The Bloom & Stark Presentations: A Comment on Convergence Terry Calvani Member & Director of Criminal Investigations An tÚdarás Iomaíochta (The Competition Authority of Ireland) formerly Commissioner, United States Federal Trade Commissioner ABAAntitrustSectionSpringMeeting2005

CONVERGENCE Margaret Bloom Chas. “Chuck” Stark “The glass is half full.”“The glass is half empty.”

3 Just a couple of points-- 1.Convergence has taken, and is taking, place. 2.We likely don’t want complete convergence.

September

March

Cooperation? à I can’t recall a single case during my seven year term where there was meaningful cooperation with another antitrust agency. FTC Headquarters Washington, DC 1990

7 United States Federal Trade Commission In the Matter of INSTITUTE MERIEUX SA Docket C-3301 Appearances 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

8 Today Most Trading Countries Have 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-- à 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. à Some jurisdictions required that we file within a very short time after the definitive agreement had been signed.

CONVERGENCE à The ICN has prompted jurisdictions like my own to revisit merger laws that capture transactions with no nexus to the state. à 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 Review Eight Guiding PrinciplesEight 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 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 Recommended Practices for Merger Notification Procedures

Cartel Enforcement View of Whitehall vicinity à There was a time when companies subject to US investigations would have found a sympathetic ear in Whitehall. SCЖЩW Antitrust!

PRICE FIXING IS STEALING !

GE/Honeywell E X T R A E X T R A

Convergence? à Cases like GE/Honeywell and Boeing/McDonald Douglas generate much press. Nonetheless, there has been significant convergence. à The substance of cartel law is much the same. à Merger analysis is very similar. à Even vertical restraints is much alike. à And now—the focus is on unilateral behaviour.

P Q MC MR D Pc Pm Dc Dm Adam Smith

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

The Warren Court Antitrust Era Sex, drugs, rock n’roll and weird antirust!

Utah Pie Co. v. Continental Baking Co., 386 U.S. 685 (1967): Justice Byron White Predation measured by ATC Standard We are better off without convergence!

20 Convergence So a certain amount of experimentation is positive.

The Bloom & Stark Presentations: A Comment on Convergence Terry Calvani Member & Director of Criminal Investigations An tÚdarás Iomaíochta (The Competition Authority of Ireland) formerly Commissioner, United States Federal Trade Commissioner ABAAntitrustSectionSpringMeeting2005