Global Seminar Series: EU & U.S. Divergence

14:00Welcome
Antitrust Chair:
Jonathan M. JACOBSON
Wilson Sonsini Goodrich & Rosati PC, New York, NY

GSS Chair:
Hill B. WELLFORD, Jr.
Morgan Lewis & Bockius LLP, Washington, DC

14:05

Round 1: Intel - A Case of Convergence, or Still a Difference About "Effects?"


On both sides of the Atlantic, the Intel cases concern exclusive dealing and loyalty rebates.

  • For the EC case, the major question is, will the European courts adopt an effects-based approach, as they have done for all other exclusionary conduct?
  • Or, will the European courts force the EC to exceptionally stick to a per se approach deeming this type of single firm conduct harmful "by its very nature”?
  • Once that judgment has been rendered, how will the EC standard compare to the US standard?
  • Has the gap been closed or are we diverging further?
  • This interactive discussion will explore the roles of effects and levels of proof and what these cases tell us about broader approaches to exclusionary conduct, legal/proof presumptions, and duties of dominant firms.

Moderator:

Jürgen SCHINDLER
Allen & Overy LLP, Brussels

Discussants:

15:35
Break
15:45
Round 2: The Role of Innovation

This round will explore whether the EC and U.S. have different approaches to exclusion or effects that can be traced to product design. Using cases in the EU and U.S. against Microsoft and Google, the discussion will address questions, such as:

  • Is the US more generous with recognizing product improvements and new products?
  • Do the concepts of "contractual bundling” and "technological tying" lead to a more restrictive approach for the EC?
  • When is a product new/improved and when is it just a combination of two existing products?
  • When does a more restrictive approach to product design lead to an innovation offence?

Moderator:

Hill B. WELLFORD, Jr.
Morgan Lewis & Bockius LLP, Washington, DC

Discussants:

17:15
Wrap up
17:30Reception
Please let us know if you have ideas for future Global Seminar Series topics.
Mike G. Egge
Programs Committee Chair
Gary Zanfagna
Program Officer

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