US agencies release new merger guidelines

The US Federal Trade Commission and Department of Justice today announced the release of new horizontal merger guidelines. These replace the 1992 merger guidelines and follow the release of  draft revised guidelines in April this year. Comments/submissions on the draft guidelines can be viewed here.

The press release lists key changes since the 1992 Guidelines (FTC Press Release / DOJ Press Release) – in particular, the new guidelines:

* Clarify that merger analysis does not use a single methodology, but is a fact-specific process through which the agencies use a variety of tools to analyze the evidence to determine whether a merger may substantially lessen competition.

* Introduce a new section on “Evidence of Adverse Competitive Effects.” This section discusses several categories and sources of evidence that the agencies, in their experience, have found informative in predicting the likely competitive effects of mergers.

* Explain that market definition is not an end itself or a necessary starting point of merger analysis, and market concentration is a tool that is useful to the extent it illuminates the merger’s likely competitive effects.

* Provide an updated explanation of the hypothetical monopolist test used to define relevant antitrust markets and how the agencies implement that test in practice.

* Update the concentration thresholds that determine whether a transaction warrants further scrutiny by the agencies.

* Provide an expanded discussion of how the agencies evaluate unilateral competitive effects, including effects on innovation.

* Provide an updated section on coordinated effects. The guidelines clarify that coordinated effects, like unilateral effects, include conduct not otherwise condemned by the antitrust laws.

* Provide a simplified discussion of how the agencies evaluate whether entry into the relevant market is so easy that a merger is not likely to enhance market power.

* Add new sections on powerful buyers, mergers between competing buyers, and partial acquisitions.

Naturally, the new guidelines already have some critics, including Republican and FTC  Commissioner J Thomas Rosch who, although concurring with the issuance of the guidelines, criticised them for not living up to their promise of being a “complete and accurate description of what our enforcement staff considers in merger investigations and that they will be a helpful guide to courts”.  View Commissioner Rosch’s press release here and further commentary here.

Australia also recently (November 2008) adopted new merger guidelines which replaced its 1999 Merger Guidelines.

Some international news; Intel, Google etc

The Intel Decision

The European Commission has now released a non-confidential version of its decision in the Intel case (all 518 pages), in which it fined Intel €1.06 billion for abusing its dominant position:

• Press Release announcing €1.06 billion fine against Intel (13 May 2009)
• EC Press release announcing release of its non-confidential reasons in the Intel case (21 September)
• The Intel decision (provisional non-confidential version) released 21 September 2009

US Antitrust Division and the Google Book Search case

The US Department of Justice (Antitrust Division) has weighed into the pending Google Book Search case, recently filing a statement opposing a proposed class settlement:

• The Antitrust Division Filing of 18 September
• Blog discussion by Randy Picker, University of Chicago
• Useful Commentary by Danny Sullivan
• New York Times article – ‘US Urges Changes to Google Book Deal

EU Consults on Vertical Agreements

On 28 July 2009 the EC launched a formal consultation on EU Rules applicable to vertical agreements.  See discussion by Sheppard Mulin.

Changes to Canadian law

Bill C-10, which received Royal Assent on 12 March 12, introduced significant changes to the Canadian Competition Act.  McCarthy Tetrault has provided a couple of useful overviews of the changes:

• Government Enacts Significant Changes to Canada’s Merger Review Laws (29 May 2009)
• Governmeng Enacts Significant Changes to Canada’s Competition Laws (17 September 2009)

Politics and the Pursuit of Efficiency in New Zealand

Bronwyn E Howell has written a paper on ‘Politics and the Pursuit of Efficiency in New Zealand’

US DOJ – ‘Vigorous Antitrust Enforcement in this Challenging Era’

Following her withdrawal of the single firm conduct report, Christine Varney (Assistant AG, Antitrust Division, DOJ), yesterday made a speech entitled ‘Vigorous Antitrust Enforcement in this Challenging Era‘.  The speech, in part, draws from historical examples of economic distress and concludes that there are two key lessons to learn:

‘First, there is no adequate substitute for a competitive market, particularly during times of economic distress. Second, vigorous antitrust enforcement must play a significant role in the Government’s response to economic crises to ensure that markets remain competitive.’

She goes on to criticise the theory, which has dominated antitrust enforcement in the US in the last decade, that markets will ‘self-police’ and ‘self-correct’, observing that this self-correction has not occurred and instead we see ‘numerous markets distorted’.  She states that the DOJ will take a much greater enforcement role in the future, particularly by ensuring vigorous enforcement action under Section 2 of the Sherman Act as part of the Antitrust Divisions response to the current market conditions.  Although most of the speech is devoted to Section 2, Varney notes that continued ‘criminal and civil enforcement under Section 1 of the Sherman Act will also be an important part of the Antitrust Division’s response to the distressed economy’.  She also notes the need for increased cooperation between the DOJ(AD) and the FTC and the need to maintain cooperation with foreign antitrust agencies.

Varney concludes by saying that: ‘Antitrust must be among the frontline issues in the Government’s broader response to the distressed conomy.  Antitrust authorities … will therefore need to be prepared to take action.  The Antitrust Division will be ready to take a lead role in this effort.’

US DOJ Philosophy Shift on Single Firm Conduct

The new Assistant Attorney General in charge of the DOJ’s Antitrust Division, Christine A Varney, has announced withdrawal of the Department’s 2008 Report ‘Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act‘, stating it no longer represents DOJ(AD) Policy.  The Report, Varney claimed, ‘raised too many hurdles to government antitrust enforcement and favored extreme caution and the development of safe harbors for certain conduct within the reach of Section 2’.

This announcement signals a ‘shift in philosophy’ at the DOJ and clearly announces the AG’s intent to aggressively pursue ‘cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers’.

In particular, Varney noted that the theory that underpinned the approach of the former administration, that monopoly markets ‘are generally self-correcting’ had been upset by recent developments in the market which ‘make it clear that we can no longer rely upon the marketplace alone to ensure that competition and consumers will be protected’.