GTM

Written by Lisa Navarro

In September 2013, the Office of Fair Trading (“OFT“) issued statements of objection (“SO“) in two separate resale price maintenance cases. The first relates to the sale of sports bras, and the second to mobility scooters. Distinct products, sold in different ways, but both have allegedly been the subject of arrangements between suppliers and retailers aimed at artificially managing the prices that consumers pay.

The investigation into price fixing for sports bras was launched in April 2012. It focused on the conduct of DB Apparel UK Limited (“DBA“) with regard to its Shock Absorber range of sports bras. Between 2009 and 2011, DBA allegedly entered into nine agreements with three major department store chains covering nationwide sales of multiple products within the Shock Absorber range. The agreements contain provisions which set a fixed or minimum resale price for the products, thereby resulting in prices being higher than they might otherwise have been.

The OFT’s decision to issue an SO to Pride Mobility Products Limited (“Pride“) and a number of the retailers that sell its mobility scooters follows a market study on the mobility aids sector which concluded in 2011. Pride and its retailers are accused of being party to arrangements which prevented the retailers from advertising online prices at levels below Pride’s recommended retail price.
Continue Reading OFT investigates pricing restrictions in sale of mobility scooters and sports bras

Written by Luke Dixon

Recent news on both sides of the Atlantic has included considerable commentary on the issues of data privacy and international data flows. With an important vote on the issue due to take place in the EU Parliament next month, now seems like a good time to bring readers up to date with progress on the proposed draft General Data Protection Regulation (the “Regulation”). This legislation (once adopted by the EU) will provide the superstructure to its approach to the challenges of data privacy in the 21st Century.

The European Commission published its reform proposals for EU data protection law in January 2012. These reforms are intended to replace the current Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “Data Protection Directive” or the “Directive”).

The reforms are chiefly embodied in a draft Regulation which is currently making its way through the EU’s legislative process (albeit not at a breakneck pace). The Regulation is aimed at harmonizing the data protection procedures and enforcement across the whole EU. This should provide a “one-stop shop” for non-EU companies who want to understand their compliance obligations. Under the current Directive, the EU Member States have more scope for interpretation in their national laws, and their implementation of EU law has been more uneven. This note highlights some of the key changes to the present regime that will be introduced if the draft Regulation is adopted in its current form.
Continue Reading The Draft EU Data Protection Regulation: Where are we now, and where are we going?

Written by Luke Dixon | Stephen C. Tupper

The UK Supreme Court (the Court) has upheld the Court of Appeal’s earlier decision that an employee of one of the defendants was not liable for misuse of the claimant’s confidential information.

This case will be of particular interest to businesses with R&D operations in the UK, as it highlights the limitations of employee contracts on protecting trade secrets once an employee has left the business. It also explores how far a claimant can allege that a defendant has been complicit in a “common design” to misuse trade secrets, when the defendant had no knowledge of the trade secrets or their misuse.

Vestergaard’s business was the development, manufacture and marketing of insecticidal bednets, which were designed to prevent the sleeper from being bitten by mosquitos, and also to reduce the mosquito population. Vestergaard had developed certain techniques to manufacture and sell long-lasting insecticidal nets, known as “LLINs”.
Continue Reading UK Trade Secrets Law – Ex-employee Bites Back in Mosquito Net Case

Written Simon Harms and Stephen C. Tupper

Many in the shipping industry will recall the heated debates leading up the decision of the European Commission (the “Commission”) to repeal the block exemption for liner shipping conferences in 2008 (the “Repeal”), thereby opening the container trades to the same competition law enforcement regime that applies to other sectors of the wider economy.

Nearly three years on, shipping operators may have been forgiven for wondering what all the fuss was about. What, if anything, had changed in practice? The answer, until very recently, was: not very much. Following the Repeal, the Commission did not appear particularly keen to pursue liner shipping. Shipping operators meanwhile – by and large – maintained, superficially at least, traditional operating models.

The cosy status quo, however, may be about to change: in May 2011, the Commission launched an investigation into the container liner shipping sector. Its focus is reportedly on agreements entered into after the Repeal came into force. The Commission’s investigation is at an early stage and it is yet to be seen whether it is “merely” conducting a temperature check which may result in “tweaking” such agreements or whether the investigation will develop into a full-scale cartel probe. The use of unannounced inspections – or “dawn raids” – at the premises of a number of key operators suggests the Commission is serious but much will depend on the quality of the evidence gathered.
Continue Reading EU Competition: liner shipping conferences back on the Commission’s radar

Written by  Paul Berkowitz

On February 13, 2013, the United States Securities and Exchange Commission (“SEC”) issued a publication entitled, Accessing the U.S. Capital Markets — a Brief Overview for Foreign Private Issuers. 1 The publication opened by stating that “[t]he U.S. capital markets have long been a favorite destination for foreign companies wishing to raise capital or establish a trading presence for their securities.” For a number of years, however, many non-U.S. companies have not seen the sale of debt or equity securities in the U.S. public markets as a viable means of raising capital. As a result of the significant regulatory changes brought about by 2012’s Jumpstart Our Business Startups Act, or the JOBS Act, we think this negative view is changing and non-U.S. issuers are beginning to refocus on the real benefits of becoming a publicly-traded company in the U.S. markets. Most significantly:

  • An initial public offering registered in the U.S. provides access to one of the world’s deepest and most liquid capital markets;
  • U.S. publicly registered equity often can be a valuable “acquisition currency” for stock-based acquisitions, particularly for companies with growth strategies that are fueled by acquisitions in the U.S.;
  • A U.S. listing may allow certain capital structures not permitted on other stock exchanges, such as a dual class voting stock structure, which allows founders or other large shareholders to maintain voting control even if a majority of the economic value of the equity is sold to the public in the initial public offering or in follow on offerings and stock funded acquisitions;
  • U.S. publicly registered equity can be used for incentive compensation for U.S.-based employees;
  • Some evidence that cross-listing in the U.S. may lead to a meaningful valuation premium, through, among other things, increasing the pool of potential investors, higher corporate governance standards and enhanced disclosure obligations;
  • A U.S. listing is often thought to increase the visibility of a corporation and its products and services, particularly in the U.S.; and
  • U.S. public companies can typically complete subsequent equity or debt securities capital raising transactions quickly.
    Continue Reading JOBS Act Benefits for Non-U.S. Issuers

Written by Simon Harms | Stephen C. Tupper

As many businesses will be acutely aware, the preparation of merger control notifications to the European Commission (the “Commission“) under the EU Merger Regulation (the “EUMR“) in respect of M&A transactions requires a considerable amount of effort by in-house teams and external legal and economic advisers and results in significant costs in terms of professional fees and management time.

As detailed below, the Commission is currently proposing small but significant changes to its notification rules to ensure that these financial and administrative burdens are only imposed when absolutely necessary.

By way of background, the EUMR uses monetary turnover thresholds to determine whether a notification must be made in respect of an M&A transaction. While this provides parties with a great deal of certainty regarding the need to make a filing, it also means that the rules catch transactions which could not, by any stretch of the imagination, have a real impact on competition (e.g. acquisitions by parties which have no, or minimal, overlapping operations with their targets).
Continue Reading EU merger control: reform with a small ‘r’ (but do not underestimate its value)

Written by Kara M. Bombach | Lisa Navarro

Since the UK’s Bribery Act 2010 came into force (on July 1, 2011) the last 18 months have not been filled with the enforcement activity some expected or hoped for. Rather than headline-grabbing dawn raids by the Serious Fraud Office (SFO), or big name take-downs, the first case to reach prosecution was of a much lower profile. The lack of big name cases does not mean, however, that the enforcement authorities have been lax, nor that the Bribery Act is toothless.

Initial Prosecutions under the Bribery Act

The first prosecution under the Bribery Act involved a magistrates court clerk, the subject of a “sting” reporting operation by the Sun newspaper. Caught (and filmed) accepting cash bribes of around £500 in return for not recording driving offences in the court database (thereby helping people to avoid driving bans), the clerk was convicted in October 2011 of bribery and misconduct in public office. A three-year prison term was imposed for the bribery offence. Although the clerk was found to have been accepting the bribes since 2009, the prosecution was based on the one 2011 offence that occurred after the Bribery Act entered into force.
Continue Reading The UK’s Bribery Act – Enforcement on the Horizon?

Written by Lisa Navarro

On 28 November 2012 the UK’s Home Office launched a consultation regarding proposals to deliver the Government’s policies aimed at cutting alcohol fuelled crime and anti-social behaviour. Rather than focus on the irresponsible drinkers, however, the proposals are firmly targeted at how, when, and for what price alcohol can, and should be, sold.

In particular, the consultation seeks views on the following proposals:

  • a ban on multi-buy promotions (e.g. buy-one-get-one-free) in shops and off-licences;
  • a review of the mandatory licensing conditions, to ensure that they are sufficiently targeting problems such as irresponsible promotions in pubs and clubs;
  • health as a new alcohol licensing objective for cumulative impacts so that licensing authorities can consider alcohol-related health harms when managing the problems relating to the number of premises in their area;
  • cutting red tape for responsible businesses to reduce the burden of regulation while maintaining the integrity of the licensing system; and
  • minimum unit pricing, with a recommended minimum price of 45 pence per alcoholic unit.
    Continue Reading Price Fixing in the UK Booze Market — the Government’s Solution to Binge Drinking

Written by Simon Harms and Stephen C. Tupper

On 25 October 2011, the Court of Justice of the European Union (the “CJEU”) handed down two judgments annulling fines first imposed on Solvay SA by the European Commission (the “Commission”) in 1990. Fingers crossed, these judgments conclude one of the longer-running sagas before the European courts.

Background

For the benefit of younger readers, an abridged account of Solvay’s unfortunate encounters with the Commission and the European judicature over the last 21 years is set out below:
Continue Reading The value of perseverance: ca. €23 million (plus interest and costs)