Sanctions Cases Double Over 2008; Courts Continue to Press for Cooperation; E⁃discovery Trends in Criminal and Constitutional LawA comprehensive review of more than sixty federal and state court opinions addressing e-discovery issued during the first five months of 2009 reveals a dramatic increase in the frequency with which courts consider and apply sanctions. In part, the increase in sanctions reflects solidifying legal standards governing when a potential litigant must preserve electronic evidence. These opinions also reflect a continuing effort by the courts to urge litigants and their counsel to cooperate in e-discovery matters, and to sensibly and proportionately develop e-discovery protocols. Highlights of 2009 to date include: More than half of the e-disco
Client Alert | July 8, 2009
Dallas partner M. Sean Royall, Denver associate Amanda Tessar and Washington, D.C. associate Adam J. Di Vencenzo are authors of "Deterring 'Patent Ambush' in Standard Setting: Lessons from Rambus and Qualcomm" [PDF] published in the Summer 2009 issue of ABA's Antitrust.Reprinted with permission from Antitrust, Vol.
Client Alert | July 7, 2009
At the mid-point of 2009, the dominant trends in criminal antitrust have been dramatically increased fines and prison terms, both in the United States and abroad, particularly for cartel conduct. Highlights of 2009 include:U.S.
Client Alert | July 6, 2009
Alert: Potential Trap for the Unwary re Inaccessible InformationGovernor Schwarzenegger yesterday signed into law Assembly Bill 5, the "Electronic Discovery Act," enacting significant electronic discovery amendments to the California Code of Civil Procedure. Because the legislature deemed it "urgency" legislation, it is effective immediately. Although the legislation largely follows the 2006 electronic discovery amendments to the Federal Rules of Civil Procedure, it differs in its treatment of inaccessible information (such as backup tapes) and in its safe harbor for lost information. Of particular note, the Bill requires parties in their written responses to document requests to object to the production of inaccessible information to preserve th
Client Alert | June 30, 2009
In three opinions issued between May 18 and 29, 2009, the Delaware Chancery Court has provided guidance on several key electronic discovery issues--triggering of the duty to preserve electronically stored information (“ESI”) and the scope of that duty; spoliation of evidence and the factors used to determine sanctions; and cost-shifting in relation to inaccessible data.
Client Alert | June 19, 2009
The U.S. Department of Justice, Antitrust Division recently has launched an investigation into whether certain recruiting and hiring practices of technology companies violate the antitrust laws.
Client Alert | June 15, 2009
On April 13, 2009, the U.S. Department of Justice, Antitrust Division announced an unprecedented effort to proactively enforce criminal antitrust laws by establishing a new "Citizen Complaint Center" to accept reports of potential collusive conduct and fraud in procurement and grant awards under the American Recovery and Reinvestment Act of 2009 ("Recovery Act"), which President Obama signed into law on February 17, 2009.
Client Alert | April 29, 2009
On May 1, 2009, the Federal Trade Commission ("FTC") will begin enforcement of the new "Red Flags Rule," a little known regulation that likely impacts a surprisingly large number of business entities.The Red Flags Rule, which was developed pursuant to the Fair and Accurate Credit Transactions Act of 2003 and is codified at 16 C.F.R.
Client Alert | April 9, 2009
Washington, D.C. of counsel Malcom Pfunder is the author of "Acquisitions from Financially Distressed Entities Under the HSR Act" [PDF] published in the April 1, 2009 issue of ABA's Antitrust.
Client Alert | April 1, 2009
As of today, March 25, 2009, an important amendment to the German merger control regime has entered into force. This amendment will significantly decrease the number of de minimis and extra-territorial mergers that will need to be notified to the German Federal Cartel Office ("FCO", the Bundeskartellamt) in the future.
Client Alert | March 25, 2009
Washington, D.C. partner Thomas G. Hungar is the author of "Appellate Advocacy in Antitrust Cases: Lessons from the Supreme Court" [PDF] published in the Spring 2009 issue of ABA's Antitrust.
Client Alert | March 23, 2009
New York partner Stacey Anne Mahoney is the author of "To Day 100 and Beyond: The Antitrust Enforcement in the Obama Administration" [PDF] pulished in the March 2009 issue of ABA's Corporate Counseling Committee's newsletter, The Antitrust Counselor.Reprinted with permission from Antitrust Counselor, March 2009, © 2009, the American Bar Association. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express or written consent of the American Bar Association.
Client Alert | March 1, 2009
Washington D.C. partner David P. Burns, associate Geoffrey C. Weien and San Francisco associate Joshua D. Hess are authors of "Criminal antitrust enforcement in 2008" [PDF] published online by Global Competition Review on February 12, 2009 at www.globalcompetitionreview.com
Article | February 12, 2009
Washington, D.C. Partner Jarrett Arp made a presentation to the PLI Advanced Antitrust Seminar on "Predatory Pricing & Unfair Trade Practices" [link to PDF]
Client Alert | February 2, 2009
Introduction The dramatic surge in worldwide criminal antitrust enforcement over the last decade continued at a remarkable pace in 2008, with no signs of ebbing on the horizon.
Client Alert | January 7, 2009
The concept of abuse of a dominant position, as found in Article 82 of the EC Treaty, is one of the pillars of EU antitrust law. Although dominance is not unlawful as such, the abuse of dominance is and cannot be exempted.Recent years have seen much sound and fury but relatively little light shed on the subject. The EU Courts have upheld a strict approach to defining abuse and the Commission has adopted a number of high profile decisions, particularly at the IP/antitrust interface. High fines have been imposed even in novel cases.In December 2005, the Commission published draft guidelines on abuses which could be considered to be exclusionary. Criticised and praised in roughly equal measure, the Draft Guidelines adopted an "effects-based" approach that wou
Client Alert | December 3, 2008
London partner Rachel Couter is the author of "Choice roles" [PDF] published in the October 20, 2008 issue of The Lawyer.
Client Alert | October 20, 2008
The Chinese State Council has adopted new implementing regulations regarding the notifiability of mergers in China. The regulations were published on 4 August 2008, but came into force on 3 August 2008.The regulations set out the following notification thresholds: a.
Client Alert | August 7, 2008
The European Court of Justice's ("ECJ") 10 July 2008 Sony BMG judgment should halt the rise of the Statement of Objection-less Phase II merger investigation.
Client Alert | July 14, 2008
Trade associations need to take care. There has been a long history of the European Commission fining trade associations as well as their members where an infringement of EC competition law has been found.
Client Alert | July 9, 2008
Dallas partner M. Sean Royall and Washington, D.C. associate Adam J. Di Vincenzo are the authors of "The FTC's N-Data Consent Order: A Missed Opportunity To Clarify Antitrust in Standard Setting" [PDF] published in the Summer 2008 issue of ABA's Antitrust.Reprinted with permission from Antitrust, Vol.
Client Alert | July 7, 2008
For twenty years, the European Commission has been struggling to agree a model on how the competition rules should apply to the maritime transport sector, and above all to liner shipping.On 1 July 2008, what is probably the final significant piece of this policy was put in place with the adoption of formal guidelines on the extent to which shipping companies may co-operate and, in particular, may exchange information about their commercial activities.HistoryLiner shipping companies have for over 100 years provided scheduled maritime transport services around the globe on the basis of wide-ranging agreements, called Conferences, allowing them to fix prices, agree schedules and even to limit output -- regardless of their market shares.
Client Alert | July 1, 2008
Brussels Partner David Wood is the author of "Outsourcing deals in the EU - The antitrust implications" [PDF] published in the 1 July 2008 issue of Competition Law Insight.
Client Alert | July 1, 2008
Brussels Partner Peter Alexiadis is the author of "Informative and Interesting: The CFI Rules in Deutsche Telekom v. European Commission" [PDF] which appeared in the May, 2008 issue of GCP Magazine.Reprinted by permission, GCP Magazine, May-08(1)
Client Alert | May 28, 2008
The 10 April 2008 Court of First Instance (“CFI”) judgment in Deutsche Telekom AG v Commission of the European Communities upheld the Commission’s 2003 decision finding that Deutsche Telekom (“DT”) had been abusing its dominant position on the markets for access to its fixed network by creating a margin squeeze between the prices charged to its competitors for wholesale access and its own retail access charges. DT argued that the Commission erred in finding that it had infringed Article 82 EC because: (i) DT’s conduct was not abusive, since it did not have sufficient scope of action to avoid the margin squeeze; (ii) the methodology adopted by the Commission to establish margin squeeze was unlawful; (iii) the Commission’s margin squeez
Client Alert | April 15, 2008
Brussels Partner David Wood is the author of "Legal Privilege in the EU: Is the Balance Right? Akzo Nobel v Commission" [PDF] which appeared in the Utilities Law Review, published by Lawtext Publishing Limited www.lawtext.com.
Client Alert | March 31, 2008
by David Wood*Technology sectors have been remarkable not only in terms of their growth and the value they have contributed to the global economy but by the appearance of perpetual motion they bring to the markets they touch. Change is ever present in the online world. Acquisitions and consolidation have meant there has been a constant spur to product development and innovation arising from the integration of previously separate companies, and start-ups and new entry have provided a seemingly endless source of new ideas and talent.It is fair to say that, overall, this activity has raised regulators' eyebrows but has generated relatively few concrete antitrust concerns. In particular, the markets have seemed to be too fragmented and dynamic to raise concerns about excessiv
Client Alert | March 25, 2008
Denver Of Counsel Gregory Whitehair is the author of "So You Want To Sue For Trade Secret" [PDF] published in the March 24, 2008 issue of Law Week Colorado.
Client Alert | March 24, 2008
Brussels Partner David Wood is the author of "Proving it - The standard and burden of proof in article 82 cases" [PDF] published in the 11 March 2008 issue of Competition Law Insight.
Client Alert | March 11, 2008
At the end of last week, the German Federal Cartel Office (FCO), Germany’s competition authority, fined several manufacturers of personal care products for price-fixing.
Client Alert | February 28, 2008
Brussels Associate Vassili Moussis is the author of "Parallel competences - Patchwork or framework?" [PDF] in the February 2008 issue of Global Competition Review.--------------------------------------------------------------------------------Reprinted with permission. www.GlobalCompetitionReview.com
Client Alert | February 5, 2008
Munich partner Michael Walther and associate Ulrich Baumgartner are authors of "Standardisierungs-Kooperationen und Kartellrecht" [PDF] (roughly translates as "Standard-Setting Bodies and Antitrust Law") published in the German competition and antitrust magazine Wirtschaft und Wettbewerb (WuW), Volume 58, Issue 2.
Article | February 1, 2008
Germany's competition authority, the "Federal Cartel Office", has imposed a fine totaling EUR 216 million in a recent case concerning the abuse of market dominance.
Client Alert | December 7, 2007
There is a growing belief that competition law in Europe should not be enforced solely by competition authorities, but also by private claimants in the civil courts.
Client Alert | November 30, 2007
Brussels Partner Peter Alexiadis & Associate Vassili Moussis, are authors of "Studying Schneider," [PDF] published in the October 2007 issue of the European Lawyer.
Client Alert | October 31, 2007
Brussels Partner Peter Alexiadis and Associate Vassili Moussis are the authors of "Schneider/Legrand: le jugement du TPI ne règle pas tout" [PDF--the article is in French, the title roughly translates as: "Schneider/Legrand: Judgment of the Court of First Instance Does Not Settle Everything"] published in the October 8, 2007 issue of La Lettre des Juristes d'Affaires.
Client Alert | October 8, 2007
Gibson Dunn of counsel James C. Ho is the author of "The Supreme Court's Renewed Interest in Antitrust and Intellectual Property Law" [PDF] published in the ABA Antitrust Litigator.
Client Alert | September 23, 2007
The EU's second highest court, the Court of First Instance (CFI) has today, 17 September 2007, upheld the narrow scope of legal professional privilege in relation to documents seized in the context of EC competition law. In particular, the CFI declined to extend legal privilege in EU competition cases to in-house counsel.
Client Alert | September 17, 2007
On 11 July 2007, the European Court of First Instance (the "CFI") delivered its long-awaited Judgment in the appeal of Schneider Electric S.A. ("Schneider") against the Decision of the European Commission (the "Commission").
Client Alert | July 19, 2007
On June 28, the Supreme Court of the United States held in Leegin Creative Leather Products, Inc. v. PSKS, Inc. that resale price agreements should be evaluated under the rule of reason to determine whether there is a violation of Section 1 of the Sherman Act.
Client Alert | June 28, 2007
European Commissioner for Competition Neelie Kroes is maintaining her push for ownership unbundling in the electricity and gas sectors. Despite the protests of the French and German governments, the Commissioner is intent on forging ahead.
Client Alert | May 4, 2007
The European Court of First Instance (the "CFI") handed down a key and long-awaited antitrust Judgment today in France Télécom SA v Commission, addressing a number of issues relating to predatory pricing in the EU. The strict approach to EU law on predatory pricing has been confirmed.
Client Alert | January 30, 2007
Brussels Associate Vassili Moussis is a contributor to the Japan chapter [PDF] of the PLC Cross-Border Competition Handbook 2006-2007, Volume 2: Leniency.
Client Alert | December 1, 2006
Germany’s Federal Cartel Office (“FCO”) recently prohibited laser manufacturer Coherent, Inc.’s proposed acquisition of its competitor Excel Technology, Inc.
Client Alert | November 3, 2006
Munich Partner Michael Walther and Associate Ulrich Baumgartner are authors of "Joint venture review under the new EC Merger Regulation" [PDF] published in the The European Antitrust Review 2007.An extract from The European Antitrust Review 2007, a Global Competition Review special report - www.globalcompetitionreview.com
Client Alert | October 18, 2006
Brussels Partner David Wood and Associate Miranda Cole are the authors of "EU Competition Law in the media and broadcasting sectors" [PDF] published in The European Antitrust Review 2007.An extract from The European Antitrust Review 2007, a Global Competition Review special report - www.globalcompetitionreview.com
Client Alert | October 17, 2006
On 27 September 2006, the European Court of First Instance (CFI) delivered an important judgment in the GlaxoSmithKline (“Glaxo”) Case on Glaxo’s dual pricing practice to prevent parallel trade of pharmaceuticals in the EU.
Client Alert | September 27, 2006
Brussels Associate Vassili Moussis is the author of "Japanese leniency process evolves" [PDF] in the August 30, 2006 edition of Global Competition Review.--------------------------------------------------------------------------------Reprinted with permission. www.GlobalCompetitionReview.com
Client Alert | September 11, 2006
On August 2, the Federal Trade Commission issued its long-awaited ruling in the agency’s monopolization suit against Rambus Inc., a semiconductor technology firm based in Los Altos, California.
Client Alert | August 3, 2006
Gibson Dunn of counsel Malcolm R. Pfunder is the author of "Shareholder Activism and the Hart-Scott-Rodino Act Exemption for Acquisitions of Voting Securities Solely for the Purpose of Investment" [PDF] which appears in the Summer 2006 issue of Antitrust magazine, published by the American Bar Association.Reprinted with permission from Antitrust, Vol.
Client Alert | July 25, 2006
Washington, D.C. partner F. Joseph Warin, David P. Burns and associate John W.F. Chesley are the authors of "To Plead or Not to Plead? Reveiwing a Decade of Criminal Antitrust Trials" [PDF] published in the July 2006 issue of ABA's The Antitrust Source.
Client Alert | July 11, 2006
"Don’t break the anti-trust rules; if you do, stop it as quickly as possible, and once you’ve stopped, don’t do it again." With these words, Neelie Kroes, the European Commissioner for Competition, has announced new Guidelines on the setting of fines for infringements of the EU antitrust rules, relating to restrictions of competition and abuse of a dominant position. The new Guidelines replace those adopted by the Commission in 1998 and will come into force as soon as published in all official EU languages.
Client Alert | June 28, 2006
On 30 May 2006 the European Court of Justice ('ECJ') annulled the decisions of the European Commission and the Council that led to the transfer of personal data relating to passengers on flights to, from or across US territory to US authorities.
Client Alert | June 1, 2006
A few days ago, the German Federal Cartel Office ("FCO") published on its website an informal notice in which it detailed its willingness and ability to accept anonymous whistleblower information under its new Leniency Program.
Client Alert | March 30, 2006
Brussels Partner David Wood and legal intern Simona Seikyte are the authors of "Article 82 and Cost Allocation " [PDF] published in the March 14, 2006 issue of Competition Law Insight.
Article | March 14, 2006
In a landmark decision handed down by the U.S. Supreme Court on March 1, 2006, the Court unanimously abrogated its decades-old presumption, articulated most prominently in United States v. Loew’s, Inc., 371 U.S.
Client Alert | March 2, 2006
Gibson Dunn of counsel Malcolm R. Pfunder is the author of "Hart-Scott-Rodino Treatment of Corporate Officer Stock Acquisitions Solely for Investment - A Commentary," published in the January 2006 issue of The Antitrust Source, a publication of the ABA Antitrust Section.Reprinted with permission from The Antitrust Source, January 2006, a publication of the ABA Section of Antitrust Law.
Client Alert | February 1, 2006
Brussels Associate Vassili Moussis is co-author of "Leniency for Japan" [PDF] in the December 2005/January 2006 edition of Global Competition Review. Reprinted with permission.
Article | January 17, 2006
Partner Jarrett Arp is the author of "Be Careful What You Ask For: Unintended Consequences and Unfinished Business Under the Class Action Fairness Act," published in the Fall 2005 issue of Antitrust magazine, a publication of the ABA Section of Antitrust Law.
Client Alert | December 19, 2005
On 14 December 2005 the European Court of First Instance (the "CFI") delivered its long awaited judgments in the appeals against the GE/Honeywell decision (cases T-209/01 and T-210/01).
Client Alert | December 14, 2005
Brussels Partner David Wood is the author of "Regulation and competition in the media sector" [PDF] published in the November 15th issue of Competition Law Insight.
Article | November 15, 2005