The Bloom & Stark Presentations: A Comment

on Convergence

Terry CalvaniMember & Director of Criminal Investigations

An tÚdarás IomaíochtaAn tÚdarás Iomaíochta(The Competition Authority of Ireland)(The Competition Authority of Ireland)

formerlyformerlyCommissioner, United States Federal Trade CommissionerCommissioner, United States Federal Trade Commissioner

ABA ABA AntitrustAntitrustSection Section Spring Spring MeetingMeeting20052005

CONVERGENCE

Margaret Bloom Chas. “Chuck” Stark

“The glass is half full.” “The glass is half empty.”

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Just a couple of points--

1.1. Convergence has taken, and Convergence has taken, and is taking, is taking, place.place.

2.2. We likely don’t want We likely don’t want complete complete convergence.convergence.

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September 1990

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March 2005

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Cooperation?

I can’t recall a single case during my seven year term where there was meaningful cooperation with another antitrust agency.

FTC HeadquartersWashington, DC

1990

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United StatesFederal Trade Commission

In the Matter ofINSTITUTE MERIEUX SA

Docket C-3301Appearances

For the Commission: Claudia Higgins & James C. Egan Jr. For the Respondent: William Norfolk, Sullivan & Cromwell

Decision & Order

The Federal Trade Commission having initiated an investigation of respondent’s proposed acquisition of certain voting securities of Connaught BioSciences, Inc., and the respondent having been furnished thereafter with a copy of a draft of complaint which the bureau of Competition proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge the respondent with violation of the Clayton Act and the Federal Trade Commission Act; and The Respondent, its attorney, and counsel

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Today Most Trading CountriesHave Antitrust Laws

Albania, Argentina, Armenia, Australia, Austria, Barbados, Belarus, Belgium, Brazil, Bulgaria, Canada, Costa Rica, Cote d’Ivoire, Croatia, Cyprus, Czech Rep., Denmark, Estonia, European Union, Finland, France, Germany, Greece, Hungary, Iceland, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Kazakhstan, Kenya, Korea, Latvia, Lithuania, Macedonia, Malta, Mexico, New Zealand, Norway, Netherlands, Pakistan, Panama, Peru, Philippines, Poland, Portugal, Romania, Russia, Slovak Rep., Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, ROC-Taiwan, Thailand, Turkey, Ukraine, Uzbekistan, Venzuela, Zambia --PLUS an additional 35+ countries.

Just for example---

Just a couple of examples--

We were reviewed by jurisdictions with which we had almost no contact and which the merger would have no impact whatsoever. There was no nexus between the deal and the jurisdiction.

Some jurisdictions required that we file within a very short time after the definitive agreement had been signed.

CONVERGENCE

The ICN has prompted jurisdictions like my own to revisit merger laws that capture transactions with no nexus to the state.

The ICN has prompted jurisdictions like the EU to revise their filing requirements to liberalize the time of filing requirement.

Guiding Principles and Recommended Practices for Merger Notification and

ReviewEight Guiding Principles for merger notification and review were developed by the Notification & Procedures Subgroup and adopted by the ICN membership at its inaugural conference in September 2002. The subgroup has also developed a set of Recommended Practices for Merger Notification Procedures, which the ICN has adopted. These Practices address eleven areas that public and private sector representatives have identified as the most important to facilitating convergence toward best practices in merger review: (1) sufficient nexus between the transaction's effects and the reviewing jurisdiction; (2) clear and objective notification thresholds; (3) flexibility in the timing of merger notification; (4) merger review periods; (5) requirement

Cartel Enforcement

View of Whitehall vicinity

There was a time when companies subject to US investigations would have found a sympathetic ear in Whitehall.

SCЖЩWAntitrust!

PRICE

FIXING IS

STEALING!

GE/Honeyw

ell

EXTRA

EXTRA

Convergence?

Cases like GE/Honeywell and Boeing/McDonald Douglas generate

much press. Nonetheless, there has been significant convergence.

The substance of cartel law is much the same.

Merger analysis is very similar.

Even vertical restraints is much alike.

And now—the focus is on unilateral behaviour.

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DcDm

Adam Smith1723-1790

“And by the way—How much convergence do we really want?

The Warren Court Antitrust Era

Sex, drugs, rock n’rolland weird antirust!

Utah Pie Co. v.ContinentalBaking Co., 386 U.S. 685(1967):

Justice Byron White

Predationmeasured by

ATC Standard

We are better offwithout convergence!

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Convergence