Competition Quarterly - July 2024

We are pleased to bring you the second edition of Competition Quarterly, a concise summary of antitrust enforcers’ latest enforcement priorities and policy initiatives. In this edition, we expand our coverage to include information from around the world: click through to the jurisdiction of interest to you, or read the entire piece for a truly global perspective on what’s hot in antitrust enforcement.

In the United States section, we cover the roadblocks FTC is facing in implementing its non-compete ban; latest developments in enforcement against algorithmic pricing; agencies’ focus on the “dominant intermediary” business model and generative AI; recent trends in merger enforcement; and key developments in the health care, pharma, and energy industries.

In the Europe section, we discuss “abuse of dominance” enforcement in the tech sector; policy developments in labor antitrust; signs of regulators’ flexibility in merger enforcement decisions; and the latest in Digital Markets Act enforcement, among other topics.

In the China section, we report on merger review of non-reportable transactions and other developments in merger control policy, including the issuance of new draft horizontal merger guidelines.

United States

Non-Compete Agreements and Competition for Workers

The FTC’s rule banning post-employment non-competition covenants met headwinds this quarter. In Ryan LLC v. Federal Trade Commission, a district court in the Northern District of Texas preliminarily enjoined the rule, concluding that it exceeds the FTC’s statutory authority. The court also found a substantial likelihood the FTC ban is arbitrary and capricious in violation of the Administrative Procedure Act. The court’s order stays the ban’s effective date and preliminarily enjoins its enforcement, but the scope of relief is limited to the plaintiffs in the case.

The court intends to rule on the merits of plaintiffs’ challenge by August 30, and the court’s extensive analysis of the suit’s likelihood of success on the merits suggests that it is likely to grant permanent relief. The court may also broaden the scope of relief, potentially broadening the injunction to include the business associations’ members, or vacating the FTC non-compete ban entirely.

A district court in Pennsylvania reached the opposite conclusion, finding it “clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition” and that the non-compete rule “falls squarely” within the FTC’s “core mandate.” Both cases are likely to be appealed to the Fifth and Third Circuits, respectively, and inconsistent rulings may lead to Supreme Court review.

Even if the FTC non-compete ban does not go into effect, both antitrust enforcers and private plaintiffs continue to have the ability to challenge non-compete agreements on a case-by-case basis. Indeed, the FTC has filed several individual challenges in recent years. Similarly, the Federal Deposit Insurance Commission (FDIC) announced revisions to its Statement of Policy on Bank Merger Transactions that would limit the use of non-compete agreements when divestitures are required. And, of course, state laws governing non-compete agreements continue to apply.

Technology and Platforms

Algorithmic Pricing: While DOJ continues its aggressive investigation into the rental housing sector’s use of algorithmic pricing (with the FBI reportedly conducting an unannounced inspection of property manager Cortland Management in Atlanta on May 22), the courts are showing that prevailing on novel algorithmic claims will be far from a slam dunk. In Richard Gibson v. Cendyn Group, LLC, the District Court for the District of Nevada dismissed allegations that revenue management software maker Cendyn and Las Vegas Strip hotel operators conspired to use Cendyn’s pricing algorithms to raise hotel rates. The court pointed to “three key deficiencies” in the complaint: (1) the defendant hotels started using the software at different times; (2) even if Cendyn “algorithms improved over time by running on confidential information provided by each Hotel Defendant,” there is no allegation that any hotel was able to access its rivals’ confidential information or received price recommendations based on such information; and (3) hotels were free to disregard the algorithm’s pricing recommendations and often did so. Plaintiffs’ failure to point to confidential data being used to make pricing recommendations was vital to the outcome: as the court put it, “consulting your competitors’ public rates to determine how to price your hotel room—without more—does not violate the Sherman Act.” Plaintiffs have filed a notice of appeal, and with many other algorithmic collusion cases winding their way through the courts, this area of law remains far from settled.

Potential for collusion is not the only concern with algorithmic pricing. Senator Sherrod Brown has trained his sights on dynamic and personalized pricing, claiming that companies are “using new pricing strategies and data collection to charge people more,” leading to less predictable and transparent prices and making it difficult to comparison shop. Brown followed up his remarks by sending a letter to two large retailers, expressing concerns “that pricing algorithms enable corporations to charge high prices in circumstances where consumers have the greatest need for something, and thus are unable to comparison shop because of both urgent need and frequent, opaque price changes.” Head of DOJ’s Antitrust Section Jonathan Kanter echoed the concerns in a recent interview, saying that the implementation of personalized pricing may lead to unprecedented extraction of monopoly rents.

“Dominant Intermediaries”: Antitrust agencies’ concern over the power of “dominant intermediaries” has spurred a series of lawsuits against Big Tech firms, but this concern is not limited to Big Tech. Doha Mekki, one of the top enforcers at DOJ, said on May 8 that the agency has a number of late-stage investigations into “dominant intermediaries,” and one of those investigations culminated in a lawsuit when DOJ and 30 state attorneys general filed a complaint against Live Nation on May 23. The complaint alleges that Live Nation monopolized the primary ticketing services, concert promotion services, and large amphitheater markets by retaliating against potential rivals and threatening venues that worked with rivals, acquiring competitive threats, and entering into long-term exclusive contracts, among other allegedly anticompetitive acts.

DOJ’s focus on intermediaries extends into other sectors. As detailed further below, DOJ identified “dominant intermediaries” as a target for its newly created Task Force on Health Care Monopolies and Collusion. Assistant Attorney General Kanter focused on the issue of “dominant intermediaries act[ing] as gatekeepers to the information commons” in his June 27 remarks, saying that competition between platforms connecting journalists and other content creators to their audience is vital to ensure both that creators receive fair compensation and that “dominant platforms do not have outsized power over speech.”

State attorneys general have also been active participants in enforcement against platforms, not only joining federal enforcement actions like the case against Live Nation, but also bringing their own cases against technology platforms. Arizona’s Attorney General, for example, brought two cases against Amazon, arguing that its subscription cancellation process is intentionally misleading and that Amazon’s algorithms promote sellers who use Amazon’s fulfillment service over other sellers with better prices.

Generative AI: As reported in our last Competition Quarterly, the antitrust agencies are focused on chokepoints and competition across the AI value chain, and that focus has continued in recent months, with particular attention to shortages in GPU chips used to train AI models. There is also greater clarity into the specific issues the agencies are focused on, including:

• The potential for AI companies to exercise monopsony power over creators whose content is being used to train models. DOJ’s Jonathan Kanter expressed concern that “AI carries the potential to create dominant companies that can exploit monopsony power at levels we have never seen before — a dominant buyer for all of the world’s ideas.”
  
  
• The potential for firms to leverage power in markets adjacent to AI, including productivity tools, social media, and search, to gain an advantage in AI markets.
  
  
• Vertical integration across the AI stack. Vertical integration has the potential to create closed ecosystems, but enforcers have cautioned that open AI ecosystems also merit scrutiny, including because a firm may use an open ecosystem to gain a scale advantage and close the ecosystem once it acquires a large user base.
  
  
• Reverse acqui-hires and interlocking directorates. The antitrust agencies indicated they may investigate if AI firms hire emerging competitors’ employees instead of acquiring the company as a whole. They are also on the lookout for directors or executives simultaneously serving two different competitors (so-called interlocking directorates).

DOJ and the FTC already have a number of open probes in AI markets, and in June, the agencies agreed to divide responsibility for investigating three large players in the AI industry, with DOJ taking the lead on Nvidia and the FTC taking on OpenAI and Microsoft.

Merger Enforcement

The FTC currently is preparing to try three merger challenges. Kroger’s proposed acquisition of Albertsons and Tapestry’s proposed acquisition of Capri are both scheduled to go to trial later this summer. As discussed in the last edition of Competition Quarterly, the FTC is pursuing horizontal theories of harm in both cases: according to the FTC, each deal would eliminate significant head-to-head competition between the merging companies. In addition, the FTC alleges that both proposed acquisitions would harm competition for workers. The enforcement agencies prominently featured labor-market competition in the new Merger Guidelines and have signaled a multifaceted approach—including merger enforcement, rulemaking to ban non-compete agreements, and criminal enforcement—to protect competition for workers.

On July 2, the FTC filed suit to challenge Tempur Sealy’s acquisition of Mattress Firm on the theory that the combined firm would harm rival mattress manufacturers by cutting off or degrading their access to Mattress Firm as a retail channel. Under the FTC’s vertical theory of harm, the combined firm could limit rival mattress manufacturers’ access to Mattress Firm’s floor space or take steps to steer customers toward Tempur Sealy’s mattresses, such as by awarding sales associates higher commissions for those products.

This summer the FTC claimed victory in a hospital merger challenge, albeit after a district court denied the agency’s request for a preliminary injunction. The FTC challenged Novant Health’s proposed acquisition of two hospitals in North Carolina from Community Health Systems. The district court invoked the “flailing firm defense,” finding the hospitals would face the risk of closing if the deal stalled. The FTC appealed the loss, and the Fourth Circuit prevented the deal from closing pending the appeal. The companies abandoned the transaction shortly thereafter.

The antitrust agencies also signaled that they would continue to scrutinize private equity transactions. In late spring, the FTC and DOJ announced that they would study serial acquisitions and roll-up strategies. The FTC’s case challenging a series of acquisitions of anesthesia practices in Texas survived Anesthesia Partners’ motion to dismiss. The FTC’s case against investor Welsh Carson was dismissed because the FTC was seeking equitable relief to remedy the impact of the earlier acquisitions and to prevent the recurrence of the conduct, but Welsh Carson retained only a minority stake in Anesthesia Partners at the time the case was filed.

We previously covered the anticipated updates to the revised rules for the Hart-Scott-Rodino (HSR) filings. But since our prior quarterly update, the antitrust agencies have not given further indication of when the new HSR rules will take effect.

Health Care and Pharma

Health care and pharma remain under the antitrust microscope. Recently, DOJ announced the formation of the Antitrust Division’s Task Force on Health Care Monopolies and Collusion (HCMC) to address health care competition concerns. In rolling out the new HCMC task force, Assistant Attorney General Kanter stated that “the task force will identify and root out monopolies and collusive practices that increase costs, decrease quality and create single points of failure in the health care industry.” The HCMC will consider a wide variety of business practices, including serial acquisitions, medical billing, and misuse of health care data.

On July 9, 2024, the FTC published a long-awaited report on its PBM study titled, “Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies.” Although the agency described it as an “Interim Staff Report,” it lays out the FTC’s concerns in detail on the impact of increased concentration and vertical integration among PBMs on the affordability of drugs and viability of independent pharmacies. The FTC’s preliminary findings relied on documents produced by the six largest PBMs in response to its 2022 Orders and 2023 Orders requesting data and information on their business practices. The FTC also reviewed public comments, interviewed industry experts, and analyzed publicly available information.

Among other findings, the report asserts that the top three PBMs manage “79 percent of prescription drug claims for approximately 270 million people” and the six largest PBMs “manage 94 percent of prescription drug claims in the United States.” The report states that this concentration has not been achieved through organic growth, but multiple mergers and acquisitions during the 2010s. As a result of this concentration, the FTC report posits that the Big 6 PBMs could impose unfair and opaque contracting terms on independent pharmacies and exert “significant control over which drugs are available, at what price, and which pharmacies patients can use access to their prescribed medications.”

The FTC report focused heavily on the vertical integration of PBMs into many upstream, mid-stream, and downstream markets including pharmacies, health insurers, health care providers, and drug private labelers. The overarching concern relates to “financial conflicts of interests and incentives for self-dealing” that results in lessened competition, disadvantaged rivals, and inflated drug prices. In a scathing dissent, however, recently appointed Republican Commissioner Melissa Holyoak characterized the report as “plagued by process irregularities and concerns over the substance—or lack thereof—of the original [6(b) study] order.”

The FTC’s review of PBMs’ “impact on access to and affordability of medicines” is ongoing.

US Senators have also weighed in on certain industry practices related to health care data. In a letter to the CEO of MultiPlan—a data analytics company—Senators Ron Wyden and Bernie Sanders raised concerns that MultiPlan’s Data iSight pricing tool is being used to artificially increase patient health care costs when it uses “an opaque process” to negotiate “crazy low” rates for out-of-network providers on behalf of insurance plans, leaving patients “on the hook for the remaining bill” while MultiPlan profits because it is paid fees that are a percentage of the savings to the health insurer. The letter states that this business practice is an “improper conflict of interest between determining a plan’s liability for out-of-network claims and the plan’s duty to provide promised benefits pursuant to ERISA.”

Energy

The FTC’s recent investigation of ExxonMobil’s $60 billion acquisition of Pioneer Natural Resources touched off concerns about collusion in the energy space. The FTC announced that it uncovered evidence that Pioneer's former CEO Scott Sheffield “attempted to collude with the representatives of the Organization of Petroleum Exporting Countries (OPEC) and a related cartel of other oil-producing countries known as OPEC+ to reduce output of oil and gas.” The FTC cleared the deal while barring Sheffield from serving on Exxon’s board of directors. A group of Democratic senators led by Chuck Schumer subsequently issued a public letter urging DOJ to investigate alleged collusion in the oil industry. Whether or not DOJ follows through, the agencies are sure to be alert to any signs of collusion in reviewing proposed mergers in oil and gas markets.

The antitrust agencies’ focus on labor markets, minority investments, and common ownership (discussed in our analysis of the 2023 Merger Guidelines) extends to the energy sector. The FTC is looking into labor issues in a number of proposed oil and gas mergers, consistent with the greater emphasis on workers in the new Guidelines and antitrust enforcement more broadly. And in their reply comment to Federal Energy Regulatory Commission (FERC) regarding investment company ownership of public utilities, DOJ and FTC reference the 2023 Merger Guidelines in expressing concern that minority investments may facilitate coordination between rivals and common ownership may reduce incentives to compete.

Europe

In Europe, the last three months have seen active enforcement by the European Commission both in traditional antitrust and merger control matters, and in the more novel area of digital markets.

Abuses of Market Power

In early May, the EC published the provisional non-confidential version of the Apple – App Store decision. The publication follows the Commission’s March 2024 decision to fine Apple EUR 1.8 billion for restricting app developers with “anti-steering provisions” that prevent them from informing iOS users about alternative and cheaper music subscription services that are available outside of the Apple app store. These anti-steering provisions were deemed neither necessary nor proportionate to protect Apple’s commercial interests and, therefore, “unfair” and abusive. Interestingly, while the case is understood to have started off as an exclusionary abuse case, the EC ultimately based its decision on an exploitation theory of harm whereby consumers are exploited when they purchase apps at higher prices than those applicable outside the app store. Rebranding alleged exclusionary conduct as exploitative lowers the EC’s burden of proof as it is no longer necessary to show that a hypothetical equally efficient competitor is foreclosed — which would have been difficult in a case where competitor Spotify had continued to grow and new entrants had emerged. While the “as-efficient-competitor” test is criticized for being easily influenced by small changes to the underlying parameters (such as the contestable share of demand and cost benchmarks), labelling conduct as exploitative just because it is allegedly unfair raises serious questions about legal certainty. The courts will surely weigh in on this issue. We will also look out for the guidelines on exclusionary abuses that the EC is expected to publish later this summer.

The EC’s decision in May to fine Mondelez EUR 338 million for market partitioning and for restricting parallel trade within the EU’s internal market provided further evidence of the EC’s focus on Article 102 enforcement against alleged market power abuses. The EC indicated that preventing traders from exploiting the price differences that exist in different Member States was illegal and abusive, and intervention was “especially important in times of high inflation.”

In late June, the Commission also sent a Statement of Objections to Microsoft, informing the company of how the EC currently appraises its practice of tying its communication and collaboration product Teams with the productivity applications included in its Office 365 and Microsoft 365 suites. The concern—first articulated about a year ago when the investigation was opened—is that these practices may have granted Teams a distribution advantage by not giving customers the choice of foregoing Teams when they subscribe to Microsoft’s productivity applications. If confirmed, these tying practices would infringe Article 102.

Antitrust in Labor Markets

The May 2024 issue of the EC’s Competition Policy Brief focuses on antitrust in labor markets. Just like their peers in the US, European antitrust agencies have been stepping up their enforcement against restrictive labor market agreements. Wage-fixing and no-poach agreements are generally considered restrictions “by object” under Article 101(1), meaning they are regarded as inherently harmful to competition, relieving the enforcer of its obligation to show harmful effects. Moreover, “by object” restrictions are unlikely to be justifiable as necessary to meet a legitimate purpose (because there are typically less restrictive means available) or as outweighed by efficiencies. Due to the structure of labor markets, that are often national, regional or local, the geographic scope of labor market agreements is likely to be limited and most of these cases will be dealt with by national Member State competition authorities. That said, the Commission, in coordination with the European Competition Network, is actively monitoring this field, in particular for cases with a cross-border dimension.

Antitrust Procedure

On the procedural side, the Commission remains vigilant about companies and individuals complying with their obligations when being investigated for possible antitrust infringements. As part of its ongoing cartel investigation in the consumer fragrance industry, for example, the EC noticed during its review of employees’ mobile telephones that one senior manager had deleted WhatsApp messages exchanged with a competitor containing business-related information, despite the employee having been informed about the Commission's inspection. The company was fined EUR 16 million for obstructing a Commission investigation. This is the first time the EC imposed a fine for the deletion of messages exchanged via social media apps (WhatsApp) on a mobile telephone. The decision does, however, align with similar enforcement actions that the EC has taken in recent years when it comes to punishing companies for providing incomplete or misleading information, including in merger cases such as Kingspan/Trimo, General Electric/LM Wind Power, and Merck/Sigma Aldrich.

Merger Enforcement

Recent merger decisions by the Commission suggest a welcome degree of flexibility. On April 2, 2024, for example, the Commission published its May 2023 decision unconditionally approving the acquisition of Inmarsat by Viasat, following an in-depth Phase II investigation and ongoing consolidation in an increasingly challenged European satellite operations market. The transaction was a rare example of a Phase II case that was ultimately cleared without remedies. This decision and similar recent examples, such as the Commission’s clearance of the Norsk Hydro/Alumetal transaction or the CMA’s clearance of the Arcelik/Whirlpool deal, provide hope that the opening of a Phase II investigation is not always “the mark of death” for a deal or a path to burdensome remedies.

While a challenge to the EC’s use of its Article 22 Merger Regulation tool to call in non-reportable transactions is still pending before the Court (where the Commission recently suffered a setback as the Advocate General rendered his opinion), Illumina is proceeding with unwinding its non-reportable acquisition of GRAIL through divestiture on conditions recently approved by the Commission. In its approval, the EC left the choice between different divestment modalities (trade sale or capital markets transaction) to Illumina as either way, GRAIL's independence would be restored.

In its decision to unconditionally approve KKR’s acquisition of NetCo, the EC took into account that KKR had reached out to market participants, pledging to continue providing access to the Italian fixed-line telecommunications network after the merger. While these commitments were not considered to fall under the scope of EU Merger Regulation, they were deemed reviewable under EU or Italian antitrust rules as well as subject to regulatory oversight. The EC was satisfied that trading partners would not be negatively affected by the transaction even if KKR’s contractual commitments were not formal remedies under the Merger Regulation. While informal remedies are not a one-size-fits-all solution, this case illustrates that this is an additional avenue that transaction parties can turn to in order to address a competitive concern.

Digital Markets

The Commission continues to expand its regulatory reach under the Digital Markets Act. After an initial round of designations in September 2023, when Alphabet, Amazon, Apple, ByteDance, Meta, and Microsoft were designated as “gatekeepers” for certain of their platform services, the EC recently added Apple’s iPadOS and Booking.com to the fold. These gatekeeper designations create compliance obligations that are specific to a given gateway that businesses use to reach consumers. They increase, therefore, the regulatory burden even for those companies (such as Apple) that have already been designated a gatekeeper for other gateways. Apple and Booking.com now have six months to comply with the relevant obligations under the DMA.

The Commission has also opened a market investigation into social-network platform X to further assess X’s argument that it should not be designated as a gatekeeper. X argues that even if the relevant DMA thresholds are met, it does not qualify as an important gateway between businesses and customers. The Commission indicated that the investigation should be completed within five months.

China

China’s SAMR Tests Its Call-In Power for Mergers Below the Reporting Thresholds

On May 16, 2024, Synopsys reported in an SEC filing that it had received a notice from China’s State Administration for Market Regulation (SAMR) advising it that SAMR took the view that Synopsys is required to seek SAMR’s approval for its contemplated acquisition of Ansys. This is the first publicized instance of SAMR exercising its discretionary power to “call in” a non-reportable foreign-to-foreign merger under the Chinese Anti-Monopoly Law (AML). For SAMR to exercise this power, there needs to be “evidence” that the proposed transaction has or is likely to have the effect of eliminating or restricting competition. It can be assumed that the evidence in Synopsys/Ansys was provided by Chinese domestic competitors of the parties, downstream customers in China, and/or Chinese industry associations. These parties reportedly met with SAMR and urged it to intervene, raising alleged horizontal concerns regarding electronic-design automation, where Synopsys and Ansys are important players.

The development follows SAMR’s decision to raise its merger filing revenue thresholds. That decision—which had the effect of reducing the number of reportable cases—was intended to free up resources for the targeted use of the call-in power. And it is perhaps no surprise that SAMR chose to deploy that power in a transaction touching on semiconductors, where China and the US have been at loggerheads for quite some time.

For additional information, see our discussion of the call-in power and its implications in our Client Alert of June 5, and our comments on SAMR’s revised reporting thresholds in our Client Alert of January 31.

Other China Merger Control Developments

JX Metals/Tatsuta: In other developments, SAMR  announced on June 11, 2024 that it had conditionally cleared JX Metals’ acquisition of Tatsuta Electric. The review lasted 511 days—long even by SAMR’s standards, and included a record-breaking 337 days during which SAMR had stopped the clock. On substance, SAMR identified conglomerate concerns arising out of the complementary relationship between JX Metals’ blackened rolled copper foils and stainless steel stiffeners for flexible printed circuits (FPCs) and Tatsuta’s isotropic conductive films and electromagnetic interference (EMI) shielding films. Each of these products is used in the manufacture of FPCs. SAMR found that JX Metals had substantial market power in blackened rolled copper foils with a global share of 65-70 percent and a share of at least 60 percent in China. Tatsuta had substantial market power in isotropic conductive films with a global share of 50-55 percent and a China share of 55-60 percent. In view of these and other factors, the regulator concluded that the combined entity would have the ability and incentive to eliminate or restrict competition in the China markets for each of the four FPC component products through tie-in sales.

To address its concerns, SAMR imposed behavioral remedies, which required the combined entity to 1) refrain from tying or bundling FPC component products; 2) supply blackened rolled copper foils and isotropic conductive films in China on fair, reasonable and non-discriminatory terms; and 3) maintain the interoperability of the parties’ blackened rolled copper foils and isotropic conductive films with third-party FPC components. The restrictive conditions are valid for a period of eight years. This is somewhat on the long side for SAMR.

The remedy package in JX Metals/Tatsuta is familiar fare for SAMR and recalls other tech sector cases such as II-VI/Coherent, where O’Melveny partner Philip Monaghan advised the acquiring parties.

Draft Horizontal Merger Review Guidelines: Also in June, SAMR published a set of draft guidelines for the review of horizontal mergers (Draft Horizontal Merger Guidelines) for public comment. The Draft Horizontal Merger Guidelines are aimed at improving transparency and predictability in SAMR’s merger review regime and are largely consistent with international best practices.

O’Melveny reviewed the Draft Horizontal Merger Guidelines in detail in its Client Alert of July 9, 2024. Some key points are summarized below:

• Market shares. The Draft Horizontal Merger Guidelines shed light on when a horizontal merger may be considered anticompetitive in light of the market shares of the parties. In particular, a merger resulting in a combined market share of 50 percent or greater is rebuttably presumed anticompetitive. Further, SAMR is likely to consider a merger resulting in a combined market share between 35 and 50 percent to be anticompetitive.
  
  
• Concentration levels. The Draft Horizontal Merger Guidelines also provide that if the post-merger HHI (an index used to measure market concentration derived by summing the squares of market participants’ shares) is above 1800 and the delta (change in HHI due to the merger) is above 200, the merger is rebuttably presumed anticompetitive.
  
  
• Coordinated effects. The Draft Horizontal Merger Guidelines allow SAMR to presume coordinated effects in three scenarios—where the combined entity and one other player collectively hold 2/3 of the market, the combined entity and two other players collectively hold 3/4 of the market, or the merger eliminates a maverick.

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Stay tuned for continued global coverage of key developments in antitrust enforcement in our next edition of the Competition Quarterly, coming this Fall.

If you have any questions related to the topics in this Competition Quarterly, please reach out to your usual O’Melveny contact or a member of our Antitrust & Competition team.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Sergei Zaslavsky, an O’Melveny partner licensed to practice law in the District of Columbia and Maryland; Julia Schiller, an O’Melveny partner licensed to practice law in the District of Columbia, New Jersey, and New York; Pete Herrick, an O’Melveny partner licensed to practice law in New York and the District of Columbia; Adam Walker, an O’Melveny associate licensed to practice law in the District of Columbia; Sheya I. Jabouin, an O’Melveny associate licensed to practice law in New York; Ryan J. Fennell, an O’Melveny associate licensed to practice law in New York; Christian Peeters, an O'Melveny partner licensed to practice law in Brussels-Capital Region and Germany, Rechtsanwalt; Philippe Noguès, an O’Melveny counsel licensed to practice law in Germany and Belgium; Philip Monaghan, an O’Melveny partner licensed to practice law in Hong Kong, England and Wales, and Ireland; Lining Shan, an O’Melveny senior legal consultant in the firm’s Beijing office; and Vivian Wang, an O’Melveny associate licensed to practice law in New York and the District of Columbia, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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