Wednesday, June 15, 2011

Recent Merger Cases Demonstrate International Cooperation: Antitrust Division Official

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

At the second annual Chicago Forum on International Antitrust Issues on June 9, Rachel Brandenburger, special advisor for international matters at the Department of Justice Antitrust Division, cited four recent merger cases as examples of successful international cooperation among enforcement agencies.

The 2010 review of the Cisco/Tandberg merger was described as a model of cooperation between the United States and the European Commission (EC). In that matter, the Department of Justice Antitrust Division decided not to challenge Cisco Systems Inc.'s acquisition of videoconferencing competitor Tandberg ASA (Trade Regulation Reporter ¶50.251) based at least in part on the commitments that Cisco had made to the EC.

Brandenburger also cited the Antitrust Division’s efforts with the Canada Competition Bureau to put together an antitrust remedy for ticket seller Ticketmaster Entertainment, Inc.’s acquisition of concert promoter Live Nation, Inc. A 2010 consent decree (2010-2 Trade Cases ¶77,113) resolved U.S. antitrust concerns by ordering divestitures and behavioral restrictions. The same day the Justice Department announced its proposed relief, the Canada Competition Bureau announced that a consent agreement was filed with the Competition Tribunal to resolve that country's concerns over the combination.

The recent clearance of the acquisition of software patents and patent applications from the software company Novell Inc. by a joint venture consisting of Microsoft Inc., Oracle Inc., Apple Inc., and EMC Corp. was also discussed. In April, both the Antitrust Division and Germany’s Bundeskartellamt announced that the joint venture, CPTN, could proceed with the first phase of the acquisition after addressing competition concerns through divestitures. Brandenburger noted that the review marked the first time in 20 years that the Antitrust Division worked with Germany’s Bundeskartellamt on a merger. The close cooperation between the Antitrust Division and the Bundeskartellamt was aided by waivers from the parties that enabled the agencies to exchange otherwise confidential information.

Brandenburger also pointed to a transaction resolved just last month. In May, the Antitrust Division announced that Unilever N.V. agreed to divestitures intended to preserve competition in certain hair care product markets to resolve U.S. antitrust concerns over its proposed $3.7 billion acquisition of Alberto-Culver Company (Trade Regulation Reporter ¶50,992). In announcing the settlement, the Justice Department said that it cooperated with the United Kingdom Office of Fair Trading, the Mexico Federal Competition Commission, and South Africa's Competition Commission in conducting the investigation.

Outside the merger area, the ongoing investigation of cartel activity in the air transportation industry is an example of anti-cartel cooperation with competition authorities on five continents, according to Brandenburger.

Chicago Forum on International Issues

The Chicago Forum on International Antitrust Issues was held June 9-10 at Northwestern University School of Law. Billed as “a premier Midwest conference examining the latest developments in competition regulation around the globe,” the program featured presentations on antitrust enforcement in the U.S., Canada, Mexico, Europe, and the BRIC countries (Brazil, Russia, India, and China), among other jurisdictions.

Government speakers included FTC Commissioner William E. Kovacic and representatives from the Canada Competition Bureau and the Mexico Federal Competition Commission.

Further information regarding the annual conference is available here.

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