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Von.x Antitrust Panel
 

Von.x Antitrust Panel

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    Von.x Antitrust Panel Von.x Antitrust Panel Presentation Transcript

    • Antitrust: How To Survive and Prosper In a Hostile Market and Judicial Environment Von.x Pre-Conference 17 March 2008 San Jose
    • Panelists
      • Glenn Manishin
        • Duane Morris LLP
      • Mark Ostrau
        • Fenwick & West LLP
      • Al Pfeiffer
        • Latham & Watkins LLP
      • Harvey Saferstein
        • Mintz Levin et al. LLP
      • David Turetsky
        • Dewey & LeBouef LLP
      17 March 2008
    • Outline
      • Price Squeeze Claims
      • Standards & Antitrust
      • VoIP, Broadband & Antitrust
      • Antitrust & Related Litigation
      • Some (Unanswered) Questions
      17 March 2008
    • Price Squeeze Claims
      • Trinko , Covad , LinkLine
      • and Beyond
      • (Al Pfeiffer)
      17 March 2008
    • Basic Price-Squeeze Theory
      • Key Assumptions:
      • Incumbent controls key input with no effective sub- stitutes
      • Incumbent charges entrant more than its own input cost
      • Input costs result in raising entrant’s total costs above retail price
      • Equally (or more) efficient competitor excluded
      17 March 2008
    • The Uncertain Impact of Trinko
      • Trinko did not deal directly with price squeeze claims, but recognized broad right to refuse to deal altogether
      • Price squeeze claims were recog-nized under pre-1996 Act antitrust law
      • Has led to split among Circuit Courts, in a series of cases arising from DSL carriers’ claims against RBOCs
      17 March 2008
    • The Covad Rulings
      • Covad v. Bell Atlantic
      • 398 F.3d 666 (D.C. 2005)
      • 407 F.3d 1220 (D.C. 2005)
      • Rejected Covad’s price squeeze claim
      • If incumbent can refuse to deal, it can price as it wants
      • Predatory pricing claims still viable
      • Covad v. BellSouth
      • 374 F.3d 1044 (11th 2004 )
      • Price squeeze claims remain potentially viable after Trinko
      • Upheld Covad’s price squeeze claim
      • But found must be tied to predatory pricing by incumbent
      17 March 2008
    • The LinkLine Ruling
      • Distinguished between fully reg-ulated POTS markets and partially-deregulated DSL market
      • Price squeeze claims are viable, even without showing predatory pricing
      • Dissent: Predatory pricing should be required, but if shown, price squeeze claims viable
      17 March 2008
    • Key Questions For Plaintiffs
      • Fight or Negotiate?
        • Late ‘90s track record favors fighters
        • Public lawsuits may hurt investor confidence
      • Can you file in the Ninth Circuit?
      • Can/should you allege predatory pricing, as a backup?
      • Requirements of Rule 11
        • How do you measure incumbent’s cost?
      17 March 2008
    • Standards & Antitrust
      • Developing, Setting or Adopting Standards
      • (Mark Ostrau)
      17 March 2008
    • Overview
      • Generally pro-competitive:
        • Increased efficiency, interoperability, lower barriers to entry
        • Facilitate comparisons, increase price competition
      • But numerous antitrust hazards:
        • Patent holdup
        • Excluding or injuring competitors
        • Limiting downstream competition
      17 March 2008
    • What to Look For in an SDO/SSO
      • Membership: Open, with multiple constit-uencies
      •  Beware market power, exclusiveness, exclusivity
      • Process: Participatory, impartial, consensus-driven
      •  Beware bias, subjectivity, exclusionary result
      • Implementation: Voluntary, accessible, non-exclusive
      • IP rules: Clear disclosure obligations and RAND (or better) license rules
      17 March 2008
    • Handling IP – Play Fair or Else
      • Don’t fail to disclose relevant IP
      •  Dell  UNOCAL  Rambus
      • Don’t violate license commitments
      •  N-Data
      •  Qualcomm
      • Don’t mess up the pool
      •  “ Non-essential” patents, exclusiv-ity, discrimination, noncompetes
      17 March 2008
    • VoIP, Broadband & Antitrust
      • What Is ― or Should Be ― the
      • Role of the Federal Trade Commission?
      • (Harvey Saferstein)
      17 March 2008
    • Overview
      • Jurisdictional Issues ― FCC Regulation; Common Carrier Exclusion
      • Antitrust
      • Consumer Protection
      17 March 2008
    • The FTC & Consumer Protection
      • Privacy Ventures ― Do Not Call List
      • Deceptive Billing and Advertis- ing of Services
      • Telemarketing
      17 March 2008
    • The FTC, Antitrust & Competition
      • Merger Reviews, e.g., Time Warner
      • Bundling? Privacy?
      • Standards-Setting
      17 March 2008
    • Antitrust & Related Litigation
      • Survival in a Hostile Market and Judicial Environment Requires Attentiveness to Every Opportunity
      • (David Turetsky)
      17 March 2008
    • Achieving Business Objectives
      • Set goals and consider multiple and complementary ways to achieve them. Consider:
        • Antitrust: Private litigation, mediation, possible government enforcement interest?
        • Other theories: contract, tort, common law, statutes
        • FCC proceedings, congressional interest
      17 March 2008
    • Media and Content: Bundling and Access
      • FCC considering whether:
        • programmers must sell each network separately to cable rather than in bundles
        • cable must sell networks a la carte to customers or can sell in bundles or “tiers”
      • Congressional committees have examined these issues and some have voted — against requiring a la carte
      • Federal class action complaint under Sherman Act §§ 1 and 2 alleging anticompetitive bundling or tying by programmers and cable
      17 March 2008
    • Media Ownership Issues
      • Cross-ownership rules — newspapers, TV stations, cable, etc.
      • Congressional concerns — media concentration, diversity of voices, timing, etc.
      • Third Circuit tossed out revised ownership rules
      • Antitrust merger reviews
      17 March 2008
    • Bottlenecks and Miscellaneous
      • FCC bans exclusive access by cable providers to MDUs
      • Antitrust case on building access for CLEC dismissed
      • The Twombly hurdle
      • What about MFN clauses as applied to independent programmers?
        • Any different from “best terms” agreements criticized as anticompetitive by EC in business insurance competition report?
      17 March 2008
    • Some (Unanswered) Questions
      • Can successful price squeeze claims be presented in real-world trials?
      • Will building barriers to entry with IP claims/litigation be sustained absent “deception”?
      • Does FTC “jurisdiction” present a Trinko limitation for suits about VoIP or broadband anticompetitive practices?
      • Will digital content distribution face antitrust or regulatory constraints for competitive nondiscrimination?
      17 March 2008