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6 Trends in Global Antitrust M&A, and How General Counsel Can Deal with Them

Today, companies looking to merge with others across jurisdictions would do well to consider antitrust issues at the beginning of the transaction process; regulatory antitrust challenges to M&A are increasing globally. On Corporate Counsel, McDermott partners Jon B. Dubrow and Joel R. Grosberg discuss six risks to deals from antitrust regulators, such as vertical merger enforcement changes at the US DOJ, and ways to manage them. Access the full article.

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Supreme Court Clarifies Principles of International Comity in Vitamin C Ruling

Alert: The Supreme Court clarified the principles of international comity this week in a ruling pertaining to the long-running vitamin C antitrust class action litigation. International comity is the recognition a nation shows to the legislative, executive or judicial acts of another nation. Principles of comity state that US courts should defer to the laws of other nations when actions are taken pursuant to those laws. In this week’s ruling, Justice Ginsberg wrote that federal courts should accord respectful consideration to foreign government submissions when analyzing comity issues, but are not bound by them. This ruling vacates the Second Circuit’s decision in the case overturning the jury verdict for the class, and is a win for the class of US purchasers of vitamin C. Background In 2005, US purchasers of vitamin C filed a class action suit against four Chinese manufacturers who make the vitamin product in China and export it to the US. The US purchasers...

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China to Consolidate Antitrust Law Enforcement Power

The Chinese government announced on March 13, 2018, that it will consolidate the duties of three competition agencies into a new government agency to handle all antitrust matters. While it is too early to tell how this reorganization will impact China’s review of transactions and conduct cases, we believe that this change could lead to greater consistency and potentially more experienced attorneys reviewing competition matters. Access the full article.

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Enhanced Sharing of Antitrust Evidence: New EU/Japan Cooperation Agreement

On 15 March 2016, the Japan Fair Trade Commission (JFTC) and the European Commission (Commission) announced their intention to upgrade the current antitrust co-operation agreement between Japan and the European Union. The upgrade will have a number of practical and legal implications for companies involved in international antitrust investigations or considering making leniency applications. The review is understood to focus primarily on the facilitation of exchanges of information and evidence between the JFTC and the Commission. If the negotiations prove successful, it would be the second time that each of the agencies has entered into a “second generation” co-operation agreement.  The JFTC entered into a second generation co-operation agreement with the Australian Competition and Consumer Commission in April 2015 and a second generation agreement between the European Union and the Swiss Confederation was signed in May 2013. Background One of the key...

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Top Antitrust Enforcers Respond to Congressional Questioning

Federal Trade Commission (FTC) Chairwoman Edith Ramirez and Assistant Attorney General William Baer testified before the House Committee on the Judiciary’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law on May 15, 2015. The oversight hearing provided an opportunity for the heads of the U.S. antitrust enforcement agencies to survey their agencies’ priorities and recent achievements. The two agency heads also faced congressional questions on a variety of topics ranging from proposed reforms to the FTC’s merger review process to the alleged unfair targeting of foreign firms by Chinese antitrust authorities. In her prepared testimony, Chairwoman Ramirez reviewed her agency’s recent activity, emphasizing especially recent U.S. Supreme Court and appellate court victories. She reiterated the agency’s strategic focus on core areas of concern, including health care, where the agency continues to review health care provider and pharmaceutical industry...

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Chinese Magnesite Producers Antitrust Class Action Complaint Dismissed

On July 24, 2014, the district court in Animal Sci. Prod., Inc. et al. v. China Nat’l Metals & Minerals Imp. and Exp. Corp. et al., Case No. 2:05-cv-04376 (D.N.J.), dismissed direct purchaser plaintiff’s Amended Complaint without prejudice in favor of magnesite producers accused of engaging in a price fixing scheme for magnesite and magnesite products sold in the United States.  The court found that the direct purchaser plaintiff, Resco, did not plausibly plead facts to establish antitrust standing as a direct purchaser.  The analysis was complicated by the fact that Resco inherited its claim from an assignor, Possehl (US), and the Amended Complaint contained no facts supporting the allegation that Possehl made direct purchases from the defendants.  The court recommended amending the complaint to identify specific transactions and the governing agreements for those purchases. The dismissal is another setback for the plaintiffs, who filed suit in 2005...

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MOFCOM Asks Second Circuit to Reverse Judgment Against Chinese Vitamin Manufacturers

On April 14, 2014, China’s Ministry of Commerce (MOFCOM) filed an amicus brief asking the Second Circuit to overturn a ruling by the Eastern District of New York against Chinese vitamin manufacturers.  See Brief for Amicus Curiae Ministry of Commerce of the People’s Republic of China in Support of Defendants-Appellants, In re Vitamin C Antitrust Litigation, No. 13-4781 (2d Cir. filed Apr. 14, 2014).  The lower court rejected the defendants’ argument that the challenged conduct was required by Chinese law and refused to dismiss the case.  The case was later tried by a jury and ultimately resulted in a $157 million judgment against the defendants. As MOFCOM recounted in its brief, the Chinese agency has been involved in the litigation since 2006, when it filed its first amicus brief in support of defendants’ motion to dismiss.  MOFCOM explained that beginning in 1997, it required the defendants to participate in a Vitamin C Subcommittee in order to obtain...

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China’s Latest Enforcement of the Anti-Monopoly Law and Price Supervision/Regulation

by John Z.L. Huang,  Alex An, Bryan Fu and Cook Xu China's National Development and Reform Commission (NDRC) recently outlined its latest efforts in the enforcement of the Anti-Monopoly Law and price supervision.  This newsletter summarizes the noteworthy information NDRC disclosed. Click here to read the full article.

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China’s MOFCOM Launches Electronic Merger Filing System

Beginning on October 28, 2013, all merger control cases before China's Ministry of Commerce (MOFCOM) will have to be filed, and only be filed, in electronic form.  In the past, it was required by MOFCOM to provide both hard and soft copies (i.e., paper or scanned copies) of all materials submitted.  The new filing system uses software developed by MOFCOM itself (System) that incorporates a digitalized merger notification form updated by MOFCOM in June 2012 (please see “China Streamlines Antitrust Notification Process”  http://www.mwechinalaw.com/news/2012/chinalawalert061c.htm). The System appears to work well.  Generally, the System allows a filing party to submit all data and information required by MOFCOM in electronic form (i.e., either by typing into or choosing an option in the software).  A data package, incorporating all data and documentation submitted in support of the filing, will be generated by the software automatically. The launch of this new...

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Resale Price Maintenance in China: Enforcement Authorities Imposing Large Fines for Anti-Monopoly Law Violations

by Henry L.T. Chen, Frank Schoneveld, Alex An and Jared Nelson Recently Shanghai High People’s Court reached a decision in the first lawsuit involving resale price maintenance (RPM) since China’s Anti-Monopoly Law (AML) came into effect five years ago.  Shortly thereafter, a key enforcement agency announced RPM-related fines against six milk powder companies, five of which are non-Chinese.  Both cases clearly show that RPM can be a violation of the AML, and that RPM is currently under much greater scrutiny by enforcement authorities.  It would be prudent for all foreign corporations active in China’s consumer markets to take heed of these changes in China and conduct an immediate review of any potential RPM violations. To read the full article, click here. 

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