December 2005 Antitrust Update
Corporate Counseling Committee
Section of Antitrust Law
American Bar Association
January 10, 2006
Terry Calvani
Thomas Janssens
MJ Moltenbrey
Bob Schlossberg
Paul Yde
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
1
Federal Agency Update
William E. Kovacic: New FTC Commissioner

Confirmed by Senate on December 17; sworn in on January 4

Previously a Professor 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)
3
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
4
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
5
New FTC (Antitrust) Organizational Chart
Commissioner
Pamela Jones Harbor
(2009)
Commissioner
Jon Liebowitz
(2010)
Chairman
Deborah Platt Majoras
(2008)
Commissioner
William E. Kovacic
(2011)
Director,
Bureau of
Economics
Director,
Bureau of Competition
General Counsel
William Blumenthal
Commissioner
J. Thomas Rosch
(2012)
Jeffrey Schmidt
Michael Salinger
Deputy Director
Deputy Director
[Vacant]
[Vacant]
6
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
7
Antitrust Modernization Commission Update
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
9
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
10
Criminal Enforcement
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
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 JOURNAL
December 22, 2005; Page A1
After years of campaigning, U.S. prosecutors are increasingly winning cooperation from foreign
governments in prosecuting antitrust offenders…
12
Civil Non-Merger Enforcement
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
14
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
15
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 online 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
16
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
17
US Merger Update
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
19
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
20
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)
21
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 paidup, 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)
22
Other DOJ and FTC Activity
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 nonreportorial 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
24
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”
25
Private and State Enforcement
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
27
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
28
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
29
International Developments
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
31
Review of Current State of Article 82

Woodstock
Era
Dominance defined in terms of
market share



Competition
Policy—
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
The Sixties Lives!

"Sex, Drugs and
Rock & Roll"
Presumed at 50%
Can be found at 20%


PAVC predatory—Akzo (ECJ)
P≥ATC predatory—Commission
Proof of recoupment not necessary
32
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
33
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
34
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
35
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
36
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
37
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
38
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
39
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 nonMicrosoft 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
40
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
41
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
42
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
43
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)
44
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
45
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
46
Freshfields Bruckhaus Deringer LLP
Antitrust Competition and Trade Practice
The Firm and Our Network
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is a leading international law firm,
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States. Our objective is to
provide high-quality legal advice
– domestically and internationally
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48
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.
49
Thomas Janssens
Based in our Brussels office, Thomas Janssens specializes in EU competition and
regulatory matters, with particular expertise in the telecommunications, media and
technology, energy, and transport sectors. He has represented a range of clients
before the European Commission and national competition authorities, as well as
before EU and national courts.
Global Competition Review nominated Thomas in the ‘Ten more to watch’ category
of its ‘40 under 40’ survey. He is co-consulting editor of the Getting the Deal
Through: Dominance guide and is a regular contributor to the ABA antitrust
section’s M&A subcommittee newsletter.
Thomas was educated at the University of Leuven in Belgium and Columbia
University Law School. He spent nine months with Cravath, Swaine & Moore in
New York before joining Freshfields Bruckhaus Deringer in 2001. He speaks
English, French and Dutch.
50
M.J. Moltenbrey
M.J. Moltenbrey joined our newly established US antitrust group in Washington,
D.C. in May 2002. She represents clients on a wide array of antitrust issues before
the DOJ and FTC and in federal courts.
Immediately before joining the firm, M.J. was Director of Civil Non-Merger
Enforcement in the DOJ’s Antitrust Division. In that position, she was the Antitrust
Division’s senior career official responsible for civil conduct investigations and
litigation. During her 17-year DOJ career, M.J. also served as Chief of the Civil
Task Force and as trial attorney. In these positions, she supervised or handled
literally hundreds of Hart-Scott-Rodino (HSR) merger reviews and conduct
investigations. Although she has experience in a wide range of industries, she had
a particular focus on the media, financial services, and transportation industries, as
well as the application of antitrust law to intellectual property and
internet/ecommerce issues.
In private practice, M.J. has defended clients in numerous merger matters, civil
and criminal conduct investigations, and in FTC litigation. Representative clients
include: ArcLight Capital, Continental Airlines, Degussa, Holcim, Infineon,
Invensys, Metromedia and Monsanto.
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Robert Schlossberg
For more than 20 years, Bob Schlossberg has represented clients on the full range
of antitrust matters with a particular emphasis on practice before the FTC and the
Antitrust Division of the Justice Department. He has considerable experience with
antitrust issues in mergers and acquisitions and has guided scores of national and
international transactions through antitrust review to a successful conclusion. He
has worked with a wide variety of industries, including chemicals, consumer goods,
energy, industrial machinery, medical devices, pharmaceuticals, publishing,
software and transportation.
Bob is Chair of the M&A Committee of the ABA Antitrust Section and editor of the
second edition of the ABA Antitrust Section treatise on U.S. antitrust law as applied
to mergers and acquisitions. Global Counsel, Euromoney Expert Guides and The
International Who’s Who of Competition Lawyers have listed him as a leading
lawyer.
Bob joined our firm from Morgan Lewis & Bockius LLP, where he was a partner
since 1990 and a leader of its antitrust group. He graduated from The George
Washington University National Law Center; he was Articles Editor of the Law
Review there and a Member of the Order of the Coif. He then clerked for the U.S.
Court of Appeals for the Ninth Circuit.
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Paul Yde
Paul Yde joined our newly established US antitrust group in Washington, D.C. in
May 2002. His practice primarily involves representation before the DOJ and the
FTC in connection with the antitrust aspects of M&A, joint ventures and other
collaborations, and distribution and intellectual property arrangements. Paul has
acted as lead counsel on dozens of complex matters relating to a variety of
industries. He has litigated antitrust cases before federal and state courts and in
federal administrative proceedings.
Just before joining the firm, Paul was a partner at Vinson & Elkins where he was
co-chair of the Antitrust Practice Group. Among his prior positions in government
antitrust enforcement, he has served as Counsel to two Federal Trade
Commissioners and as a Litigation Attorney in the FTC’s Bureau of Competition.
Paul has been recognized as a leading U.S. antitrust lawyer by Global Counsel,
Chambers USA and The International Who’s Who of Competition Lawyers. He has
been active in the leadership of the Antitrust Section of the ABA, and is a frequent
speaker and author on antitrust issues. Among his bar appointments, he has
served as a senior editor of the Antitrust Law Journal and of Antitrust Magazine,
and as the chairman of the ABA Antitrust Section’s Economics Committee.
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Freshfields Bruckhaus Deringer LLP
701 Pennsylvania Ave., NW, Suite 600
Washington, DC 20004
T: +1 202 777 4500
F: +1 202 777 4555
www.freshfields.com
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