Global Competition Outlook: 2014

Keywords: competition enforcement, global antitrust enforcement

Mayer Brown's competition team presents its "2014 Outlook," where we identify the key issues and describe our expectations for the year ahead.

Generally, in 2014, we expect significant increases in competition law enforcement. In the United States, the second term of the Obama administration has begun with even greater antitrust enforcement, while European competition enforcement continues unabated. Additionally, China and Brazil have emerged as two of the most important regimes.

United States

In 2013, the US Federal Trade Commission (FTC) and Department of Justice's Antitrust Division (DOJ) grabbed headlines with high-profile litigation such as challenges to Apple's conduct with respect to e-book sales and to the merger between US Airways and American Airlines. We expect continued aggressive enforcement across all industries and sectors, with particular focus on the following:

Merger Investigations. The government has demonstrated that it is prepared and equipped to challenge mergers in court. While it will be possible to get most mergers cleared, some transactions that may have gone through unchallenged five years agoor even three years agowill meet with more resistance, and remedies will be scrutinized. Vertical Issues. After years of disinterest during the first part of the millennium, there have been expressions of renewed focus on vertical enforcement. The FTC and DOJ will focus on exclusive contracting provisions, "Most Favored Nation" clauses, and/or contractual terms that have the effect of limiting competition. Mergers that raise vertical issues also will be scrutinized. Information Exchange. The FTC will issue an opinion in 2014 in a pending administrative case (McWane) that may provide some guidance on information exchange. But regardless of that decision, information exchange is an issue that will continue to generate interest among enforcers. There are long-published guidelines that are unlikely to be modified and that, if followed, generally provide a safety zone in which to operate. Information exchanges outside of the safety zone should be undertaken with care and counsel. Intersection of Intellectual Property and Antitrust. The current FTC chairwoman began her career as an intellectual property lawyer. The agencies will review the role of "patent assertion entities" (also called patent trolls), will continue to investigate standard setting conduct, and will sustain their efforts to curb purported abuses of intellectual property. There also could be a legislative fix for patent troll issues in 2014. Cartel Enforcement. Although there is a new Deputy Assistant Attorney General in charge of criminal antitrust for the first time in more than eight years, the DOJ likely will maintain its carrot-and-stick approach to detecting, deterring, and prosecuting domestic and international cartels. Attacking international cartels and expanding cooperation with foreign enforcement authorities will remain two of the DOJ's top priorities. In the courts, the DOJ faces two serious challenges to its expansive view of the Sherman Act's application to foreign conduct in cases pending before the Second and Ninth Circuits. State Enforcement of Antitrust. State attorneys general will continue to file lawsuits pursuing antitrust claims and will continue to challenge mergers that they think could impact citizens of their respective states. We expect state attorneys general particularly to be active in the health care industry. With respect to private actions, we expect that several high-profile rulings last year by the Supreme Court and US Courts of Appeals will remain in focus in 2014, as litigants test the application of these cases in the district courts. In addition, businesses should continue to expect that US and foreign government antitrust enforcement efforts will result in follow-on private...