Susannah Torpey: Well, American Express`s decision is certainly a good thing for the defendants, because it specifies that plaintiffs who challenge vertical restrictions must define the market in question and probably demonstrate market power in that market before the charge is transferred to the defendant to prove a favourable motivation for competition. But companies need to be aware that American Express is limited in scope. Not all bilateral platforms require a court to consider both sides of the market. The most important thing to keep in mind when entering into vertical agreements is that they could still be considered illegal in themselves if they were used to facilitate a horizontal pricing agreement. That`s what happened in the case of Apple. Intellectual property licenses often have a vertical component and are therefore analyzed accordingly. Although there are no specific rules in such situations, the DOJ and ftC have jointly issued guidelines for agreements and abuse of dominance for the granting of intellectual property licences. The latest update in January 2017 confirmed the general position of the executors that « the granting of intellectual property licences allows companies to combine complementary production factors and, in general, to promote competition. » The update reflects changes and changes in the rules on cartels and abuse of dominance that occurred over the two decades following the publication of the guidelines. The guidelines are available at: (hyperlink). As noted above, the Department of Justice and the Federal Trade Commission share the application of U.S.
cartel and abuse of dominance legislation. In order to coordinate their overlapping competences, the two agencies agreed on a « compensation » procedure in which each agency seeks the other authority`s permission before launching a new investigation. In order to facilitate the development of sectoral expertise and speed up the registration process, the agencies informally agreed on a sectoral allocation. While it is unusual for the FTC and DOJ to have significant differences in enforcement policy, different priorities, priorities and remedial measures may arise, particularly as political administrations evolve. The Department of Justice`s enforcement priorities can change more quickly, as it is appointed by a single president who can change immediately at each election. Molly Donovan: Do the courts simply use the same case analysis rule that they would use in the context of a horizontal restriction to assess vertical constraints? Vertical agreements can increase prices, limit production, retain or exclude competitors, or reduce the diversity of available products or services. Any agreement, understanding or measure that may inappropriately restrict competition could be anti-competitive. The FTC continued to use considerable resources to enforce antitrust rules in the health sector.
Finally, the Commission negotiated a $50 million fine to settle allegations that Reckitt Benckiser Group plc had thwarted anti-competitive competition in 2019 with lower prices in the field of prescription drugs (hyperlinks).