Antitrust Concerns With Joint Ventures and Other Collaborations: Balancing Competitive vs. Anti-Competitive Effects

Avoiding Liability for "Naked" Agreements, Ancillary Restraints, Collusion; Assessing the Size and Market Footprint of the JV

A live 90-minute CLE webinar with interactive Q&A


Thursday, August 24, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, July 28, 2017


This CLE webinar will analyze the potential antitrust ramifications of joint ventures (JVs) and other collaborations between competitors and how to balance the pro-competitive efficiencies against the anti-competitive effects of a proposed JV. The panel will also discuss recent cases and agency guidance regarding “naked” transactions, competitive restraints, information sharing, and more.

Description

JVs and other business collaborations can require navigation of a potential minefield of antitrust issues. In general, antitrust analysis of a JV raises four sets of questions: first is whether there is a legitimate JV and the next three focus on whether the JV’s procompetitive efficiencies outweigh its anti-competitive effects.

Does the JV constitute a “naked” agreement among competitors or does it involve appropriate restraints within the scope of a legitimate JV? Does it impose so-called ancillary restraints on the venture itself or its members? What standard of review applies to such restraints? Does the size or market footprint of a JV make “too big” to be acceptable? What practical steps can each company take to manage and limit information sharing? Antitrust counsel will need to address these and other questions with regard to any proposed JV.

Guidance in this area is a mix of notable court cases and federal guidelines. Agency publications include the Antitrust Guidelines for Collaboration Among Competitors issued by the FTC and the Antitrust Guidelines for the Licensing of Intellectual Property and Statements of Antitrust Enforcement Policy in Health Care both issued by the DOJ.

Listen as our authoritative panel analyzes the pros and cons of collaborative JVs from an antitrust perspective, and potential sources of liability. The panel will also discuss agency guidance and recent antitrust case law with respect to JVs.

Outline

  1. Competitive benefits of JVs and other business collaborations
  2. Antitrust issues
    1. JV must be legitimate, not a “naked” agreement among competitors to collude
    2. Competitive restraints placed on the venture itself or its members: standard of review
    3. Analysis of market footprint and whether a business combination is “too big” to be acceptable
    4. Information sharing
  3. Recent case law
  4. Federal guidance

Benefits

The panel will review these and other key issues:

  • What is a “naked” agreement?
  • What kinds of competitive restraints are acceptable within a JV and which are not?
  • How does size and footprint figure into the antitrust analysis of a JV?
  • What steps should a JV take to control information sharing?

Faculty

Karen Kazmerzak, Partner
Sidley Austin, Washington, D.C.

Ms. Kazmerzak, a former FTC attorney, has a broad practice counseling clients regarding antitrust matters involved in M&As and concerning antitrust issues in licensing, distribution, pricing, and competitor collaborations. She represents clients seeking merger clearance from the FTC and the U.S. DOJ, and clients that are third-party market participants subpoenaed by the government or that oppose an acquisition. Ms. Kazmerzakalso works closely with co-counsel and economists to develop the best global strategy for clients’ advocacy across several jurisdictions, including in the U.S.

Howard M. Ullman, Of Counsel
Orrick Herrington & Sutcliffe, San Francisco

Mr. Ullman is a member of the Firm's Litigation and the Antitrust and Competition Groups. He focuses his practice on competition and antitrust law, trade regulation, unfair competition, class action and complex litigation issues. He has extensive experience advising on distribution law and distribution system issues (including competitor collaborations, pricing issues, non-price restraints and dealer termination issues). He routinely addresses and counsels on the antitrust / intellectual property interface. He regularly counsels companies on competition issues and price fixing, including Robinson-Patman Act (price discrimination) issues and market concentration issues. 


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