Russia’s head antitrust agency, the Russian Federal Antimonopoly Service (“FAS”), has signed a Memorandum of Understanding (“MOU”) with the United States Department of Justice and Federal Trade Commission to promote greater cooperation between the two governments on antitrust issues.

FAS Head Igor Artemyev, FTC Chairman Jon Leibowitz, and Assistant Attorney General for Antitrust Christine Varney signed the MOU in Washington, D.C., earlier this month.

The MOU provides that the two countries will inform each other of basic activities of the two antitrust agencies, exchange their views on options for development of bilateral cooperation in competition enforcement, and exchange materials on their areas of authority and expertise.  Chairman Leibowitz stated with regard to the agreement between the two countries, “We are delighted to enter into this antitrust Memorandum of Understanding with the Russian Federal Antimonopoly Service.  It will enable us to enhance our cooperation, provide a framework for technical cooperation, and facilitate consultation on policy and enforcement matters with our counterpart in this important jurisdiction.” click here for more »

The outlook for Oracle’s proposed acquisition of Sun Microsystems is only partly cloudy now that federal antitrust enforcers have announced that they will not be joining their European counterparts in opposing the acquisition.

The Antitrust Division of the United States Department of Justice issued a statement on November 9, 2009, concluding that Oracle’s proposed acquisition of Sun is unlikely to be anticompetitive.  This announcement came on the heels of the European Commission’s objection to the proposed $7.4 billion transaction.

After an investigation that included gathering statements from a number of industry participants and reviewing Oracle’s and Sun’s internal business documents, the DOJ based its determination on a number of factors.

For example, the DOJ concluded that there are many open-source and proprietary database competitors who offer consumers a variety of well established and widely accepted data products, and thus the proposed acquisition would be unlikely to harm consumers.  The DOJ also determined that there exists a large community of developers and users of Sun’s open source database with significant expertise in maintaining and improving the software, and who could support a derivative version of it.

Still, Oracle must find a way to convince the European Commission that the proposed transaction is not anticompetitive.  Oracle has expressed confidence that it can do so.  The company stated that “[g]iven the lack of any credible theory or evidence of competitive harm, we are confident we will ultimately obtain unconditional clearance of the transaction.”

 Two recent antitrust cases in China indicate that country may be inching its way toward fulfilling its potential as a modern economy by embracing competition law.

It was only in August 2008 that the world’s third largest economy joined the ranks of countries with private competition law regimes with China’s adoption of its new Anti-Monopoly Law (AML).

The AML generally resembles the basic framework of the American and European antitrust regimes, in the sense that it sets forth broad guidelines for dominant-firm conduct, collusion and mergers and acquisitions.  And it allows private parties – not just the government – to enforce the law through lawsuits.  Recent outcomes in two such cases suggest that private litigation under the AML will be robust, giving Chinese lawyers no shortage of work.

The Shanda-Sursen case, decided on October 23, 2009, produced the first court decision interpreting the AML’s dominant-firm provisions. click here for more »

Merck’s acquisition of Schering-Plough is plowing ahead as the companies addresses competitive concerns raised by antitrust enforcers.

 In an October 29, 2009, Consent Order, the FTC is permitting the acquisition – which would result in the one of the world’s largest prescription drug companies – to go forward provided the two companies divest of certain assets.  The European Union granted a smooth approval to the companies’ merger just a week earlier.

 The divestitures required by the FTC are already well underway.  As discussed in an earlier post, the anticipation and remedying of potential objections by regulators has allowed the Merck and Schering-Plough deal to progress.  In addition to the EU, Canadian and Swiss antitrust authorities have also given the green-light for this acquisition to continue.  The transaction still needs to obtain approval from other regulators, including Mexico and China before its anticipated close in the fourth quarter of 2009. 

 The main hurdle for FTC clearance was the concern regarding the parties’ animal health operations, but, as discussed earlier, Merck has already taken steps to divest itself of its shares in Merial, its animal health joint venture with Sanofi-Aventis.  This approval signifies that Merck and Schering-Plough have satisfied the issues raised in the FTC’s June 22, 2009, second request.

 The successful merger of the two companies would result in the world’s second largest prescription drug companies – behind only Pfizer, Inc.

British antitrust authorities may be telling CAMRA (the Campaign for Real Ale) that it’s closing time for its complaint charging beer prices have increased due to lack of pub competition, but the consumer group isn’t going home quietly.

CAMRA is asking Lord Mandelson, Britain’s Secretary of State for Business, to refer its complaint to the Competition Commission, following the October 22, 2009, announcement by Britain’s Office of Fair Trading (OFT) finding no significant harm to consumers despite slightly higher beer prices.

The consumer group is arguing that British consumers are being harmed by purchasing requirements that are imposed on so-called tied pubs, which are pubs operated by tenants who lease the premises, which are typically owned by a large pub management company or brewer.  The challenged purchasing requirements obligate the pub to buy most or all of its beer from the landlord or a supplier designated by the landlord.

CAMRA filed a complaint with the OFT in July 2009, charging that the pubs’ landlords use the exclusive purchase requirements to force the pubs to buy beer at higher prices than they would pay if they were free to choose their suppliers and buy directly from these suppliers. click here for more »