Antitrust

2012 OFII General Counsel Conference Washington, D.C.

Antitrust

Part I: Conduct Cases and Enforcement

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2011 – 2012 Antitrust Update

• Conduct Cases

– Section 1 of the Sherman Act prohibits agreements and conspiracies that restrain trade. 15 U.S.C. § 1.

– Section 2 of the Sherman Act prohibits monopolization. 15 U.S.C. § 2

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Standard of Review

Two Categories of Violations:• “Per se”: violations that meet the strict characterization

of a Section 1 violation, such that no further inquiry into the practice’s actual effect on the market or the intentions of the participants is necessary.

• “Rule of Reason”: violations requiring a look at the totality of the circumstances and whether the challenged conduct promotes or suppresses competition.

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Price-FixingUnited States v. Apple, Inc., et al (E-Books), 12-CV-2826 (DLC)

• Alleged horizontal conspiracy among publishers to raise the price of eBooks• Alleged horizontal/vertical[?] conspiracy among publishers and Apple to

move to an agency model of distribution

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Price-Fixing (cont’d)

In re LIBOR-Based Financial Instruments Antitrust Litigation, MDL No. 2262, 1:11-md-2262-NRB• LIBOR• DOJ – antitrust• CFTC – market manipulation• Barclay’s settlement for manipulation

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Foreign Trade Antitrust Improvements Act• The Foreign Trade Antitrust Improvements Act (FTAIA) limits

enforcement of U.S. antitrust laws in situations where there are no clear effects on U.S. consumers.

• Three-step test, Animal Science Prods., Inc. v. China Nat’l Metals & Minerals Import and Export Corp. (D.N.J. Dec. 30, 2008):1) Did the conduct involve U.S. import trade or import commerce? 2) If not, does the conduct involve trade with foreign nations? and 3) If the conduct involves trade with foreign nations, does it have a “direct,

substantial, and reasonably foreseeable effect” on the U.S. market?

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Foreign Trade Antitrust Improvements Act (cont’d)

Minn-Chem, Inc. v. Agrium Inc. (7th Cir. Sept. 23, 2011)• Direct and indirect purchasers alleged that defendants engaged

in a widespread price-fixing conspiracy in violation of Sherman Act Sec. 1, resulting in a 600% increase in the price of potash.

• The Seventh Circuit panel held that the district court lacked subject-matter jurisdiction under the Foreign Trade Antitrust Improvements Act, because the purchasers failed to show that the allegedly anticompetitive conduct was directed at an import market.

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Foreign Trade Antitrust Improvements Act (cont’d)

Minn-Chem, Inc. v. Agrium Inc. (7th Cir. June 27, 2012)• Reversed en banc, the 7th Circuit held that the FTAIA sets forth an element

of a Sherman Act claim, rather than a jurisdictional limit.• For purposes of the FTAIA, the term “direct” means only a “reasonably

proximate causal nexus.”

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Bundling• “Bundling” is the practice of offering a single discounted price for two or

more products or services that are also sold separately . This practice raises antitrust concerns when a supplier with monopoly or significant market power uses bundled discounts to drive sales of other products or services that would otherwise be sold in a market.

• LePage’s Inc. v. competitive 3M (3d Cir. 2003): Bundling by a monopolist violates Section 2 of the Sherman Act if it is exclusionary or predatory and undertaken without a valid business justification.

• Cascade Health Solutions v. PeaceHealth (9th Cir. 2008): Rejected the LePage’s standard, held that plaintiff must establish that, after allocating the discount given by the defendant on the entire bundle of products to the competitive product or products, the defendant sold the competitive product or products below its average variable cost of producing them.

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Bundling (cont’d)

United States v. United Regional Health Care Systems (N.D. Tex. Feb. 25, 2011) Claims: • United Regional held monopoly power in markets for inpatient and outpatient hospital services. • United Regional’s contracts provide for a higher discount off billed charges to insurers if it is the only

local hospital or outpatient surgical provider in the insurer’s network, and a much smaller discount if the commercial health insurer adds another competing hospital to its network.

DOJ Complaint and Settlement:• “When the entire ''discount'' that a commercial health insurer receives in exchange for agreeing to

exclusivity is allocated to the patient volume that United Regional would likely lose to a competitor in the absence of the exclusionary contracts (the ‘contestable patient volume’), it is clear that United Regional is selling services to commercial health insurers for the contestable volume at a price below its own marginal costs. A competing hospital, therefore, would need to offer a price below United Regional's marginal cost to induce a commercial health insurer to turn down exclusivity.”

• DOJ filed a proposed consent decree on February 25, 2011, prohibiting United Regional from engaging in such practices.

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Reverse PaymentsIn re K-Dur Antitrust Litigation (3d Cir. July 16, 2012)• A reverse payment occurs when one firm pays another firm to delay its

entry into the market. • In this case, Schering-Plough Corp. and Upsher-Smith Laboratories

entered into an agreement to settle patent infringement litigation in 1997 that included “reverse payments” in an agreement for one party to delay market entry of the generic drug until September 2001. Plaintiffs alleged the agreement extended Schering’s monopoly and kept prices artificially high, in violation of antitrust laws.

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Reverse Payments (cont’d)In re K-Dur Antitrust Litigation (3d Cir. July 16, 2012)• Court held that reverse payments are presumptively unlawful, and any

payment from a patent holder to a generic challenger who agrees to delay entry into the market must be treated as prima facie evidence of an unreasonable restraint of trade, which could be rebutted by showing that the payment was for a purpose other than delayed entry or offers some pro-competitive benefit.

• Splits from 11th, 2d, and Federal Circuits on whether such agreements survive antitrust scrutiny. – Other circuits apply a “scope of the patent” test, “reverse payments are

permitted so long as (1) the exclusion does not exceed the patent's scope; (2) the patent holder's claim of infringement was not objectively baseless, and (3) the patent was not procured by fraud on the [Patent and Trademark Office].”

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Standard of ReviewCalifornia v. Safeway (9th Cir. Aug. 17, 2010)• Three supermarket chains, Albertson’s, Ralphs, and Vons (subsidiary of Safeway) They entered into

a revenue sharing agreement, where each chain would submit sales data for an eight-week period preceding a strike to a certified public accountant for calculation of any increase or decrease in revenues during the strike period relative to their historic shares. Those experiencing an increase would pay 15% of the increased revenues to lower performing chains. Pursuant to this, Ralphs paid over $80 million to Vons, and over $60 million to Albertson’s.

• 9th Circuit applied a “blended analysis”, and concluded that a profit sharing agreement of limited but unknown duration among firms comprising the majority of the relevant market would be considered a violation of § 1 of the Sherman Act, even by an ''individual with rudimentary knowledge of antitrust law ... in the absence of some extraordinary circumstance.'‘– Found that the Attorney General did not need to provide empirical evidence of an

anticompetitive effect because “the data required to best distinguish between the effects of the strike and those of the agreement and determine whether and how the agreement affected competition between the defendants does not exist.”

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Standard of Review (cont’d)California v. Safeway (9th Cir., en banc, July 12, 2011)• 9th Circuit reviewed en banc and reversed. The court disagreed with the

9th circuit panel’s use of a “blended analysis”.• This was not a per se violation, due to the temporary and unknown duration

of the agreement and the exclusion of other competing grocers. • Also declined to apply “quick look” analysis, because the anticompetitive

effects of this agreement were not obvious. It was not clear that the agreement was entered into with the intention of reducing price competition.

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Tying• Tying occurs when a monopolist sells its

monopoly “tying” product on the condition that the buyer also purchase a “tied” product.

• Tying is per se illegal if: 1) the tie-in involves two truly separate

products; 2) seller possess monopoly power over the

tying product; 3) and the tie-in affects a “not insubstantial”

dollar volume (not share) of commerce in the tied product market.

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Tying (cont’d)Brantley v. NBC Universal, Inc. (9th Cir. Oct. 31, 2011)• Class action challenging practice of cable programmers selling cable channels only in packages 1)

limits the manner in which distributors compete with each other; 2) reduces consumer choice; and 3) increases prices.

• Court found that the plaintiffs did not allege that the sale of tied “must-have” channels with “low-demand” channels excludes other sellers of low-demand channels from the market.

• The Court held that “[a]lthough plaintiffs may be required to purchase bundles that include unwanted channels in lieu of purchasing individual cable channels, antitrust law recognizes the ability of businesses to choose the manner in which they do business absent an injury to competition.” – “Limitations on the manner in which Distributors compete with one another

do not, without more, constitute a cognizable injury to competition.” • On November 2, 2011, following the departure of one of the deciding judges, the 9th Circuit withdrew

its decision, and directed the clerk’s office to reconstitute the panel by drawing a third judge.

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International EnforcementICN• Expanded from 15 to 123 members• Advocacy and training

Enforcement Across Jurisdiction• eBooks revisited• LIBOR revisited

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Antitrust

Part II: Antitrust and Intellectual Property


INJUNCTIONS AFTER FRAND COMMITMENTS

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FRAND Commitments in Standard-Setting• Many industries use standard-setting organizations

(SSOs) to establish technical standards• To lessen the risk of patent hold-up, participating

companies typically must agree to:– Disclose IP rights that would be essential to implementation of

the proposed standard– License any IP that proves essential to the standard on fair,

reasonable, and nondiscriminatory (FRAND) terms• But the typical SSO’s patent policy provides little

guidance on what constitutes a FRAND royalty

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Disputes Involving Holders of SEPs

• Many disputes have arisen recently between the holders of so-called “standard essential patents” (SEPs) and companies complying with the underlying standards– Disputes arise when the SEP holder makes an offer that the

implementer of the standard finds unreasonable– Or when the SEP holder refuses to engage in negotiations with

the implementer of the standard

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Injunctions After FRAND Commitments• These disputes raise the question of remedies

appropriately available to an SEP holder following infringement

• In federal court, permanent injunctive relief is no longer nearly automatic following a finding of infringement – See eBay v. MercExchange, 547 U.S. 388 (2006) (rejecting

presumption of irreputable harm and requiring proof of inadequacy of money damages)

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Injunctions After FRAND Commitments (cont’d)• In Apple v. Motorola,

Judge Posner, sitting by designation, recently concluded that injunctions should almost never issue in the standard-setting context

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. “I don’t see how, given FRAND, I would be

justified in enjoining Apple from infringing the ‘898 [patent] unless Apple refuses to pay a

royalty that meets the FRAND requirement. By committing to license its patents on FRAND terms, Motorola committed to license the ‘898 to anyone willing to pay a FRAND royalty and thus implicitly acknowledged that a royalty is adequate compensation for a license to use

that patent. How could it do otherwise?”

2012 WL 2376664 (June 22, 2012)


Divergence in ITC Section 337 Cases?• Section 337 of the Tariff Act of 1930 prohibits unfair

methods of competition (including patent infringement) from imported goods

• By statute, the ITC can consider public interest factors in deciding whether to issue an exclusion order after a finding of infringement, but in practice the order almost always issues

• Antitrust enforcers have raised concerns about the competitive impact of recent exclusion orders involving SEPs encumbered by FRAND obligations

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Divergence in ITC Section 337 Cases? (cont’d)• The Senate

Subcommittee for Antitrust, Competition Policy and Consumer Rights has urged the ITC not to enjoin importation of products following a patent holder’s breach of FRAND commitments

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“Any precedent that would enable or

encourage companies to include their patented technology in a standard, commit to license included patents on RAND terms, and

then seek to secure an exclusion order despite a breach of that commitment would thus implicate significant policy concerns.

Such an outcome would severely undermine broad participation in the standards-setting process, which would in turn threaten the

meaningful benefits these standards provide for both industries and consumers.”

Sens. Kohl (Antitrust Chair), Lee (Ranking Member), et al.


ACQUISITION OF PATENTS

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Recent High-Profile Acquisitions• DOJ recently reviewed three deals involving high-profile

acquisitions of patent portfolios:– Google acquired Motorola Mobility, including its portfolio of

17,000 issued patents and 6,800 pending applications– Rockstar Bidco (including Apple, Microsoft, and RIM) paid $4.5

billion to acquire approximately 4,000 Nortel patents– Apple acquired patents from CPTN Holdings LLP, formerly

owned by Novell

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Recent High-Profile Acquisitions (cont’d)• DOJ noted that these deals:

– “[H]ighlight the complex intersection of intellectual property rights and antitrust law and the need to determine the correct balance between the rightful exercise of patent rights and a patent holder’s incentive and ability to harm competition through the anticompetitive use of those rights”

• A leading commentator has observed that aggregation of many patents could extend their market power beyond their legitimate scope: – “[E]ven if all the patents are relatively ‘weak,’ their sheer number

threatens that one might be held valid and infringed.” Areeda & Hovenkamp 3 Antitrust Law ¶704b.

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DOJ Analysis of the Transactions• DOJ analyzed the ability and incentives of the acquiring

firms to use the acquired patents to raise rivals’ costs or foreclose competition– Hundreds of the Motorola Mobility and Nortel patents at issue

were SEPs that the patent holders had committed to license to industry participants in connection with their participation in SSOs

– As a member of the Open Invention Network (OIN), Novell had committed to cross-license its patents on a royalty-free basis for use in the open source Linux system

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All Three Deals Were Cleared• Relying on commitments made by the principal

competitors, DOJ cleared the three transactions– Apple and Microsoft committed to license SEPs on FRAND

terms, and to refrain from seeking injunctions in disputes involving SEPs

– DOJ noted that “Google’s commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies”

• DOJ stated that it “will continue to monitor the use of SEPs in the wireless device industry”

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Non-Practicing Entities• Nonpracticing entities (NPEs) hold patents but do not

produce goods or services covered by their patented technology

• The controversy over NPEs is well-captured by the title of a 2010 article by Shawn Miller: – Patent ‘Trolls’: Rent-Seeking Parasites or Innovation-Facilitating

Middlemen?• Legislation (the SHIELD Act) has been proposed to curb

frivolous patent litigation, and antitrust enforcers are conducting investigations

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K-DUR AND SCOPE OF THE PATENT TEST

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Scope of the Patent Test• Patent litigation settlements involving branded and

generic manufacturers long have been an enforcement priority of FTC Chairman Jon Leibowitz

• The Second, Eleventh, and Federal Circuits have found these settlements lawful under the “scope of the patent” test, under which settlements are lawful if:– The exclusion does not exceed the patent’s scope

– The patent holder’s infringement claim was not objectively baseless

– No fraud on the U.S. PTO was used to procure the patent

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K-Dur Decision Created Circuit Split• The Third Circuit rejected the “scope of the patent” test

– The court held that a reverse payment constitutes “prima facie evidence of an unreasonable restraint on trade”

– And said that settlements must be reviewed under a quick look rule of reason analysis based on their economic realities

• Reasoning: The scope of the patent test wrongly assumes validity of the patent – that validity is in fact at issue

• Petitions for certiorari are currently pending before the Supreme Court, and similar litigation has been stayed

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REFUSALS TO DEAL

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General Rule: No Duty to Deal• The antitrust laws impose no general “duty to deal” on a

firm, so long as the refusal is unilateral and unconditional– “[A]s a general matter, the Sherman Act ‘does not restrict the

long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’” Verizon Commc’ns, Inc. v. Trinko, 540 U.S. 398, 408 (2004) (internal citation omitted)

• The Ninth Circuit, which requires a business justification for the refusal, has been widely criticized

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Second Circuit Confirmed Majority View

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“To the extent Eatoni argues that RIM’s mobile phones offer the only platform compatible with its patented reduced

QWERTY keyboard technology, we agree with the district court that § 2 does not

obligate RIM to share its patented platform technology, from which RIM derives the lawful power to exclude others’ use.”

Eatoni v. RIM (2d Cir. June 21, 2012)


REMS and Refusal to Deal• Certain drugs are subject to Risk Evaluation and

Mitigation Strategy (REMS) requirements– REMS programs monitor usage of certain drugs to ensure that

their benefits outweigh their risks, and in some circumstances require “safe use” precautions

• REMS legislation states that REMS requirements cannot be used to block generic competition

• Earlier this year, a bill underscoring the branded drug manufacturer’s obligation to sell to generic companies passed the Senate but not the House

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REMS and Refusal to Deal (cont’d)• The FTC is investigating refusals by branded drug

manufacturers to sell (or to permit sales of) product to potential generic competitors– Is refusal by branded company an unlawful attempt to

circumvent Hatch Waxman Act or a lawful refusal to deal?• Last month, Actelion sued two generic manufacturers

under the Declaratory Judgment Act• Actelion seeks a declaration that it is not obligated to sell

branded drug samples to potential competitors

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Antitrust

Part III: Joint Ventures, Partial Ownership Interests, and Interlocking Directorates


Joint Ventures

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Antitrust: Joint Ventures

Any form of collaborative activity in which independent firms pool resources in order to achieve some positive result, such as improved efficiency, increased innovation, etc.

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• Common types include– Fully-integrated– Production– Marketing and distribution– Purchasing– R&D– Network

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• Ordinarily analyzed under Section 1 of the Sherman Act as agreements in restrain of trade

• Also subject to analysis under Section 2 of the Sherman Act as monopolization or attempted monopolization

• May be challenged under Section 7 of the Clayton Act if the formation of the joint venture involves an acquisition of stock or assets within the meaning of the statute

• May be challenged by federal or state enforcement agencies, or private plaintiffs

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• Section 1 Analysis– Threshold question: Whether joint venture involves a genuine

integration of economic resources sufficient to avoid condemnation as a per se unlawful cartel

– If so, it will be subject to “Rule of Reason” analysis– “Ancillary” restraints may be permissible if

• Reasonably necessary to the functioning of the joint venture• Least restrictive alternative to achieve the procompetitive

goal

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• Potential Competitive Effects– Courts and agencies have recognized that joint ventures can be

procompetitive– Joint ventures may also have anticompetitive aspects:

• Opportunities for price-fixing• May lessen competition• Harm non-participating competitors

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Antitrust: Joint Ventures• DOJ/FTC Guidelines for Collaborations Among

Competitors– Generally apply a Rule of Reason analysis– Recognize that joint ventures “may enable participants to offer

goods or services that are cheaper, more valuable to consumers, or brought to market faster than would be possible absent the collaboration.”

– Recognize a safe harbor: “Absent extraordinary circumstances, the Agencies do not challenge a competitor collaboration when the market shares of the collaboration and its participants collectively account for no more than twenty percent of each relevant market in which competition may be affected.”

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• Recent Development: American Needle, Inc. v. NFL– Challenge to NFLP’s grant of exclusive apparel license to

Reebok– NFL argued it should be regarded as a “single entity” and not

subject to Section 1 of the Sherman Act– U.S. Supreme Court held that NFL’s licensing activity was not

categorically beyond the reach of Section 1, but rather was subject to analysis under the Rule of Reason

– Crucial facts: NFLP was controlled by a group of would-be competitors and deprived the marketplace of independent centers of economic decision-making

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• Recent Developments: Pricing activity– Texaco v. Dagher– Involvement of parents in pricing activity– Firewalls– Resale Price Maintenance

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• Special Case: Cross-border joint ventures– Issues of laws of multiple jurisdictions (e.g., U.S.

Sherman Act, E.U. competition law, Japanese Antimonopoly Act)

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Partial Ownership Interests

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Antitrust: Partial Ownership Interests

• Acquisition of partial ownership interests runs afoul of antitrust law if the effect of the acquisition may substantially lessen competition or tend to create a monopoly– Narrow exemption for stock acquired “solely for

investment”

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• May raise competitive concerns– Ability to influence/coordinate competitive conduct– Reduce incentive to compete– Access to non-public, competitively sensitive

information• Complete ownership (i.e., parent-subsidiary)

does not pose same competitive concerns

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• Recent examples– U.S. v. Dairy Farmers of America– Clear Channel– Kinder Morgan

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Interlocking Directorates

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Antitrust: Interlocking Directorates• Under Section 8 of the Clayton Act, unless certain safe-

harbor criteria are met, U.S. law prohibits individuals serving as directors or officers of more than one entity if those entities are competitors– One court has suggested that Section 8 also applies to

“employees” more broadly– Statute contains several highly technical safe harbors designed

to exempt interlocks that pose little risk of antitrust injury (size of corporations, amount of competitive sales)

– Note: Section 1 of the Sherman Act also applies

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Antitrust: Interlocking Directorates“Direct” Interlock

When the same individual serves as a director or officer of competing corporations

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COMPETITORS

CORPORATIONB

CORPORATIONA

Directoror

Officer

INDIVIDUAL1 Director

orOfficer


Antitrust: Interlocking Directorates“Indirect” Interlock

When different individuals serve as directors or officers of competing corporations, but both act on behalf of same third entity

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Antitrust: Interlocking Directorates

• Practical Considerations– Companies must presently compete with each other – does not

apply to wholly-owned subsidiaries (Copperweld) and may not apply to ownership of more than 50%

– Competitive sales must be more than de minimis for Section 8 to apply

– May apply to foreign interlocks– Minority stakes in competing corporations and a lack of voting

control do not eliminate Section 8 problem

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Antitrust: Interlocking Directorates

• Practical Considerations– A “firewall” to stop the possible flow of competitively sensitive

information between to competitors may or may not be sufficient– One year grace period applies only to interlocks discovered

after-the-fact– When Section 8 problems surface, other competition problems

may also be present

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Antitrust

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