Virtually all significant antitrust cases these days have an international component. Markets now are worldwide. Consequently, one of the most frequently litigated—and most important issues—is the extent of U.S. jurisdiction. Which sales are subject to trebling in a U.S. court? Which sales must be pursued elsewhere? Frequently, the key statute is the Foreign Trade Antitrust Improvements Act (FTAIA). The resulting litigation, unfortunately, has not resulted in clear rules or signposts. And, the cases are highly fact-specific. The facts matter.
Continue Reading Navigating Dangerous Shoals: The Murky but Critical Territorial Boundaries of U.S. Antitrust Jurisdiction
Principal Deputy Assistant Attorney General Finch: Compliance Re-Evaluation?
On May 31, 2018, Principal Deputy Assistant Attorney General Andrew Finch delivered an important policy statement at the ABA antitrust in a Conference in Seoul, Korea. Finch remarks of May 31, 2018. The most widely reported aspect of the speech was its focus on international antitrust cooperation. Indeed, the following day Assistant Attorney General Makan Delrahim announced a formal initiative “to help finalize and join the global multilateral framework in procedures in competition law and enforcement. Delrahim’s June 1st remarks on Global Antitrust Enforcement at the Council of Foreign Relations.
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Senior Executive Type B Amnesty Redux — A Rare Correction From DOJ (Or Not?)
Last year, as noted in this blog, the Antitrust Division issued one of its fairly rare but critically important “Frequently Asked Questions” publications concerning its Amnesty Program. In January 2017, DOJ said explicitly that for Type B amnesty it retained discretion to prosecute senior executives. Defense counsel greeted this development with widespread alarm. Type B amnesty is frequently what DOJ offers to reporting companies if DOJ had any information of any kind about the reported activity. Few thought that mattered very much until January 2017 when DOJ’s FAQ pronouncement in practical effect imposed on defense counsel the need to advise a corporate client that amnesty might not apply to senior executives—with a likely attendant chilling effect on a company’s desire to participate in the program.
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Eyes Across the Atlantic: Coordination and Management of Global Private Antitrust Litigation*
In years past, the focus of private international antitrust disputes was the United States. Over a century of experience, treble damages, class actions and the American rule for attorneys’ fees – plus robust enforcement by the Antitrust Division – have combined to make the United States the natural hub for private cases. That is still true today, but to a lesser extent because emerging private remedies and processes have made European jurisdictions much more viable, and U.S. courts are taking an increasingly close look at the limits of their jurisdiction. The result is litigation increasing across newly empowered jurisdictions: sophisticated and well informed coordination, case management and overarching strategy now are critical.
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Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update
In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7
The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).Continue Reading Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update
The Rapidly Changing Landscape of Private Global Antitrust Litigation: Increasingly Serious Implications for U.S. Practitioners
The center of gravity when it comes to private litigation of international antitrust disputes is still in the United States, but two trends affecting the legal landscape in the U.S., U.K., and EU are shifting it across the Atlantic. In this article originally published in Competition – The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California (Vol. 25, No. 2, Fall 2016), we address these trends and further discuss their implications for lawyers handling major antitrust disputes that have global footprints. Much of the discussion will focus on cartel litigation because those cases often involve global issues and present the most obvious examples for our discussion.
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Evolving Private Remedies for Competition Infringements in Europe: Class Actions in the U.K.
Winds of change are blowing through Europe’s national courts, beginning with a new antitrust damages Directive requiring changes in national laws to facilitate private enforcement of competition law. This step was a major change, and an equally significant development has taken place in the U.K., which will make it even more attractive to private enforcement. As of 1 October, 2015, the U.K.’s long-anticipated opt-out class action procedure will be available.
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“Individual Accountability for Corporate Wrongdoing”: A Sea Change Or Not?
On Thursday, September 10, 2015, Deputy Attorney General Sally Quillian Yates delivered remarks announcing a memorandum delivered to all federal prosecutors, including the Antitrust Division: “Individual Accountability for Corporate Wrongdoing”. She said the purpose of this memorandum was “to ensure that individual accountability lies at the heart of corporate enforcement strategy.” She outlined “six specific steps” to accomplish that goal. She emphasized the first step:
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FTC “Enforcement Principles” for Section 5 of the FTC Act: Is Something Better than Nothing?
For many years, antitrust practitioners have struggled to understand exactly how the FTC will analyze and enforce Section 5’s prohibition of “unfair methods of competition.” Counseling clients has been challenging. In a short one-page release on August 13, 2015, the FTC published its first ever policy statement in an apparent effort to address those uncertainties.
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