Antitrust investigations are no longer limited to a nation’s borders, or even to a region. Enforcers are more and more sharing information and coordinating their investigative efforts as they strive to uniformly enforce the antitrust laws.
This expansion was emphasized recently when the heads of the major North American antitrust enforcement agencies gathered for their annual trilateral meeting to discuss even stronger cross-border cooperation and coordination.
Key participants in the day-long Mexico City event: Assistant Attorney General Bill Baer of the Department of Justice’s Antitrust Division, Chairwoman Edith Ramirez of the Federal Trade Commission, John Pecman from the Canadian Commission of Competition and Alejandra Palacios Prieto, the president of the Mexican Federal Economic Competition Commission.
The officials stressed the need for cooperation and coordination among the four agencies. The consensus among the antitrust enforcement agencies is that cross-border cooperation and coordination is now a necessity for effective antitrust enforcement. As Chairwoman Ramirez noted, “The need to cooperate across borders increases every year, and we are working together to meet that challenge.” Assistant Attorney General Baer also stated the trilateral meetings provided the agencies with “a chance to review and improve our enforcement cooperation and to engage in policy dialogue on emerging topics of common interest.”
Notably, the heads of the antitrust agencies discussed the possibility of involving antitrust enforcement agencies in South America, further expanding their efforts to coordinate and uniformly enforce the antitrust laws.
The participants also discussed their current enforcement priorities, as well as the implementation of Mexico’s new competition law, which substantially broadens the investigative powers of Mexico’s competition enforcement agency, the Federal Economic Competition Commission. The enforcement agencies, particularly in the US, have prioritized investigating anticompetitive conduct, as well as scrutinizing mergers and acquisitions, in the technology, pharmaceutical and automotive industries. It can be expected that Mexico’s involvement in such antitrust enforcement will grow with the implementation of its new competition law.
Annual trilateral meetings
The annual trilateral meetings are largely a result of the antitrust cooperation agreements entered into by US in 1995 and 1999 with Canada and Mexico, respectively, as well as an agreement entered into in 2001 by Canada and Mexico. The agreements generally provide that the various antitrust agencies will cooperate and coordinate with each other in order to increase consistency with respect to their antitrust policies and enforcement. In addition, Canada signed another agreement in 2014 with the FTC and the US Department of Justice on the Best Practices on Cooperation in Merger Investigations, which promotes effective coordination between the agencies.
The increase in international collaboration between the antitrust agencies in North America is further reflected in the recent statements of Russell Damtoft, Associate Director of the Office of International Affairs at the FTC, who noted that when it comes to work product, Canada’s Competition Bureau and the FTC “can and do share quite often.” The agencies, he added, also discuss confidential information that is not protected under the Hart-Scott-Rodino Act or other laws and regulations. Mexico’s participation in these joint investigations is very likely to increase as well with the implementation of its new competition law.
Companies doing business in North America must take note
For companies doing business throughout North America, the trilateral meetings are an important reminder that business practices must be compliant with the antitrust laws of the United States, Canadaand Mexico. The antitrust agencies in each of those countries are continuing to stress cooperation and transparency with each other.
If a company is being investigated by one country for a potential antitrust violation, the company should keep in mind that its conduct and statements could likely be relayed to the antitrust agencies in the other countries, and thus compliance across the board is essential. Antitrust policies and procedures must encompass laws, activities and practices throughout North America – and the need for businesses to comply will only expand should the enforcers succeed in their goal of coordinating with antitrust agencies throughout South America.