CORPORATE CRIME REPORTER
Obama
on Antitrust? Look to Intel, Ticketmaster Cases
23 Corporate Crime Reporter 38, October 1, 2009
How does the Obama administration rate on antitrust enforcement – A to
F?
“I would give them an incomplete,” says Bert Foer, president of the American Antitrust Institute.
“The rhetoric is excellent,” Foer told Corporate Crime Reporter. “The appointments are excellent. They have made a few actual moves so far, but it’s very early in the regime.”
Foer says he’s looking to two pending decisions to see whether Obama is going to toughen up on antitrust.
One is the Federal Trade Commission’s investigation of Intel.
“Two of our allies – Korea and the European Union – have made public enormously detailed statements of evidence and reasoning,” Foer said. “Intel was found to have abused its monopoly power by trying to knock out AMD’s ability to remain in the game as a substantial competitor.”
When is the FTC going to move on the Intel case?
“Probably soon, but I don’t have inside knowledge or when or what they will do,” Foer said.
The other case is the Justice Department’s investigation into the merger between Ticketmaster and Live Nation.
“Every one of us knows what it is like to buy a ticket to an event through Ticketmaster,” Foer said. “We issued a fifty page white paper on that case urging the Justice Department not to allow the merger to go through.”
“There’s been radio silence on that case for quite a while,” Foer said. “I expect that we will hear reasonably soon what that is going to mean. That is a case that consumers seem to understand and care about. It is something that affects their regular lives.”
Has European Union antitrust enforcement overtaken American antitrust enforcement?
“Yes, in some respects,” Foer says. “Over the last eight years, while American antitrust was in a slow phase, the Europeans were perfecting their game.”
“Today, it is not clear who is more influential. But you couldn’t say that the U.S. is more influential. The rest of the world tends to look more toward Europe in the antitrust field. It’s Europe that has taken on the big global cases by the big global companies – which often happen to be American companies – Microsoft and Intel in particular.”
“But they have developed the skill. And what is relatively new is the self-confidence to stand up there and say – we have every right to interpret our laws and to say what antitrust means. In past years, the U.S. was clearly the leader and the one that people turned to for models.”
In December, the American Antitrust Institute will be holding a conference on private enforcement of the antitrust laws.
Next year , Foer will release a new book – The International Handbook on Private Enforcement.
“It has given us the opportunity to pull together the story about how a private case is put together in the United States,” Foer said. “And strange to say, there is no comparable document to what we are about to produce.”
“The international part is the larger part of the book,” Foer said. “We have essays by about 20 practitioners from around the world. There are now over one hundred countries with competition laws that allow competition authorities to intervene in the marketplace.”
“There are also laws for private antitrust remedies on the books overseas – but for the most part they are not effective in terms of bringing remedies to consumers or businesses.”
“But the world seems to be on the cusp – led by the EU – of a large expansion of private remedies. The European Union is about to make a decision that will probably require the member states to assure private remedies for people whose rights have been violated by antitrust activities.”
“Other countries of the world are paying attention. If there is going to be money on the table, nobody will want to be left out. And if it does occur on a large scale, it’s going to change the nature of the antitrust practice globally in some interesting and complex ways.”
[For a complete transcript of the Interview with Bert Foer, see 23 Corporate Crime Reporter 38(11), October 5, 2009, print edition only.]
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