Antitrust Update Scott Sher Lisa Davis January 24, 2005 Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Agenda Brief Overview of the Antitrust Laws Sales and Pricing Issues Antitrust and M&A Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Sherman Act Section 1: Illegal Agreements Per Se Violations : • Price Fixing or Bid Rigging by Competitors • Minimum Resale Price Fixing with Customers • Allocating Products, Territories or Customers by Competitors • Tying (but not technology bundling a la Microsoft) • Group Boycotts (but not mfr conspiring with disti re another) Rule of Reason Otherwise Governs • E.g., non-price vertical restraints on channel involving territories, customers; similar restriction on sub-licenses Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Section 2 of the Sherman Act Unilateral offense • Possession of monopoly power – The power to control prices or eliminate competition • In a relevant market • Willful acquisition or maintenance of that power OK if power acquired via skill, industry or foresight OK if maintained by reasonable, non-predatory industrial practices Attempted monopolization Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Sales and Pricing Issues Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Refusals to Deal Unilateral refusals to deal generally permissible Even a monopolist is not required to deal • Trinko v. Verizon – Necessity of past dealing with competitor – Need to have forsaken short-term profit? But a monopolist still may not engage in predatory or exclusionary conduct to “willfully maintain” monopoly or in attempt to monopolize a second market (specific intent, dangerous probability of success) Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Exclusive Dealing/Licensing Generally permissible under rule of reason: • But… purpose and competitive effects matter. • Watch out if you tie up a substantial percentage channel with exclusive dealings contracts (e.g., > 30%) Important factors: • Degree of Exclusivity, Foreclosure, Length of Agreement, Pro-competitive Effects, Less Restrictive Alternatives Recent Government Loss: U.S. v. Dentsply (currently on appeal) Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Concerted Refusal to Deal/Group Boycott An agreement between competitors not to deal with a particular supplier or customer Generally need market power and anticompetitive effect Examples: • Organizing an agreement among customers not to purchase products from a competing provider • Agreeing with competitors not to sell to a particular buyer or category of buyers • Colluding to exclude a competitor from SSO or trade association Also falls within unfair competition, business torts Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Tying/Bundling Bundling the Sale of Products Itself is not Illegal What is Illegal Tying? – Conditioning the sale or license of one product or service on the purchase or license of another, disfavored product or service – Market power in the tying product (>50%) – Anticompetitive effects – Includes either actual or economic tying Discount bundling may also raise antitrust issues – Key Decision: 3M v. LePage’s (3rd Cir. 2003) “Reverse Tying” also Illegal: • Conditioning the sale of one product on the agreement not to buy someone else’s product(s) Special problems of ‘technology tying’, e.g., Windows + browser – Key Decision: Microsoft (D.C. Cir. 2002); EC remedies 12/04. Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Resale Price Maintenance (vertical price fixing) You cannot agree with a distributor/reseller on the resale price to be charged customers Minimum (never) or maximum (sometimes)? You can: • Set prices unilaterally (Colgate) • Suggest prices • Control pricing by agents/brokers/consignees Same issues apply to MAP and Co-op Advertising programs Policing can lead to collusion among resellers Bigger problem if you compete against your reseller Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Robinson-Patman Act General Rule: Providing competing customers with different prices, or promotional incentives or allowances for the same product is unlawful • Buyers can be liable as well Price Discrimination Elements: • Sales to two different competing buyers on different price, discount or promotional terms • Sales close in time • Identical or similar products • Disfavored buyer and competition are injured as a result Several Technical Defenses • Available to all customers; meeting competition; cost justification; changing circumstances/obsolescence; product must be intended for U.S. use; competitors must show below cost pricing Key Issue: Terminated Dealers use R-P Act offensively Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Antitrust and M&A Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION String of Recent Government Defeats Oracle (DOJ 2004) • Demise of unilateral effects doctrine Dairy Farmers of America (July 2004) • Proof of anticompetitive effects required even in merger Sec. 7 case Arch Coal (FTC 2004) • Despite evidence of customer concern, Court rejected danger of tacit coordination. Sungard (DOJ 2001) • Government’s market definition rejected in bankruptcy context Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION Recent Government Enforcement in High Tech Chicago Bridge • Jan. 7, 2004: FTC affirms ALJ decision unwinding deal; dramatic remedies • Cleared after HSR review, then reopened Aspen Tech / Hyprotech • Not HSR Reportable (2 year investigation) • Complete divestiture of acquired products • Divest own product needed to support divested products • Commitment to support interoperability Genzyme / Novazyme • Not HSR Reportable (2+ year investigation into an R&D merger) • Big decision for innovation competition doctrine Client MCLE Day Wilson Sonsini Goodrich & Rosati PROFESSIONAL CORPORATION.