The Sixth Annual Chicago Forum on International Antitrust Issues took place at Northwestern Law School over two days. Here are 13 thoughts on some of the most noteworthy aspects:
1. One of the benefits of increased international co-ordination in cartel enforcement is lower costs to targets of the investigation.
Given multijurisdictional enforcement, Deputy Assistant Attorney General Brent Snyder noted that leniency is more important than ever before for a company to limit its antitrust exposure. The Division is working to cooperate with other agencies, particularly with respect to scheduling of witness interviews, the provision of key documents and even coordination among enforcers about fining methodologies. Snyder underlined that greater discussion among enforcers in specific investigations would also help minimize the risk of overlapping fines.
2. In its criminal enforcement the Antitrust Division has for the first time recommended a fine reduction due to compliance efforts that were “extraordinary”.
Snyder has never seen a case involving a “rogue employee”, and warned that companies should be careful in making an argument that the Antitrust Division might find to be “frivolous” and which might even color the Division’s views of the rest of the company’s account of the facts. However, a plea agreement in the foreign exchange rigging case provides one example of an “extraordinary” compliance program, which warranted the Division recommending a fine reduction for the first time. According to Snyder, the company took steps which amounted to “real remediation” in the aftermath of the investigation. Details on how a company may reach this threshold will be forthcoming.
Other panelists cautioned about cascading cartel investigations like auto parts and LIBOR, where one antitrust agency’s investigation of one product may trigger investigations by other agencies or of other products or business practices. Among the ways to minimize risk, the panelists emphasized audits and due diligence; the importance of identifying and following investigations in related industries; and the use of economic screening as a complement to a compliance program.
3. While there are differences in the best practices for dawn raids and searches and seizures, the focus these days is on electronic discovery with the use of key word searches to identify the most relevant documents.
In-house counsel strongly urged the importance of training key employees, particularly IT personnel, in advance of a raid or search. Indeed, the IT Department is often the first port of call on a raid, and it is important that employees are trained (and that dawn raid guidelines are updated) so that employees do not inadvertently obstruct a raid. Like many countries, the US, EU and Brazil penalize obstruction of justice during a raid. Dawn raids in Brazil, which can be civil or criminal, have increased dramatically since 2003, and arrests can occur at the same time as the raid. The first and only dawn raid in India was problematic in that more investigators were involved than were authorized and the attorney-client privilege was not honored. Because of the coordination among enforcers around the world, the panel also emphasized the importance of understanding (in advance of any enforcement action) the sales and distribution channels for all company products with a view to being able immediately to predict when an enforcement action arises in one country where else an enforcement action might take place against the company because of sales there.
4. While the agencies in the US, EU and China are all facing challenges caused by the merger wave, the issues that each is addressing are different.
Lynda Marshall, Assistant Chief of the Antitrust Division’s Foreign Commerce Section, noted the importance of cooperation with other agencies — as many as fifteen other agencies over the past year. She also noted the Antitrust Division’s increased use of predictive coding in requesting and reviewing electronic documents.
Noting an increase of about 50% in the number of merger filings during the past year, the European Commission’s Acting Deputy Director-General Carles Esteva Mosso emphasized the importance of considering the effect of the transaction on innovation, not just price. He mentioned that the EC had intervened in the pharma sector to protect potential innovation and that this implied a greater degree of intervention to safeguard innovation than in the past.
He also said that the proposed minority shareholder requirements have been pulled back by EU Competition Commissioner Vestager, with a view to a possible broader proposal.
With respect to China, Dr. Isabelle Wang noted the limited number of persons conducting merger review at MOFCOM and the requirement that MOFCOM consult with other agencies as part of its review of a transaction. China has adopted a simplified procedure for transactions with market shares below 15% for transactions involving competitors or below 25% for vertical transactions. So far, MOFCOM has used behavioral remedies more often than other jurisdictions. It has also just begun to use economists on a limited basis.
5. The increased use of economic analysis is important in moving towards substantive convergence among all jurisdictions.
Professor Aviv Nevo, former Deputy Assistant Attorney General for Economic Analysis at the Antitrust Division, explained that although the extent to which economists are independent from or integrated into case review differs to some extent at the DOJ an FTC, both value the role that economics play in assessing the antitrust risks. He expects the role of economists to increase in other agencies, thus facilitating greater convergence. He also explained that the standard for evaluating mergers in the US is a lessening of competition, which may not result from increased prices.
6. Intellectual property rights in China are very different than in the US.
China’s new Intellectual Property Guidelines are more similar to EU law than US law in that they require licensing of an essential facility in certain circumstances. Obligations to license intellectual property at reasonable royalty rates in China are different than in the US because there need not be any requirement of disclosure of essential patents or any agreement to license at reasonable rates. In China, royalty rates may be challenged as excessive if the negotiating process is unfair or if the license is overbroad.
7. To understand the law in China, it is important to understand significant historical and cultural differences.
As Professor Zhang from King’s College explained, industrial policy continues to play a role in enforcement in China. For example, NDRC is in charge of industrial planning, with half of the agency charged with price regulation and the other half charged with enforcing its antimonopoly law. The law with respect to resale price maintenance is unclear because there is currently no way to reconcile the position of NDRC, which has applied what is comparable to a per se prohibition, with that of the courts, which have applied a rule of reason approach. Enforcers in China have been criticized for not affording the parties due process — a lack of transparency, uncertainty with respect to confidentiality, a limited role for counsel, and no independent review.
8. Enforcement in China and a number of other newer agencies will change over time, and what we see today is very different from what we will see even 5 years from now.
Bill Kovacic, former FTC Chair, said that in comparing enforcement agencies with the US and EU agencies, it is important to keep in mind that it takes many years for an agency to gain sufficient experience. Some agencies like Mexico and Brazil have made significant strides in their enforcement. He expects that others like China will also make adjustments over time. He noted that not a single enforcement agency has improved without an independent power of scrutiny being exercised in its legal system.
9. Jurisdictions define dominance and abusive conduct differently.
Focusing on the differences between the US and the EU, the panel chaired by Andy Gavil, formerly at the FTC, noted that there are many more challenges of abuse of dominance outside the US. A recent case in the EU focused on territorial restrictions and discriminatory pricing. Leveraging one product with another has also been challenged in the EU. In the US the FTC’s monopolization case against McWane involved exclusive contracts by a supplier which foreclosed only 45% of the market. Product hopping, whereby a supplier discontinues an older product when a new product enters the market, also poses some risk in the US under some circumstances.
10. Enforcement in India has also diverged from other jurisdictions.
One example is unfair pricing, which is an unfamiliar concept in most jurisdictions. Another is the ability of patent holders in India to impose conditions in licensing, which patent owners outside of India are not permitted to do. The Competition Commission in India has also been criticized for not giving parties an opportunity to respond to charges. Complaints are easy to file in India, and the Commission must investigate all complaints and issue an opinion.
11. Mexico is undergoing significant changes as it implements the new law enacted in 2014.
The new law in Mexico includes, among other things, a new independent commission with 7 commissioners and a separate agency to review telecom transactions, a specialized competition court, criminal sanctions for cartels, a new premerger notification procedure in advance of closing, and challenges to reduce barriers to entry even without an antitrust violation.
12. With the adoption of the EU Directive on Antitrust Damages Actions, private litigation in the EU is taking shape.
While the UK, the Netherlands, and Germany have been the preferred venues for private suits, all member states have been directed to implement measures by the end of 2016 for claimants to bring damage actions in national courts. Five year statutes of limitation and a rebuttable presumption that cartels cause harm are part of the directive. Access to discovery is very limited, and leniency documents are protected from discovery. There is no joint and several liability for the immunity applicant, and collective redress may be afforded through either an opt-out or opt-in mechanism.
13. While the FTAIA has limited suits brought by indirect purchasers outside the US, it has not prevented criminal enforcement by the Antitrust Division.
The outstanding issues involving the Foreign Trade Antitrust Improvement Act result from the decisions in AU Optronics in the 7th Circuit and in Motorola Mobility in the 9th Circuit. Although filed in both cases, petitions for certiorari were denied in both cases following the conference. Thus, the Antitrust Division will continue its prosecution of cartels by foreign suppliers selling into the US.