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.
France may join the growing number of jurisdictions for class action style private antitrust damage claims in the EU.
A judge from the French Cour de cassation, the highest civil jurisdiction, speaking at a conference yesterday, stated that class action style "assigned damages claims" under French law could be accepted by French courts without a change in legislation. Under this model, a company may buy damage claims from cartel victims and bring them as a bundled claim to court.
This is the same mechanism that has recently been used in German courts by CDC. Should this position materialise in French jurisprudence, it would mean that class action style damage claims could prosper in France.
Yesterday, the U.S. Department of Justice announced that CPTN Holdings, LLC, a joint venture owned equally by Microsoft Corp., Apple, Inc. , Oracle Corp., and EMC Corp, has agreed to modify its agreement to acquire certain patents from Novell, Inc. in order to allay antitrust concerns raised by the transaction. The Department had expressed concerns that the original deal would threaten the ability of open source software to innovate and compete in critical software markets. The modifications to the deal will allow it to go forward, but the Department emphasized that it will continue to monitor distribution of the patents to ensure continued competition. The transaction also received antitrust clearance from Germany’s Federal Cartel Office. The German and American authorities cooperated closely on the matter, aided by waivers from the parties that allowed information sharing between the two agencies. Regulators are increasingly attuned to the effects of intellectual property transactions on competition.
For more information on the CPTN Holdings, LLC transaction, you may find the following links useful:
Department of Justice Press Release
The German Federal Cartel Office (FCO) announced yesterday that it has launched a sector inquiry into food retailers. The FCO will focus its study on foodstuffs and luxury foodstuffs without explicitly naming particular goods in its press release but broadly stating that the enquiry will only focus on “selected product groups”. According to the official statement from the FCO, which is only available in German, the authority seeks to improve its “understanding” of the relationship between retailers and suppliers. The FCO plans to have a close look into the market power of the large retailers. The assessment will also focus on “whether and to what degree the leading retailers enjoy a purchasing advantage over their competitors”.
The retailer market in Germany is very concentrated, with only four large retailers holding about 85 percent of the market. The FCO thus plans not only to shed light into the buyer power of the large retailers but will also focus on whether the “consolidation process” in the retail market has also led to a concentration in the procurement markets to the benefit of the largest retailers.
The sector enquiry should, according to the official statement from the FCO, support its analysis of the food purchasing market which is currently being investigated following dawn raids at the premises of more than 15 companies on the retail and the manufacturing level of branded products, mainly foodstuffs, on suspicion of co-ordinated retail price-fixing, in January 2010.
If the FCO will start an investigation into individual companies in the food retail market and how the sector enquiry will affect the investigation into branded goods, started in January 2010, remains unclear. The case draws parallels to the UK where the Office of Fair Trading launched several market investigations and market studies into the UK food retailer and manufacturer markets.