For several years, the Antitrust Division’s investigations have been increasingly global in scope. Acting Assistant Attorney General Andrew Finch made clear that trend will continue in remarks at a conference on International Antitrust Law and Policy held in New York earlier this month.
Finch set out to answer the question, “what can the international community expect from the Antitrust Division?” He stressed that “with over 130 antitrust enforcers worldwide, it is even more imperative that competition agencies work together.” He also identified several areas where the Antitrust Division intends to work with overseas competition authorities.
First, he stressed the “importance of rule of law, and procedural fairness and transparency, in effective antitrust enforcement.” “[I]n a world where businesses increasingly operate across multiple jurisdictions and are subject to different antitrust enforcement regimes, transparency that increases understanding and confidence in each agency’s processes and decision-making will minimize the impact of such differences.” Finch explained that the “international community has already come together to do important work regarding these issues”—including work by the International Competition Network and the Competition Committee of the OECD—but that “there is more that can be done.”
Second, Finch emphasized the need for greater international cooperation and coordination on cartel cases. This is especially so, in his view, because of the proliferation of leniency programs. Today, many antitrust enforcement agencies have programs that provide for leniency for cartel members who are the first to report the existence of that cartel to antitrust authorities and cooperate with the authorities’ investigations. As a result, global corporations who make a leniency application are frequently managing multiple leniency processes simultaneously—which can result in challenges.
Finch explained that “[r]educing he burdens of multi-jurisdictional investigations on leniency applicants benefits not just the applicants but the enforcers as well.” With that in mind, he suggested three ways that antitrust enforcement agencies can coordinate and streamline the process:
- Focus investigations on injuries incurred within an agency’s own jurisdiction and tailor discovery requests with that focus in mind;
- Make document requests more targeted, and be open to “advanced document collection tools,” such as predictive coding; and
- Coordinate logistics of interviews and searches.
As an example of the “complexities” that may arise from when multiple authorities investigate the same conduct, Finch highlighted the Second Circuit’s recent decision in United States v. Allen. In Allen, the Second Circuit held that only “voluntary” statements obtained overseas can be used at trial against a defendant in the United States, and found that this prohibition extends to testimony compelled by a foreign government. (Our colleagues at the Second Circuit Criminal Law Blog wrote about that decision here.) Finch explained that the situation in Allen “highlights yet another area where we stand to benefit from enhanced communication, coordination, and planning with our counterpart agencies.”
To that end, Finch also spoke about the Division’s “Visiting International Enforcers Program,” which is designed to allow staff from other competition authorities to see how the Antitrust Division conducts investigations and facilitate a “pick up the phone” relationship between the Division and the staffs of foreign antitrust enforcers.
Third, Finch provided an overview of discussions at the Competition Committee meetings at the OECD in June, including those related to the growing role of technology in the marketplace and the Division’s experience with price-fixing agreements facilitated by algorithms. Finch explained that “the potential for algorithms to be used to facilitate price-fixing agreements does not change the fundamental way we analyze illegal agreements.” He emphasized that there are pro-competitive benefits to technological innovations, and algorithmic pricing can be used to facilitate rapid competitive response. As a result, he stressed that the Division’s focus in price-fixing cases “must remain concerted action”—regardless of whether it is effected through direct communications or a common understanding that the competitors will use software to achieve the same result.
Overall, Finch stressed that the Antitrust Division will “continue [its] tradition of strong collaboration” and take steps to coordinate investigations, share best practices, and provide technical assistance with other antitrust enforcers.