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The Impact EU Competition Enforcement on International Franchise System


Level: Advanced
Runtime: 91 minutes
Recorded Date: July 16, 2019
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Agenda


  • Basics of EU/EEA Competition Law
  • Restrictions of Online Sales in the EU/EEA
  • Resale Price Maintenance in the EU/EEA
  • RPM - US Perspective
  • Exclusive/Selective/Dual Distribution in the EU/EEA
  • Summary
Runtime: 1 hour and 31 minutes
Recorded: July 16, 2019

Description

In December 2018, the European Commission fined Guess €40 million for imposing several hard-core restrictions on their authorized retailers/franchisees in relation to online search advertising, online sales, territorial limitations, and dictating resellers' prices. Similarly, Pioneer and other consumer electronics manufacturers have been fined, and several cases regarding merchandise licensing are ongoing. The timing and outcome of these cases call for increased awareness on competition laws and their effect on a cross-border franchise/distribution network.

Beginning with an update of recent events in Europe, faculty will explore the applicability of competition laws to franchise networks globally, which, in many cases, will look at activities of the franchisor or brand owner that are not specifically addressed by a franchise or other commercial agreement.

Topics will include resale price maintenance, territorial restrictions, selective distribution and quality/quantity criteria, internet platform restrictions, horizontal and vertical data sharing, and the use of pricing algorithms. The upcoming EU Vertical Restraints Block Exemption regulation review will be touched upon and placed in a global perspective. Is this trend of increased focus on vertical restraints compliance limited to Europe or should compliance efforts be heightened in other parts of the world as well? How can uniformity and strategic alignment be kept if rules are stricter in some parts of the world (EU) than others? Practical aspects and solutions will be explored.

This program was recorded on July 16th, 2019.

Provided By

American Bar Association

Panelists

Michael K. Lindsey

Partner
Steinbrecher & Span

Michael K. Lindsey is a corporate and transactional lawyer, with more than 35 years of experience in the areas of intellectual property, cyberlaw and trade regulation. He received his B.S. degree, summa cum laude, from Texas A&M University and his J.D. degree from Stanford Law School.

Mr. Lindsey’s intellectual property practice includes the acquisition, development, protection and licensing of various forms of intellectual property. In the cyberlaw area, Mr. Lindsey represents diverse clients on matters ranging from domain name disputes to e-commerce structuring, new media development, co-branding, alliance and other marketing arrangements. His practice in the trade regulation area involves antitrust preventive counseling; merger analysis and structuring; franchise disclosure, registration and relationship matters; and advice concerning the sale, distribution and marketing of products and services through manufacturing, joint venture, distribution, dealership and agency relationships.

Mr. Lindsey has spoken and written extensively in the fields in which he practices. He serves as co-editor-in-chief of International Franchise Sales Laws (ABA 2006, supplements 2009 – 2011, and 2d ed. 2015). He is also a co-author of The Intellectual Property Handbook: A Practical Guide for Franchise, Business and IP Counsel (ABA 2005 and 2d ed. 2016), Fundamentals of Franchising (ABA 4th ed. 2015), Antitrust Handbook for Franchise and Distribution Practitioners (ABA 2008), Annual Franchise and Distribution Law Developments 2003 (ABA 2003) and International Sales Transaction Checklist (IBA 2003). He also served as co-editor-in-chief of the treatise State Antitrust Law and Statutes (ABA 2d ed. 1999); and as editor-in-chief of the monograph Franchise Protection: Laws Against Termination and Establishment of Additional Franchises (ABA 1990). In addition, he has authored or co-authored a number of legal articles, including articles in Antitrust Magazine, Antitrust Counselor, Business Law International, Business & Technology Law Report, California Lawyer, the Computer & Internet Lawyer, Franchising World, International Bar News, the International Business Lawyer, International Journal of Franchising Law, the Los Angeles Daily Journal and other legal and business publications.

Mr. Lindsey has been active for a number of years in various Bar organizations, including the ABA Forum on Franchising, for which he served as a member of the Governing Committee, co-chair of the 2011 annual meeting and Director of the International Division; the ABA Section of Antitrust Law, for which he served on the Section’s Council and chair of several committees; the California State Bar, for which he served as chair of the Franchise Law Committee; and the Los Angeles County Bar Association, for which he served as a senior officer, Treasurer and Trustee of both the Association and its charitable affiliate, Council for Justice. He currently serves as a member of the Executive Committee of the USC Intellectual Property Law Institute. His recent past positions include chair of the Computer Industry & Internet Committee of the ABA Section of Antitrust Law, member of ABA Steering Committees on Continuing Legal Education and Technology and Information Systems, and officer of the International Franchising Committee of the International Bar Association.

Active in civic affairs as well, Mr. Lindsey currently serves on the Board of Directors of the Library Foundation of Los Angeles, and previously served as a member of the Board of Trustees of the Los Angeles County Natural History Museum Foundation. He has also served as President and a member of the Board of Directors of the Jonathan Club. Mr. Lindsey is listed in The Best Lawyers in America, Chambers Global, Chambers USA, Super Lawyers and in Who’s Who Legal. Mr. Lindsey was a partner at Paul Hastings LLP for more than 30 years before joining Steinbrecher & Span.

Lewis Cohen

Partner
Mischcon de Reya

Lewis is a commercial Partner in the Intellectual Property department and specialises in commercial and IP arrangements.

Lewis works with clients from a broad range of sectors to help them to generate income from their IP and to extend their international reach through franchising, distribution, agency and licensing arrangements.

He advises on the full range of commercial, IP and media agreements including: manufacturing; services; management; sponsorship; endorsement; terms and conditions; publishing; development; assignments; and other exploitation arrangements. He also advises on the use and exploitation of IP rights.

Lewis has strong sector experience in sport; fashion, luxury and retail; media and entertainment; food services and digital, as well as the specialist agreements in these sectors. For example, in sport, Lewis advises on major sponsorships; venue hires; hospitality; catering; ticketing; broadcasting; licensing; tour and friendly match arrangements. In retail, he has advised on high-profile major endorsement arrangements; international franchising; product distribution; retail websites; and app development. In media, Lewis has advised YouTubers; film and TV distributors; publishers; and authors.

He has been named as one of the Hot 100 Lawyers by The Lawyer magazine. His insight on legal issues has been sought by, amongst others, Sky News, The Evening Standard, Sport Business, Sky Sports News and The Guardian.

The Legal 500 recommends Lewis for Franchising, Commercial Contracts, Brand Management, Media & Entertainment and Sport. He is accredited for being "a very good negotiator" with a "pragmatic and practical approach" and "an incisive, commercial advisor" who is "creative with solutions".

Chambers & Partners has commented that Lewis “impresses clients, who consider him to be highly knowledgeable, efficient, thorough and also extremely personable."

Lewis is a mentor for the start ups taking part in MDR LAB.

Andrzej Kmiecik

Partner
Van Bael & Bellis

Andrzej Kmiecik heads the competition law practice at the firm. He has particular expertise in merger control, cartels, dominance, distribution, pricing, intellectual property and State aid. He represents clients before the European Commission, the EU Courts and in national competition law proceedings.

Andrzej’s practice covers a wide range of industries, including the automotive sector, pharmaceuticals, paper and board products, office equipment, consumer electronics, aerospace, shipping, petrochemicals, clothing and footwear, and financial infrastructure.

Some of the high profile EU merger control cases he has handled include: Boeing/McDonnell Douglas; Enso/Stora; Boeing/Hughes; Caemi/Mitsui/CVRD; Boeing/Lockheed/ULA; SABIC/Huntsman; SABIC/GE Plastics; DFDS/CRO Ports/?lvsborg; Canon/IRIS (Art. 22 referral); and Deutsche B?rse/London Stock Exchange (for a complainant).

His experience in EU cartel investigations includes acting as defence counsel in: Newsprint; Amino Acids (also on appeal); Carbonless Paper (also on appeal); Publication Papers; Fine Papers; and Occupant Safety Systems (among other investigations in relation to car parts). He has handled both full adversarial and settlement proceedings, as well as making leniency applications at EU and national level.

Andrzej has also successfully defended clients against complaints of exclusionary conduct before the European Commission, including Canon (ink jet consumables) and Honda (racing engine technology).

He has a very active practice in the field of vertical agreements, and acted as defence counsel in one of the first cases in which the Commission’s novel cooperation procedure was used achieving a substantial reduction in the fine for the client. He also developed a niche practice in the field of motor vehicle distribution: he counsels and defends a number of manufacturers, combining extensive experience with in-depth industry knowledge.

His experience extends to acting as counsel in major EU antitrust investigations involving the life sciences sector, including: Becton Dickinson/Novo Nordisk (diabetes care); Lederle/SKB (vaccines) and Chiron/DRK (blood screening). He was actively involved in the Commission’s pharmaceutical sector inquiry.

He regularly lectures and writes on competition law matters.

Martine De Koning

Partner
Kennedy Van der Laan

Martine combines in depth knowledge of EU and competition law with a deep understanding of commerce and trade. She is praised for her ‘sharp strategic insight, knowledge and creativity in providing solutions’. She handles litigation in a ‘smart, assertive and effective’ manner.

Martine leads cases on abuse of dominance, vertical restraints and transfer of technology. Martine advises and handles disputes on tying, pricing, rebates, trademark and patent licensing and know how. With her lifelong focus on the fashion and retail sector she acts for her clients on internet sales restrictions, third party platform restrictions, geoblocking, dynamic pricing, omnichannel (seamless marketplace), e-commerce, inventory sharing, dual distribution, horizontal and vertical data sharing, loyalty programs and big data.

She structures complex international cooperation such as joint ventures, outsourcing and vertical (channel) agreements. Martine is an ‘outstanding knowledgeable authority on strategic competition law relating to franchising. She represents domestic franchisers in their international expansions plans and also assists foreign clients with establishing a presence in Europe, the Middle East and Africa’. Martine is a ‘shrewd contract drafter and negotiator’. She handles sales, manufacturing, procurement, logistics, transportation, warehousing, joint ventures, outsourcing and other domestic and international commercial contracts and related disputes. She also practices in customs and trade, and product safety and compliance. Martine’s interests include international trade unions and treaties (EU, WTO, ASEAN, APEC, NAFTA, Caricom) and exports regulations and sanctions.


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