considerations and Competition Law on the afternoon of Tuesday, May 8, 2018 in Düsseldorf. RBB Partner, Patrick Smith will speak on the second panel, which will examine the increased focus on public interest considerations in merger reviews. The conference addresses a topic of enormous practical significance, in light of increasing efforts in multiple jurisdictions—including the US and Europe—to strengthen governmental review of transactions on national security and other public interest grounds. Speakers will also examine actions taken under existing authority, such as the Edeka/Tengelmann grocery store merger in Germany and President Trump’s recent decision to block Broadcom’s proposed acquisition of Qualcomm.
Dow/DuPont, Qualcomm/NXP and Maersk Line/Hamburg Süd win at GCR Awards 13.04.18
Three mergers on which RBB Economics advised have been recognised at the recent Global Competition Review Awards 2018 in Washington, DC. Dow/DuPont, in which RBB worked with Cleary Gottlieb Steen & Hamilton and Skadden Arps Slate Meagher & Flom for the parties, was awarded Matter of the Year. The economics of the European Commission’s innovation theory of harm in that transaction are discussed in RBB Brief 54. Qualcomm/NXP, in which RBB worked with Quinn Emanuel Urquhart & Sullivan for Qualcomm, won European Merger Control Matter of the Year. Maersk Line/Hamburg Süd, in which RBB worked with Freshfields Bruckhaus Deringer, won the Asia-Pacific, the Middle East and Africa Merger Control Matter of the Year.
European Commission approves Essilor/Luxottica unconditionally, after a Phase II review 05.03.18
The European Commission has approved unconditionally the proposed merger between Essilor and Luxottica after a Phase II investigation. Essilor is a global manufacturer of ophthalmic lenses and owns brands such as Varilux, Crizal and Transitions. Luxottica is a global manufacturer of spectacle frames and sunglasses, and owns several brands such as Ray-Ban, Oakley and Persol. RBB Economics assisted both Parties in the context of this merger investigation.
At the end of its Phase I review, the Commission had raised concerns that the merged entity could engage in anti-competitive bundling or tying practices by using Luxottica’s brands to convince opticians to buy Essilor lenses, thereby foreclosing rival lens suppliers. The Commission also raised concerns in the opposite leveraging direction: that the merged entity could use Essilor’s brands to foreclose rival manufacturers of spectacle frames or sunglasses.
Following the submissions made by the Parties and RBB Economics during Phase II, which were confirmed by the Commission’s own market investigation, the Commission decided to clear the merger unconditionally. Since Commissioner Vestager is in office, only two other cases have gained clearance with no remedies after an in-depth review (FedEx/TNT, on which RBB Economics advised FedEx, and Siemens/Dresser-Rand).
RBB Economics is also advising the Parties on the merger’s filing in other jurisdictions, most of which have already resulted in an unconditional clearance.