MEXICO CITY

14th ICN Merger Workshop/ 2 days.
Skill-Development and Discussion-Driven Workshop.

December 12 and 13, 2017
Agenda

Speakers


December 5: Pre-Workshop Webinar

Fantasy and its counsel present the proposed transaction to the competition authority

Participants will be introduced to the facts of the hypothetical merger in which Fantasy Beverage Company will acquire 100% of the voting securities of Just Energy, Inc.

Presentation on Competitive Effects Analysis

This pre-workshop presentation session will explore the theories of competitive effects in merger investigations and the nature of evidence that can be used to test whether they are likely to arise. The discussion will cover both unilateral and coordinated competitive effects in homogeneous and differentiated product markets.

IMPORTANT: There will be simultaneous translation into Spanish for the Merger Workshop.

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December 12:

Investigation


Registration

08:00 | Main Courtyard

Opening Remarks

08:45 | by Alejandra Palacios Prieto, President, Mexican Federal Economic Competition Commission

Opening Panel: Challenges on Modern Merger Analysis

09:00 | Moderator: Dave Anderson, European Commission NGA
  • José Luis Ambriz Director General for Mergers at the Mexican Federal Economic Competition Commission
  • Liliana Cruz Pinzón, Mergers Group Coordinator at the Colombian Superintendence of Industry and Commerce
  • Alípio Codinha, Deputy Director for Mergers at the Portuguese Competition Authority

Presentation: Planning the Investigation

10:00 | Presenter: James Rhilinger, Deputy Assistant Director, US Federal Trade Commission

This session will discuss the steps in conducting an investigation and components of an investigation plan, including: identifying key facts that are known and those to be investigated, developing a working legal theory or theories of harm, planning to collect facts, and estimating timing and resources needed to complete the investigation. This session also will cover why and how to prepare a proof checklist. A proof checklist typically consists of a list of the elements of proof required by law, coupled with the evidence necessary to establish each element of proof and the sources of that evidence.


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Break (Sharing over Coffee)

10:45 | Main Courtyard

Breakout/Table Talk Session 1 – Planning the Investigation

11:15 | MIDE | Main Courtyard
  • Exercise 1: Brainstorm on key issues – product market, competitive effects, entry
  • Exercise 2: Develop candidate theories of harm
  • Exercise 3: Draft investigation plans

Presentation: Developing Reliable Evidence through Documents and Data Requests

12:15 | Presenter: Melanie Krebs-Pilotti, International Counsel, International Section, US Department of Justice, Antitrust Division

Requests for documents & data and written interrogatories are useful tools for gathering the facts necessary to determine whether the competition law has been, or is being, violated. Simply stated, documents are one of the most important sources of evidence in an investigation. Similarly, data, when it consists of a sufficient amount of the right kinds of numbers to permit robust economic (and econometric) analysis, can also be a very important, and sometimes even outcome determinative, source of evidence ─ especially for resolving issues such as market power, efficiencies, and competitive effects. This session will discuss the different techniques for requesting documents and data; the various sources of documents and data; the types of documents and data to request; and methods for reviewing document submissions.


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Lunch

12:45 | Main Courtyard

Presentation: Developing Reliable Evidence through Interviews

14:15 | Presenters: Mark Basile, Director, Merger Investigations Branch, Australia CCC, and Leonor Davila, US NGA

Interviews are an important source of evidence. This session will explore various tactics and skills used when interviewing different types of witnesses – friendly, neutral, and hostile. The session also will provide suggestions on developing and organizing an interview outline, using documents in an interview, questioning techniques, and interview report writing.


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Breakout/Table Talk Session 2 – Developing Reliable Evidence

14:45 | MIDE | Main Courtyard

Documents

  • Exercise 1: Draft document requests
  • Exercise 2: Prepare interrogatory requests
  • Exercise 3: Critical review of the parties’ documents

Break

15:45 | Main Courtyard

Breakout/Table Talk Session 2 continues

16:15 | MIDE | Main Courtyard
    Interviews

  • Exercise 1: Draft focused interview questions
  • Exercise 2: Conduct focused interviews


Closing Session

Main Courtyard

Roleplay Presentation by the Merging Parties (represented by Andy Gallagher, Assistant Director, ACCC, and Peggy Ward, US NGA), on why the investigation should be closed.

17:15 | MIDE | Main Courtyard

Welcome Cocktail

18:00 | MIDE | Main Courtyard

At the historic facilities of the Interactive Museum of Economics. It will be an opportunity to share experiences and comments, as well as relax after a day’s work.



Conclusion of Day 1

19:00 | MIDE | Main Courtyard
December 13:

Analysis


Presentation: Analytical Framework 1 (MARKET DEFINITION, MARKET SHARES & CONCENTRATION)

09:00 | Presenter: Anne-Sophie Masson-Cote, Competition Law Officer, Canadian Competition Bureau

Overview of the basic principles of market definition and the role of market shares and concentration, drawing upon ICN’s Merger Guidelines Workbook and RPs for Merger Analysis. The session will also discuss different kinds of evidence and different analytic techniques that can be used when defining markets.


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Breakout/Table Talk Session 3 – Market Definition and Concentration

09:30 | MIDE | Main Courtyard

This breakout discussion will discuss the importance of market definition and practical approaches to defining product and geographic markets. It will cover market shares and concentration: their uses and abuses in merger review.


Presentation: Analytical Framework 2 (ENTRY & OTHER COMPETITIVE FACTORS)

10:30 | Presenter: Oliver Norden, Economic Adviser, Mergers, UK CMA

The ease with which new firms can enter the relevant market is an important consideration in evaluating the ability of existing firms in a concentrated industry to increase prices above competitive levels. This session will outline the approach to entry analysis, including considering whether entry is timely, likely, and sufficient.


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Break (Sharing over Coffee)

11:00 | Main Courtyard

Breakout/Table Talk Session 4 – Entry & Expansion

11:30 | MIDE | Main Courtyard

Participants will assess whether entry or expansion is likely to occur, within a reasonable period of time, sufficient to prevent or reverse the anti-competitive effects the merger otherwise would have.


Presentation: Efficiencies

12:30 | Presenter: James Rhilinger, Deputy Assistant Director, US Federal Trade Commission

The pursuit of efficiencies is often the primary purpose motivating firms to merge. Over time, competition agencies, tribunals and the courts have become more receptive to incorporating efficiencies in their evaluation of mergers. Nevertheless, because putting forward an efficiencies defense is inherently a speculative exercise and at times can be self-serving, competition agencies and the courts have imposed a significant burden on parties to quantify and verify efficiencies. This session will briefly trace the development of efficiencies analysis and outline the steps required to prove up efficiency savings.


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Lunch

13:00 | Main Courtyard

Presentation: Effective Remedies

14:15 | Presenter: Josep Carpi Badia, Head of Unit A2, DG Comp, European Commission

The parties (represented by Karen Aguilar, Director for Mergers, COFECE and Fernando Carreño, Mexican NGA) present a remedy proposal for the merger under investigation.

The object of a merger remedy is to restore the competition lost (or to maintain the competition that would be lost) because of the transaction. For some mergers, the likely harm to competition can only be prevented by an outright prohibition of the transaction. In other situations, however, appropriate modifications or conditions can resolve the competitive concerns while still allowing the merger to proceed. This session will focus on the latter situation, including: (a) what assets should be divested; (b) who is an appropriate buyer for the assets; (c) what is an appropriate time period for the sale; and (d) what post-divestiture relationships may exist between the seller and the buyer of the assets.


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Breakout/Table Talk Session 5, – part 1 Staff Meeting on the Proposed Merger

15:00 | MIDE | Main Courtyard

Participants will discuss the status of their investigation, including the theory of competitive harm, the evidence obtained on the issues of relevant market, entry and efficiencies, and whether the matter should be closed or converted to a full phase investigation.


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Break

15:45 | Main Courtyard

Breakout/Table Talk Session 5, part 2 – Staff Meeting on the Proposed Remedy

16:15 | MIDE | Main Courtyard

Participants will evaluate the parties’ remedy proposal and discuss the design of remedies.


Panel Presentation on Managing a Case Team and Keeping Decision Makers Informed

17:00 | Moderator: Paul O’Brien, Counsel for International Antitrust, US Federal Trade Commission
  • Josep Carpi Badia, Head of Unit A2, DG Comp, European Commission
  • Toshiko Igarashi, Senior Officer for M&A, Japan Fair Trade Commission
  • Bill Stallings, US NGA
  • Mauricio Serralde, Mexican NGA


Conclusion of the Workshop


Guided tour and activities at the Interactive Museum of Economics (MIDE).

18:00 | MIDE | Main Courtyard

Attendees will get to know the innovative activities of the award-winning museum and its historic facilities.