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Antitrust Update
for In-House Counsel
Corporate Counseling Committee
Section of Antitrust Law
American Bar Association
December 2, 2005
Program Outline
• Washington News (Kevin Grady)
• Mergers & Acquisitions (Teresa Bonder)
• Private Litigation (Randall Allen)
• Enforcement and Criminal (Adam Biegel)
• International (Steve Harris)
-2-
Washington News
Kevin E. Grady
-3-
Washington News
• Supreme Court Cases
• FTC and DOJ Nominations
• Judge Alito’s Nomination to Supreme Court
• Antitrust Modernization Commission
• FTC / DOJ Single-Firm Conduct Hearings
-4-
Supreme Court
Cases argued this past month:
• Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.
(374 F.3d 701 (8th Cir. 2004)) (argued 10/31/05)
• Illinois Tool Works, Inc. v. Independent Ink, Inc. (396 F.3d 1342
(Fed. Cir. 2005)) (argued 11/29/05)
Upcoming case:
• Texaco, Inc. v. Dagher and Shell Oil Co. v. Dagher (369 F.3d
1108 (9th Cir. 2004)) (oral argument scheduled for 1/10/06)
Potential cases:
• FTC v. Schering-Plough Corp. (402 F.3d 1056 (11th Cir. 2005))
• Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. (411
F.3d 1030 (9th Cir. 2005))
-5-
Supreme Court Cases Argued
This Past Month
-6-
Volvo Trucks North America, Inc. v.
Reeder-Simco GMC, Inc.
• Case involves scope of Robinson-Patman Act (15
U.S.C. § 13(a))
– who receives protection
– type and amount of evidence needed to make out a successful
claim under the Act.
• First secondary-line price discrimination case before the
Supreme Court in 15 years
– Primary line: injury to other suppliers who compete with
discriminating seller
– Secondary line: injury to disfavored purchasers from
discriminating seller who competes with favored purchasers
-7-
Volvo Trucks North America, Inc. v.
Reeder-Simco GMC, Inc.
• Heavy truck industry
• Competitive bidding process
• Price concessions
• Oral argument on October 31st
-8-
Volvo Trucks North America, Inc. v.
Reeder-Simco GMC, Inc.
The Supreme Court is likely to resolve two questions:
• Whether there must be two actual purchases at different
prices in order to make out a RPA claim? Or may the
plaintiff simply have received a less favorable offer
from the manufacturer?
• Whether the RPA requires a plaintiff to prove injury in a
specific transaction against a favored purchaser, or if it
is sufficient to show that the difference in price
concessions generally prevented the plaintiff from
competing?
-9-
Illinois Tool Works, Inc. v.
Independent Ink, Inc.
• Case involves the continuing effect of Supreme Court precedent
that patents are presumed to have market power.
• In a tying case, is a patented product presumed to confer market
power such that tying the sale of a patented product to another
product constitutes a per se violation of Section 1 of the Sherman
Act?
• Older Supreme Court precedent establishes the principle that the
“requisite economic power is presumed when the tying product is
patented or copyrighted.” United States v. Loew’s, Inc., 371 U.S.
38, 45 (1962) (citing Int’l Salt Co. v. United States, 332 U.S. 392,
395-96 (1947)).
-10-
Illinois Tool Works, Inc. v.
Independent Ink, Inc.
• Illinois Tool Works manufactures patented inkjet
printheads, patented ink containers, and non-patented
ink for use in its printheads and ink containers. Illinois
Tool Works licenses its patented products to
manufacturers as a package, and its patent license
agreements require those manufacturers using its
printheads and ink containers to purchaser their ink
exclusively from Illinois Tool Works.
• Independent Ink is an independent distributor and
supplier of printer ink products. It brought suit against
Illinois Tool Works for engaging in illegal tying in
violation of Section 1 of the Sherman Act.
-11-
Illinois Tool Works, Inc. v.
Independent Ink, Inc.
• Federal Circuit affirmed summary judgment for plaintiff
because it felt bound by Supreme Court precedent, but
basically urged Supreme Court to reverse it.
• Key issues in case:
– determination of the appropriate distribution of the burdens in
antitrust litigation
– importance of stare decisis.
• Oral argument held on November 29th.
• Several justices seemed skeptical of affirming Federal
Circuit.
-12-
Upcoming Supreme Court Case
-13-
Texaco, Inc. v. Dagher and
Shell Oil Co. v. Dagher
• Oral argument scheduled for Jan. 10th.
• Involves the extent to which members of a joint
venture are subject to per se liability under
Section 1 of the Sherman Act.
• Texaco and Shell unified production and
marketing functions, yet continued to sell their
products as distinct brands.
• 9th Circuit concluded unified pricing scheme
constituted per se violation of § 1.
-14-
Potential Cases for Supreme
Court
-15-
FTC v. Schering-Plough Corp.
• Supreme Court invited the Solicitor General on October
31st to file a brief expressing the views of the United
States on whether it is an antitrust violation to settle
patent infringement litigation with an agreement that
delays generic market entry in return for substantial
payments by the manufacturer of a branded prescription
drug.
• 11th / 6th Circuit split: Schering-Plough Corp. v. FTC,
402 F.3d 1056 (11th Cir. 2005) v. In re Cardizem CD
Antitrust Litig., 332 F.3d 896 (6th Cir. 2003).
-16-
Weyerhaeuser Co. v. Ross-Simmons
Hardwood Lumber Co.
• The Supreme Court on November 28th invited the
Solicitor General to present the views of the United
States on whether it should review this 9th Circuit
decision involving predatory overbidding in the timber
industry.
• Involves issue of whether predatory pricing standards
set forth in Brooke Group Ltd. v. Brown & Williamson
Tobacco Corp., 509 U.S. 209 (1993), should be applied
to determine violation of Sherman Act § 2 in context of
alleged monopsony power.
-17-
Federal Trade Commission Nominations
• Thomas Rosch, partner at Latham & Watkins, &
William Kovacic, George Washington University
Law professor, nominated by President Bush to
replace Commissioners Swindle and Leary on
the FTC
• Senate Commerce Committee approved the
nominations on November 18th
• Confirmations could occur as early as this month
-18-
Thomas Barnett
• Nominated by President Bush on August 23rd to
be the Assistant Attorney General in charge of
DOJ’s Antitrust Division
• Following an October 6th hearing, the Senate
Judiciary Committee on November 3rd favorably
reported the nomination
• Confirmation could occur this month
-19-
Judge Alito’s nomination – perspective
on antitrust background
• Involved in many Third Circuit antitrust opinions; unclear track record, but precedent indicates
generally not inclined to favor plaintiffs.
• Pro-plaintiff:
– Miller v. Indiana Hospital (reversing district court’s finding of state-action antitrust immunity)
– Brader v. Alleghany General Hospital (reversing dismissal of complaint)
• Pro-defendant:
– LePage’s Inc. v. 3M (joined en banc dissent arguing for entry of judgment as matter of law against plaintiff
on monopolization claim)
– 2600 Woodley Road Joint Venture v. ITT Sheraton Corp. (no antitrust standing under RPA)
– Gordon v. Lewistown Hospital (upholding district court’s rulings finding no antitrust violations)
– Barton & Pittinos (lack of antitrust injury)
– Lum v. Bank of America (antitrust claim based on misrepresentation not pled with specificity)
– Queen City Pizza, Inc. v. Domino’s Pizza, Inc. (upheld dismissal of complaint due to failure to plead
relevant market)
– Mathews v. Lancaster General Hospital (defendants did not engage in antitrust violations)
– TICOR Title Ins. Co. v. FTC (antitrust laws inapplicable to “business of insurance” under McCarran-
Ferguson Act)
– International Raw Materials v. Stauffer Chemical Co. (defendants entitled to Webb-Pomerene immunity)
-20-
Judge Alito’s nomination – perspective
on antitrust background
• Participated in amicus brief for federal government in
Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104
(1986).
– Question of standing for private plaintiff and proof of antitrust
injury in antitrust injunction cases under Section 16 of Clayton
Act.
– Argued that plaintiff’s mere assertion of more competitive
environment should not constitute antitrust injury and that
allegations of future predatory pricing related to corporate
mergers should be viewed with skepticism.
-21-
Antitrust Modernization Commission
• Held multiple hearings over the past month
– Criminal Remedies (November 3rd)
– Federal Enforcement Institutions (November 3rd)
– New Economy (November 8th)
– Merger Enforcement (November 17th)
– Government Civil Remedies (December 1st)
– Immunities and Exemptions (December 1st)
• http://www.amc.gov/index.html
• http://www.abanet.org/antitrust/home.html
(ABA Antitrust Section comments on AMC)
-22-
FTC / DOJ Single-Firm Conduct
Hearings
• The FTC and Antitrust Division of the DOJ announced on
November 28th that they will hold a series of public hearings
designed to examine the antitrust implications of single-firm
conduct under the antitrust laws.
• Primary goal of the hearings is to examine whether and when
specific types of single-firm conduct are pro-competitive or
benign, and when they harm consumers.
• Participants will discuss standards used in recent cases, including
DOJ’s enforcement actions against Microsoft, American Airlines,
and Dentsply, and FTC cases against Intel, Unocal, and Rambus.
Private actions, such as Trinko and LePage’s, also will be
examined.
• Hearings are set to begin in Spring 2006.
-23-
Mergers & Acquisitions
Teresa T. Bonder
-24-
Mergers in the News
SBC/AT&T; Verizon/MCI
• Two local exchange carriers acquiring long-distance carriers.
• Coordinated review by DOJ and FCC.
• On October 27th, the DOJ filed complaints and consent
decrees providing for the divestiture of portions of certain
local network facilities where the merging parties controlled
the only wireline access into commercial buildings.
• Divestiture required a single purchaser in each city, using
long-term leases (“IRU”) in 19 metro areas.
• The FCC approved the two mergers on October 31st, subject
to several conditions that will expire in two to three years.
-26-
Johnson & Johnson/Guidant
• On November 2nd, FTC announced a consent agreement
allowing J&J’s purchase of Guidant subject to the divestiture
of assets and a license in three medical device product
markets.
• Both makers of cardiology products and cardiac surgery
devices, in 3 highly concentrated product markets.
• Deal was slowed by the recall of certain Guidant products in
the summer of 2005.
• After suit by Guidant, revised agreement reached.
• The deal will create the largest single supplier of medical
devices to heart specialists.
-27-
Oracle/Siebel Systems
• On November 15th, Oracle announced that the
DOJ cleared its proposed $5.85 billion
acquisition of Siebel Systems.
• The transaction still requires regulatory clearance
from the European Commission.
• Previously in 2004, DOJ filed a lawsuit to block
Oracle’s attempt to acquire PeopleSoft.
-28-
Exchange Mergers
• On November 16th, the DOJ announced the closing of its
investigations of the proposed Exchange Mergers:
– NYSE/ArcaEx
– NASDAQ/INET
• Announcement of mergers followed by announcements
of the intention of several separate entities – backed by
leading banks and securities firms – to enter and
compete in market.
• Determinative factor: effect of anticipated new entrants
in market.
• SEC approval still required.
-29-
M&A Policy Discussions
“The Rhetoric of Gun-Jumping”
• On November 10th, William Blumenthal, General Counsel of the
FTC, delivered a major policy address on gun-jumping.
• Concern that enforcement actions and lack of bright-line rules
have caused merging parties to be too conservative in recent
years
– Agencies recognize importance of due diligence and transition planning
– Enforcement actions based on egregious conduct
• Common coordination issues found by agencies:
– Spillover effects from legitimate information exchange
– Joint decisions on post-closing matters
– Joint marketing prior to close
• Speech available at http://www.ftc.gov/speeches/blumenthal.htm.
-31-
Antitrust Modernization Commission:
Federal Enforcement Institutions Hearings
• Hearing held November 3, 2005
• Comparison of FTC with DOJ merger enforcement
– Standards for preliminary injunctions
• Merger review clearance process
– Demise of 2002 agreement
• Detailed information available at
http://www.amc.gov/commission_hearings.htm.
-32-
ABA Antitrust Section’s Comments Regarding Merger
Enforcement Policy/Horizontal Merger Guidelines
• Federal merger policy has been generally effective without
unduly limiting the ability of firms to expand globally and
achieve efficiencies.
– Remains room for improvement: agencies should focus on longer
view that considers innovation, competition and efficiencies, as
opposed to near-term price concerns.
• Horizontal Merger Guidelines accurately reflect agency policy.
– One glaring exception: agencies’ movement away from reliance on
HHI.
• Comments available at
http://www.abanet.org/antitrust/comments/2005/11-05/merger-
enforc-policy.html.
-33-
ABA Antitrust Section’s Comments Regarding
Appropriate Role of Efficiencies in Merger Enforcement
• Section suggested revisions of merger guidelines:
1. to clarify Government’s view regarding the passing-on of
reductions in marginal costs, an accepted efficiency
2. to set forth the conditions under which the Agencies will
credit the reduction of fixed costs
3. to clarify the Agencies’ treatment of the improvements of
existing products and the introduction of new products
4. to credit the efficiencies created by combining complementary
assets
• Comments available at
http://www.abanet.org/antitrust/comments/2005/11-
05/roleofefficiencies.html.
-34-
Private Litigation
Randall L. Allen
-35-
Private Enforcement
• Spirit Airlines, Inc. v. Northwest Airlines, Inc., No. 03-
1521, 2005 WL 2990632 (6th Cir. Nov. 9, 2005).
– The district court granted Northwest’s motion for summary
judgment on Spirit’s Sherman Act § 2 claim, holding that:
• The unmistakable message from Brooke Group, 509 U.S. 209 (1993),
is that the existence of a predatory pricing scheme must be adjudged
solely by reference to an objective comparison of the defendant’s price
and costs.
• There is seemingly no way of recognizing a gray area, in which other
indicia of predation then become relevant, without running afoul of the
danger explicitly recognized in Brooke Group.
-36-
Private Enforcement
• Spirit Airlines, Inc. v. Northwest Airlines, Inc.
– The Sixth Circuit reversed the district court’s
granting of summary judgment, holding:
• Although some courts have accepted the marginal or
average variable cost standard as an indicator of intent,
many allow for consideration of other factors indicative of
predation.
• Market situations exist where a rational firm would find it
prudent to sell below its average variable cost, and a firm
selling above average variable cost could be guilty of
predation. The key to determining predation is examining
the intent behind the pricing.
-37-
Private Enforcement
• In re Tamoxifen Citrate Antitrust Litigation, Docket
No. 03-7641, 2005 WL 2864654 (2d Cir. Nov. 2, 2005).
– The Second Circuit upheld a district court’s dismissal of the
complaint.
• A 1993 patent dispute settlement agreement required Zeneca to pay
Barr $21 million and to grant Barr a license to sell Zeneca-
manufactured tamoxifen in the United States under Barr's label.
• Plaintiffs – consumers of the drug tamoxifen, third-party payor
organizations, and consumer advocacy groups – alleged that the
settlement agreement provided for the sharing of unlawful monopoly
profits, maintained an artificially high price for tamoxifen, and
prevented competition from other generic manufacturers of tamoxifen.
• The Second Circuit held that the mere fact that a pharmaceutical drug
patentee and proposed maker of generic version settled prior to appeal
of judgment holding patent invalid was insufficient, without more, to
constitute a Sherman Act § 1 violation.
-38-
Private Enforcement
• Vernon Walden, Inc. v. Lipoid GMBH, No. Civ. 01-
4826DRD, 2005 WL 3088333 (D.N.J. Nov. 17, 2005).
– The complaint alleged that Lipoid GMBH engaged in
secondary line price discrimination in violation of the
Robinson-Patman Act.
– The testimony of the plaintiff’s damages expert – who had
authored numerous articles and spoken frequently upon
economic subjects and had provided expert testimony at more
than 500 trials, arbitration hearings and oral depositions – was
excluded.
– The court held that the damages calculation failed to eliminate
lost sales and profits due to reasons other than the price
discrimination.
-39-
Private Enforcement
• RLH Industries, Inc. v. SBC Communications, Inc., 35 Cal.
Rptr. 3d 469 (Nov. 3, 2005).
– The trial court granted SBC’s summary judgment motion for two claims
that its subsidiaries illegally tied high voltage protection services to local
telephone service.
– The California Court of Appeal upheld one summary judgment award, and
reversed the other.
• Upholding Summary Judgment: The company did not engage in an illegal
tying arrangement in violation of the Cartwright Act with regard to policies
concerning customers' purchase of high voltage protection (HVP) equipment
from it merely by packaging them together, because its customers could choose
to buy telephone service and HVP service separately, from different parties,
and company did not have a direct financial interest in the other HVP providers
it approved for its customers.
• Reversing Summary Judgment: The Commerce Clause does not necessarily
prevent California antitrust and unfair competition law from reaching
telephone company's allegedly anticompetitive policies in other states, despite
their effects on California customer.
-40-
Enforcement
Adam J. Biegel
-41-
Federal Trade Commission v. Warner
Chilcott and Barr Pharmaceuticals, Inc.
• FTC voted 4-0 to initiate lawsuit against Warner
Chilcott (“WC”) and Barr seeking a permanent
injunction
– Filed on November 7, 2005 in D.C. District Court
– Joined by 21 states and DC, which seek disgorgement
and civil penalties.
• Allegation is that WC and Barr entered into an
agreement to suppress competition for generic
version of Ovcon, an oral contraceptive.
-42-
Federal Trade Commission v. Warner
Chilcott and Barr Pharmaceuticals, Inc.
• FTC Complaint alleges:
– WC acquired Ovcon from Bristol Meyers Squibb in 2000. By that time,
patent protection on Ovcon had expired.
– WC had planned to develop a chewable version of Ovcon to combat
generic entry into the market but by 2003 had not yet received approval
– Barr filed an application for FDA approval of generic Ovcon in Sept. 2001
and was preparing to enter market in 2003
– WC expected generic Ovcon to capture 50% of new prescriptions
– WC and Barr entered a Sept. 2003 agreement whereby WC was to pay $20
million to Barr for a 5-year delay in introducing generic Ovcon in the
United States
– Barr agreed to be available as a second supplier of Ovcon to WC if WC
requested
– The agreement was styled as an option for an exclusive license for Barr's
generic Ovcon
-43-
Federal Trade Commission v. Warner
Chilcott and Barr Pharmaceuticals, Inc.
• Raises important issues involving generic drug
agreements
• Prior to the agreement between Barr and WC
being finalized, it was presented to the FTC and
the FTC did not object
-44-
Antitrust Modernization Commission:
Government Civil Remedies Hearing
• Hearing held on December 1, 2005
• Witnesses:
– Kevin J. Arquit
– Prof. Stephen Calkins
– John D. Graubert
– Comm. Thomas B. Leary
• Discussed whether government should be able to
pursue monetary remedies, such as disgorgement
and restitution
-45-
DOJ ends investigation into Vermont home-
health agencies
• DOJ had been investigating whether Vermont’s
system of 12 home-health agencies operated as
anticompetitive territorial allocation
• On November 23, 2005, DOJ announced it was
ending its investigation based on a new state law
giving the home-health agencies legal protection
• DOJ commented that the new law would also
allow for additional competition and additional
government oversight
-46-
FTC Rules that North Texas Specialty
Physicians illegally fixed prices
• Case background
– Administrative Complaint filed against NTSP in September 2003
– In November 2004, ALJ ruled against NTSP
– On December 1, 2005, FTC unanimously affirmed (with minor
modifications) the ALJ’s ruling, and issued an Order requiring NTSP to
cease and desist illegal conduct and to terminate pre-existing contracts
• NTSP is a group made up of physician members that negotiated
non-risk sharing (fee-for-service) contracts on behalf of its
members
• While stating that NTSP’s conduct was similar to conduct held
per se unlawful, FTC examined conduct under Polygram analysis
-47-
Criminal
Adam J. Biegel
-48-
Antitrust Modernization Commission:
Criminal Remedies Hearing
• Hearing held November 3, 2005
• Witnesses
– Scott D. Hammond
– Anthony V. Nanni
– Tefft W. Smith
– Charles R. Tetzlaff
-49-
Antitrust Modernization Commission:
Criminal Remedies Hearing
• Hearing topics
– Whether the Sentencing Guidelines adequately distinguish
between antitrust violations
– Whether the volume of commerce is an appropriate measure of
severity of antitrust violation
– Whether the loss provision in the alternative minimum fine
provision in 18 U.S.C. § 3571(d) should be interpreted as loss
suffered from violation as a whole or loss attributed to
particular individual
– Whether the “20% of the volume of affected commerce” proxy
set out in U.S.S.G. §2R1.1(d)(1) should be used if it would
result in a fine greater than the Sherman Act statutory
maximum
-50-
Antitrust Modernization Commission:
Criminal Remedies Hearing
• The ABA Antitrust Section submitted comments to the
AMC
– The Sentencing Guidelines adequately set corporate fines for
antitrust violations based on the severity of conduct
– AMC should recommend to Congress that Congress direct the
Sentencing Commission to review the rationale for special
sentencing methodology in antitrust cases
– Interpretation of § 3571(d) should be left to the courts
– Appropriateness of resorting to a “presumed harm” calculation
of individual defendant’s fine range should be resolved by the
courts on a case by case basis
-51-
Samsung Pleads Guilty to Price Fixing
• On November 30, 2005, Samsung Electronics
Company pleaded guilty to participating in a
price-fixing conspiracy
• Government alleged that Samsung fixed prices of
dynamic random access memory chips
• Samsung will pay a $300 million fine
-52-
Senate Bill 443
• Senate Bill 443 allows the Justice Department to
use wiretaps in criminal antitrust investigations
• Senate passed the Bill unanimously on October
25, 2005, and it has been referred to the House
Judiciary Committee
• Sponsored by
– Mike DeWine (R-Ohio)
– Herb Kohl (D-Wis.)
– Patrick Leahy (D-Vt.)
-53-
International
H. Stephen Harris, Jr.
-54-
International Update
New Chinese Antitrust Law
• Likely to be enacted in 2006
• Draft not final – serious disagreements at
Ministry level among the State Council,
MOFCOM and SAIC
• Plan: submit final draft to legislature this month
-55-
Chinese Antitrust Law
• Major Provisions of the Current Draft:
– M&A review procedure for deals over $25 million
and where one party has at least $186 million in sales
or assets
– Civil and criminal penalties for agreements harming
competition (unclear the extent to which vertical
agreements will be covered)
– Civil and criminal penalties for abuses of dominance
(draft has mkt. share presumptions)
-56-
Chinese Antitrust Law
• Major Provisions of the Current Draft:
– Primarily agency administrative process
– Procedures not clear: implementing regulations
desperately needed and promised
– Lawsuits permitted in People’s Courts (subject to
prior finding of violation by the Anti-Monopoly
Authority
-57-
Chinese Antitrust Law
• Most Serious Potential Problems
– Possible compulsory licensing for “abuse” of IP by
dominant firms (refusal to license = abuse??)
– Possible compulsory access to “network and
infrastructure” owned or controlled by dominant firm
– Fear that these provisions will result in a spate of
cases against large non-Chinese companies with
substantial market share in China
-58-
Chinese Antitrust Law
• Most Serious Potential Problems
– “Unfair” low prices and “unfair” high prices
prohibited – no standards
– Much lobbying for sectoral exemptions
-59-
European Union
• The European Commission plans to promulgate
guidelines on the modernization of Article 82
(the abuse of dominance provision)
• The focus of the guidelines will be on:
– The promotion of competition
– Protection of consumers, not competitors
– The recognition of an efficiency defense to
allegations of abuse
-60-
European Union
• A “discussion paper” will be published by the
EC Legal Services Division this month
• The paper will outline the planned guidelines for
exclusionary conduct – a paper on exploitative
and discriminatory conduct to follow
• The paper will likely recommend that market
share presumptions be discarded, but also that
market share safe harbors be discarded
-61-
Japan
• New Leniency Program in place for criminal violations
• Fax notice does not require detailed information, but
does require identity of company, product market and
nature of violation reported
• No attorney-client privilege in Japan
• Though information submitted to the JFTC is
confidential by statute, Japanese courts can compel
production; then is privilege lost and document usable
elsewhere, e.g. U.S. class action litigation?
-62-
U.K. and 6 Other EU Member States
• Now have criminal penalties for price-fixing,
bid-rigging, etc.
• Thus, for first time, extradition from these
countries to the U.S. is possible (and is
apparently going to happen in one case)
• With DOJ Red Notice watch list approach,
executives with charges pending in U.S. have
travel severely restricted
-63-
General Electric – Honeywell Merger
• The European Court of First Instance will issue its
judgment on December 14, 2005 regarding the G.E. –
Honeywell proposed merger that was originally blocked
by the European Commission.
• The G.E. – Honeywell merger was the first time the
United States and E.U. were split on approving a
merger.
• The case highlights the emphasis the E.U. has placed on
coordinated effects and bundling contrasted with the
U.S. courts’ and agencies’ primary focus on unilateral
effects.
-64-
Alston & Bird LLP
• Alston & Bird LLP has over 700 lawyers in offices located in
Atlanta, New York, Washington, D.C., Charlotte, and the
Research Triangle.
• The Best Lawyers in America® 2006 features 109 of our attorneys.
• For the second year in a row, The BTI Consulting Group included
Alston & Bird on its “Client Service A-Team” list based on its
2004 survey of Fortune 1000 companies. We also are among the
BTI “Power Elite,” a group of only 24 law firms in the U.S.
recognized for the strength of their relationships with Fortune
1000 companies.
• In a recent American Lawyer survey, Alston & Bird tied for 1st
among all U.S. law firms in the number of designations as
primary outside counsel by the largest privately held companies
as ranked by Forbes magazine.
-65-
Alston & Bird’s Antitrust Practice Group
• Alston & Bird’s Antitrust Practice Group was founded
as a separate practice focusing on competition law and
trade regulation over 40 years ago. Among U.S. law
firms, our practice is one of the longest-established and
largest such groups.
• Our attorneys include former chairmen of the ABA’s
Antitrust Section and the Antitrust Section of the State
Bar of Georgia, a current member of the ABA Antitrust
Section’s Council and International Task Force, and
chairs or vice-chairs of the ABA Antitrust Section's
Corporate Counseling and Books and Treatises
Committees.
-66-
Kevin E. Grady
Kevin E. Grady, a partner in the Atlanta office of Alston & Bird, concentrates on counseling and litigating
competition and trade regulation matters. Mr. Grady has been involved in representing clients in all facets
of federal antitrust litigation and counseling. Mr. Grady has had significant experience representing clients
in various segments of the health care industry, as well as representing clients in many other industries,
such as franchising, heavy-equipment and automotive distribution, building supplies, commercial printing,
gasoline distribution, chemical products, steel, and insurance. Mr. Grady has represented clients in FTC
investigations, antitrust criminal grand juries, and in Hart-Scott-Rodino merger filings in a wide variety of
industries.
Mr. Grady served as Chair of the ABA Section of Antitrust Law in 2003-2004. He previously held a
number of leadership positions within the Section, including serving as Chair of the Section's Health Care
Kevin E. Grady Committee and vice-chair of the Section's Franchise Committee.
404-881-7164 Mr. Grady is a former Chair of the Health Law Section of the State Bar of Georgia and President of the
kevin.grady@alston.com Georgia Academy of Healthcare Attorneys. Mr. Grady is a member of the American Law Institute.
Mr. Grady has spoken and written on a wide variety of antitrust topics. He is past-president of the
American Counsel Association and has served as a trustee of Vanderbilt University. Mr. Grady is listed in
The Best Lawyers in America, Chambers USA Leading Business Lawyers, Who’s Who in American Law
and International Who’s Who of Competition Lawyers.
Mr. Grady received a J.D. from Harvard Law School in 1974 and an A.B. from Vanderbilt University in
1969. He is a member of the Georgia Bar and is admitted to practice in the Northern District of Georgia,
the Eleventh Circuit Court of Appeals and the United States Supreme Court.
-67-
Teresa T. Bonder
Teresa Bonder focuses her practice in the areas of antitrust and securities litigation, especially in the class action context, and
antitrust counseling with respect to mergers, acquisitions and other business ventures.
Ms. Bonder has successfully defended numerous class actions in jurisdictions across the country. In addition to securities fraud
and antitrust issues, these matters have included a variety of commercial claims, including RICO, ERISA, and consumer claims.
She has represented individuals and corporations in civil and criminal matters. For example, she represented a publicly-traded
company in connection with an investigation by the U.S. Securities and Exchange Commission into accounting and disclosure
practices, as well as the tag-along class action and individual-plaintiff securities fraud suits.
She also regularly advises clients in anticipating and resolving potential antitrust liability with respect to all aspects of their sales
and marketing activities, including pricing, price discrimination, distribution and franchise relationships, initiating and
responding to competitive attacks, joint ventures, and other marketing practices. In addition, Teresa regularly counsels clients
regarding mergers and acquisitions (including filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and
Teresa T. Bonder international pre-merger notification laws), and has assisted many clients with investigations by the U.S. Department of Justice
404-881-7369 and the Federal Trade Commission challenging proposed business combinations.
tbonder@alston.com
Teresa has published articles on various topics related to antitrust law, including: "The Daubert Gate Swings Both Ways: A
Defense Counsel’s Perspective to Presenting Economic Testimony in Antitrust Litigation," ABA Section of Antitrust Law,
Economics Committee Newsletter (Spring 2001); "Entry Analysis: Report of the Task Force on Fundamental Theory," ABA
Section of Antitrust Law (Spring 2001). She also assisted in editing the International Antitrust Law and Foreign Competition
Laws Treatise, American Bar Association (March 2001), and the Antitrust Law Developments, Volume V, American Bar
Association (2001). Teresa has also authored articles relating to securities law issues, including: "Defeating 'Bet-the-Company'
Cases: Pretrial Defenses to Securities Fraud Class Actions," 29 Ga. St. B. Journal 206 (May 1993); "Misguided Statutory
Construction to cover the Corporate Universe: The Misappropriation Theory of Section 10(b)," Albany Law Review (Oct. 1995),
and published as one of the best securities articles of the year, in Securities Law Review (1995).
Ms. Bonder received her J.D. in 1991 from the Boalt Hall School of Law, University of California, and her B.A., summa cum
laude, from Amherst College in 1987. Ms. Bonder is listed in the Georgia Super Lawyers as one of the state's top antitrust
lawyers.
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Randall L. Allen
Randall Allen is Co-Chair of the firm’s Litigation and Trial Practice Group. He concentrates his practice on complex
commercial litigation with a focus on antitrust litigation and counseling. Mr. Allen also leads the firm’s antitrust merger
counseling effort and frequently appears before the Department of Justice and Federal Trade Commission on behalf of
large public clients.
Mr. Allen has extensive antitrust litigation experience. For example, he recently served as lead counsel for Mohawk
Industries, Inc. in a nation-wide grand jury investigation of alleged price fixing in the carpet industry. Mr. Allen also
represented Mohawk in the related nationwide price fixing class action and state court indirect purchaser class actions.
He recently represented a manufacturer of consumer products in litigation with a terminated distributor alleging
unlawful distribution practices under the Sherman Act. Randall frequently counsels clients on antitrust compliance and
risk assessment related to pricing, distribution and strategic planning.
Randall L. Allen
404-881-7196 Mr. Allen frequently represents clients in connection with merger reviews by the antitrust enforcement authorities. His
rallen@alston.com practice includes pre-merger analysis, Hart-Scott Rodino filings and responding to “second request” from the antitrust
enforcement authorities. For example, Mr. Allen recently served as lead antitrust counsel for Movie Gallery in its
recent acquisition of Hollywood Entertainment. Mr. Allen also served as lead counsel in the successful defense of
Boral Industries, Inc. in connection with the FTC’s investigation and ultimate challenge of Boral’s formation of a joint
venture with a competitor in the building products industry. Mr. Allen has represented companies in merger reviews
covering a variety of industries, including Internet, technology, consumer products manufacturing and distribution,
health care, construction equipment and professional services in merger related investigations.
Mr. Allen received his J.D. cum laude, in 1986 and his B.A. in 1982 from Georgia State University. He is a member of
the Georgia State University, College of Law, Board of Visitors and Board Member and General Counsel for Ronald
McDonald Children’s Charities.
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Adam J. Biegel
Adam Biegel is an associate in the firm’s Antitrust & Investigations Group. He focuses his practice on antitrust counseling and
complex litigation matters, including commercial and antitrust litigation.
He regularly counsels corporate clients on a variety of antitrust issues, including pricing, mergers, joint ventures, distribution,
franchising, intellectual property licensing and antitrust compliance. He has represented clients in antitrust-related counseling
and litigation matters in many fields, including the education, insurance, manufacturing, pharmaceutical, chemical, health care,
real estate, financial service, sports promotion and travel industries.
Currently, Mr. Biegel also serves as a Vice Chair of the Corporate Counseling Committee of the American Bar Association’s
Section of Antitrust Law. He previously served as Assistant to the Chair of the ABA Antitrust Section and has contributed to a
variety of leading antitrust publications in recent years, including the ABA Antitrust Section’s Antitrust Law Developments (5th
ed.), Competition Laws Outside the United States, Antitrust Compliance, and International Antitrust Bulletin. He also
contributed chapters to West’s Antitrust Advisor and the Georgia Appellate Practice Handbook. He has chaired programs or
Adam J. Biegel spoken at conferences on antitrust topics, including recent events sponsored by the ABA Antitrust Section, State Bar of Georgia
Alston & Bird LLP Antitrust Section and Florida State University.
404-881-4692
adam.biegel@alston.com He joined Alston & Bird in 1998 after receiving his J.D. from the University of Chicago Law School, where he was a Comment
Editor of the University of Chicago Legal Forum. He also served as a law clerk during 2001-02 for the Hon. Frank M. Hull of
the U.S. Court of Appeals for the Eleventh Circuit.
Prior to attending law school, Mr. Biegel was a general assignment reporter for the Arkansas Democrat-Gazette in Little Rock,
Arkansas, and a legislative correspondent for U.S. Senator Orrin G. Hatch in Washington, D.C. Mr. Biegel received his B.A.,
summa cum laude, in Political Science and English in 1993 from Emory University, where he was editor-in-chief of The Emory
Wheel and elected to Phi Beta Kappa and Omicron Delta Kappa.
Mr. Biegel is a member of the State Bar of Georgia as well as the American, Federal and Atlanta bar associations. He is a
member of the DeKalb County Community Development Advisory Council and the Federalist Society Atlanta Lawyers
Chapter Executive Board, and is active in the alumni associations of Emory University and the University of Chicago. He also
serves as a legal officer and holds the rank of captain in the Civil Air Patrol (U.S. Air Force Auxiliary).
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H. Stephen Harris, Jr.
Steve Harris serves as Chair of the firm's Antitrust Practice Group, and Chair of the Global Services Task
Force, the group that focuses on building and maintaining the firm's network of relationships with law
firms outside the United States.
Steve has litigated numerous complex cases in federal courts throughout the United States, including the
defense of numerous publicly-held corporations in civil and criminal antitrust matters. He has also
represented numerous U.S. and non-U.S. companies before antitrust agencies of the U.S. and other
jurisdictions, including the European Commission's DG COMP, the Japan Fair Trade Commission, and the
antitrust agencies of Brazil. Steve has arbitrated complex commercial disputes under the rules of the
International Chamber of Commerce (ICC), the Japan Commercial Arbitration Association (JCAA), and
H. Stephen Harris, Jr. the American Arbitration Association (AAA).
404-881-7197
steve.harris@alston.com Steve received a J.D. from Columbia University School of Law in 1982, where he was a Harlan Fiske
Stone Scholar and certified with honors by the Parker School of Foreign and Comparative Law. Steve
received an A.B., magna cum laude, from Cornell University in 1977, where he was a Cornell University
College Scholar of the College of Arts & Sciences. He currently serves as a member of the Council of the
American Bar Association's Section of Antitrust Law, and a member of the China Working Group of
Committee C (Competition) of the International Bar Association. Steve writes and lectures frequently on
U.S. antitrust law, has been accorded honorary membership in the Association of Fellows and Legal
Scholars of the Center for International Legal Studies, Salzburg Austria. Steve is co-author and Editor-in
chief of the two volume treatise, Competition Laws Outside the United States, published by the ABA.
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