PRESS REPORTS

REPORT BY LAW360© DOJ official defends foreign antitrust enforcement By Jimmy Hoover Law360, Washington

A top official in the US Department of Justice’s James Fredricks, a top official in the division’s joint ventures,” Fredricks said. “There’s no Antitrust Division fought back at criticism of appellate section, said Wednesday at an event way Congress could have provided a mecha- its loose enforcement of US competition laws at George Washington University Law School. nical role.” abroad, saying Monday that the agency needs … … the flexibility to assess each case’s circums- According to panelist Michael Spafford, a tances. Speaking to the GWU audience Monday via partner at Paul Hastings LLP, the new standard teleconference, US Circuit Judge Diane P. Congress curtailed the federal government’s reaches beyond the original text of the FTAIA, Wood, who authored the opinion adopting ability to prosecute antitrust violations occur- which explicitly called for a “direct” cause. the proximate cause standard for the Seventh ring outside the US when it passed the Foreign “If they meant proximate cause, they would Circuit, said the court did not think the Ninth Trade Antitrust Improvements Act of 1982. have put it in the statute,” Spafford said. Circuit’s immediate consequence standard However, it also provided exceptions for conduct “would not be a good definition” for “direct” … that has a direct effect on domestic markets. under the statute given additional requirements During the panel, Fredricks suggested that by the FTAIA. Under that exception to the FTAIA, the Anti- clarity was unrealistic given the variety of trust Division has now stretched its foreign On the possibility of the Supreme Court conduct prohibited by the antitrust laws. reach to conduct that proximately causes resolving that disagreement some time in domestic effects—a new standard that helps “There could be all kinds of different conduct the future, Judge Wood said, “That of course the agency weigh multiple aspects of a case, from price-fixing to exclusionary conduct to would be fine.”

Read the full article on Law360.

REPORT BY MLEX© Courts aren’t the right place for international comity arguments, appeals court judge says By Leah Nylen

Courts aren’t the right venue to weigh inter- …. governments, including Japan, South Korea national comity considerations raised by and Belgium, submitted briefs urging the court Speaking on a different panel at the same companies or other defendants, the chief conference, James Fredricks, assistant chief against an expansive view of when plaintiffs judge of a US appeals court and leading anti- of the DOJ’s Antitrust Appellate Section, can seek damages because of comity concerns. trust expert said Monday. emphasized that the agency is cognizant of …. Defendants would do better to argue to the comity issues. “International comity is at the US Congress that it should change the law forefront of our thinking in these cases,” he “The ability to get to foreign commerce exists or to the executive branch that it should exercise said. for the government,” she said. “To the extent prosecutorial discretion, such as by not pursuing In her remarks, Wood also addressed a this reveals a wedge between private enfor- antitrust cases related to foreign conduct if it November 2014 decision by her court that cement and government enforcement, which is also being punished by a foreign regulator, prohibited Motorola Mobility from pursuing it does, it seems to me it’s Illinois Brick that said Chief Judge Diane Wood of the US Court antitrust damages for purchases made by its creates the wedge and not the FTAIA – and of Appeals for the Seventh Circuit. foreign subsidiaries. In that case, several foreign certainly not the Seventh Circuit.”

Read the full article on MLex.

EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE REPORTS BY GLOBAL COMPETITION REVIEW© DOJ lawyer defends Agency’s reading of FTAIA By Pallavi Guniganti

The “proximate cause” interpretation of the are placing them where private plaintiffs areas of law taught to first-year law students. Foreign Trade Antitrust Improvements Act aren’t happy.” The FTAIA has the difficult job of limiting the advocated by the Department of Justice is a Paul Hastings partner Michael Spafford, flexible yet familiar standard for courts to apply, reach of the Sherman Act, even though the however, took issue with the DOJ’s desire for the assistant chief of the appellate section in Sherman Act itself is broadly written and covers the DOJ’s antitrust division said yesterday. flexibility, which he said is in tension with busi- a variety of conduct, Fredricks said. nesses’ ability to be certain about what the ... James Fredricks, who argued for the govern- law is. Such certainty promotes compliance ment in the Motorola Mobility litigation and and enables lawyers to explain to clients where “We brought our LCD cases in the Ninth Circuit, has co-authored amicus briefs in other cases the lines between legal and illegal conduct which applies the stricter ‘immediate dealing with the FTAIA, spoke on a panel lie, he said. consequences’ standard, and we were comfor- discussing “new meanings for direct effect table doing that,” he said. “We never thought and causation” at a conference on the extra- The “proximate cause” standard of the FTAIA, ‘immediate consequences,’ properly under- territoriality of antitrust law. under which foreign conduct is deemed to stood, meant immediacy in a temporal sense.” have a “direct” effect on the US and thus ... The division cares about how the Act is inter- come within the antitrust laws, is an example preted by courts because when the DOJ brings of such flexibility, Spafford said. Fredricks and Spafford were joined on the actions, it carefully considers the implications ... panel by Camilla Holtse, chief legal counsel for the US’s relations with foreign nations, for shipping company Maersk, and David Rodi, Fredricks agreed that in some ways, the proxi- Fredricks said. Shell Oil senior legal antitrust counsel. The mate cause test gives flexibility, but said it is ... discussion was moderated by Paul Hastings not a new concept invented by the DOJ. The antitrust division is “not always advo- partner Jeremy Evans and was part of a cating for a maximalist reach” of the antitrust “Proximate cause should be familiar to everyone conference hosted by George Washington laws, he said, and “oftentimes we are helping who went to a US law school,” he said. It is University law school and Concurrences. The to describe the limits, and sometimes we a prominent part of torts liability and other event ended yesterday.

Courts are wrong audience for comity arguments, says Judge Wood By Pallavi Guniganti

Judge Diane Wood, formerly an attorney at The decision to prosecute a foreign corpo- “If you look at 130 antitrust laws, it’s hard to the Department of State and a deputy assis- ration represents the executive branch’s decision find one that relies the way US does on private tant attorney general in the Department of that such prosecution will further US interests, enforcement,” she said of the many jurisdic- Justice’s antitrust division, gave the keynote Judge Wood said, and it is not for the court tions that have developed competition regimes. to a conference on the extraterritoriality of to consult with interested entities about whether “There has never been a time the internatio- antitrust law in the US and abroad. the case should have been brought despite nal dimensions have been more interesting.” Calling the Foreign Trade Antitrust Improve- other governments’ opposition. Judge Wood acknowledged that recent Supreme ments Act “a miracle of bad drafting,” she “I’m not fond of the word ‘never’, but it is Court decisions may have increased the diffi- discussed how the courts had interpreted its extremely difficult to ask a court to be the culty of private enforcement, such as the requirement that foreign commerce have a institution that administers comity,” she said. Twombly ruling that required antitrust plaintiffs direct, substantial and foreseeable effect in to make a “plausible” factual claim in their the US to be caught by the US antitrust laws. ... complaints. She said Justice David Souter’s ... The Illinois Brick Supreme Court precedent choice of that word was “unfortunate” because prohibiting such lawsuits is well established, the court is not supposed to determine litigants’ She said non-judicial actors can urge Congress credibility on a motion to dismiss. to change laws, and the executive branch and but it does not apply to government litigation, Federal Trade Commission to exercise prose- which is why the DOJ could prosecute AU ... cutorial discretion due to foreign relations, and Optronics criminally for price fixing. Judge Wood spoke at a conference held at keep litigation from occurring in the first place. If this difference puts a wedge between govern- George Washington University law school, which But once a case shows up in federal court, ment and private enforcement, Judge Wood was co-sponsored by Concurrences, Axinn she said, judicial comity is “a very difficult thing said, it was Illinois Brick and not the FTAIA Veltrop & Harkrider, O’Melveny & Myers and to give reality to.” that created the wedge. Paul Hastings. The event ended yesterday.

Read the full articles on Global Competition Review.

EXTRATERRITORIALITY OF ANTITRUST LAW IN THE US AND ABROAD: A HOT ISSUE Antitrust Writing Board Awards 2016

Douglas H. GINSBURG, George Mason University Frédéric JENNY, OECD Competition Committee William E. KOVACIC, George Washington University Law School Andreas MUNDT, Bundeskartellamt - ICN Edith RAMIREZ, Federal Trade Commission Stanley WONG, Hong Kong Competition Commission Joshua WRIGHT, George Mason University Law School

Business Steering Committee

Andrea APPELLA, 21st Century Fox Rosie LIPSCOMB, Google Timothy BOYLE, Eaton Corporation Jenni LUKANDER, Nokia Marc BROTMAN, Pfi zer Robert MAHNKE, PayPal Charles CAVALLO, Tesoro Tilman MAKATSCH, Deutche Bahn Olaf CHRISTIANSEN, Bertelsmann Gabriel MCGANN, The Coca-Cola Company Danielle CLARK, Hewlett-Packard James MURRAY, Intel Anna ROSA, SanDisk Gil OHANA, Cisco Martin DAJANI, Etihad Airways Johanne PEYRE, Pearson Ben GRAHAM, AB In-Bev Anne RILEY, Shell International Wolfgang HECKENBERGER, Siemens Greg SIVINSKY, Microsoft Mathew HEIM, Qualcomm Abigail SLATER, Internet Association Camilla HOLTSE, Maersk Dominique SPEEKENBRINK, ABB Dina KALLAY, Ericsson Suzanne WACHSSTOCK, American Express Gail LEVINE, Verizon

Academic Steering Committee

Caron BEATON-WELLS, Melbourne Law School Joseph HARRINGTON, Wharton School, William PAGE, Levin College of Law Margaret BLOOM, King’s College London University of Pennsylvania Simon ROBERTS, University of Johannesburg Michael CARRIER, Rutgers Law School Angela HUYUE ZHANG, King’s College London Daniel RUBINFELD, New York University School of Law Andy CHEN, Chung Yuan Christian University Keith HYLTON, Boston University School of Law Marius SCHWARTZ, Georgetown University Daniel CRANE, University of Michigan Law School Alison JONES, King’s College London Tadashi SHIRAISHI, University of Tokyo Josef DREXL, Max Plant Institute Kai-Uwe KÜHN, University of Michigan Daniel SOKOL, University of Florida Levin College of Law Nicholas ECONOMIDES, NYU Stern Mark LEMLEY, Stanford Law School Florian WAGNER-VON PAPP, University College London Einer ELAUGHE, Harvard Law School Christopher LESLIE, Law School Spencer WEBER WALLER, Loyola University of Chicago Harry FIRST, New York University School of Law at University of California Xyaoie WANG, Chinese Academy of Social Sciences Amelia FLETCHER, University of East Anglia Ioannis LIANOS, University College London Mark WILLIAMS, University of Melbourne Eleanor FOX, New York University School of Law Leslie MARX, Duke University Wouter WILS, King’s College London Michal GAL, University of Haifa Ian McEWIN, University of Malaya Frank WOLAK, Stanford University Andrew GAVIL, Howard University School of Law Doug MELAMED, Stanford Law School Tim WU, Columbia Law School David GERBER, Kent College of Law, Chicago University Avivo NEVO, Northwestern University Huang YONG, UIBE www.awards.concurrences.com Antitrust Writing Awards 2016

Washington DC, 5 April 2016

Select the best antitrust articles published in 2015

Free access to 100 academic and business articles

Read the most innovative soft laws issued in 2015

www.awards.concurrences.com