Brittany is a second year litigation associate with significant experience in antitrust matters. She has assisted with matters involving the US DOJ and European Commission in cartel and merger cases, and has conducted privilege reviews for document productions to both agencies. She is familiar with antitrust issues faced by companies in healthcare, pharmaceutical, shipping and telecommunications industries.

Marie Talašová is an associate of our Dispute Resolution team whose primary focus is on litigation and arbitration.

Marie is an extremely knowledgeable expert in the field of international investment law who enjoys respect and recognition at home and abroad. She has vast experience from both the world of litigation and public administration and possesses a wide range of skills and competence in a variety of legal fields.

Before joining White & Case in October 2018, she held the position of the Head of International Legal Services Department at the Czech Ministry of Finance.

In her role, she was in charge of a sizable legal team responsible for defending the Czech Republic in more than twenty investment arbitration proceedings in various jurisdictions, and served as the lead negotiator of bilateral investment agreements on behalf of the Czech Republic. As a part of her role, Marie also assisted government officials in negotiations with strategic investors and provided advice to the finance minister and the prime minister on issues concerning international law and EU law, especially in the area of state aid and regulation of the energy and gambling sectors.

Marie also advised government officials who are responsible for the representation of the Czech Republic in litigation matters before European courts, i.e., in particular, the Court of Justice of the European Union and the European Court of Human Rights, and other courts outside the jurisdiction of the Czech Republic. In a previous role, Marie was a member of the appellate body for renewable energy sources at the Energy Regulatory Office. Prior to her work for the state she interned at the ICC Court of Arbitration in Paris and worked in the area of class actions and international disputes in the U.S.

For five years Marie was the main organizer of the Investment Treaty Arbitration Conference in Prague, an event that is annually attended by state representatives from more than 30 different states.

Global law firm White & Case LLP has promoted 21 lawyers to counsel and 21 lawyers to local partner.

"Spanning 21 offices and nine practice groups, these promotions reflect the truly diverse and global nature of our Firm while recognizing the exceptional ability and commitment to client service this group has demonstrated," said White & Case Chairman Hugh Verrier. "I am confident they will make a valuable contribution to White & Case and our clients as we continue to make progress toward achieving the goals of our 2020 strategy."

In addition to the internal promotions, White & Case has hired 14 counsel and nine local partners during 2018.

At White & Case, counsel is a role for senior lawyers with significant experience in a particular practice area. The title is used across the Firm, in all offices, as an alternative career path to partnership but does not preclude consideration for promotion to partner.

The position of local partner is offered in select White & Case regions and locations where it is a common market practice. At present this position applies to offices in Asia-Pacific, Central & Eastern Europe, Belgium, Germany, Mexico, Saudi Arabia and Turkey. The title of local partner is a recognized career step toward admission into Firm partnership.

The promotions are effective January 1, 2019, except where noted.

AMERICAS

Claudette Druehl has been named counsel in our Global Capital Markets Practice. Based in New York, her practice focuses on advising broker-dealers and investment advisers on SEC and FINRA compliance, including registration issues, trading issues and regulatory issues, as well as Blue Sky advice.

Joseph Furst III has been named counsel in our Global Banking Practice. Based in New York, he advises clients on commercial finance transactions, including asset-based and cash flow financings, first lien and second lien financings, first-out/last-out financings, acquisition financings and dividend recapitalizations.

Henrikki Harsu has been named counsel in our Global Capital Markets Practice. Based in New York, Henrikki advises financial institution clients on their funding programs and transactions, including international capital markets offerings and the establishment of US funding platforms for non-US banks.

Fan He has been named counsel in our Global Financial Restructuring and Insolvency Practice. Based in Miami, he advises chapter 11 debtors, cross-border debtors and secured and unsecured creditors on chapter 11 proceedings and out-of-court restructurings.

Karen Katri has been named counsel in our Global Capital Markets Practice. Based in Miami, she advises clients on a variety of cross-border corporate finance transactions, including securities offerings, credit facilities and project bonds.

Katherine McCullough has been named counsel in our Global Capital Markets Practice. Based in Washington, DC, she advises on emerging and developed market fund formation, innovative fund structures and a broad list of sector-targeted funds for sponsor and investor-side clients.

Sergio Márquez García Moreno has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Mexico City, he advises clients on mergers and acquisitions and capital markets and banking transactions.

Mårten Olsson has been named counsel in our Global Project Development and Finance Practice. Based in New York, Mårten advises clients on equity and debt financing transactions, with a particular focus on energy, infrastructure and asset finance matters, including 4(a)(2) private placements and offerings of high yield and investment grade debt.

Juan F. Ruenes Rosales has been named a local partner in our Global Project Development and Finance Practice. Based in Mexico City, he advises clients on infrastructure development, project finance, asset finance and general corporate matters.

Mauricio Valdespino has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Mexico City, he advises clients on mergers and acquisitions, real estate and corporate and commercial law.

EMEA

Angélica André has been named counsel in our Global International Arbitration Practice. Based in Paris, she represents clients in commercial arbitration relating to construction, energy, infrastructure and mergers and acquisitions, annulment proceedings relating to commercial and investment arbitral awards in France, and enforcement proceedings in France and worldwide.

Catherine Andrews has been named counsel in our Global Capital Markets Practice. Based in London, she advises clients on infrastructure capital markets transactions, including project bonds, private placements and corporate bonds.

Richard Blackburn has been named counsel in our Global Capital Markets Practice. Based in London, he advises clients on OTC derivatives, including credit, equity, interest rate, FX and Shari’ah-compliant derivatives, synthetic securitisations and structured products.

Tim Bracksiek has been named a local partner in our Global Tax Practice. Based in Frankfurt, he advises clients on international and domestic tax law.

Tobias Daubert has been named a local partner in our Global Banking Practice. Based in Frankfurt, he advises clients on acquisition financing, leveraged buy-out financing, real estate financing and corporate loans, as well as other types of syndicated lending transactions.

Zoran Draškovič has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Bratislava, Zoran advises clients on mergers and acquisitions and regulatory matters, with experience in the energy, infrastructure, banking and real estate sectors.

Jan Ole Eichstädt has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Frankfurt, he advises clients on mergers and acquisitions, joint ventures and corporate reorganizations in private equity and regulated industries, particularly financial institutions and energy.

Kelly Gibson, a professional support lawyer based in London, has been promoted to professional support counsel in our EMEA Banking Regional Section.

Paul Harrington has been named counsel in our Global Tax Practice. Based in London, he advises clients on transactional and advisory direct and indirect tax issues relating to mergers and acquisitions, finance and corporate structuring and restructuring.

Xuan Jin has been named counsel in our Global Capital Markets Practice. Based in Dubai, he advises clients on debt capital markets and Islamic finance, with a focus on Middle Eastern, Turkish and Asian financial institutions, sovereigns and corporates.

Adrian Lawrence has been named counsel in our Global Project Development and Finance Practice. Based in London, he advises clients on project finance, banking, corporate and capital markets transactions, with a particular focus on oil and gas and petrochemicals.

Tom Matthijs has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Brussels, he advises financial investors and corporate clients on both public and private M&A transactions, joint ventures and capital market operations, in addition to having broad experience in infrastructure and energy transactions.  

Michal Pališin has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Bratislava, he advises clients on competition matters, regulatory matters and corporate law, including related EU law aspects.

Estelle Philippi has been named counsel in our Global Tax Practice. Based in Paris, she advises clients on mergers and acquisitions, international and domestic tax planning and corporate tax advice.

James Pullen has been named counsel in our Global Mergers & Acquisitions Practice. Based in London, James advises clients on real estate transactions, including mergers and acquisitions, private equity and joint ventures.

Nicolas Rebel has been named counsel in our Global Financial Restructuring and Insolvency Practice. Based in Hamburg, he advises clients on insolvency administration and insolvency law.

Matthew Richards has been named a local partner in our Global Project Development and Finance Practice. Based in Johannesburg, he advises clients on project finance, construction and other commercial contracts, including power purchase agreements, with experience in the power, energy, mining and infrastructure sectors.

Sophie Sahlin has been named counsel in our Global Antitrust Practice, effective March 13, 2018. Based in London, she advises clients on a number of competition law issues, with a particular focus on assisting clients with complex EU and international merger control proceedings.

Daniel Schwartz has been named a local partner in our Global Financial Restructuring and Insolvency Practice. Based in Düsseldorf, he advises clients on insolvency proceedings and restructuring measures, particularly debtor-in-possession proceedings and the sale or acquisition of insolvent companies.

Alessandro Seganfreddo has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Milan, he advises clients on cross-border and domestic transactions in a variety of sectors including financial services, retail and consumer products, infrastructure and transport, pharmaceutical, technology, media and telecommunications.

Ceren Sen has been named a local partner in our Global Banking Practice. Based in Istanbul, she advises clients on secured and unsecured financings including domestic and cross-border syndicated loan transactions, leveraged buyouts, corporate financings and restructurings.

Julia-Katharina Sieber has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Frankfurt, she advises clients on stock corporation and corporate group law including the preparation and execution of shareholders’ meetings and corporate restructurings.

Ateş Turnaoğlu has been named a local partner in our Global Banking Practice. Based in Istanbul, he advises clients on project financing transactions for Turkish banks and international financial institutions, particularly infrastructure and energy projects.

Tomislav Vrabec has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Frankfurt, he advises clients on private equity deals and cross-border and domestic mergers and acquisitions.

Anne-Marie Wicks has been named a local partner in our Global Project Development and Finance Practice. Based in Doha, she advises clients on the development and financing of large international projects, particularly in the Middle East, Africa and Europe, with experience in the gas, petrochemicals, LNG and electricity sectors.

Václav Žaloudek has been named a local partner in our Global Project Development and Finance Practice. Based in Prague, he advises clients on commercial law, international private law, energy law and labor law.

ASIA-PACIFIC

Shino Asayama has been named counsel in our Global Mergers & Acquisitions Practice. Based in Tokyo, she advises clients on cross-border and domestic mergers and acquisitions and general corporate matters, including antitrust matters, data protection and employment.

Mark Montag has been named a local partner in our Global Project Development and Finance Practice. Currently based in Melbourne, he will relocate to Sydney and continue to advise clients on major international and domestic projects in the energy, infrastructure and transport sectors.

William Moran has been named a local partner in our Global International Trade Practice. Based in Tokyo, he advises clients on international trade and regulatory matters before various US government agencies and courts.

Takako Onoki has been named counsel in our Global Antitrust Practice. Based in Tokyo, she represents clients in antitrust/competition law matters, including those related to Japan Fair Trade Commission investigations for cartels and unilateral conduct.

Tabitha Saw has been named a local partner in our Global Mergers & Acquisitions Practice. Based in Singapore, Tabitha advises global clients on cross-border acquisitions, real estate private equity investments, joint ventures, strategic investments and restructurings.

Jiejin (Victoria) Yu has been named counsel in our Global Banking Practice. Based in Hong Kong, she advises clients on secured and unsecured, bilateral and syndicated and domestic and cross-border bank finance transactions.

During 2018, 14 counsel and nine local partners have joined the Firm.

AMERICAS

• Will Giles, counsel, Global Banking Practice, Washington, DC
• Morgan Hollins, counsel, Global Mergers & Acquisitions Practice, Houston
• Stephanie Kim, counsel, Global Mergers & Acquisitions Practice, Chicago
• Stanimir Kostov, counsel, Global Banking Practice, New York
• Jeremy Kuester, counsel, Global Banking Practice, Washington, DC
• Dianne Lu, counsel, Global Mergers & Acquisitions Practice, Chicago
• Gordon Mak, counsel, Global Banking Practice, New York
• Stacia Sowerby, counsel, Global International Trade Practice, Washington, DC
• Julia Winters, counsel, Global Commercial Litigation Practice, New York

EMEA

• Christophe Balthazard, local partner, Global Mergers & Acquisitions Practice, Brussels
• Sylwia Maria Bea, local partner, Global Financial Restructuring and Insolvency Practice, Frankfurt
• Stefan Bressler, local partner, Global Mergers & Acquisitions, Frankfurt
• Alexandra Diehl, local partner, Global International Arbitration Practice, Frankfurt
• Michael Leicht, local partner, Global Intellectual Property, Frankfurt
• Deborah Lincoln, counsel, Global Intellectual Property Practice, London
• Andreas Lischka, local partner, Global Banking Practice, Frankfurt
• Tom Matthews, counsel, Global Mergers & Acquisitions Practice, London
• Vincent Naveaux, local partner, Global Mergers & Acquisitions Practice, Brussels
• Hans-Georg Schulze, local partner, Global Mergers & Acquisitions Practice, Berlin
• Sébastien Seele, local partner, Global Capital Markets Practice, Frankfurt
• Peter Svanqvist, counsel, Global Banking Practice, Stockholm

ASIA-PACIFIC

• Andrew Cohn, counsel, Global Mergers & Acquisitions Practice, Hong Kong
• Andrea Reeves, counsel, Global Project Finance and Development, Melbourne

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Global law firm White & Case LLP has achieved a significant success for Deutsche Telekom (DT) before the European Commission (EC), which has unconditionally approved the acquisition of Tele2 NL by DT subsidiary T-Mobile Netherlands.

The expanded company will have an anticipated annual revenue in excess of €2 billion, with around 4.3 million mobile post-paid subscribers. The clearance decision follows an in-depth Phase II investigation, which the EC opened in June to assess the proposed acquisition. This type of merger is known as a four-to-three merger, and the Commission tends to subject these to a high level of scrutiny.

"At the beginning of this process, we faced an uphill battle due to the track record of four-to-three mergers in the telecoms sector, but we took heart from the Commissioner's statement that each case is different and defended our case vigorously at an oral hearing," said Brussels-based White & Case partner Mark Powell, who co-led the Firm's team. "The Commission has shown great maturity in taking this decision based on the very specific features of this case. Above all, Dutch consumers will benefit from the efficiencies generated by the merger, which have been translated into the specific promises to consumers."

Brussels-based local partner Katarzyna Czapracka, who co-led the Firm's team, said: "We are very pleased with the outcome, which is the result of a huge team effort and the creative approach of DT's in-house team. It's also a good example of how well we understand this rapidly evolving sector, and can put that knowledge to use for our clients."

The White & Case team was led by partner Mark Powell and local partner Katarzyna Czapracka (both Brussels), with support from local partners Alexandra Rogers and Jérémie Jourdan (both Brussels), and associates Cornelius Börner, Marika Harjula, Guoda Majauskaite (Brussels), Iwo Malobecki and Jolanta Brogowska (both Warsaw).

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Valerio Vadalà is an associate in the Milan office and his principal areas of practice are antitrust, competition and intellectual property.

He is specialized in litigation and transactional assistance to Italian and international clients on a wide range of matters including cartels, abuse of dominant position, antitrust audits, consumer protection, intellectual property rights, advertising, unfair competition and data privacy.

Prior to joining White & Case Valerio was an associate at another major international law firm.

Global law firm White & Case LLP is advising Amer Sports Corporation on Mascot Bidco Oy's voluntary recommended cash tender offer for all the shares in Amer Sports Corporation.

An investor consortium including ANTA Sports, FountainVest, Anamered Investments (owned by Chip Wilson, the founder of Lululemon) and an affiliate of Tencent has been formed to make the tender offer through Mascot Bidco Oy, which on December 7, 2018 signed a Combination Agreement with Amer Sports under which it has agreed to make a voluntary recommended cash Tender Offer for all of the issued and outstanding shares in Amer Sports. The terms of the Tender Offer value the entire issued and outstanding share capital of Amer Sports at €4.6 billion. This is the largest ever public cash tender offer for a Finnish listed company.

"We have advised our long-standing client Amer Sports on this important and challenging milestone transaction," said Helsinki-based White & Case partner Petri Haussila, who is leading the team advising on the transaction. "While one always feels certain regret when a fine Finnish public company exits the Helsinki Stock Exchange, this transaction will enable Amer Sports to accelerate the growth of the global footprint of its outstanding brand portfolio and, hopefully, then make a return to the public market as an even stronger global company. This transaction also represents another fine example of our Helsinki team utilizing the global White & Case offering, working closely with our teams in Beijing, Brussels, Geneva, Hong Kong, London, Shanghai and Washington, DC to make this transaction possible."

Amer Sports, listed on Nasdaq Helsinki stock exchange, is a sporting goods company with internationally recognized brands including Wilson, Salomon, Arc'teryx, Atomic, Peak Performance, Mavic, Suunto, and Precore.

The White & Case team which is advising on the transaction is led by partner Petri Haussila (Helsinki) and includes partners Timo Airisto, Petri Avikainen (both Helsinki), Vivan Tsoi (Shanghai), Catherine Tsang (Hong Kong) Pontus Lindfelt (Brussels), Lee Cullinane (London) and Farhad Jalinous (Washington, DC), and with support from counsel Karalyn Mildrof (Washington, DC) and Sara Nordin (Geneva), and associates Essi Lavikkala, Heidi Hietanen (both Helsinki), Rebecca Yourstone, Deborah Kelly (both London), Marika Harjula (Brussels), Siyuan Pan (Beijing) and Victoria Jiejin Yu (Hong Kong).

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Global law firm White & Case LLP has advised European Entertainment Intressenter BidCo AB (EE Intressenter) on the public cash offer to the shareholders in Cherry AB to acquire all Cherry shares at a price of SEK 87 per share.

The total value of the Offer based on all series A and series B Cherry shares amounts to nearly SEK 9.2 billion (around €892 million).

EE Intressenter is jointly controlled by a consortium consisting of Bridgepoint Advisers Limited, acting as managers for and on behalf of the limited partnerships Bridgepoint Europe VI Fund, Prunus Avium Ltd, Klein Group AS, Audere Est Facere AS, Pontus Lindwall, Berkay Reyhan and Can Yilanlioglu. All members of the consortium, with the exception of Bridgepoint, are shareholders in Cherry.

Cherry is one of Scandinavia's oldest gaming companies, with operations dating back to 1963. Cherry invests in, owns and develops fast-growing gaming, media and entertainment companies. Today, the group consists of five business areas: Online Gaming, Game Development, Online Marketing, Game Technology and Restaurant Casino.

Bridgepoint is a leading pan-European private equity firm with a 30-year track record of investing in growth businesses. Independently owned and managed by a team of more than 100 investment professionals, it has offices in the UK, France, Germany, Spain, Poland, Turkey, the Netherlands and Sweden, as well as portfolio of support offices in Shanghai, New York and San Francisco.

The White & Case team which advised on the transaction was led by partners Rikard Stenberg and Jan Jensen (both Stockholm), and included partners Martin Forbes (London), Johan Thiman and Oscar Liljeson (both Stockholm), counsels Peter Svanqvist (Stockholm) and Sophie Sahlin (London), and associates Viktor Leisnert, Gustaf Wiklund, Emma Josberg, Björn Torsteinsrud, Patrik Erblad, Jonas Brandt, Alexander Berlin-Jarhamn, Anders Westling, Christoffer Nilmén, (all Stockholm), Nicola Chapman, Benjamin Morrison and Rebecca Yourstone (all London).

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On December 12, 2018, Japan's Ministry of Economy, Trade and Industry (the "METI"), the Japan Fair Trade Commission (the "JFTC") and the Ministry of Internal Affairs and Communications (the "MIAC") (collectively, the "Agencies") jointly published a 16-page report by the “Study Group for the Maintenance of Business Circumstances involving Digital Platformers” (the "Report"). "Digital Platformers" are defined as businesses operating digital platforms. Examples of the digital platforms (aka. online platforms) mentioned in the Report are; online shopping malls, internet auctions, online flea markets, application markets, search engines, content distribution services, online booking services, sharing economy platforms, social network services, shared video services, and electronic payment services.

In June 2018, the Cabinet of the Government of Japan concluded that, as part of the government’s "Future Investment Strategies 2018," it would establish basic rules for “platform” businesses by the end of the year and take any necessary related action. To this end, the Study Group was established in June 2018. The Study Group is comprised of professors and private practitioners with expertise in competition law and policy, information policy, and consumer protection policy. The Personal Information Protection Commission (the "PIPC") and the Consumer Affairs Agency (the "CAA") attended the Study Group’s meetings as observers. On November 5, 2018, the Agencies jointly published a draft report and sought comments from the public, and on November 16 and 28, they conducted hearings with several domestic and foreign digital platformers in attendance. The Report reflected some of comments from the public and digital platformers.

The Report is comprised of seven sections, addressing: (i) the characteristics of digital "platformers," (ii) legal regulation of digital platformers, (iii) the responsibilities of digital platformers as innovators, (iv) transparency to help promote fairness, (v) enhancement of fair and free competition, (vi) consideration of rules for data transfer and/or open data, and (vii) regulatory harmonization throughout the world.

In the first section, the Report suggested that digital platformers – i.e., businesses operating digital platforms – often bring various benefits to users, including small-and-medium sized enterprises and consumers, but recognized that at the same time, certain digital platformers may be characterized as monopolies or oligopolies as the result of network effects.

In the second section, the Report points out that in Japan, platformers in general, have not been considered to bear legal responsibility because they are "merely" providing platforms (i.e., they are “only” acting as intermediaries). However, the Report recognizes that there are recent global trends towards regulating digital platformers, and suggested that Japan should consider such regulations as well. The Report addresses the idea of regulating digital platformers, in particular by applying the essential facility doctrine, and/or the public utility doctrine.

In the third section, the Report suggests that it may be necessary to amend certain industry-sector laws that were drafted at a time when the existence of digital platformers was not anticipated. A “regulatory sandbox” approach was among the options raised in the Report.

In the fourth section, the Report contended that the opaqueness of transactions between digital platformers and their users (including companies and individuals) created a possible hotbed for unfair business practices. The Report suggests using the JFTC's compulsory authority under Article 40 of the Anti-Monopoly Act (the "AMA") to study the underlying reality of transactions between the digital platformers and their users.

In the fifth section, the Report states that enforcement of antitrust/competition law becomes more important as digital platformers tend to either become monopolies or part of oligopolies while also becoming integral parts of the economy. In addition, the Report recognizes there has been an international discussion as to whether current competition law is applicable to digital platformers in its current state, and, if not, what amendments should be made.

In the sixth section, the Report addresses rulemaking for data transfer and/or open data, such as data portability and open API. The Report reasons that these are highly relevant to competition policy and the maintenance of competition, and therefore should be considered.

In the seventh section, the Report suggests that it is important for there to be international harmonization of rules involving digital platformers because these are companies that do business globally.

In recent years, digital platforms have grown dramatically in importance in our lives. They have brought and are expected to continue to bring substantial benefits to us. The impact of these digital platforms on competition is continuing to grow and their role is continuing to evolve in new ways, particularly in the area of network effects.

Accordingly, the Authorities on December 18, 2018 published the basic principles with regard to platform businesses that enhance the competitive environment in Japan.

On December 21, 2018, the federal government failed to enact appropriations to fund certain federal operations, resulting in a partial government shutdown. Both the Department of Justice (DOJ) and Federal Trade Commission (FTC) have issued plans for how a shutdown will impact antitrust merger enforcement. Similarly, the Department of the Treasury (Treasury) provided guidance regarding the impact of a government shutdown on CFIUS review.

Key Takeaways

US Merger Enforcement

• Hart-Scott-Rodino (HSR) filings will be accepted by the agencies during the government shutdown. 
• Early Termination of the HSR waiting period will not be granted during the shutdown. 
• Due to its limited staff, the Premerger Notification Office of the FTC will not answer email or telephone inquiries regarding HSR rules or filing procedures. 
• HSR waiting periods will continue to run during a government shutdown and DOJ and FTC staff will continue to review premerger filings and conduct investigations to determine whether to challenge reported transactions under the antitrust laws. 
• Second Requests will continue to be issued. 
• If engaged in merger litigation, FTC and DOJ attorneys will notify opposing parties and the courts of the government shutdown and attempt to negotiate timing extensions and suspensions. If such relief is not available, they will continue to litigate the matter. 
• The FTC and DOJ websites will be available during a shutdown but will not be regularly updated. 
• Additional guidance may be published by the FTC or DOJ after the shutdown goes into effect.

CFIUS

• CFIUS activities will be suspended, except for "caretaker functions" related to cases the review or investigation of which was initiated prior to the enactment of FIRRMA.
• The deadlines for all other cases (including notices and declarations) are "tolled" during the lapse. CFIUS filings can be submitted during the government shutdown, but will not be commented upon or accepted for review.
• For extended shutdowns, longer-than-usual delays in providing comments on drafts or accepting formal filings are likely to occur after the government reopens.

Analysis

The DOJ, FTC and Treasury have developed shutdown plans in the event of a government shutdown. Each plan designates which employees are furloughed during a shutdown and which employees are excepted from the furlough requirement.

US Merger Enforcement

The DOJ and the FTC both issue contingency plans indicating that certain employees connected to antitrust enforcement within the Antitrust Division of the DOJ and the Bureau of Competition at the FTC will be excepted from the furlough and will continue to conduct antitrust enforcement activities.

During the government shutdown, the FTC and DOJ will accept HSR filings and certain staff from the Commission's Premerger Notification Office will be excepted from furlough to accept filings and organize them for review; however, they will not issue early terminations of the HSR waiting period. HSR waiting periods will run their normal course during the shutdown, and both agencies will keep sufficient staff on hand to investigate mergers that could raise competitive issues. For litigated matters, both agencies have indicated that when possible, they will attempt to secure a continuance or otherwise request suspensions of dates for trials, hearings and filings, or similar relief to preserve the government's claim. If such relief is not available, both agencies will commence litigation or continue to litigate the matter.

In the current DOJ Contingency Plan, of the 655 Antitrust Division employees, a total of 264 (40%) are excepted from furlough in the case of a government shutdown. In the current FTC Contingency Plan, of the 306 total Bureau of Competition employees, a total of 132 (43%) are excepted from the furlough. Moreover, within the Bureau of Economics, of the 105 employees, 10 (9%) are excepted from the furlough.

It is difficult to anticipate whether the FTC or DOJ would be more likely to request that merging parties refile their HSR forms (starting a new waiting period), or whether they would be more likely to issue a Second Request because of more limited staffing. It will likely depend on how long a shutdown lasts and how substantial the merger review workload is during a shutdown.

CFIUS Review

A lapse in appropriations would mean that most of the CFIUS staff at Treasury, which chairs CFIUS, would be forbidden from engaging in any work, including reviewing draft filings or commencing any new reviews. If the shutdown is prolonged (as it was in 2013), this could cause a backlog in draft and formal filings, and – once the shutdown ends – longer-than-usual delays in providing comments on drafts or accepting formal filings.

The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) now specifies that, for cases that are formally under assessment, review or investigation by CFIUS at the time that appropriations lapse, any deadlines "toll" during the lapse. So if, for example, the shutdown lasts 10 days, an extra 10 days is added to any "Day 30" of a declaration or "Day 45" of review or investigation. Prior to FIRRMA, the "CFIUS clock" continued to tick during shutdowns, even though most CFIUS staff could not perform their work. This forced some cases that could otherwise have cleared in "review" to roll over into the subsequent "investigation" phase; and cases in "investigation" that lost too much time needed to be withdrawn and refiled.

Links to the current DOJ, FTC and Treasury Contingency Plans can be found here:

• DOJ
• FTC
• Treasury

Click here to download PDF

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2018 White & Case LLP

Like other EU countries, France is bolstering its national security-related regulatory regimes. The French government recently affirmed its goal to remain attractive for foreign investments while preserving French national interests.

Expanding the List of Sensitive Sectors

The latest reform of the French legal system of national security review, implemented in May 2014, expanded the scope of activities reviewed (whether EU or non-EU) by the so-called "Montebourg Decree," notably to energy, water supply, transportation, telecoms and public health.

A new Decree, n° 2018-1057 of 29 November 2018, further amends and expands the list of sensitive sectors subject to prior authorization by the Ministry of Economy (MoE). With respect to EU as well as non EU/EEA investors, the review mechanism will now cover interception/detection of correspondences/conversations, capture of computer data, security of information systems, space operations and electronic systems used in public security missions. The new Decree also expands the scope of review to R&D activities in cybersecurity, artificial intelligence, robotics, additive manufacturing, semiconductors, certain dual-use goods and technologies, and sensitive data storage. Concerns regarding protection of sensitive data are now a specific ground for the MoE to impose mitigation requirements or to refuse to authorize a foreign investment.

The new Decree introduces the option for the target company to submit a written request to the Minister of Economy to get comfort about whether the projected investment is subject to prior authorization review; previously, such requests could be submitted only by the foreign investor.

The new Decree applies to requests for prior authorization filed from 1 January 2019.

Strengthening the Enforcement Powers of the Ministry of Economy

In 2017, the French National Assembly created a Parliamentary Enquiry Committee to investigate how French national security interests have been protected in recent transactions involving strategic companies. The investigation has increased the pressure on the services of the MoE in charge of the review process to ensure that they have completed a thorough review of both the activities at stake and the profile and intentions of the foreign investors.

Against this background, a new set of measures to reform the review mechanism is currently discussed by the French Parliament as part of the so-called "PACTE Law."

On 10 October 2018, the draft PACTE Law was subject to a first vote by the French National Assembly. The draft will next be submitted to the Senate, and a final version of it is likely to be adopted by the Parliament in early 2019. Article 55 of the draft amends the French legal framework applicable to national security reviews.

The draft PACTE Law proposes to amend the sanctions mechanism in case of infringement of the prior approval obligations. While removing the sanction consisting in the nullity of the infringing transaction, the proposed reform aims at giving the French government a larger pallet of possible sanctions it can adapt and leverage.

Notably, if a transaction has been implemented without prior authorization, the MoE will now have the power to order the investor to:

• amend the transaction
• file for a prior authorization request
• restore the previous pre-transaction situation at his own expense
• suspend the voting rights of the investor and appoint a temporary manager entrusted with the management, the operation and the representation of the legal entity at stake
• suspend, restrict or prohibit temporarily the free disposal of all or part of the assets related to the sensitive activities at stake
• prohibit or limit the distribution of dividends to shareholders

If an investor fails to comply with the clearance conditions imposed by the MoE, the MoE will also have the power to withdraw the authorization and to order the investor to:

• divest all or part of the sensitive activities at stake
• implement the initial clearance conditions or new conditions set out by the MoE, including measures to restore the previous pre-transaction situation

The MoE may also impose daily penalties in case of non-compliance with its order.

Eventually, the MoE may also have the power to impose monetary sanctions in case of infringement of FIC obligations; i.e., a fine, the amount of which cannot exceed the highest of the following amounts:

• twice the value of the investment at stake
• Ten percent of the annual turnover achieved by the undertaking concerned by the foreign investment
• €1 million for natural persons
• €5 million for legal entities

Finally, in order to improve transparency over the review process, the Parliament is also considering the creation of a new permanent Parliamentary Committee in charge of economic security.

This new Committee would be composed of eight members of the National Assembly and eight members of the Senate, all subject to specific national security confidentiality rules. The government would be required to report annually to this new Committee on past transactions reviewed, cleared or rejected during the previous year. In the same vein, the MoE would issue yearly public general statistics (on a no-name basis) in relation to French national security reviews.

Foreign investors should be aware that identifying and protecting strategic activities has become an increasing concern in the French review process, as well as in relation to clearance commitments that may be required as a condition to obtain prior authorization.

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© 2018 White & Case LLP

Kareem is a Litigation associate in the New York office. His experience includes supporting clients in complex commercial disputes, white collar defense, and antitrust litigation and compliance matters.

Kareem has also been active in representing pro bono clients, including advising a foreign government on potential legislative framework and helping to secure a class action settlement on behalf of parents of thousands of school-age children in Flint, Michigan who were adversely affected by the lead water crisis.

Ira Raphaelson is one of a handful of lawyers who has been a senior executive and general counsel of public companies, independent director, law firm partner, Presidential appointee, career prosecutor, and academic. Ira's extensive courtroom and boardroom experience in venues around the world make him a pragmatic and effective business and governance counselor, as well as strategic planner for bet the company litigation and market-entry. Ira adds his significant competition experience in compliance, litigation against government and private plaintiffs, and securing merger and joint purchasing approvals to the firm's globally recognized competition practice.

As General Counsel of Las Vegas Sands Corp, Ira's presence and governance enhancements were cited as mitigating factors in settlements with the Justice Department, SEC, and Nevada Gaming Commission. His work included strategic oversight of related whistleblower and shareholder derivative cases as well as unrelated efforts to expand and defend the company's industry leading brand.

As General Counsel of Scientific Games Corp, Ira was responsible for governance matters and regulatory compliance in 52 countries and assisted the company in its entry into China, as well as successfully defending competition challenges to its Italian lottery contract in both the Italian and EU courts.

As an international law firm partner, he co-chaired his prior firm's white collar practice and advised numerous multi-national companies on FCPA, anti-money laundering, sanctions, and competition issues, as well as defending individual senior government officials and corporate executives. Ira was part of the team that secured PRC and US government approvals for the entry of the first US investment bank into China.

As a career prosecutor, Ira tried numerous high-profile fraud and corruption matters and also served as US Attorney for nine months in Chicago. He was eventually tapped by President George H.W. Bush and confirmed by the US Senate to supervise all financial institution criminal and civil matters for the Justice Department. In that role, he personally represented the US Government in court to obtain a US$1.2 billion forfeiture against BCCI, which was used, in part, to prevent the collapse of First American Bank.

Ira currently also serves as lead independent director of NASDAQ-listed Inspired Entertainment and as adjunct professor of law at Northwestern University's Pritzker School of Law, where he teaches a graduate law course on all legal aspects of businesses entering foreign markets (e.g., competition, anti-corruption, sanctions, privacy, IP, corporate structure and governance, cybersecurity, tax, labor, corporate finance, repatriation, and real estate).

Global law firm White & Case is once again recognized as a "Global Elite" law firm, ranking in the Top Ten competition law firms worldwide by Global Competition Review. The GCR 100 recognizes White & Case for handling a lion's share of "the most important antitrust work around the world."

The GCR Survey also recognized White & Case in eight key jurisdictions: Brussels, Washington, DC, New York, Czech Republic, France, Italy, Japan and Mexico.

In GCR 100's subpractice rankings, the firm's private antitrust litigation work is in the Top 5, and White & Case's cartel work is in the Top 10.

GCR noted White & Case's "impressive portfolio of cartel work" and observed that, "in criminal defence work, the firm prides itself on ensuring that clients don't plead guilty."

White & Case's antitrust work in several high-profile matters were mentioned in GCR's profile, including:

• The NYC trial win for JP Morgan Chase Foreign Exchange trader London-based Richard Usher, in the preeminent US antitrust criminal trial of the year
• Crédit Agricole in its appeal against the Euribor decision
• Nexans in its appeal challenging the seizure of documents that led to the Power Cables Cartel decision
• Servier in its appeal against the European Commission's largest-ever pay-for-delay fine in the Perindopril case, as well as number pharmaceutical antitrust class action defense cases

"We are honored to be recognized among the world's top competition practices, and are especially grateful to our clients who entrust us with their critical matters," said Global Antitrust Practice Head J. Mark Gidley (Washington, DC). "Our high rankings are a testament to the hard work of our team, our global reach in 44 offices in 30 countries, and to the creative and bold solutions for our clients."

Law360 has named global law firm White & Case "Competition Group of the Year,""Life Sciences Group of the Year" and "Project Finance Group of the Year" in its 2019 Practice Group of the Year awards. This is White & Case's seventh win as Law360 Group of the Year for Antitrust (more than any other law firm), fourth win for Life Sciences and fifth win for Project Finance since the awards' inception eight years ago.

"Our antitrust practice at White & Case is deeply honored to have won this award year after year and are especially grateful to our clients who entrust us with their critical matters," said Global Antitrust Practice Head J. Mark Gidley (Washington, DC). "Our unmatched track record with Law360 is a testament to the hard work of our team, our global reach in 44 offices in 30 countries, and to the creative and bold solutions for our clients."

White & Case Global Pharmaceuticals and Healthcare Group Head Heather K. McDevitt (New York) added, "We are pleased to be included as one of the top life sciences practices, and gratified to work shoulder to shoulder with our clients who face new challenges and opportunities in this important sector."

"We are very happy to be recognized once again as one of the world's leading project development and finance law firms," said Global Head of Project Development and Finance Art Scavone (New York). "It is very satisfying to see that the depth and expertise of our practice and the quality of our client base is consistently being acknowledged and honored by the global industry media."

Global law firm White & Case LLP continues to strengthen its Governance, Disputes, Sanctions and Antitrust practices with the hiring of Ira Raphaelson as Senior Counsel in its Washington, DC and Chicago offices.

At White & Case, Raphaelson will work in the Firm’s Antitrust Practice advising on business and litigation strategy, governance, antitrust, sanctions and trade compliance, mergers and antitrust compliance, and CFIUS matters.

"Ira comes to us as one of a handful of lawyers who has been a senior executive and general counsel of public companies, independent director, law firm partner, presidential appointee, career prosecutor and academic. Ira's extensive courtroom and boardroom experience in venues around the world make him a pragmatic and effective business and governance counselor, as well as strategic planner for bet-the-company litigation and market entry," said J. Mark Gidley, Global Head of White & Case's Competition Practice. 

Gidley continues: "I am particularly delighted to reunite with Ira, as we have previously worked together as partners in a law firm and at the Department of Justice where I was Assistant Attorney General of the Antitrust Division and Ira was Special Counsel for Financial Institutions and Counselor to the then-Attorney General of the United States William P. Barr (who was recently re-nominated to the position)."

As General Counsel of Las Vegas Sands Corporation, Ira's presence and governance enhancements were cited as mitigating factors in settlements with the Justice Department, the SEC and the Nevada Gaming Commission. His work included strategic oversight of related whistleblower and shareholder derivative cases, as well as unrelated efforts to expand and defend the company's industry-leading brand.

As General Counsel of Scientific Games Corporation, Ira was responsible for governance matters and regulatory compliance in 52 countries (including manufacturing sites in the US, UK, Canada, Chile, China and Austria), and assisted the company on its entry into China, as well as successfully defending competition challenges to its Italian lottery contract in both the Italian and EU courts.

As an international law firm partner, he co-chaired his prior firm's white collar practice and advised numerous multinational companies on FCPA, anti-money laundering, sanctions and competition issues, as well as defending individual senior government officials and corporate executives. Ira was part of the team that secured PRC and US government approvals for the entry of the first US investment bank into China.

As a career prosecutor, Ira tried numerous high-profile fraud and corruption matters and also served as US Attorney for nine months in Chicago. He was eventually tapped by President George H.W. Bush and confirmed by the US Senate to supervise all financial institution criminal and civil matters for the Justice Department. In that role, he personally represented the US Government in court to obtain a US$1.2 billion forfeiture against BCCI, which was used, in part, to prevent the collapse of First American Bank. 

Ira currently also serves as lead independent director of Nasdaq-listed Inspired Entertainment and as adjunct professor of law at Northwestern University's Pritzker School of Law, where he teaches a graduate law course on all legal aspects of businesses entering foreign markets (e.g., competition, anti-corruption, sanctions, privacy, IP, corporate structure and governance, cybersecurity, tax, labor, corporate finance, repatriation and real estate). 

"Ira has served as a trusted adviser to the boards and c-suite executives of major corporations as part of senior management and as an outside counsel. He has served at the highest levels of government and his unparalleled judgment and experience will be of immediate benefit to our clients," said Jack Pace, Head of White & Case's Competition Section for the Americas.  "I am confident Ira will play a valuable role in enhancing the offering of our Washington, DC and Chicago offices and more broadly across our global practices."

White & Case is a leading global law firm with lawyers in 44 offices across 30 countries. Among the first US-based law firms to establish a truly global presence, the Firm provides counsel and representation in virtually every area of law that affects cross-border business. Clients value both the breadth of the Firm's global network and the depth of its US, English and local law capabilities in each of the regions in which we operate, and rely on us for their complex cross-border transactions, as well as their representation in arbitration and litigation proceedings. 

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On 16 January 2019, the Court of Justice of the European Union ("CJEU" or "Court") dismissed the European Commission's appeal against the annulment of its decision to prohibit the acquisition of TNT by UPS. The CJEU stressed the importance of respecting companies' rights of defence as regards economic analysis and methodology used in merger control.

Case Background

In January 2013, the Commission blocked the proposed transaction on the basis that it would significantly hinder competition in the market for international express small package delivery services in 15 EEA Member States.¹ In those Member States, the number of players on that market would have been reduced to three – possibly two – with DHL remaining as the only alternative to UPS. The Commission also concluded that the merger would have resulted in a price increase for customers.

In assessing the potential impact on prices in those markets, the Commission relied on an econometric analysis, which ultimately led to the adoption of the prohibition decision. UPS successfully challenged that decision to the General Court, claiming that its rights of defence had been breached as the Commission had failed to communicate the final version of the econometric model. The Court agreed with UPS and annulled the decision on the ground that the econometric analysis used in the decision was different from the version previously discussed during the administrative procedure.² According to the Court, UPS should have been given the opportunity to review the amended model and would have been in a better position to defend itself.

Following the General Court ruling, UPS lodged an action for damages against the Commission, claiming €1.7 billion in compensation for the loss suffered as a result of the Commission's prohibition decision.

The CJEU Judgment

The Commission appealed to the CJEU, claiming that the General Court wrongly found that it was required to notify UPS of the changes made to its econometric model before adopting the decision.

The Court of Justice sided with the General Court and held that the Commission had an obligation to notify UPS of the changes it made after stating its objections. The Court further reiterated that in order to ensure that the rights of defence are not infringed, the parties need to be given the opportunity to submit their views on the relevance of all the elements on which the Commission intends to base its decision.

This principle is also applicable to the use of econometric models in merger procedures, which the Court said contributes to the quality of the Commission's decisions. After recognising and stressing the importance of such models in the context of the prospective analysis that the Commission must perform in merger control, the Court held that disclosure of such models and methodological choices underlying their development is all the more necessary as it contributes to ensuring that the procedure is fair, in accordance with the principle of good administration. Indeed, this is a crucial part of ensuring the legitimacy of merger control, according to the Court:³

"[t]he methodological basis underpinning those models must be as objective as possible in order not to prejudge the outcome of that analysis one way or another. Accordingly, those factors contribute to the impartiality and quality of the Commission's decisions which, ultimately, is the basis of the trust that the public and businesses place in the legitimacy of the Union's merger control procedure.

[…]

Given the importance of econometric models for the prospective analysis of the effects of a merger, raising the standard of proof required to cancel a decision due to an infringement of the rights of the defence resulting, as in the present case, from failure to disclose the methodological choices, especially as regards statistical techniques, which are inherent to those models, as is advocated, in essence, by the Commission, would run counter to the objective of encouraging it to show transparency in the development of econometric models used in merger control procedures and undermine the effectiveness of subsequent judicial review of its decisions."

The fact that a case is past the stage of the Statement of Objections does not mean that the Commission can modify the substance of an econometric model on which it intends to base its objections without that modification being brought to the attention of the companies concerned and allowing them to submit their comments in that regard.

The Court also stressed that the procedural failings in question should lead to the annulment of the decision, if it has been sufficiently demonstrated by the company concerned not that, in the absence of that procedural irregularity, the decision would have been different in content, but that there was even a slight chance that it would have been better able to defend itself. This was a point in the General Court's judgment that the Commission heavily contested, but the ECJ sided clearly with the General Court.

Additionally, the Court rejected the Commission's claim that communicating these changes would prevent it from adopting a decision quickly, as is required in merger control proceedings, saying that the Commission "is required to reconcile the need for speed with observance of the rights of defence."⁴

Takeaways

The case is about a merger decision but the Court's powerful statements on the importance of rights of defence in the particular context of economic models and evidence is also relevant for antitrust investigations, especially in the area of Article 102 TFEU and in cases where an effects-based analysis is performed under Article 101 TFEU. The more the Commission engages in the use of economic models and evidence (as it should), the wider the relevance of today's ruling.

The Commission is best advised not to react to this ruling by reducing its reliance on economic evidence in merger cases, since this would lead to retrogression in EU competition law and ultimately would lead to further annulments of its decisions on substantive grounds. The Court, perhaps mindful of this risk, reminds the Commission of the importance of this evidence in the context of merger control. So the answer is not to scrap such economic models but rather to do a proper job in terms of ensuring that the rights of defence and access to the file are fully preserved.

Finally, it is interesting that the Court is taking an "institutional" approach when it stresses the importance of safeguarding these rights: this is not only about the rights of the companies concerned but also about the credibility, quality, fairness, trust and ultimately the effectiveness of the overall enforcement system as such. This is, indeed, something that the advocates of due process in Brussels have always stressed.

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¹ Commission Decision of 30 January 2013 in Case COMP/M.6570 – UPS/TNT Express.
² Case T-194/13 United Parcel Service v Commission, 7 March 2017, EU:T:2017:144.
³ Judgment, §§ 53, 55.
⁴ Judgment, § 38.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2019 White & Case LLP

Competition authorities around the world typically place considerable weight on parties' internal documents when assessing the potential effects of a merger. Such documents, many of which can pre-date the companies' decision to enter into a transaction, are often regarded as conveying the merging parties''real' views about the market(s) concerned and the competitive dynamics within them. That is why it is always important for companies to be mindful of how they draft documents, not only when a potential transaction is contemplated but also when preparing market-related documents such as business plans and strategy papers.

On 15 January 2019, the Competition and Markets Authority (CMA) issued 'Guidance on requests for internal documents in merger investigations' (Guidance). The purpose of the Guidance is to provide further clarification on the CMA's use of requests for internal documents, in both Phase I and Phase II UK merger investigations.

Use of internal documents in UK merger investigations

The UK merger filing regime is voluntary in that no notification or clearance decision is required for the parties to close a transaction, even if the jurisdictional thresholds are met. However, where the relevant thresholds are met and the merging parties opt to notify the transaction in the UK (or the CMA subsequently decides to investigate, e.g. as a result of a complaint), they will be required to provide copies of internal documents. The documents typically requested will be those relating to the rationale and impact of the merger (such as synergies, alternative commercial options absent the merger, etc.), and details of any characteristics of the market (such as competitor analysis, pricing, expansion plans, marketing, bidding strategies, barriers to entry, etc.).

A request for documents can be issued either 'informally', or 'formally' under section 109 of the Enterprise Act 2002 (Section 109 Notice). A Section 109 Notice can be issued by the CMA to request information for 'permitted purposes', including any aspect of its merger-related functions. Failure to comply with such formal notice can result in a number of potential penalties, including administrative fines, 'stop the clock' provisions and rejection of the entire 'merger notice' (i.e. the formal notification)¹.

The Guidance

In addition to general information on the use of internal documents in merger investigations and the CMA's statutory powers to request documents, the Guidance also includes information on the scope of such requests, and issues relating to IT, legally privileged materials, complex document requests, methodology and the use of compliance statements.

The Guidance states that 'internal documents' includes all types of documents in the merging parties' possession that have been prepared, sent or received by their officers or employees. These can include handwritten notes and instant messages. Although the CMA has a wide discretion to determine what types of documents to request, it notes that handwritten notes and instant messages are "rarely likely" to be requested. The Guidance notes that although the CMA has the authority to request "any potentially relevant document" the CMA will consider the scope and nature of any document request and will ensure any request is proportionate. It also states that all documents are viewed in their proper context. Against that background, the Guidance specifically states that parties may not be expected to produce draft documents, unless the CMA considers there are specific reasons for asking for them. As such, general requests will only cover the final, or most recent, draft of a responsive document. However, it is very important to note that e-mails that are responsive to a document request will have to be produced in their entirety, including with drafts of any documents that are subsequently amended and superseded by a final version. This may therefore require the production of early drafts of documents, prepared by junior personnel which do not reflect the considered view of the company concerned.

In cases where the CMA decides to issue a Section 109 Notice and the request is particularly complex or extensive, the Guidance also specifies that the CMA may share a draft request with the merging parties where ‘practicable and appropriate’. This reflects current practice but confirmation in the Guidance is to be welcomed.

Comment

Notwithstanding the helpful clarification in the Guidance to the CMA's approach to document requests, there are some stings in the tail. First, as noted above, draft documents may need to be produced. If the final versions are materially different this may prompt questions from the CMA but there may well be good reasons to explain the development of the document and any change in views (if indeed there are any). Secondly, responsive documents must be produced in their entirety "including the parts of a document that deal with matters that are not specified in the request". This may therefore cover sensitive material about other projects wholly unrelated to the case in question (e.g. in different markets and/or jurisdictions). The Guidance does not discuss the ability to produce redacted documents but, in some circumstances, it may be possible to agree a position with the CMA, perhaps by having a third-party lawyer appointed by the CMA to review the documents to confirm whether or not those parts of a document are relevant to the case. However, such an approach is likely to be very much the exception.

Given the CMA's wide discretion to determine what documents to request or what may be material to the assessment of the merger, there are some points all companies should bear in mind. Companies should be mindful when drafting transaction related documents, both in draft and final form, such as presentations and emails, as any such document could be responsive to a request from the CMA and consequently used in their assessment of the merger. In addition, it would be good practice for separate documents to be created for each transaction opportunity. In particular, as documents must be produced in their entirety, transaction-specific documents should not refer to other potential projects (which are not relevant to the CMA’s assessment of the case in hand) if a company wants to ensure details of such other projects do not need to be disclosed to the CMA until such time as the company wishes to bring those projects to the CMA's attention.

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¹ In November 2017, the CMA imposed a penalty of £20,000 on Hungryhouse for failing to provide documents responsive to Section 109 Notices which later came to the CMA's attention. This was the first time such a penalty had been imposed, and indicates the CMA's strict approach to such matters. It can be expected that the CMA will investigate and impose fines if it believes responsive documents are not provided in response to formal information requests. Penalties for failing to provide accurate information is a current trend in merger enforcement, both at national and European Commission level. For example, the Commission has threatened to fine General Electric, and Merck and Sigma-Aldrich for providing incorrect or misleading information in EU merger investigations.

Rebecca Yourstone (White & Case, Associate, London) contributed to the development of this publication.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2019 White & Case LLP

The Japan Fair Trade Commission's (the "JFTC") major priorities in 2019 are, among others, amendments to the Antimonopoly Act (the "AMA"), research in areas of the digital economy and the labor market, and, of course, antitrust enforcement.

Amendments to the AMA

The JFTC has recently been reviewing the AMA, in particular its surcharge system, from the viewpoint of adjusting the AMA in line with advancements in global economy. The JFTC is most likely, if the relevant work proceeds smoothly, to submit proposed amendments to the Diet for its deliberation by early March.

The proposed amendments will include adapting the leniency program to take account of the surcharge system. Under the leniency program in its current form, leniency applicants are entitled to a 30%, 50% or 100% reduction in their surcharges based on the order in which they attained leniency and regardless of their level of cooperation with the JFTC. The amendments will introduce a range in the surcharge reduction rates, with the rate varying depending on the extent of voluntary cooperation offered to the JFTC by the companies subject to investigation. Accordingly, for example, unlike under the current system, the reduction rate applied to the third leniency applicant (currently fixed at 30%) may in some cases exceed the one applied to the second applicant (currently fixed at 50%).

It is expected that more companies will need to consult with defense attorneys given these proposed changes to the leniency system. The JFTC is now considering introducing a scheme, implemented through JFTC rules and guidelines, under which its investigators are not allowed to access to those documents recording communications exchanged confidentially between a company and its attorneys under certain conditions. Since this new scheme, analogous to attorney-client privilege, will be introduced for the first time in Japan, it will be necessary for a certain introductory period to take place so that affected parties can learn about the new rules and procedures.

Conducting of market research regarding digital platform businesses

On December 18, 2018, the Ministry of Economy, Trade and Industry (the "METI"), JFTC and the Ministry of Internal Affairs & Communications (the "MIAC") jointly issued "Fundamental Principles for Rule-making in Response to the Rise of the Platform Business Model." This document proposed, among others things, that large-scale, comprehensive and in-depth research was a necessary starting point for realizing transparency and fairness with respect to digital platform businesses. Following this proposal, the JFTC was scheduled to launch such research in the latter half of January. The research was to be conducted not only through a questionnaire survey and follow-up hearings, but also by deploying a digital information channel on the JFTC's website to gather information from consumers, to ensure extensive and in-depth research. The JFTC opened such a channel on January 23, 2019. It is likely to take some time to complete the research but because of the critical importance of and great interest in the research, the JFTC plans to issue interim reports at various stages of the research, rather than issuing one final report upon its completion.

Implementation of the Commitment Procedure

The commitment procedure, which frees the JFTC to enter into settlements with investigated parties and was introduced in 2018, took effect on December 30, 2018 when the TPP11 Treaty went into effect. Even before that effective date, the JFTC made several decisions in 2017 and 2018 in cases regarding alleged unfair trade practices and private monopolization, in which it closed its investigations prior to establishing the illegality of the relevant conduct when the parties under investigation took adequate steps to meet the JFTC's concerns. Those decisions were made at the discretion of the JFTC. Now that the commitment procedure has become effective under the AMA, the JFTC is supposed to resort to it, if appropriate, in investigations of unilateral conduct, in particular in the area of the digital economy, and to ensure transparency of its implementation in accordance with those provisions stipulated in the AMA and the relevant guidelines.

Application of the AMA in the labor market

In addition to the area of the digital economy, the JFTC has also already started to consider the possible application of the AMA to the skilled human resource sector. To this end, the Completion Policy Research Center, the JFTC's think tank, issued a report from "the Study Group on Human Resource and Competition Policy" last February. In addition, in December 2018, the JFTC invited comments from both athletes and other relevant parties regarding transfer restrictions, such as no-poaching agreements in both professional and amateur sports. The JFTC will accept submissions until February 15, 2019. Those developments clearly show that the application of the AMA to the human resources context is among the JFTC's priorities for its future activities.

This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2019 White & Case LLP

Global law firm White & Case LLP has advised the Qatar Investment Authority (QIA), the sovereign wealth fund of the State of Qatar, on a US$200 million investment in Airtel Africa through a primary equity issuance in the company.

The proceeds will be used to further reduce Airtel Africa's existing net debt. Airtel Africa Ltd is a pan-African telecommunications company with operations in 14 countries across Africa.

The White & Case team which advised on the transaction was led by partners Ian Bagshaw and Emmie Jones (both London), with support from partners Hannah Field-Lowes, Gilles Teerlinck (both London), Genevra Forwood (Brussels) and Michiel Visser (New York), and associates Craig Fagan and Joseph Carroll (both London).

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