Focus on
Antitrust

Oxera advised Skyscanner in its appeal against the Office of Fair Trading’s decision to settle with Booking.com, Expedia and IHG in a competition case.

The OFT was investigating restrictions between the three online travel agencies that prevented companies such as Skyscanner from offering customer discounts on hotel headline rates. The discounts would only be available to consumers who signed up to a special scheme. This meant they weren’t visible on sites like Skyscanner, which could show the headline rates but not the actual hotel price on its website.

Skyscanner lodged an appeal in March 2014, arguing that these closed groups of online travel agents and lack of transparency could harm the meta-search sector, as well as small online agencies, hotels and, as a result, consumers.

We quickly got to grips with Skyscanner’s case and the travel industry. We added valuable economic arguments to support it and ensure the right outcome.

Oxera helped generic drug manufacturer, Lupin Pharmaceuticals, put up a strong defence against the European Commission’s allegations of anticompetitive behaviour in the context of the company’s settlement of a dispute with the patent holder.

The Commission alleged that the settlement agreements that resolved a patent litigation between Servier, a large pharmaceutical firm, and several other generic drug manufacturers including Lupin, were anticompetitive. Its primary concern was that the agreements delayed the entry of the generic (non-branded) versions of the drug into the market, thereby harming consumers by denying them access to cheaper generic products. One of the main assumptions behind its allegation was that there is a reasonable level of certainty that the generic firm would win the case and enter the market.

We developed an economic framework for Lupin to assess the likely effects of the agreements. This was used to show that their impact on market entry depends on the economic context in which they were concluded, including the generic firms’ expectations of success, expected profits from entry, and the costs of litigation. Our analysis showed that, under a range of assumptions on plausible market environments, the agreements would not have been anticompetitive because generic entry would not have occurred earlier (or at all) without the agreements. We also undertook a patent valuation exercise for the analysis.

Although still ongoing and on appeal, this is one of the seminal cases in the interface between competition law and intellectual property law in the sector, and the analysis of the economic context will be critical to the final outcome.