December 2005 Antitrust Update Corporate Counseling Committee Section of Antitrust Law American Bar Association January

1. December 2005 Antitrust UpdateCorporate Counseling CommitteeSection of Antitrust LawAmerican Bar AssociationJanuary 10, 2006 Terry CalvaniThomas JanssensMJ MoltenbreyBob SchlossbergPaul Yde

2. Agenda • Federal Agency Update • Antitrust Modernization Commission Update • Criminal Enforcement • Civil Non-Merger Enforcement • US Merger Update • Other DOJ and FTC Activity • Private and State Enforcement • International Developments

3. Federal Agency Update

4. William E. Kovacic: New FTC Commissioner • Confirmed by Senate on December 17; sworn in on January 4 • PreviouslyaProfessor at George Washington University Law School • FTC’s General Counsel from 2001–2004 • Prior Commission experience: from 1979–1983, first with the Bureau of Competition’s Planning Office and later as an attorney advisor to Commissioner George W. Douglas • Author of numerous articles on antitrust and the FTC, co-author of an antitrust casebook, and has advised numerous foreign governments about competition and consumer protection issues • Term will expire September 2011 (filling a seat vacated in September 2004)

5. J. Thomas Rosch: New FTC Commissioner • Confirmed by Senate on December 17; sworn in on January 5 • Previously a partner in the San Francisco office of Latham & Watkins • More than 40 years experience in antitrust and trade regulation practice • Served as chair of ABA Antitrust Section in 1990, and chair of the California Bar Association’s Antitrust Section • Prior Commission experience: served as the Director of the Bureau of Consumer Protection from 1973–1975 • Term will expire in September 2012

6. Jeff Schmidt Named Bureau Director • Chairman Majoras announced that Susan Creighton, Director of the Bureau of Competition for the past two-and-a-half years, resigned and that Jeffrey Schmidt, a Deputy Director in the Bureau, was appointed to succeed her as Director (December 20) • Schmidt was long associated with Pillsbury Winthrop, where he was an associate, partner and managing partner of the Washington Office, focusing on antitrust litigation and IP issues • In 2001, he assumed the positions of Chief Legal Officer and Chief Administrative Officer at Transora, an electronic data synchronization firm formed by leading consumer packaged goods manufacturers; he returned to Pillsbury in 2003 • Prior Commission experience: Schmidt has served as a deputy director of the Bureau of Competition since February 2005; he was also an attorney-advisor to Commissioner Terry Calvani in the mid-1980s

7. New FTC (Antitrust) Organizational Chart

8. DOJ AAG Confirmation Update • Nomination of Acting Assistant Attorney General for Antitrust, Thomas O. Barnett, was recommended by the Senate Judiciary Committee in November, and is awaiting a confirmation vote by the full Senate

9. Antitrust Modernization Commission Update

10. AMC Hearings on Regulated Industries – December 5 Panelists discussed the following topics: • Division of responsibility for the enforcement of antitrust laws in regulated industries between the antitrust agencies and other regulatory agencies • Appropriate standard for determining the extent to which the antitrust laws apply to regulated industries where the regulatory structure contains no specific antitrust exemption and/or contains a specific antitrust savings clause • Whether Congress and regulatory agencies should set industry-specific standards for particular antitrust violations that may conflict with general standards for the same violations

11. AMC Upcoming Hearings • Economists' Roundtable on Merger Enforcement (January 19). Panelists : • Prof. Timothy Bresnahan, Stanford University • Prof. Steven Neil Kaplan, University of Chicago Graduate School of Business • Prof. Peter C. Reiss, Graduate School of Business, Stanford University • Prof. Daniel L. Rubinfeld, New York University School of Law • Prof. Lawrence White, New York University, Leonard N. Stern School of Business • Immunities and Exemptions (Noerr-Pennington) issues (January 2006 (day tbd)) • International issues (January 2006 (day tbd)) • Comments regarding whether there multilateral procedures that should be implemented, or other actions taken, to enhance international antitrust comity due January 13

12. Criminal Enforcement

13. PAGE ONE U.S. Gains More Antitrust Cooperation Abroad Shift Comes as Many Nations Make Price Fixing Illegal; An Extradition Case in U.K. By ANITA RAGHAVAN Staff Reporter of THE WALL STREET JOURNALDecember 22, 2005; Page A1 After years of campaigning, U.S. prosecutors are increasingly winning cooperation from foreign governments in prosecuting antitrust offenders… DOJ Criminal Enforcement • No significant developments in December • December 9: Four former concrete company executives sentenced to prison and five months probation, plus fines of $100k—$200k, for fixing the prices of ready-mix concrete • UK High Court to consider this month whether Ian Norris, former CEO of Morgan Crucible Co., should be extradited to the US to stand trial for allegedly fixing the prices of power train components

14. Civil Non-Merger Enforcement

15. DOT Tentatively Denies Antitrust Immunity to Expanded SkyTeam Alliance • On December 22, DOT issued a show cause order, tentatively rejecting request by Northwest, Delta, KLM, Air France and other SkyTeam Alliance members seeking antitrust immunity for extended collaboration on international flights • DOJ and American had opposed the request • While DOT allowed the airlines to expand their code sharing arrangements, it concluded that “[t]he carriers failed to demonstrate sufficient public benefits that would result from a grant of antitrust immunity.” • Significant because this is the first time DOT has rejected a request for antitrust immunity without finding that the underlying alliance would lessen competition

16. Dentsply: Supreme Court Denies Certiorari • Complaint filed January 5, 1999 • District Court originally found Dentsply not liable under Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act for entering into exclusive dealing agreements with dealers • The DOJ appealed, arguing that the district court incorrectly applied the controlling legal standards, and that several of its key findings of fact were clearly erroneous • The Third Circuit Court of Appeals reversed and remanded "with directions to grant injunctive relief requested by the Government." • Certiorari denied on January 9, 2006

17. US v. National Association of Realtors • DOJ challenge to NAR’s policy that allegedly obstructs real estate brokers who use innovative Internet-based tools to offer better services and lower costs to consumers • Enables traditional brokers to block their competitors' customers from having full on-line access to all of the MLS's listings • Participation in the local MLS makes it possible for a broker to provide customers with listings for virtually all properties for sale in the community, which is critical to compete in the local market • NAR's policy significantly alters the rules that govern MLSs by permitting traditional brokers to discriminate against other brokers based on their business model, denying them the full benefits of MLS participation • Motion for protective orders and protection of confidential information filed December 23 in U.S. District Court in Chicago

18. FTC Continues to Focus on Patent Settlements in Pharmaceutical Cases • On December 2, FTC filed an amicus brief in In re Tamoxifen Citrate Antitrust Litigation, a case pending before the Seventh Circuit, urging the full court to rehear the case • The panel previously upheld dismissal of an antitrust challenge to a patent litigation settlement between AstraZeneca, the manufacturer of tamoxifen citrate (breast cancer treatment drug), and Barr Labs, an FDA applicant for tamoxifen citrate generic counterpart • FTC argues: • Court improperly condoned agreement because it made “economic sense” to parties • Court overvalued judicial policy favoring settlements, especially given Congressional policy encouraging patent challenges reflected in Hatch-Waxman Act • Court mistakenly assumed that patent holders cannot “buy off” all potential challengers, therefore harm to competition from such agreements is limited

19. US Merger Update

20. Evanston Northwestern Appeals FTC Decision • Evanston Northwestern Healthcare filed an appeal with the FTC to overrule an unfavorable ALJ decision that would ultimately force the corporation to divest one of its three hospitals (December 16) • In October, the ALJ ruled that ENH’s 2000 Acquisition of Highland Park hospital “substantially lessened competition” and resulted in higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations in the relevant geographic market

21. New HSR Rules • Allowing parties to submit an Internet address linking directly to the documents required by Items 4(a) and 4(b) in lieu of paper copies • Amending the rules to specify that an acquiring person’s notification, and an acquired person’s notification in certain types of transactions, will expire after eighteen months if a second request remains outstanding • Base Year of 2002 in Item 5 (in lieu of 1997) became effective on December 30, 2005 • Filing parties entitled to a 30-day grace period where use of either year will be accepted, though all filing parties must be consistent

22. DOJ Merger Update • DOJ cleared Sprint Nextel Corp.'s proposal to buy wireless affiliate Alamosa Holdings Inc. for $3.4 billion, without action (December 20) • DOJ cleared UnitedHealth Group’s acquisition of PacifiCare Health Systems, but not without first requiring a divestiture of PacifiCare's commercial health insurance business in Tucson, AZ and Boulder, CO, and requiring United to modify and, after one year, terminate its network access agreement with Blue Shield of California (December 20) • DOJ cleared merger of AMC and Loews movie theatres but only following divestiture of certain movie theatres in five major cities: Boston, Chicago, Dallas, New York, and Seattle; DOJ argued the multi-billion dollar transaction would have eliminated head-to-head competition between AMC and Loews and likely would have resulted in higher prices for tickets to first-run, commercial movies in those cities (December 22)

23. FTC Merger Update • Pharma – FTC cleared Novartis’s buy-out of Chiron Corporation, without action (December 6) • Agchem – FTC cleared Agrium Inc.’s hostile takeover of Royster-Clark Ltd. without action (December 13) • Personal care – FTC approved the proposed divestiture of Gillette’s Rembrandt toothpaste and tooth whitening business to Johnson and Johnson (December 16) • Medical Devices – FTC approved issuance of final consent order in J&Js acquisition of Guidant, requiring that J&J: (1) grant to a third party a fully paid-up, non-exclusive, irrevocable license, enabling that third party to make and sell drug eluting stents with the Rapid Exchange delivery system; (2) divest to a third party J&J’s endoscopic vessel harvesting product line; and (3) end its agreement to distribute Novare Surgical System, Inc.’s proximal anastomotic assist device (December 27)

24. Other DOJ and FTC Activity

25. DOJ Will Not Challenge Creation of Free Weekly in Denver • DOJ announced in a business review letter that it will not challenge the creation of a free edition of the Denver Post and the handling of that edition’s non-reportorial and non-editorial business operations under an existing newspaper joint operating agreement • DOJ found that the creation of a new edition of the Denver Post likely will increase output and provide greater choice for both readers and advertisers in the Denver area • Parties also stated the the new edition would allow the Denver Post to expand its penetration among certain demographic groups, and create another choice for Denver-area advertisers • Two daily Denver newspapers, MediaNews Group’s Denver Post and the E.W. Scripps’ Rocky Mountain News, participate in a JOA organized as the Denver Newspaper Agency • In January of 2001, DOJ approved the JOA under the Newspaper Preservation Act

26. FTC Issues “Report on Ethanol Market Concentration” • FTC examined the current state of ethanol production in the United States and measured market concentration using capacity and production data, and considered the possible effect on market concentration of marketing agreements between ethanol producers and ethanol marketers (December 2) • FTC found that US “ethanol production is not unduly concentrated and that existing concentration levels do not justify a presumption that one firm, or a small group of firms, could wield the market power necessary to coordinate on prices or output” • FTC also found that the “likelihood of anticompetitive conduct is even lower than the production concentration levels might suggest because significant new entry in ethanol production and marketing will occur in the next year and is expected to continue for several more years”

27. Private and State Enforcement

28. Alaska Gasoline Port Authority Sues BP and ExxonMobil • On December 20, the Alaska Gasoline Port Authority filed suit accusing ExxonMobil and BP of withholding gas from the market and inflating the price paid for gas • AGPA was formed by three local governments to bring gas to market • AGPA claims that the two oil companies have conspired to refuse to sell natural gas from their joint reserves in Prudhoe Bay, Point Thomson, and other areas on the North Slope of Alaska

29. Xechem Settles with Bristol-Myers Squibb • On December 20, Xechem International settled an antitrust lawsuit against Bristol-Myers Squibb for $4.2 million • Xechem claimed that Bristol-Myers Squibb engaged in anticompetitive practices relating to Xechem's efforts to manufacture and market Paclitaxel, a generic equivalent of Bristol-Myers's cancer drug Taxol

30. New York State Probing Digital Music Pricing • New York Attorney General Eliot Spitzer is investigating Sony BMG, EMI, Universal, Warner, and the industry’s trade association, the Digital Media Association, among others, in connection with sales to on-line music sites • Sources state that Spitzer focusing on labels' pricing decisions and is seeking e-mails and other communications that deal with setting prices for online sales • Under the current system, labels charge a variety of wholesale prices; retailers, such as iTunes and Wal-Mart, then decide what price individual consumers will pay, almost uniformly 99 ¢ per track

31. International Developments

32. EC Releases Discussion Paper on Dominance • As a last step in EU “modernization,” the EC released a discussion paper that, if adopted, would make its approach to Article 82 more effects-based and less formalistic • Introduces a more economic approach in determining whether a firm is “dominant” and in deciding if a particular practice constitutes an “abuse” • To determine “dominance,” market shares may be a factor, but barriers to entry/expansion, and buyer power are also important • Nonetheless, the paper continues to talk about efficient distribution in the same vein • Improved; but still needs much work • Proposes an individual, 2-step approach, based on the conduct (predatory pricing, single branding and rebates, tying and bundling, and refusals to supply), to determine if an exclusionary abuse occurred • Objective justifications and efficiencies may now be considered (see, Merger Analysis) • Parties encouraged to submit comments by March 31, 2006 • Second paper on exploitive and discriminatory abuses expected 2006

33. Review of Current State of Article 82 Woodstock Era Competition Policy— The Sixties Lives! "Sex, Drugs and Rock & Roll" • Dominance defined in terms of market share • Presumed at 50% • Can be found at 20% • Efficiencies treated as "entry barriers" • Superior technology • Well developed distribution • Importance of braggadocio as evidence • Collective dominance & oligopolistic pricing • For example--Predatory pricing ala Utah Pie • PAVC predatory—Akzo (ECJ) • P≥ATC predatory—Commission • Proof of recoupment not necessary

34. Bit of a "Tug-of-War" • A careful read of the materials, particularly the last draft, reflects a fight within the Commission as to the proper direction of Article 82 • The drafts have reflected this fight • The course of the direction is not set in stone • It is important to be heard now

35. Positive Developments • §4: "protection of competition…as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources." • §32: "Market share is only a proxy for market power, which is the decisive factor“— necessary to go further • §34 et seq.: Better focus on barriers to entry and expansion in assessing dominance

36. Some Issues Remain Cloudy • Efficiency as a goal clouded by references to foreclosure of competitors • Discussion paper unclear as to using an Indiana Federation of Dentist approach • The limiting principles surrounding collective dominance remain cloudy—is it simply sustained oligopolistic interdependence with effective monitoring? • Continued fascination with price predation, the possibility of competitive injury at prices above AAC, evidence of anticompetitive intent without need for recoupment

37. Problem Areas • Paper suggests that the 50% presumption is retained (§30) • Talks about a highly developed sales network, experience and reputation in the same vein as barriers to entry (§40) -- shades of ALCOA! • Price predation where PATC still possible • Most importantly, the guides are not user friendly F

38. COMMISSIONER KROES WANTS YOU! • The Commission has invited comment • You should seriously consider making your voice heard • The discussion paper is a real improvement over the draft guidelines that were distributed to the Member States • Further improvement is needed

39. EC Publishes Green Paper on Article 81 Damages • EC’s goal is to ease the bringing of damage claims for competition law breaches in national courts to both make competition law enforcement more effective and deter further breaches • EC has invited comments addressing: • The wisdom of forcing defendants to provide a broad disclosure of evidence (trend toward the US, UK, and Irish systems, but very unfamiliar on the Continent) • Enactment of a strict liability standard • Damages as purely compensatory or non-compensatory, i.e., requiring the return of unlawful profits • Value of doubling of damages in horizontal cartel cases • Validity of permitting defendants to argue the “passing-on” defense (compare, Illinois Brick in the US) • Allowance of collective action/class action proceedings to protect consumer interests • Desirability of rules deeming the claimant to be immune from costs liability • Unclear whether EC has power to adopt all these proposals; lively debate is certain

40. CFI Issues GE/Honeywell Judgment • On December 14, 2005, the EU Court of First Instance (CFI) dismissed the appeals by GE and Honeywell against the prohibition of GE’s proposed merger with Honeywell • CFI agreed with EC and found GE held a dominant position in market for commercial aircraft engines because of its high market share (>50%), ability to use its leasing and finance arms to win business, and lack of sufficient constraints by customers or competitors • CFI contradicted EC’s finding that GE would be able to bundle engines and avionics products to distort competition post merger because evidence did not show the merged entity would have an economic basis to do so – CFI stated EC was wrong to prohibit the merger on these grounds (conglomerate effects) • CFI also found that EC should have carried out an investigation into the likelihood GE would refuse to supply its engine competitors with Honeywell starters (vertical effects – link with Article 82) • CFI upheld EC’s argument merger would have created a monopoly in market for jet engines for large regional aircrafts, and EC was correct in blocking transaction on these grounds (horizontal effects) • CFI found that the US decision was not relevant in the EC’s analysis • Honeywell’s application rejected on technical grounds

41. EC Threatens to Fine Microsoft €2m per day • In March, 2004, the EC issued a decision finding that Microsoft infringed the EC Treaty rules on abuse of a dominant position (Article 82) by leveraging its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players • One of the remedies imposed by the decision was for Microsoft to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers • On December 22, the EC announced its view, supported by two reports from the Monitoring trustee, is that Microsoft has not yet done so • Microsoft has provided some technical information but the Monitoring Trustee called it “totally unfit at this stage for its intended purpose.” • Microsoft responded that the EC continues to “move the goal posts” and prematurely judged its compliance with the March 2004 decision; Microsoft also argued that the requested action actually goes beyond the parameters of its obligations

42. Korean FTC Finds Against Microsoft • KFTC found Microsoft breached the Korean antitrust laws on December 7 • Microsoft ordered to: • Sell its Windows operating system without the Windows Media Player or Windows Instant Messenger • Allow consumer downloads of third party media player and messenger products • Pay a fine of approximately US$32m • US DOJ came out against the ruling, stating that: “The Antitrust Division believes that Korea's remedy goes beyond what is necessary or appropriate to protect consumers, as it requires the removal of products that consumers may prefer. The Division continues to believe that imposing 'code removal' remedies that strip out functionality can ultimately harm innovation and the consumers that benefit from it,” but also recognizing that a diverging result does not signify a successful working relationship between the DOJ and KFTC – J. Bruce McDonald, DAAG, December 7

43. EC Improves Access to File in Merger and Antitrust Proceedings • EC allowing for increased access to its files in both merger and antitrust proceedings to increase transparency and allow private parties better opportunities to develop their arguments/defense • The parties will be able to see all of the evidence, whether it is incriminating or exonerating • This will enable the parties to draw the Commission’s attention to elements of the file which the party believes have not been given sufficient weight • Access granted only to those addressed on the SO, but there may be some rights of access for other involved parties in special cases • Encompasses all documents relevant to the SO in either electronic or hard copy format • “EC’s Internal documents” and “business secrets and other confidential information” remain inaccessible

44. Spain’s Antitrust Court Rejects Gas Natural SDG’s Bid for Endessa • Court rejected Gas Natural’s $26 billion hostile bid for Endessa, a transaction that would create one of the largest portfolio’s of gas and electricity-generation assets in the world • Decision is non-binding, but will be forwarded to the Spanish Finance Ministry, which will then review it before making final recommendations to the Spanish Cabinet of Ministers • Once the Cabinet reaches a view, the final decision lies with the Spanish government – if the government chooses to allow the acquisition, it must provide a detailed legal, political, and economic explanation • Transaction is highly politicized (Socialists support transaction, while Popular Party does not) • Pending appeal before CFI against EC’s decision declaring the decision has no community dimension and thereby placing jurisdiction before the Spanish national competition authorities

45. Italy Introduces Merger Filing Fees • The Italian Budget Law of 2006 approved by the Italian Parliament on December 22, calls for the introduction of filing fees in Italian merger control • The Italian Antitrust Authority (IAA) will be financed through filing fees, the amount of which will be updated annually by the same IAA • IAA shall soon establish the parameters that will be used for deciding the amount of the fees, which will depend on the overall economic value of the notified transaction but not to exceed 1.2% of that value • The filing fees will be borne by the the notifying party(ies)

46. Peter Freeman Named Head of UK Competition Commission • On December 12, Peter Freeman was named Chairman of the United Kingdom’s Competition Commission • Freeman has been a Member of the CC since May 2003 and a Deputy Chairman since September 2003 • CC conducts in-depth inquiries into mergers, markets and the regulation of the major regulated industries • Each inquiry is undertaken in response to a reference made to it by another authority – the CC has no power to conduct inquiries on its own initiative • Typically, matters are referred to the CC by the Office of Fair Trading, but in certain circumstances the Secretary of State, or the regulators in certain regulated industries may also make referrals

47. Japanese Court Orders JFTC to Release Intel Information • On December 19, a Tokyo District Court opinion required that the Japanese Fair Trade Commission release to Advanced Micro Devices (AMD) information the JFTC gathered while investigating Intel for violations of the anti-monopoly laws; the JFTC found against Intel for monopolization in March • AMD is hoping to use this information to show a pattern of monopolistic behavior in its case against Intel in the US district court • It is believed the JFTC seized copies of contracts with Japanese computer makers • Intel disputes that the JFTC must now turn specific documents over, instead arguing there are more procedural steps before AMD receives any of the information

48. Freshfields Bruckhaus Deringer LLPAntitrust Competition and Trade Practice

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50. Terry Calvani Terry Calvani, a former US Federal Trade Commissioner, joined our US antitrust group in Washington, D.C. in June 2005. Mr. Calvani joins the firm from the Irish Competition Authority, where he has served as Member and Director of the Cartels Division since 2002. He brings to Freshfields over 30 years of U.S. and international private practice, academic and antitrust enforcement experience. Prior to his tenure with the Irish Competition Authority, he was a partner in the antitrust practice group of Pillsbury Winthrop LLP, resident in both its San Francisco and Washington, D.C., offices. Mr. Calvani was Commissioner of the U.S. Federal Trade Commission (1983-1990) and was acting Chairman of the Commission during 1985 and 1986. While in private practice, Mr. Calvani has worked on acquisitions/joint ventures in a very large number of industries and their review by numerous competition agencies. He has participated in civil and criminal non-merger investigations in many industries by both federal and state authorities. He has also provided antitrust counseling to a large number of companies and several trade associations.