Another dispatch from the 54th Spring Meeting. In the well-attended session this afternoon entitled Hot Topics, the offically hot topics were announced. Empagran continues to be hot, but much cooler than it was, now that the DC Circuit seems to have set the tone with its “proximate cause” standard to govern the relation between foreign harm and U.S. domestic harm that plaintiffs must show in order to avail themselves of U.S. courts and U.S. treble damages awards. John Majoras (Jones Day) and Lee Freeman (Freeman, Freeman & Salzman) agreed that class actions are much harder to bring, perhaps impossible to bring, but disagreed on whether issues of administrability or doctrinal views are the reason. Martha Samuleson, an economic expert, spoke about the hot insurance class actions against contingent brokerage fees.

My favorite was the discussion of the recent Second-Request reforms, which the FTC recently announced. Mark Kovner (Kirkland & Ellis) made interesting points about the meaning of the reforms (on which DOJ has not commented), stressing in particular the different impact that such novelties as the formalized 35-custodians trade-off will have. For large companies, restricting the request to 35 custodians will be a real advantage, if it can be agreed on quickly, and if the price of delays at the backend is not too high. In order to get the restricted number of custodians, the company must agree to wait for thirty days after submitting data to certify compliance (thus extending the FTC’s review period to effectively sixty days), and must grant sixty days for discovery. That may be a tough question, since time is so important, particularly for the seller. If a seller is much smaller than the buyer, the limitation in the number of custodians might not be worth much to it, but delay is painful since it is the seller who has more at stake if the deal is significantly delayed or blocked. Mark raised the question about the statutory aims of the HSR Act, which specifically limited the agencies’ review period: Will that Congressional goal be undermined if the agencies routinely expect or even strong-arm the parties into extensions of time?

Other hot topics were the joint Commentary on the merger guidelines, and the Maytag clearance. Stay tuned.

Technorati Tags: Antitrust, HSR, Second Request, Empagran

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