Joshua White

Analysis Group was retained on behalf of Sika AG, a specialty chemicals company, in connection with its intended acquisition of MBCC, a global supplier of construction chemicals.

The EU’s incoming head of competition policy stands to inherit a full slate of responsibilities related to fair markets and sustainable economies. With a successful confirmation hearing behind her, Teresa Ribera will step into the role of Executive Vice-President for a Clean, Just and Competitive Transition. A mission letter from European Commission President Ursula von der Leyen charges Ms. Ribera with “[modernizing] the EU’s competition policy to ensure it supports European companies to innovate, compete and lead world-wide and contributes to our wider objectives on competitiveness and sustainability, social fairness and security.” Dr. Von der Leyen specifically hinted at a review of the EU horizontal merger guidelines (HMG) and a focus on the risks of killer acquisitions.

In a blog post, Analysis Group Vice President Joshua White, Senior Analyst Claire Paoli, and coauthor Jay Modrall (Norton Rose) explore how the mission letter’s ambitious mandate might translate into merger review policy. Noting that the mission letter urges not just a reassessment of the 20-year-old HMG but “calls for substantive changes” in how the European Commission assesses mergers under EU law, the authors posit that changes to the HMG could include increasing the influence of innovation-related efficiencies when weighing a transaction’s impact on competition; taking account of the EU’s present-day security and defense environments; and giving greater weight to time horizons and investment intensities for markets with longer product life cycles, such as energy or pharmaceuticals. In addition, they mention that the commission’s “non-horizontal merger guidelines are also overdue for an update.”

Mr. White, Ms. Paoli, and Mr. Modrall also consider how Ms. Ribera may strengthen protections against killer acquisitions, in which an incumbent business eliminates potential competition by acquiring a market entrant and then terminates development of a project that threatens the incumbent’s market share.

The blog post, “Mission Impossible? Teresa Ribera’s Mission Letter and the Future of EU Merger Review,” was published on the Kluwer Competition Law Blog.

On behalf of Meta, an Analysis Group team developed a white paper assessing the possible economic impacts of data transfers between Europe and the US in the wake of the Court of Justice of the European Union’s Schrems II decision. 

In “Global Issues In EU's Licensing Plans For Essential Patents,” published on Law360.com, Vice President Josh White and Managing Principal John Jarosz discuss the European Commission’s (EC’s) regulatory proposal to establish a competence center for registering and assessing standard essential patents (SEPs). According to the authors, the proposed regulation, released in April 2023, is intended to “facilitate the licensing of SEPs in the EU, with the hope of greatly reducing the costs and uncertainties associated with the growing volume of SEP litigation.”

Acknowledging that the EC “aims to shift SEP licensing from a somewhat inconsistent and secret set of bilateral negotiations to one that is open and governed by a central body that will apply understandable and predictable guideposts,” the authors examine elements of the proposal that they believe may pose challenges the EC will need to address as it moves forward. They raise questions regarding the European Union Intellectual Property Office’s (EUIPO’s) lack of experience with patent licensing and technology standards; the principles and time frame being proposed for making FRAND determinations; and the willingness of patent holders to submit to a registration and FRAND conciliation process that would release large amounts of information in the public domain.

On behalf of Suez in its acquisition by the international environmental services conglomerate Veolia, Analysis Group teams provided economic and financial analyses for review by regulatory agencies in multiple countries.

For the proposed acquisition of global luxury jeweler Tiffany & Co. by LVMH Moët Hennessy Louis Vuitton SE (LVMH), an Analysis Group team led provided economic analysis in support of securing merger approval from competition authorities across nine countries and the European Union.

As potential antitrust issues related to big data and big tech gain more attention, the UK Competition and Markets Authority (CMA) has expressed concern that major platforms such as Google are protected from competition by incumbency advantages, due, in part, to their control over substantial amounts of data. In “Access to big data as a remedy in big tech,” published in the Competition Law Journal, Analysis Group Vice Presidents Joshua White and Nick Dadson and Manager Iain Snoddy examine whether Google’s ability to control access to its click-and-query data is a barrier to effective competition. Click-and-query data contain information on what users search for and how they interact with the search engine results.

In the article, the authors discuss criteria from EU jurisprudence for determining whether data are an essential facility; actual and potential alternatives to Google’s data that are available to competitors; and objective reasons Google might limit access to its data, including privacy concerns. Ultimately, the authors conclude that Google Search click-and-query data are unlikely to be an essential facility, detailing both reasonable alternatives and obstacles to direct access.

Every year, Global Competition Review (GCR) publishes a series of reports offering detailed information to agencies and practitioners engaged in antitrust and competition work throughout the world. The 2020 edition of the review focused on Europe, the Middle East, and Africa (EMEA) includes an economics overview written by Analysis Group Vice President Joshua White, who is based in the firm’s London office.

In their article, the authors consider the use of economics and econometrics in the context of assessing antitrust damages. They focus on the recent decision by the High Court of England and Wales in BritNed Development v ABB, the first cartel follow-on damages claim to reach judgment on the merits in the UK. In this case, the claimant’s and defendant’s economic experts applied differing empirical methodologies to estimate damages: BritNed’s expert relied on regression analysis to estimate the level of the overcharge, while ABB’s expert largely avoided econometrics. In this case, the Court found the non-econometric approach more reliable, which the authors note serves to highlight the importance of ensuring that any econometric evidence is rooted in the facts and data of the case, that it is clearly set out in an intuitive fashion, and that key limitations are highlighted and addressed.

“Economics: Overview” is an extract from GCR’s Europe, Middle East and Africa Antitrust Review 2020, first published in July 2019. 

Read the overview

Read the full publication

A recent resurgence of excessive or unfair pharmaceutical pricing cases brought by European competition authorities has underscored the question of how European regulatory authorities and courts ought to curb prices deemed to be “too high.” What tests ought to be used to determine whether prices are excessive or unfair, and should the policing of such prices be accomplished by the enforcement of competition law or by improving existing regulatory frameworks?

A new Economist’s Note in the Journal of European Competition Law & Practice by two Analysis Group consultants examines these issues in detail. In “Economics of Excessive Pricing: An Application to the Pharmaceutical Industry,” Managing Principal Antoine Chapsal and Vice President Joshua White lay out the prevailing three-step test by which prices are determined to be excessive: assessment of dominant position in an appropriately defined market, establishment of robust benchmark comparisons, and assessment of economic profitability. For each step, they summarize the reasons why particular features of the pharmaceutical market may complicate or even frustrate the relevant inquiry.

Given the potential for serious harm to the market and to society if intervention is flawed, the authors ask whether the enforcement of competition policy is the optimal vehicle for controlling excessive prices. “To the extent that governments or public health authorities believed that companies in recent excessive pricing cases were taking advantage of gaps in regulatory policy,” they conclude, “action should have been directed at improving the regulatory policy rather than competition law enforcement.”

Managing Principals Aaron Yeater and Antoine Chapsal and Vice President Joshua White provide an overview of economic considerations for online platforms in the article, “European Union – Two-Sided Markets, Platforms and Network Effects.” The authors begin with an introduction to the economics of two-sided markets, and then discuss the questions of asymmetric pricing and market definition with digital platforms. They also discuss the special considerations required when assessing competition issues for digital platforms, and review how courts have weighed the benefits and costs from potentially anti-competitive restrictions on multisided markets, with a focus on the recent UK interchange fee decisions.

Five Analysis Group consultants have jointly written articles on the subject of competition in the retail industry for an “On-Topic” published in the competition law review Concurrences. Titled “Online and offline retail distribution,” the set of articles collectively assesses the effects that online shopping and distribution have had on brick-and-mortar businesses, and the dilemmas they pose for antitrust and competition enforcement as it evolves to take account of the phenomenon.

In the article, Vice President Joshua White outlines some of the consumer benefits and efficiencies that digital comparison tools can bring about, while also setting out some of the competition concerns that some of their practices may raise. The article closes by underscoring the need for an international consensus on some key enforcement issues.

Every year, Global Competition Review publishes a series of reports intended to offer detailed information to agencies and practitioners engaged in antitrust and competition work throughout the world. The 2019 edition of the review focused on Europe, the Middle East, and Africa (EMEA) includes an economics overview written by Analysis Group Vice President Joshua White, who is based in the firm's London office.

In their overview, Dr. Mishol and Mr. White focus on competition authorities' increasing scrutiny of the pharmaceutical industry over the past several years, which has resulted in several cases involving excessive pricing and “pay-for-delay” accusations. A key aspect of such cases is whether the drugs in question face competition from other products already on the market; this, in turn, requires an examination of market definition. Because the pharmaceutical market has several unique features that can complicate attempts to use existing market definition tools, Dr. Mishol and Mr. White describe a number of approaches that have been used in selected recent cases. They then outline some economic analyses that can be used to assess the relevant pharmaceutical markets in these cases, and lay out implications for future analyses.