Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for May 2012

Legal films and series

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Many of you are aware about our taste for antitrust videos. In previous posts we commented on “The Informant” and on the OFT’s own production, we awarded Chilling Competition’s Antitrust Oscars, and we brought to you the wonderful classic”The Raid“.  Many of those posts rank high in our list of most visited posts, so there are reasons to believe that you share our “geek” taste for these movies.

Our “Friday Slot” guests also seem to be fans of legal movies.  In the interviews published so far some of them have confessed that legal movies rank among their favorites [e.g. “12 Angry Men” (Eric Gippini Fournier); “12 Angry Men”, “Philadelphia” and “The Verdict” (Johan Ysewyn), or “To Kill a Mockingbird” (Maurits Dolmans)].

The American Bar Association has a list of the 25 Greatest Legal Movies of all times [headed by “To Kill a Mockingbird” and “12 Angry Men”, which reveals that Maurits’, Eric’s and Johan’s taste for movies is not as original as their legal constructions 😉 ] Other websites have posted lists of the top-15 film/TV lawyers in history. The image that oursiders sometimes have from our job is often dictated by these movies and these characters. Whether or not they portray reality is generally a contentious issue. I went to Harvard Law School thinking that it would be like in “Legally Blonde” (I even died my hair and let it grow…here is the evidence), but it actually was closer to the scary “The Paper Chase“. Actually, it didn’t ressemble any of them. But it didn’t ressemble “The Social Network”s constant drunk partying neither..

Nowadays the good stuff has moved from the big screens to the TV. There’s a surprising number of “legal” TV series (see here for a list).  Not having ever watched most of them, I have to confess that I’ve a clear favorite: The Good Wife. For the past couple of months watching an episode (sometimes a couple, sometimes even one or two more…) has been a late-night vice routine. I know for a fact that other competiton lawyers are going through the same problem right now with this series. I even know someone in the US who called in sick the day the last season was released in DVD and watched the whole thing in one day. Maybe that was a bit too much, but you really should watch it. I’m now done with all available episosed and opened to suggestions for a new series. Anyone?

Written by Alfonso Lamadrid

16 May 2012 at 6:42 pm

Antitrust Hotch Potch

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The title of this post is not to pay tribute to my former blog.

And it safely assumes that my former co-blogger will not sue us for unfair free-riding, or for some weird trademark infringement.

A hotch potch of antitrust-related ruminations:

  • It struck me today as a little counter-intuitive that the upper Court of Justice (“CJ”) benefits from the advice of an Advocate General (“AG”) in all competition cases, whilst the General Court (“GC”) which hears more cases – and which reviews the whole of the case (facts + law) – does not enjoy the same luxury of perspectives. I know all too well that the GC may appoint an AG occasionally. But I have never heard that the GC availed itself of this opportunity in a competition case. I also know that AGs’ opinions focus primarily on points of law. But the GC also deals with issues of law. This situation is even more more surprising considering that before 1989, competition cases were handled by the Court of Justice in first instance, with the systematic assistance of an AG. A possible explanation for the degrading quality of first instance judgments in competition cases?
  • Talking of AGs’ opinions, AG Mazak’s opinion on AstraZeneca’s appeal to the CJ is out. In short, AG Mazak advises the Court to dismiss all appeals.
  • Talking of pharmaceuticals, I feel I have to self-promote write a line on a short, and modest text I wrote for the 1st edition of the Life Sciences College in March  (see link below). This text deals with recent antitrust developments in the pharmaceutical industry. It has been published nowhere, and I just do not know what to do with it (expand, publish, update, trash?). If anyone has a clue, please drop a line.

Speech – A quick look into the past, present and future of AT enforcement in Pharma – (22 03 12) NP

Written by Nicolas Petit

15 May 2012 at 7:45 pm

The Friday Slot- Eric Gippini Fournier

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You all are familiar with leading cases in the EU competitition law canon such as  Michelin II, Pre-Insulated pipes, Métropole,  O2, Cementbow, IMS, Endesa, Aer Lingus (in the Ryanair merger case), Glaxo Smithkline, Lélos, Astra Zeneca, Wanadoo, Telia Sonera, KME, Teléfonica or Tomra.  A good question for one of our quizzes would have been to ask what it is that all of these cases have in commmon. The right answer would be that in every single one of them one of the Legal Service’s agents representing the European Commission in Court was Eric Gippini-Fournier.  

Today’s Friday Slot features an interview with him. Eric is one of my (I don’t use the default plural here because Nico and Eric have not yet properly met, although this will be fixed soon) favorite people in this small competition law world. After reading his answers to our questionnaire you will understand why. Above all, Eric is an incredibly nice, reasonable, gentle and frank guy. But he’s also a brilliant and intellectually honest jurist, a tough adversary, and -like Fernando Castillo de la Torre and other members of the Legal Service– he’s a living encyplopedia on competition law. Eric is not contaminated or constrained by some of the oddities that at times surround the profit-making side of this business, and this often gives his views an added interest. On top of all of the above, we also share a taste for late Sunday lunch at Roi du Poulet…  We are very thankful to him for having accepted our invitation to appear here.

Oscar” of the best antitrust law book? Non-antitrust book?

The best antitrust books are slow food, the result of a long process by one or two cooks, not more. Areeda/Turner, Bork’s “Paradox” and Waelbroek/Frignani are great examples. Among recent books, I would nominate Luis Ortiz Blanco’s “Market Power in EU competition Law”.

Non-antitrust books? “Belle du Seigneur” by Albert Cohen comes to mind.  Lately I have enjoyed Art Spiegelman’s “Maus“, and two great biographies, of Benjamin Franklin and of Franklin D. Roosevelt (both by Henry Brands).

Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

My nominations in the first category will not necessarily please the blog hosts. They go to the ECtHR (Menarini Diagnostics), the ECJ (TeliaSonera, KME Germany and Tomra), and the EFTA Court (Posten Norge). On the “bad” side, I have misgivings –but only that, misgivings– about the hands-off approach to reverse payments, most recently by the court of appeals for the 11th circuit in Watson Pharmaceuticals.

Let’s do it like economists => assume that you could change rules, principles, judgments, institutions in the current EU antitrust system. What would you do?

I am not fond of the law on exploitative abuses, in particular excessive pricing. In fact I am not sure that prosecuting excessive pricing –essentially a consumer protection issue– fits with the overall design of EU antitrust, with its focus on protecting the competitive process.

I would revamp evidence rules before the EU courts, for example re-introduce the old ECSC rule that, in case of appeal against a Commission decision, the entire case file is automatically transmitted to the General Court. Right now the court file includes only evidence provided by the parties, which gives an incomplete view of a case.

Average working time/week?

Probably too much. I don’t count the hours but it should be possible to do the math. At any given time I have 40 or 50 cases pending before the EU courts and in a typical year I present oral argument in eight to twelve hearings, sometimes more. I should say that litigation is less than half of my workload.

Why do you work in antitrust law? How did you first get into it?

My home university inSpain has a tradition in IP and competition law. By law school graduation, the Merger Regulation had just been adopted, and it was the subject of my thesis. I then studied EU and U.S. antitrust at Bruges and Berkeley, with Robert Kovar and Einer Elhauge. These great teachers, and others like Val Korah and Louis Vogel inspired me. I also did some basic microeconomics coursework at LSE when I was a teaching assistant in Bruges and we were about to introduce a microeconomics course for lawyers.

All this was twenty years ago. What keeps me interested is that each antitrust case requires me to study and understand a different technical and economic reality: how Tetra Paks or CPUs are made, the intricacies of copyright management societies or the details of pharmaceutical pricing in Spain.

Most interesting, intense or funny moment of your career?

Around 1998 I had a hectic, but very interesting time with sports-related antitrust issues like FIA/Formula One and the FIFA player transfer regulations. I have had intense hearings over the years, including GlaxoSmithKline, Telefónica, and many others.

Funny moments came especially in non-antitrust cases. In a case involving regulatory obstacles to selling nutritional supplements, we arranged to meet with the complainant’s board of directors. Four huge bodybuilders showed up, each 150 Kg of muscle and built like trucks! We immediately agreed with everything they said and promised swift action.

Your role model (if any) in the antitrust community?

Read the rest of this entry »

Written by Alfonso Lamadrid

11 May 2012 at 6:08 pm

User’s Guide

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The naysayers pretend that this blog is for “self-promotion“.

Last WE, we received again a comment by “Someone” (or is this Raymond again?) who bashed us for our lack of objectivity, our allegedly one-sided editorial line, and other things that I cannot even recall.

Since we do not publish rubbish, especially when anonymous, we decided to trash the comment.

Now, a few reminders are in order:

  1. The reading of this blog is not compulsory.  Escaping Chillin’Competition is just “one click away“;
  2. There are no barriers to entry on this market. A blog costs nothing to set up. Those who may be willing to contradict us can freely do so;
  3. We do not self promote, and certainly not Alfonso (did you read yesterday’s love declaration?). Our Friday slot series and the Economist corner bring ample proof of this;
  4. If I am the one to self-promote, it is because I am a fairly anonymous guy: I have a twin brother, and I have two very famous homonyms (see here and here).

Written by Nicolas Petit

9 May 2012 at 12:00 pm

Posted in Uncategorized

The European Commission’s Legal Service

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One of the good things about this blog is that it enables us to give credit to the people who, in our view, deserve it.

Today it’s the turn of the European Commission’s Legal Service.

Why them? Because many of the most brilliant jurists and many of the most reasonable and kind people that I have come across in my professional life were/are members of the Commission’s Legal Service. We won’t cite individual names because it would be unfair to those not mentioned, but also because the list would be too long.

These guys know competition and State aid law inside out, but they also know there are other provisions in the EU Treaties; they have the uncomfortable mission of second-guessing the case team’s work and of facing lawyers in Courts; they don’t have the same means and tools that big firms have; they sometimes have to fight armies of lawyers with the help of only one or two colleagues; they have an unbearable workload (Fernando Castillo de la Torre recently told us that he’d had more than 20 oral hearings last June!); and still they win most cases. And when they win there are two options: (a) either other people get the credit; or (b) everyone blames the Court for getting things wrong. That’s not always fair; I have worked with, and most often against, them, and in every single case they did an outstanding job.

Were Court submissions in the EU not confidential (query: should they?), people would realize the importance that the Legal Service has had in shaping up competition law.

All of this sounds like we are buttering them up but, frankly, it´s what we think. We seldom see their work praised in public (praising the ones on the other side of the table is not always common whereas demonizing the Commission is), so we decided to take it upon us to say that the work these guys do is to be acknowledged.

We said above that some of the most brilliant and nicest people in the competition law we’ve met in the competition law world belong to the Legal Service. We are very proud to anticipate that one person who fits perfectly into this description, Eric Gippini-Fournier, will be our next “Friday Slot” interviewee. (P.S. Click here for the interview)

Written by Alfonso Lamadrid

8 May 2012 at 6:18 pm

François Hollande and Competition Law

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The French Presidential election was held yesterday and, as you know, François Hollande won.

There is significant expectation as to the changes that the result of this election might entail for the rest of the European Union.  Now, should we expect any changes in the competition law domain?

Nicolas Sarkozy did have an undeniable impact on competition law. First he managed to delete from the Lisbon Treaty the reference to the objective of ensuring “free and undistorted competition” in the EU (see here and here) and then he taught us the difference between endive growers, Apple and Microsoft (an explanation that, as you may remember, prompted our friend Mark English to stop wrapping his iPhone in ham).

Those interested in Hollande’s views on competition law should read his replies to Concurrences’ interview (in French, though).

Written by Alfonso Lamadrid

7 May 2012 at 11:49 pm

The Friday Slot (10): Herbert Hovenkamp

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As we announced a couple of daus ago, today’s Friday Slot festures an interview with Herbert Hovenkamp.  We also said in our previous post that, even though we have never met Professor Hovenkamp in person, there are very few people who have taught us more about antitrust law. His works (cited in this 17-page CV) exude an all too rare lucidity. When he was awarded the John Sherman Prize by the US Department of Justice, Thomas Barnett said that “Professor Hovenkamp sets the standard for antitrust scholarship today”. We agree. If you ask us, Professor Hovenkamp is not only the co-author of the best book in the history of antitrust law, but he’s also the author of a few more of the works that would feature in our top-10. That’s why we were thrilled to receive an email in our inbox from him (signed as “Herb”) accepting our invitation to take part in The Fridat Slot only a few minutes after we contacted him.

We are immensely grateful  to Professor Hovenkamp for having accepted our invitation, for all that his work has taught us and will continue to teach us, and for his enormous contribution to making antitrust law a more sensible discipline. We leave you with him now.

“Oscar” of the best antitrust law book? Non-antitrust book?

Best Antitrust Book:  Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (1975).

Best non-antitrust book:  Louis Menand, The Metaphysical Club: A Story of Ideas in America (2001)

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Best: Mayo Clinic v. Prometheus Laboratories, 132 S.Ct. 1289 (2012)

Worst: FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369 (11th Cir. 2011).

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU antitrust system. What would you do? 

Answer: I would speak only to the United States system, where I would change the following three things:

A.  The per se rule against tying arrangements (insofar as it still exists)

B.  The strict recoupment requirement in predatory pricing cases when prices are clearly below average variable cost

C.  The federal courts’ repeated refusal to see the competitive harm in reverse payment settlements in pharmaceutical infringement cases

Average working time/week?

According to my family, way too much.

Why do you work in antitrust law? How did you first get into it?

A very good and inspiring teacher in law school, Lino Graglia of the University of Texas

Most interesting, intense or funny moment of your career?

The first time I sent a manuscript to my sadly departed and at the time very senior co-author, Phillip E. Areeda, in 1985.  It was intense although not necessarily funny.

 Your role model (if any) in the antitrust community?

Robert Pitofsky

What do you like the least about your job?

Grading exams

What do you like the most about your job?

The classroom, particularly my antitrust, torts and innovation and competition policy classes.

What do you like the most about economics in antitrust law?

Its ability to separate rational from irrational conduct (at least in many cases)

What you like the least about economics in antitrust law?

Its tendency to become overly technical and thus beyond the reach of the people who are most central to antitrust decision making.

What career/personal achievement are you most proud of?

Completion of the Antitrust Law treatise after Phillip E. Areeda’s death in 1995, and also the recent completion of my book Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (with Christina Bohannan) (Oxford, 2012)

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

I would be either a Dutch Reformed clergyman or a Professor of American History

Besides being a “antitrust geek” (sorry for this one, but we all are), what are your hobbies?

Raising children and dogs, and traveling

Favorite movies?

Sappy chickflicks: The Notebook, Sleepless in Seattle, Titanic

Favorite music style in general?

1980s and 1990s rock and progressive country

Your favorite place in the world?

Paris

Your favorite motto?

« Just Do It »  [apologies to Nike]

Websites that you visit the most (besides Chillin’Competition)?

–RealClearPolitics.com

–Slate.com

–eBay.com

A piece of advice for junior antitrust professionals?

For young antitrust academics: don’t get too hung up on ideology.

Written by Alfonso Lamadrid

4 May 2012 at 4:00 pm

Posted in Uncategorized