ANTITRUST & COMPETITION

Cascione’s team recognized by GCR 100 and Legal 500 rankings

Cascione’s Antitrust team has been recognized and ranked by two of the most prestigious publications in the legal market, as one of the best law firms in the Competition & Antitrust field.

First, the team achieved remarkable success in the Global Competition Review’s GCR 100 2025 rankings — which highlights the firms engaged in the most significant antitrust work globally — being included in the list of the world’s 100 best competition practices.

The team was also ranked by the Legal 500 and, for the 4th consecutive year, partner Denise Junqueira was recognized as a “Next Generation Partner”, while senior associate Maíra Isabel Saldanha Rodrigues was ranked as “Leading Associate”. Partner Denise Junqueira was also shortlisted as Next Generation Partner of the Year as regards Competition & Antitrust.

We greatly appreciate the trust and support of our clients!

Brazil’s Ministry of Finance proposes Ex Ante regulation of digital platforms

In October 2024, the Secretariat for Economic Reforms of the Brazilian Ministry of Finance published a report entitled “Digital Platforms: Economic and Competition Aspects and Recommendations for Regulatory Improvements in Brazil”, proposing a new regulatory framework focused on digital platforms. The document results from more than 72 contributions from various national and international authorities – including the Administrative Council for Economic Defense (“CADE”, in the Portuguese acronym) – and the public.

The report’s main proposal is the implementation of an ex-ante antitrust regulation that would allow for more effective intervention in competition issues related to the so-called “systemically relevant platforms”. As proposed by the Ministry of Finance, this new regulatory framework would fall under CADE’s jurisdiction. In essence, the regulation would be enforced by two main procedures: (i) designation, in which platforms would be analyzed and potentially classified as “systemically relevant” based on qualitative and quantitative criteria, and (ii) definition of procedural and transparency obligations to be imposed to the designated platforms to promote competition in digital markets, which would be determined on a case-by-case basis.

Additionally, the report recommends raising the current minimum turnover thresholds for mandatory pre-merger notification.

CADE opens investigation and preventively order tech company to lift restrictions on In-App purchases

CADE’s Superintendence General (“SG”) has initiated an administrative proceeding against one of the world’s leading tech companies and granted a preventive measure ordering it to lift restrictions on in-app payments and allow the use of third-party payment processors for in its digital store.

The measure was granted as part of an investigation into an alleged abuse of the company’s dominant position in the markets for apps and digital goods distribution and in-app payment systems, by tying and creating artificial barriers to entry and to the development of competitors. According to the SG, said practices would materialize due to the obligatory use of the company’s own payment processor for purchases made within apps distributed in its digital store.

The investigated company was given 20 days to implement the necessary mechanisms and tools to ensure the measure’s effectiveness, subject to a R$ 250.000 daily fine for non-compliance.

CADE investigates algorithmic pricing

CADE opened an administrative proceeding to investigate whether the use of an AI price-setting tool influenced the adoption of uniform commercial practices by several competing players.

According to the SG, the software has an automated information-gathering tool which combines users’ sales, price and cost data with competitors’ prices, monitoring more than 13,000 players daily. Based on this information, an artificial intelligence system embedded into the platform learns how price variations affect sales volume, runs simulations and suggests, for each user, the best price to be charged that day, monitoring the results in real time. Consequently, as CADE’s Department of Economic Studies found out during the investigation, a significant increase in prices by the contracting competing players allegedly occurred.

Given such circumstances, the SG’s investigation seeks to ascertain whether the use of the pricing algorithm influenced the dynamics of the market, removing individuality and making it feasible for competitors to act uniformly. The main targets of the investigation are the software developer and a union, which allegedly recommended the use of the tool to its members.

CADE applies merger remedies that limit anti-dumping measures in the plastic film market

During the analysis of a merger between the only Brazilian producer of PET film and one of the largest Brazilian importers of such product, CADE’s Tribunal decided to condition the merger’s approval to certain obligations agreed with the parties, including remedies to limit anti-dumping measures in the plastic film market.

CADE’s Tribunal found that the deal raised antitrust concerns due to the market’s high concentration levels and reduced rivalry between national and foreign products. However, based on the economic analysis carried out by CADE’s Department of Economic Studies, it concluded that importers competitiveness pressure on domestic producers were currently being impaired by anti-dumping measures. Thus, to ensure the imports competition, the parties agreed, among other commitments, to (i) request the immediate termination of the existing anti-dumping measures and not request the reinstatement of the currently suspended ones; (ii) refrain from filing new requests, except for compensatory and safeguard measures, for 5 years; and (iii) abstain from using any other mechanism that could lead to an increase in import tariffs.

CADE suspends shareholder’s rights for alleged abuse to harm competitor

By request of a pulp manufacturer (“Investee”), CADE’s SG granted a preventive measure suspending the political rights of its minority shareholder (“Minority Shareholder”), controlled by an alleged competing company (“Investor”), for allegedly abusing such rights to hinder the Investee’s business.

According to SG’s analysis, influenced by the Investor, the Minority Shareholder had been taking several decisions that go against the Investee’s best interests, such as (i) vetoing expansion projects, (ii) rejecting accounts, and (iii) imposing difficulties to issue bonds, causing operational challenges. Furthermore, the Investor supposedly gained access to competitively sensitive information about the Investee, its alleged competitor, through the Minority Shareholder. Supposedly, such interference in the Investee was intended to hinder its competitive potential and favor the Investor, thereby damaging the pulp market.

SG’s measure was immediately enforced, and the Investor is subject to a R$ 250.000 daily fine for non-compliance.

CADE further discusses the limits of non-compete clauses

CADE’s Tribunal has increasingly discussed the competitive limits of non-compete clauses considering the restrictions recently imposed by the SG during two merger analysis. In one of the cases, CADE reinforced the need to limit the clauses’ duration by changing it term from 10 to 5 years. In the other case, CADE’s Tribunal emphasized the need for an appropriate geographic limitation of the non-compete clause, reducing its nationwide coverage to only those cities where the parties conduct business. The Tribunal pointed out that CADE is keeping a close eye on the issue and will be more vigilant in ensuring that non-compete clauses comply with its case law, including at the SG level.

CADE investigates the exchange of competitively sensitive information in labor markets

CADE has opened two new investigations into the alleged exchange of competitively sensitive information among human resources (“HR”) departments. Both proceedings were initiated through Leniency Agreements.

The investigations target major national and multinational companies in different sectors. According to CADE, the participants supposedly exchanged employee compensation data and information on benefits via thematic working groups organized through virtual meetings, WhatsApp groups and emails. Such actions would have the effect of “limiting and hindering free competition between employers in the dispute to hire and retain the available workforce within the Brazilian labor market”.

The intersection between labor markets and antitrust is currently one of the main hot topics in several jurisdictions. In 2021, the Brazilian authority launched its first investigation into alleged anticompetitive conduct in the market for hired labor, focusing on the healthcare and life sciences industries.

Cascione hosts debate on “Labor Markets and Antitrust” with MoloLamken

In October 2024, Cascione’s Antitrust team and MoloLamken LLP jointly conducted a webinar on the global hot topic “Labor Markets and Antitrust: What employers should contemplate in the USA and Brazil”. The debate featured the distinguished speakers Eric Posner and Lauren M. Weinstein, as well as partner Denise Junqueira and senior associate Maíra Isabel Saldanha Rodrigues.

The webinar covered a variety of labor and antitrust matters, including the exchange of competitively sensitive information, an issue that goes beyond price and may be triggered by various types of communications. In fact, CADE’s recent investigations show that numerous benchmarking activities, particularly those that are HR-related, may pose antitrust risks.

Recent developments in the USA and Brazilian authorities’ approach to information exchange were also a focus point, particularly given that both countries don’t currently have any “safe harbors” on the matter and have signaled the increased scrutiny of the practice.

Finally, discussions on non-compete and no-poach agreements aimed to provide insights to help companies navigate the fine line between pro-competitive and anti-competitive practices.

We thank all the attendees!

CADE analyzes anti-competitiveness presumption in “inconclusive” communications on a supposed invitation to cartelize

CADE’s Tribunal unanimously convicted 15 defendants for their alleged participation in a cartel in the fuel resale market in a municipality in Paraná. Additionally, one company and its director were also convicted for allegedly inviting the cartel to expand to another municipality in Paraná.

CADE identified that one of the defendants sent several messages about the existing cartel to another participant and, during such communication, it proposed to expand the scope of the illegal arrangement to other municipality, to which another defendant replied “ok”. Given the confusion of different subjects, CADE understood that there would have been reasonable doubt as to what the “ok” referred to – the existing cartel or the proposed expansion –, so it could not assume that consent had been given to the expansion of the cartel’s scope. Hence, the first defendant was convicted for the original cartel and for the invitation to cartelize, while the second defendant was convicted only for the original cartel and not for the alleged extension.

INTERNATIONAL TRADE

Updates in Commercial Defense

In recent months, SECEX has initiated anti-dumping investigations into the following exports to Brazil:

• Pre-painted steels from China and India;
• Polyethylene resins from the USA and Canada;
• Ethanolamines from China; and
• Milk powder from Argentina and Uruguay.

Additionally, SECEX has initiated a review of the anti-dumping duty on the following Brazilian imports:

• Alloy laminates from South Africa, Korea, China and Ukraine;
• Austhenic and ferritic stainless steel laminates from China and Chinese Taipei;
• Fresh garlic from China;
• Ethanolamines from Germany and the USA;
• Padlocks from China;
• Hairbrushes from China; and
• Speakers from China.

Furthermore, SECEX issued a preliminary affirmative determination of dumping and injury to the domestic industry and extended the deadline for the completion of the investigation into dumping practices regarding the following exports to Brazil:

• Carbon steel from China;
• Nebulizers from China;
• Titanium dioxide pigments from China;
• Polyester fibers from China, India, Vietnam, Malaysia, and Thailand; and
• Austenitic stainless-steel tubes from India and Chinese Taipei.

Lastly, SECEX has: (i) initiated the review of countervailing duties on imports of cast iron and chromium steel grinders from India; and (ii) updated the export prices on imports of citric acid, sodium citrate, potassium citrate, and their blends from China, regarding voluntary price commitments entered by Chinese producers and exporters in an anti-dumping investigation.

Denise Junqueira
djunqueira@cascione.com.br

 Brazilian Competition Case Law, Trade & Trends | December 2024