2014 mid-year criminal antitrust and competition law

July 10, 2014
2014 MID-YEAR CRIMINAL ANTITRUST AND COMPETITION
LAW UPDATE
To Our Clients and Friends:
Cartel enforcement remains strong. As in recent years, enforcement authorities continue to open new
investigations, cooperate with one another when investigating multinational cartels, and impose high
monetary penalties. 2014 has been marked in particular by the United States Department of Justice's
(DOJ) successful extradition of an Italian citizen from Germany, the increasing role of China's
National Development and Reform Commission (NDRC) in prosecuting international cartels, and a big
win for the DOJ in the Ninth Circuit Court of Appeals, which affirmed the convictions of AU
Optronics Corporation, two of its executives, and its US subsidiary. The Ninth Circuit also affirmed
the imposition of a $500 million fine on AU Optronics.
As reported in greater detail below, the DOJ's successful extradition highlights the risks to individuals
who decide not to face charges in the United States. The extradition has also prompted speculation
that countries that historically have not extradited antitrust offenders to the United States may now be
more likely to do so. This could have significant implications for the long-running auto parts
investigation. The extradition has also sparked debate in Europe about the propriety of one European
Union member (Germany) extraditing the citizen of another member (Italy) who was traveling within
the European Union when Germany could not have extradited a German citizen to the US.
Undoubtedly, the arm of US criminal antitrust enforcement has become longer. Until this
development, only Canada and the UK had indicated that they are amenable to extraditing antitrust
fugitives to the US. In the New Jersey SuperFund kick-back investigation, the DOJ secured the
assistance of Canadian authorities in seeking extradition of a Canadian citizen for trial in the
US. Importantly, however, in the case of the UK extradition order, the UK had to rely on an
obstruction of justice offense. This most recent extradition, and the resulting overall expansion of
extradition risk puts further pressure on individuals involved in cartel infringements. And there can
also be no doubt that expanding the location and number of nations that will agree to extradition
remains a top US enforcement priority.
Elsewhere, enforcement efforts similarly continue to expand. China, which initially focused its cartel
investigations on domestic cartels, is now becoming a significant player in the investigation and
prosecution of international cartels. In 2014, China moved from a nation that followed other leading
authorities in conducting investigations to one that is participating in coordinated investigations from
the beginning. Specifically, the NDRC is understood to have helped launch a multinational
investigation of the capacitors industry, reportedly in cooperation with the DOJ, Japanese Fair Trade
Commission (JFTC), European Commission, Korean Fair Trade Commission (KFTC), and Taiwan
Fair Trade Commission (TFTC).
This year also marks the emergence of new anti-cartel regimes and the maturation of others. Mexico
recently enacted a law expected to give antitrust regulators heightened powers. France has reshuffled
the composition of the directing bodies of its National Competition Authority. And Spanish courts
have issued significant antitrust rulings, including some that have curtailed the discretion of the
Spanish Competition Authority. Several countries reported their first successful investigations
following leniency applications, including China and Mexico. And the European Union Parliament,
European Commission, Hong Kong, Mauritius, Mexico, Oman, Pakistan, Poland, and Turkey
announced the adoption of new laws focused on battling collusion.
Elsewhere, enforcement remains on an upward trend. In Germany, the Federal Cartel Office has
imposed record administrative fines for violations of German antitrust laws. And Peru has seen a spike
in enforcement activity. In short, cartel enforcement's globalization trend continues.
As more and more jurisdictions simultaneously investigate parallel conduct, questions of overlapping
jurisdiction--including, overlapping sanctions--and the extraterritorial reach of competition laws arise
anew. In particular, a number of US federal appellate courts are considering the extent of the
extraterritorial application of US antitrust laws. In a significant development that seemed poised to
limit the enforcement efforts of one of the most active enforcement authorities, the DOJ, the Seventh
Circuit Court of Appeals in March 2014 affirmed the dismissal of claims brought by the parent
company of subsidiaries that bought allegedly price-fixed LCD panels outside the US to be used for
making mobile phones to be sold in the US, saying that such sales were not "direct" within the
meaning of the Foreign Trade and Antitrust Improvements Act (FTAIA) and therefore were not subject
to US law. [1] The DOJ supported the purchaser's petition for a rehearing en banc, saying that the
decision's "narrow view of the statutory term 'direct' is likely to constrain the government's ability to
effectively prosecute cartels that substantially and intentionally harm U.S. commerce and consumers,
as well as prevent those injured in the U.S. from redressing that harm . . . ." [2] Both the KFTC and
TFTC submitted statements suggesting that allowing US law to reach such conduct would interfere
with their own enforcement regimes. [3] On July 1, 2014, the Seventh Circuit vacated its original
decision, denied a rehearing en banc, but granted a rehearing before the same panel of judges that
originally considered the appeal. [4]
The Ninth Circuit Court of Appeals and the Second Circuit Court of Appeals also recently addressed
the proper scope of the FTAIA. In United States v. Hsiung, the Ninth Circuit joined the Second, Third,
and Seventh Circuits in holding that the FTAIA does not create a jurisdictional limit on the power of
federal courts, but rather "provides substantive elements under the Sherman Act in cases involving
nonimport trade with foreign nations." [5] The Court also held that the defendants' transactions
between foreign producers and purchasers located in the US were "import trade" and fell "outside the
scope of the FTAIA," but declined to decide whether the evidence relating to foreign sales of panels
that were incorporated into finished consumer products before being imported into the US was
sufficient to establish that the foreign sales had a "direct" effect for purposes of the domestic effects
exception to the FTAIA because the convictions could be independently sustained on the basis of the
2
clearly proven import trade. [6] In Lotes Co., Ltd. v. Hon Hai Precision Industry Co., in which a
Taiwanese electronics company alleged that five competing electronics firms illegally monopolized the
USB connector industry in China, the Second Circuit first overruled its own precedent and joined the
Third and Seventh Circuits in ruling that the FTAIA imposes substantive, rather than jurisdictional
requirements. The Second Circuit then adopted the standard for directness previously announced by
the Seventh Circuit in Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012), i.e., that the
effect of foreign anticompetitive conduct is "direct" if there is a "reasonably proximate causal nexus"
between the conduct and the domestic effect. In doing so, the Second Circuit broke with the Ninth
Circuit's directness standard announced in United States v. LSL Biotechs., 379 F.3d 672 (9th Cir.
2004), which required that an effect follow as an immediate consequence of the anticompetitive
activity. [7] The proper scope and interpretation of the FTAIA remains at issue and future
developments in Motorola Mobility and possible further proceedings in AU Optronics will be closely
watched. The rulings could have a significant effect on future enforcement efforts by the DOJ.
Domestic enforcement also continues apace across the globe. In the US, the DOJ continues to
prosecute individuals that colluded at mortgage foreclosure auctions or tax lien auctions, obtaining two
convictions after trial and securing plea agreements from more than 81 individuals to date. In the
Puerto Rico shipping case, federal prosecutors secured a five-year prison sentence, which they called
the longest sentence ever imposed against an individual solely for a criminal antitrust violation. In
Canada, authorities continue to prosecute companies engaged in gasoline price-fixing. And many
countries continue to crack down on bid rigging, including Brazil, the Netherlands, India, and Japan.
I.
THE AMERICAS
A.
United States
1.
Overview of US Enforcement Trends
a.
Criminal Fines & Other Monetary Assessments
The DOJ Antitrust Division has secured payments totaling approximately $1.022 billion from its
criminal investigations thus far in Fiscal Year 2014. This figure marks a substantial increase from this
point in prior years and represents the fourth-highest full-year total of all time--even if no further fines
are imposed before year-end. Several significant investigations are currently underway and total
payments are likely to increase by the end of the year.
We assess the Antitrust Division's performance by considering all of its available monetary sanctions,
including criminal fines, restitution, disgorgement, and penalties (for the reasons explained at length in
the 2011 Year-End Criminal Antitrust Update). As the below chart illustrates, the Antitrust Division
continues to use in appropriate circumstances a broad range of prosecutorial tools such as nonprosecution agreements and multi-agency investigations. Accordingly, we believe this combined
metric offers the most accurate gauge of its achievements.
3
(* Through 6/30/2014)
To date in FY 2014, defendants in Antitrust Division investigations have been sentenced or agreed to
pay more than $1 billion in criminal fines. The total amount of criminal fines imposed thus far in FY
2014 surpasses the yearly totals for all years except for FY 2012.
(* Through 6/30/2014)
4
(i)
Criminal Fines
Ninety-eight percent of the Antitrust Division's announced criminal fines in FY 2014 are from seven
corporate agreements that arise out of two investigations--the continuing investigation into the LIBOR
rate-manipulation scheme and the ongoing automotive parts investigation. The automotive parts
investigation is the largest Antitrust Division investigation in history, and continues to result in
numerous large penalties. The largest fine in FY 2014 was $425 million, to be paid by Bridgestone
Corp. for its participation in collusion involving anti-vibration rubber parts. According to the Antitrust
Division, Bridgestone failed to disclose its participation in the anti-vibration rubber parts cartel when it
negotiated a plea agreement in 2011 in connection with charges of a conspiracy involving marine
hoses. The Antitrust Division's Corporate Leniency Policy states that such a failure to disclose
additional wrongdoing will result in the application of a "penalty plus" enhancement of any fine when
the other wrongdoing is discovered. [8] Over $100 million of Bridgestone's fine is reported to be
attributable to the "penalty plus" enhancement. [9]
Criminal Fines of More than $1 Million for Sherman Act Violations
Imposed or Agreed to During FY 2014 (October 2013-June 2014)
Company
Investigation
Criminal Fine
Bridgestone Corp.
Automotive Parts (antivibration rubber)
$425,000,000
Coöperatieve Centrale RaiffeisenLIBOR
Boerenleenbank B.A. (Rabobank)
$ 325,000,000
Toyo Tire & Rubber Co., Ltd.
Automotive Parts (antivibration rubber and
driveshaft products)
$ 120,000,000
Takata Corp.
Automotive Parts (seat
belts)
$71,300,000
Koito Manufacturing Co., Ltd.
Automotive Parts
(lighting fixtures and
lamp ballasts)
$56,600,000
Compañía Sud Americana de
Vapores S.A.
Shipping Services
$8,900,000
Aisan Industry Co., Ltd.
Automotive Parts
(electronic throttle
bodies)
$6,860,000
5
Criminal Fines of More than $1 Million for Sherman Act Violations
Imposed or Agreed to During FY 2014 (October 2013-June 2014)
(ii)
Company
Investigation
Criminal Fine
Riverside Seat Co., Woodbridge
Foam Fabricating Inc., and SW
Foam LLC [1]
Polyurethane Foam
$6,148,800
Stanley Electric Co., Ltd.
Automotive Parts (lamp
$1,440,000
ballasts)
Prison Sentences
The Antitrust Division continues to secure substantial prison sentences. The DOJ's average prison
sentence so far in FY 2014 has increased substantially to 43 months, largely the result of one 14-year
sentence. [11] Disregarding this one very long sentence, discussed in more detail below, [12] the
average prison sentence in FY 2014 is 29 months, still at the higher end of average sentences over the
last several years.
Average Prison Sentence
(in months)
Average Length of Prison Sentence
(FY 2003–2014)
50
43
40
30
31
21
20
25
24
30
24
26
26
2012
2013
17
12
9
10
0
2003
2004
2005
2006
2007
2008 2009
Fiscal Year
2010
2011
2014*
(* Through 6/30/2014)
The total number of prison days this year is largely on pace with prior years and reflects the DOJ's
continued commitment to secure substantial prison sentences. And the aggregate prison time to date
for all individuals sentenced in antitrust cases is also accumulating rapidly, with defendants
cumulatively sentenced to more than 35 years of time in prison. [13]
6
(* Through 6/30/2014)
This year, 10 individual defendants have been sentenced to serve prison sentences, representing a
decrease from this juncture in prior years. But based on the number of pending plea agreements and
trial verdicts, discussed in more detail below, we anticipate that more individuals will be sentenced to
prison terms before year-end.
(* Through 6/30/2014)
7
Significant fines and meaningful prison sentences remain central to the DOJ's criminal antitrust
enforcement.
2.
Developments in International Investigations
a.
Auto Parts
As predicted in our 2013 Year-End Criminal Antirust Update, [14] the Division continued its wideranging investigation into the auto parts industry during the first half of 2014 and obtained additional
plea agreements with significant fines and lengthy prison sentences. The Division appears to be
carrying out Attorney General Eric Holder's promise to "check under every hood and kick every
tire," [15] dedicating significant resources to "the largest criminal investigation the Antitrust Division
has ever pursued." [16] The Division's National Criminal Enforcement Section (recently renamed
Washington Criminal I), every Field Office, and the FBI remain active in this massive investigation.
Most notably, in February, Bridgestone Corp. agreed to plead guilty and pay a $425 million criminal
fine for conspiring to allocate sales of, to rig bids for, and to fix, raise and maintain the prices of
automotive anti-vibration rubber parts. [17] Bridgestone's failure to report the conspiracy earlier-when it pleaded guilty and paid a $28 million fine in October 2011 for price-fixing and Foreign
Corrupt Practices Act violations in the marine hose industry--was a significant factor for the high
fine. In announcing the plea agreement, the Division stated it "will take a hard line when repeat
offenders fail to disclose additional anticompetitive behavior." [18] Relatedly, in April, Yusuke
Shimasaki, a former Bridgestone executive, agreed to plead guilty and to serve 18 months in a US
prison for his role in the conduct. [19] The DOJ also obtained indictments against one current and two
former Bridgestone executives, all of whom are Japanese nationals. [20]
Several other companies agreed to plead guilty and pay sizeable fines in the first half of 2014 in
connection with auto parts matters. In January, Koito Manufacturing Co. Ltd., a Tokyo-based
company, agreed to plead guilty and to pay a total of $56.6 million in criminal fines for its roles in
separate price-fixing conspiracies involving automobile lighting fixtures and lamp ballasts installed in
cars sold in the United States. [21] The DOJ alleged that Koito and its co-conspirators sold the
lighting fixtures and ballasts at noncompetitive prices to automakers in the United States for over 14
years--from as early as June 1997 until about July 2011.
In February, Aisan Industry Co. Ltd, agreed to plead guilty and pay a criminal fine of $6.86 million for
its role in price fixing of electronic throttle bodies sold to Nissan Motor Co. Ltd. and its
subsidiaries. [22] And in April, Showa Corp., agreed to plead guilty and to pay a $19.9 million
criminal fine for its role in a conspiracy to fix prices and rig bids for pinion-assist type electric
powered steering assemblies that were sold to Honda Motor Co. Ltd. and its subsidiaries. [23]
From the outset of 2014, the DOJ also continued its "vigorous commitment to hold individuals
accountable for engaging in anticompetitive conduct," [24] even several months after the investigation
into the employer companies had concluded. In January 2014--approximately four months after
Diamond Electric pleaded guilty and agreed to a pay a criminal fine of $19 million for conspiring to fix
prices of ignition coils--two of its former executives agreed to plead guilty and serve more than one
8
year in jail for their participation in the conspiracy. [25] Shigehiko Ikenaga, a former president, agreed
to serve a 16-month sentence, and Tatsuo Ikenaga, a former vice president, agreed to serve a 13-month
sentence. [26] Separately, in June, the DOJ secured an indictment against Gikou Nakajima, a former
executive at Takata Corp., for his participation in a conspiracy to fix the prices of seatbelts. [27]
This year has also seen the first guilty plea by an individual in the auto parts investigation to an
obstruction of justice charge. In February, Kazuaki Fujitani, a former director of Denso Corp., agreed
to plead guilty to obstruction of justice charges in connection with the Divisions investigation into a
conspiracy to fix the prices of heater control panels. [28] According to the charge, Fujitani deleted
numerous emails and electronic documents upon learning that the FBI had executed a search warrant
on Denso's US subsidiary. Fujitani agreed to serve one year in a US prison. This indictment was
obtained almost two years after Denso pleaded guilty to Sherman Act charges and was sentenced to
pay a $78 million criminal fine for its role in the conspiracy.
The Division's efforts continued in May, when Hitoshi Hirano, a former executive at Tokai Rika Co.
Ltd., was indicted for his participation in a conspiracy to fix prices of heater control panels and for
obstructing justice. [29] According to the charges, Hirano knowingly and corruptly persuaded, and
attempted to persuade, employees to destroy documents and delete electronic data that may contain
evidence of antitrust crimes.
We would not be surprised to see additional obstruction of justices charges brought against individuals
in the second half of 2014. The Division has emphasized that it "will vigorously prosecute individuals
who destroy evidence in an attempt to conceal their participation in illegal conspiracies." [30]
To date, 27 companies have pleaded guilty or agreed to plead guilty and have agreed to pay a total of
more than $2.3 billion in fines in connection with the auto parts investigation. Additionally, 35
individuals have been charged, 24 of whom have pleaded guilty or agreed to plead guilty and, of those,
22 have been sentenced to serve time in US prisons. None has been sentenced to a term of under a
year. The auto parts investigation shows no sign of slowing down and we expect the DOJ to announce
additional pleas and indictments in the second half of 2014.
b.
LIBOR and Other Global Benchmark Rates
While the Antitrust and Criminal Divisions of the DOJ continue to investigate potential manipulation
of global benchmark interest rates, including LIBOR, EURIBOR, and others, there were relatively few
developments in the first half of 2014. In fact, 2014's developments were limited to four former
traders at Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. ("Rabobank"). Specifically, in
January, three former Rabobank traders--Paul Robson, Paul Thompson, and Tetsuya Montomura-were charged with wire fraud and conspiracy to commit wire fraud and bank fraud as part of an effort
to manipulate LIBOR. [31] Notably, antitrust charges were not filed against any of these Rabobank
traders despite allegations that Robson, on occasion and on behalf of one or more co-defendants,
coordinated his Yen LIBOR submission with the trader responsible for making Yen LIBOR
submissions at another Yen LIBOR panel bank. As reported in our 2013 Year-End Criminal Antitrust
9
and Competition Law Update, Rabobank entered into a Deferred Prosecution Agreement with the DOJ
in October 2013 and agreed to pay a fine of $325 million and admit its role in the misconduct. [32]
In June, another former Rabobank trader, Takayuki Yagami, pleaded guilty for his role in a conspiracy
to commit wire and bank fraud by manipulating Rabobank's Yen LIBOR submissions to benefit his
trading positions. [33] Yagami is the ninth person charged by the DOJ in connection with the LIBOR
investigation, and we believe it is likely that the DOJ will announce additional charges and pleas in the
second half of 2014. Indeed, in announcing the Yagami plea agreement, the DOJ stated it was
"determined to pursue other individuals and institutions who engaged in this crime." [34]
c.
Foreign Exchange Markets
The DOJ announced that it has opened a criminal investigation of possible manipulation of the $5.3
trillion-a-day foreign exchange ("FX") markets. [35] Both the Criminal and Antitrust Divisions are
reported to be actively involved in the investigation, as well as several other US and global regulators
and enforcers. While no charges have been brought by the DOJ to date, reports in the press state that
several dozen FX traders have been suspended or terminated for their possible role in the alleged
manipulation of FX markets. [36] We expect developments in the FX investigation in the second half
of 2014 and continuing into 2015.
d.
Polyurethane Foam
On June 27, 2014, three manufacturers of polyurethane slab stock automotive foam pleaded guilty to
price-fixing. According to the Information to which each pleaded guilty, the charging period for the
conspiracy was June 9, 2008 until April 20, 2009. The companies, Riverside Seat Co., Woodbridge
Foam Fabricating Inc. and SW Foam LLC, have agreed to pay a total of $6,148,800 in criminal
fines. [37]
e.
Thin-Film Transistor Liquid Crystal Display (TFT-LCD) Panels
As noted in our previous updates, the TFT-LCD investigation has been a hallmark prosecution for the
Division. Eight companies have been sentenced to pay criminal fines totaling $1.39 billion and 13
executives were sentenced to serve prison terms ranging from six to 36 months. [38] As previously
reported in our 2013 Year-End Criminal Antitrust and Competition Law Update, Taiwan-based AU
Optronics Corporation, its US subsidiary AU Optronics Corporation America, and certain employees
appealed their convictions for conspiring to set the prices of certain TFT-LCD panels used in monitors,
notebooks, and televisions. [39] On October 18, 2013, the Ninth Circuit heard argument in the
consolidated appeals. Shortly after the argument, the Court granted a request by Chen and Hsiung for
bail pending the outcome. As discussed in our 2013 Mid-Year Criminal Antitrust and Competition
Law Update, a third AU Optronics Executive, Steven Leung, was also convicted and sentenced to
serve a 24-month sentence. [40] The Ninth Circuit granted his motion for bail pending appeal, staying
his prison sentence. [41]
On July 10, the Ninth Circuit affirmed the AU Optronics, Chen, and Hsiung convictions. Ruling on an
issue of first impression, the Ninth Circuit affirmed the $500 million fine on AU Optronics, holding
10
that the Alternative Fine Statute permits the imposition of a fine based on gross gains to all
coconspirators and does not require a joint and several liability approach, which would have
reduced the fine by the amount already paid by coconspirators. In addition, as discussed in more
detail below, see infra Section I.A.6, the Ninth Circuit held that the FTAIA does not create a
jurisdictional limitation on the power of federal courts, and that the defendants' conduct was proved to
constitute "import trade" outside the scope of the FTAIA. The Ninth Circuit also held that (a) the
defendants had waived the argument that an extraterritoriality defense barred their convictions; (b) the
jury instructions regarding foreign conduct, viewed as a whole, were proper; (c) the conspiracy was
subject to a per se analysis, as opposed to a rule of reason analysis; and (d) the government proved
venue in the Northern District of California.
For further discussions of the TFT-LCD cases, see our 2013 Mid-Year Criminal Antitrust and
Competition Law Update and our 2013 Year-End Criminal Antitrust and Competition Law Update.
3.
Developments in Domestic Investigations
a.
Coastal Water Freight Transportation
The DOJ's investigation of collusive conduct with respect to coastal water freight transportation
between the continental United States and Puerto Rico continued as to certain senior executives of
companies that pleaded guilty to or were convicted of price fixing.
In January, a federal jury in Puerto Rico convicted Frank Peake, former president of Sea Star Line
LLC, for conspiring to fix rates and surcharges for water transportation of freight between Puerto Rico
and the United States. [42] Peake was subsequently sentenced to serve five years in prison and to pay
a $25,000 fine for participation in the charged conspiracy. [43] According to prosecutors, this was the
longest sentence ever imposed against an individual solely for a criminal antitrust violation. [44]
In March, a grand jury in Puerto Rico indicted a former executive of Crowley Liner Services, Inc.,
Thomas Farmer, for conspiring to fix prices for freight services between Puerto Rico and the United
States at collusive and noncompetitive rates and surcharges pursuant to agreements reached with coconspirators. [45] The indictment has prompted a hotly-contested dispute about the scope of a
prosecutor's Brady obligation to disclose exculpatory evidence to a criminal defendant. On April 3,
2014, Farmer filed a motion arguing that Brady required the DOJ's Antitrust Division to disclose
information about a related antitrust qui tam matter litigated by the DOJ's Civil Division against
Farmer's employer, Crowley Maritime Corp. [46] Among other things, Farmer argued that a statement
in the DOJ's Brady guidelines called for a review of files in parallel civil matters and disclosure of any
exculpatory materials. [47] The Antitrust Division opposed Farmer's motion, contending that the Civil
Division's files were not subject to Brady because the Civil Division was not part of the "prosecution
team," and that the DOJ's guidelines were not binding. [48]
Interestingly, the Antitrust Division also stated in its opposition that it was making a separate
disclosure to Farmer regarding the communications between the Antitrust and Civil Divisions about
the Crowley civil matter. [49] According to a brief filed by Farmer that same day, those
communications included statements by the Antitrust Division in 2013 that it lacked evidence of
11
collusion by Crowley. [50] It was, in Farmer's view, "staggering" that the Antitrust Division would
"ask the Civil Division to rely upon its judgment that the evidence in its own possession is insufficient
to support a civil claim against Crowley, but nonetheless consider this recommendation nonexculpatory for Brady purposes in th [e criminal] case." [51] Responding in a supplemental brief, the
Antitrust Division asserted that the material at issue was work product rather than evidence, was not
materially exculpatory, and that Farmer was not prejudiced by any dilatory disclosure because he
learned of the communications several weeks before trial. [52] As of the date of this publication, the
district court had not yet directly addressed the merits of this issue, but on June 17, 2014, it ordered the
Antitrust Division to identify within one month all Brady material in the approximately 17 million
documents that it produced to Farmer. [53]
b.
Municipal Bonds
As we reported in our 2013 Year-End Criminal Antitrust and Competition Law Update, the Municipal
Bond investigation is nearing completion, with mixed results. [54] In the past six months, executives
from UBS have appealed their convictions, and the government has sought a rehearing on the Second
Circuit's reversal of three convictions of General Electric executives.
After being convicted (of non-antitrust charges) following a five-week jury trial in 2012, former UBS
AG executives Peter Ghavami, Gary Heinz, and Michael Welty were sentenced in July for fraud in the
bidding process for municipal bonds. [55] The district court sentenced Ghavami to serve 18 months in
prison and to pay a $1 million criminal fine, Heinz to serve 27 months in prison and to pay a $400,000
criminal fine, and Welty to serve 16 months in prison and to pay a $300,000 criminal fine. [56] Posttrial, in late 2013, the government produced an additional 400,000 documents to defendants as a result
of an alleged vendor error. [57] In September 2013, Welty and Heinz moved before the district court
for release from custody pending appeal of their convictions [58] (Ghavami did not), and on January 6,
2014, Welty, later joined by Ghavami and Heinz, moved for a new trial based on the existence of an
email found in the Government's post-trial production. [59] On May 15, 2014, the Court denied both
motions, holding that the new evidence produced by the Government would not have changed the
outcome of the trial. [60]
On May 23 and 28, 2014, the defendants filed their notices of appeal. Welty and Heinz also asked the
Second Circuit to "allow them to remain free on bail while they appeal their convictions," [61] while
Ghavami chose to start serving his sentence. [62] The Second Circuit held a hearing on June 17,
2014, [63] and denied Welty and Heinz's motion on June 20, 2014. [64] They are scheduled to begin
serving their prison sentences on July 17, 2014. [65]
As discussed in our 2013 Year-End Criminal Antitrust and Competition Law Update, [66] in a setback
for the DOJ, on December 9, 2013, the Second Circuit reversed the convictions of three former
General Electric Co. executives, on the ground that their indictment was barred by the applicable
statute of limitations. [67] The indictment did not allege that the defendants committed specific
conspiratorial acts within the applicable limitations period. Instead, it alleged that the defendants'
employers made continuous below-market interest payments within the limitations period. [68] The
trial court held the interest payments brought the defendants' conduct within the limitations period [69]
12
and, following a guilty verdict, sentenced two executives to serve 36 months in prison and to pay
$50,000 in criminal fines, and a third executive to serve 48 months in prison and to pay a $90,000
criminal fine. [70]
The Second Circuit reversed. It held that the employers' continuous payment of interest "does not raise
the underlying concern of concerted action, and therefore is not a continuous action that prolongs the
life of the conspiracy." [71] Therefore, the government failed to allege the defendants committed overt
acts of conspiracy within the limitations period. [72] The Second Circuit reversed the judgments of
conviction and remanded the matter to the district court for dismissal of the indictment. [73] The
government filed its petition for rehearing/rehearing en banc on January 22, 2014, but no decision has
been made on that petition. [74]
The implications of this decision are not limited to the municipal bonds investigation. To the extent
that the Antitrust Division has sought to extend the statute of limitations in other investigations based
on further sales or corporate conduct implementing a conspiratorial price, it may be limited in
continuing to do so.
c.
Real Estate Auctions
The Antitrust Division continued its aggressive push to root out bid rigging in public auctions for real
estate foreclosures, tacking on more prosecutions following those discussed in our 2013 Year-End
Criminal Antitrust and Competition Law Update. [75]
Since the year-end update, Grant Alvarez, Douglas Moore, Charles Gonzales, Rudolph Silva, Thomas
Bishop, and Leslie Gee have agreed to plead guilty to conspiring to rig bids and commit mail fraud at
public real estate foreclosure auctions in several counties across Northern California. [76] The felony
charges against Alvernaz and Moore were unsealed in March 2014, following their guilty pleas in
2011. This brings the total number of plea agreements in the Northern District of California to 46. [77]
Also in California, in March, a jury found Andrew B. Katakis and Donald M. Parker guilty of
conspiring to rig bids at real estate foreclosure auctions in San Joaquin County. Katakis was also
found guilty of obstruction of justice for deleting electronic evidence related to the conspiracy;
however, in May, the district court overturned his obstruction conviction and stayed all proceedings
pending the government's appeal of that ruling. The government has asked the district court to lift the
stay and proceed to sentencing Messrs. Katakis and Parker. [78] In addition to these two convictions,
11 people have pleaded guilty in the Eastern District of California in connection with this
conspiracy. [79]
In Georgia, Mohamed Hanif Omar and Amy James each pleaded guilty to conspiring to rig bids and
commit mail fraud at public foreclosure auctions. [80] Prosecutors said the purpose of their respective
conspiracies was to suppress and restrain competition and to conceal payoffs in order to buy select real
estate sold in public foreclosure auctions at non-competitive prices. The total number of plea
agreements in Georgia now stands at 4. [81]
13
In Alabama, Robert M. Brannon and his son, Jason R. Brannon, were sentenced for their role in
conspiracy to rig bids and commit mail fraud at real estate public foreclosure auctions in southern
Alabama. The Brannons and their company had pleaded guilty in December 2012 for their role in the
bid-rigging and mail fraud conspiracies that spanned approximately three years. In connection with
this investigation, eight individuals and two companies have pleaded guilty in the Southern District of
Alabama. [82]
d.
Tax Lien Auctions
In New Jersey, Vinaya K. Jessani, a former senior vice president of a tax liens investment company,
pleaded guilty to conspiring to rig bids at auctions conducted by New Jersey municipalities for the sale
of tax liens. Pursuant to the plea agreement, Jessani has promised to cooperate with the ongoing
investigation into the conspiracy. Including Jessani's plea, 12 individuals and 3 companies have
pleaded guilty to charges related to bid rigging or fraud related to municipal tax lien auctions. In
addition, 4 individuals and 2 entities have been indicted for rigging bids at tax lien auctions. [83]
e.
New Jersey SuperFund Investigation
On March 4, 2014, the US District Court for the District of New Jersey imposed a 14-year prison
sentence on Gordon D. McDonald, a former project manager for a contractor at two US Environmental
Protection Agency Superfund sites in New Jersey. Mr. McDonald was originally indicted in 2009 on
charges that he participated in multiple bid-rigging, fraud, and kickback schemes, among other
charges. In September 2013, after a two week jury trial, Mr. McDonald was convicted on those
charges, as well as engaging in an international money laundering scheme, fraud against the United
States, tax violations, and obstruction of justice. In addition to the prison sentence, Mr. McDonald
must pay a $50,000 fine and restitution in an amount to be determined. [84]
In addition to Mr. McDonald, eight other individuals and three companies have pleaded guilty or been
convicted on charges related to the New Jersey SuperFund Investigation. As discussed below, another
individual, John A. Bennett, who is a Canadian citizen, was indicted on August 31, 2009, on charges
relating to this investigation. The DOJ is seeking his extradition to the United States. [85]
4.
Developments in the Antitrust Division
a.
Opening of Second Washington D.C. Criminal Enforcement Section
This spring, the Division opened a second criminal enforcement Section in Washington D.C., known
as Washington Criminal II. [86] Currently, the Section is focused on real estate auction bid rigging
cases, which were previously investigated by the Atlanta office. It is expected to eventually take on
other domestic and international criminal enforcement matters as well. Mary Strimel has been
appointed Chief of the new section. Strimel previously worked in the Division's Networks and
Technology and the National Criminal Enforcement Sections.
14
b.
Changes to the Standard for False Statement Prosecutions
In March, the DOJ issued guidance regarding the "willfulness" requirement for violations of 18 U.S.C.
§ 1001, which makes it illegal for a person to make false statements to a government agency. The
statute criminalizes "knowingly and willfully" making false statements, but Circuit courts were split on
whether the willfulness requirement actually required the defendant to know that his or her statement
was illegal, as opposed to just false. [87] In a U.S. Solicitor General's brief submitted to the Supreme
Court on March 14, the DOJ stated that § 1001 requires that the defendant (1) make a knowingly false
statement; and (2) know that it is unlawful to make such a false statement. [88] This more stringent
requirement may make it more difficult to bring Section 1001 actions against criminal defendants in
the future, including in antitrust investigations.
c.
Extradition for Targets of Antitrust Enforcement Actions
On April 3, 2014, Italian citizen Romano Pisciotti was extradited from Germany on antitrust charges,
marking the first time a foreign national was extradited to the US for alleged violations of the Sherman
Act. [89] In 2010, federal prosecutors filed charges against Pisciotti in the Southern District of Florida
alleging that he conspired to rig bids, fix prices, and allocate sales on behalf of Parker ITR, a marine
hose company. On April 24, 2014, Pisciotti pleaded guilty and was sentenced to two years in prison
and a $50,000 fine. His prison sentence will be reduced by 9 months to account for the time he spent
in prison in Germany before his extradition. [90] For more on this case, see the discussion of
developments in Germany, infra Section II.D.
Previous attempts to extradite suspects of antitrust violations have been unsuccessful because most
extradition treaties require that defendants be charged with an offense that is criminal in both
countries. Historically, many countries did not criminalize antitrust violations, but the recent trend is
toward criminal enforcement. According to Deputy Assistant Attorney General Brent Snyder, "much
like we have had a proliferation of leniency programs in recent years, we also have seen more and
more jurisdictions that are adopting criminal antitrust statutes, and ... that will make extradition more
easy to obtain." [91] The DOJ is currently attempting to extradite Canadian businessman John
Bennett, who is charged in New Jersey for non-antitrust violations related to the SuperFund kickback
scheme. In May, a Canadian Court ruled that the extradition was proper, although Bennett has not yet
arrived in the US. [92]
d.
New Policy on Cyber Threat Information Sharing
In light of the growing threat of cybersecurity attacks, the DOJ and FTC released a joint policy
statement on April 10, 2014, stating that companies may legally participate in cyber threat information
sharing without fear of antitrust violations. [93] According to the statement, companies are free to
discuss and coordinate plans for cybersecurity, including sharing information about incident reports,
alerting other companies of imminent security breaches, or providing data about malware use.
However, they may not discuss sensitive competitive information that could affect pricing or output.
15
5.
International Cooperation
Collaboration with foreign competition authorities remains a key feature of international cartel
prosecutions and a top priority of the Antitrust Division. It has worked with other enforcement
agencies around the world in ongoing investigations and has built bilateral and multilateral
relationships with these entities.
On March 25, 2014, the Assistant Attorney General Bill Baer met with 35 international antitrust
enforcement agencies and private antitrust practitioners in Washington, D.C. for an International
Competition Network ("ICN") roundtable discussion on investigative process. During the discussion,
which was co-hosted by the DOJ and the FTC, Baer emphasized the importance of procedural fairness
and transparency in investigations and commended the strides made in the international competition
community in these areas. Baer also provided recommendations for emerging antitrust enforcement
agencies, which included keeping parties informed about the timeline of an agency's decision-making
process in an investigation and providing parties with greater access to investigation staff. [94] As a
reflection of its commitment to these issues, the Division is planning a meeting with Chinese antitrust
authorities in D.C. later in the year to discuss fairness and transparency in antitrust investigations.
The Department also offers a Visiting International Enforcers Program, which it began in 2011 to build
relationships with antitrust departments in other nations and to learn about investigations and
procedures outside of the US. As part of the Program, the Department will send Assistant Chief of the
Division's Chicago Office Andre M. Geverola to Tokyo to work with antitrust enforcers at the Japan
Fair Trade Commission ("JFTC"). Geverola has worked on a number of recent automotive pricefixing cases involving Japan. The JFTC will send one of its attorneys to work with the Division in
Washington later this year. [95]
Beginning in March 2014, manufacturers of capacitors began to report that they had received inquiries
from enforcement authorities in Asia, Europe, and the US regarding an investigation into possible
cartel activity. [96] Capacitors are passive electrical components that store energy in many electronic
products. According to the press reports, at least eight manufacturers are involved in the investigation,
which reportedly was prompted by a leniency application in the United States and other
jurisdictions. [97] Press reports also indicate that the Japan Fair Trade Commission, the Korean Fair
Trade Commission, and China's National Development and Reform Commission have carried out a
series of raids at several electronics companies in their respective jurisdictions. [98] The capacitor
investigation is yet another instance in which enforcement authorities from several jurisdictions appear
to be cooperating. [99] Especially noteworthy is the early active involvement of China's National
Development and Reform Commission.
6.
FTAIA Developments
The Foreign Trade Antitrust Improvements Act ("FTAIA"), 15 U.S.C. § 6a, governs the application of
the Sherman Act to foreign conduct. Specifically, it provides that foreign anticompetitive conduct is
subject to US antitrust law only when that conduct (1) had a direct, substantial, and reasonably
16
foreseeable effect on United States domestic commerce and, (2) that effect "gives rise" to a Sherman
Act claim. Three recent appellate decisions have addressed the meaning of this statute.
In Motorola Mobility LLC v. AU Optronics Corp., No. 14-8003, 2014 WL 1243707 (7th Cir. Mar. 27,
2014) (Posner, J.), a Seventh Circuit panel ruled that the FTAIA did not extend US antitrust law to a
scenario that arises with increasing frequency in US antitrust matters: the sale abroad of price-fixed
products to a foreign buyer, which then integrates those price-fixed products into a finished product
that is eventually sold in the United States. As the Court explained, the effect on US domestic
commerce in such a situation is not "direct" under the FTAIA, but rather a situation where foreign
anticompetitive conduct "filters through many layers and finally causes a few ripples in the United
States." Nor did the foreign anticompetitive conduct "give rise" to a Sherman Act claim because
Motorola--the company which sold finished products in the United States--"mediated" the effect of any
price fixing by deciding what price to charge for those phones. On July 1, 2014, the three-judge panel
granted Motorola's request for rehearing and vacated its March 27, 2014, decision. [100]
The Second Circuit also addressed the FTAIA in Lotes Co., Ltd. v. Hon Hai Precision Industry Co.,
Ltd., No. 13-2280 (2d Cir. June 4, 2014). Lotes, a Taiwanese electronics company, alleged that five
competing electronics firms unlawfully monopolized the USB connector industry in China, excluding
Lotes. The Second Circuit first overruled its own precedent and joined the Third and Seventh Circuits
in ruling that the FTAIA imposes substantive, rather than jurisdictional requirements. The Court then
adopted the Seventh Circuit's standard for directness announced in Minn-Chem, Inc. v. Agrium, Inc.,
683 F.3d 845 (7th Cir. 2012), i.e., that the effect of foreign anticompetitive conduct is "direct" if there
is a "reasonably proximate causal nexus" between the conduct and the domestic effect. In so doing, the
Second Circuit broke with the Ninth Circuit's directness standard announced in United States v. LSL
Biotechs., 379 F.3d 672 (9th Cir. 2004), which required that an effect follow as an immediate
consequence of the anticompetitive activity. [101] However, the Court did not address whether that
standard was actually satisfied in the case, as it concluded that any domestic effect did not "give []
rise" to Lotes's claims. Rather, the Court joined the Eighth, Ninth, and D.C. Circuits in holding that
the domestic effect must proximately cause the plaintiff's injury. Lotes could not satisfy that test, as its
injury--exclusion from a foreign market--"precede [d] any domestic effect in the causal chain."
In United States v. Hsiung, the Ninth Circuit joined the Second, Third, and Seventh Circuits in holding
that the FTAIA does not create a jurisdictional limit on the power of federal courts, but rather
"provides substantive elements under the Sherman Act in cases involving nonimport trade with foreign
nations." [102] Applying a plain reading of the statute, the Court also held that the defendants'
transactions were "import trade" because they involved "transactions between the foreign defendant
producers of TFT-LCDs and purchasers located in the United States." [103] Thus, the defendants'
transactions fell "outside the scope of the FTAIA" and were subject to the Sherman Act's prohibition
on anticompetitive conduct. [104] The Court declined to decide whether the evidence relating to
foreign sales of panels that were incorporated into finished consumer products before being imported
into the US was sufficient to establish that the foreign sales had a "direct" effect for purposes of the
domestic effects exception to the FTAIA because the convictions could be independently sustained on
the basis of the clearly proven import trade. [105] Notably, however, the Court ruled that the FTAIA
is not an affirmative defense to a Sherman Act offense; rather, "if the government proceeds on a
17
domestic effects theory, . . . the government must plead and prove the requirements for the domestic
effects exception to the FTAIA." [106]
As discussed above, a panel of the Seventh Circuit has agreed to reconsider its initial decision in the
Motorola Mobility case.
7.
United States Sentencing Commission Developments
The United States Sentencing Commission requested public comments on the level of antitrust
fines [107] and is reportedly conducting a multi-year study as it considers whether to change the
current framework for determining antitrust fines. [108] The Commission has previously received a
proposal to double the current level of fines, [109] based on a study concluding that "current cartel
sanctions are far too low . . . ." [110]
B.
Canada
In 2014, the Canadian Competition Bureau ("CCB") secured several guilty pleas and filed new charges
alleging the existence of various bid-rigging and price-fixing schemes. Notably, several of the CCB's
investigations arose from information gathered through the CCB's leniency and immunity programs.
Early in 2014, the CCB secured two guilty pleas arising out of its long-running auto parts
investigation. [111] In January, NSK Ltd. ("NSK"), a Japanese bearings manufacturer, pleaded guilty
to conspiring with another Japanese company, JTEKT Corporation ("JTEKT"), to rig bids related to
automotive wheel hub unit bearings supplied to Toyota Motor Manufacturing Canada Inc. ("Toyota")
between 2007 and 2013. The Superior Court of Quebec in Gatineau imposed a fine of CAD 4.5
million ($4 million) on NSK. [112] In February, Panasonic Corporation ("Panasonic") pleaded guilty
to bid-rigging with another Japanese motor vehicle components manufacturer to supply Toyota with
various types of motor vehicle switches and sensors. The Ontario Superior Court of Justice fined
Panasonic CAD 4.7 million ($4.25 million). [113] The CCB has said that its auto parts investigations
began in December 2009 based on information gained through its immunity program.
Also in January 2014, the CCB, along with the Sûreté du Québec's Service des enquêtes sur la
corruption, a division of the Unité permanente anticorruption (permanent anti-corruption squad, or
"UPAC"), charged Alain Courville and Construction Beaudin & Courville Inc. with rigging bids for
contracts involving road construction, water treatment, and other infrastructure projects in the SaintJean-sur-Richelieu region of Quebec from January 2008 to December 2009. [114]
In April 2014, two companies and two individuals operating in the ocean freight industry pleaded
guilty to price-fixing charges. Overseas Container Forwarding, Inc. ("OCF") pleaded guilty to
participating in a price-fixing conspiracy concerning currency exchange rate fluctuations, fuel
surcharges, and other surcharges. According to its plea, OCF agreed with ECU Line Canada Inc.
("ECU"), among others, on rates and rate formulas from January 1, 2005, to March 6, 2011. The
Ontario Superior Court of Justice in Ottawa fined OCF CAD 675,000 ($610,000) and ordered it to
adopt a corporate compliance program pursuant to a prohibition order. ECU and two ECU executives,
Elvio Lancione and Michael Teixeira, also pleaded guilty to fixing surcharges for the supply of export
18
consolidation services. The Ontario Superior Court of Justice in Ottawa fined ECU CAD 1 million
($900,000) and ordered it to set-up a corporate compliance program under the terms of a prohibition
order. The Court sentenced Lancione to two concurrent conditional sentences of four months and 30
hours of community service; the Court sentenced Teixeira to two concurrent three-month conditional
sentences and 20 hours of community service. [115]
In May 2014, the CCB charged Microtime Inc. ("Microtime") and six individuals with bid-rigging
arising out of an alleged 2009 conspiracy to inflate bids on government contracts for the supply of
information technology services, worth a total of CAD 3.5 million ($3.16 million). Three of the
individuals charged are former Microtime employees--including Microtime's former owner, John
Cassandra--and they face penalties under the Competition Act. [116] Cassandra, currently residing in
the United States, said that the charges are a "mistake," but has not confirmed whether he will fight
extradition if sought by the Canadian government. If extradition is pursued, it would be an
unprecedented move for Canadian antitrust regulators. As discussed above, in an unrelated case, the
United States has won the extradition of a Canadian citizen accused of bid-rigging, which surely will
be considered if extradition is sought in the Microtime case. [117] The three other individuals charged
in the Microtime case worked as civil servants and face penalties under subsection 80(1) of the
Financial Administration Act. [118] Another company, ADRM Technology Consulting Group and
two of its employees are alleged to have been involved in the conspiracy, but have not been
charged. The CCB said that it received an immunity application in connection with its investigation,
but has not identified the applicant. [119]
In an interesting development arising out of the long-running Canadian gasoline price-fixing case,
several defendants sought to block on privacy grounds private class action litigants' access to wiretap
recordings obtained by the government during its criminal investigation. Arguments were heard in
April 2014 before Canada's Supreme Court, which has yet to issue a ruling. [120]
Finally, reflecting the growing trend of international cooperation among antitrust regulators, the CCB
has announced that it is considering entering into memoranda of understanding fostering cooperation
with China's various antitrust regulators: the Ministry of Commerce, the State Administration for
Industry & Commerce, and the National Development and Reform Commission. [121]
C.
Brazil
May 2014 was an historic month for Brazil's Administrative Council for Economic Defense
("CADE"), which announced a record-setting fine and the agency's first ever structural remedy, both
against a cement cartel. [122] CADE's tribunal fined six companies, six individuals, and three industry
organizations a record BRL 3.1 billion ($1.3 billion) for conspiring to fix prices, divide the market, and
create barriers to entry. CADE also ordered the companies to divest any cross-shareholdings and to
reduce their concrete service assets by 20 percent in certain markets. [123] CADE also barred the
companies from cooperating on projects or buying assets from one another for five years. [124] The
companies--which include Votorantim, Holcim, Itabira, Itambé, InterCement, and Cimpor--announced
they would contest CADE's decision.
19
The first half of the year has otherwise continued to be an extremely active one for Brazilian
enforcement. In February 2014, CADE fined two Brazilian freight airlines a combined BRL 83
million ($37 million) on charges that they conspired to raise bid prices for the country's state-owned
postal service. [125] During its investigation, CADE discovered that members of the two companies,
Skymaster Airlines Ltda. and Brazilian Express Transportes Aereos Ltda., had signed a contract four
days before they submitted bids in which they agreed to share any business acquired from the postal
service. CADE also "condemned" two individuals, though it did not identify them or say whether they
faced penalties.
In one of Brazil's most high-profile and closely-watched cases, CADE announced in March the
commencement of proceedings against 18 companies and over 100 individuals that allegedly colluded
to rig bids for 15 subway and rail projects. [126] CADE alleged that the companies--which include
Balfour Beatty Rail Power Systems, Bombardier Transportation, Caterpillar, and Mitsui & Co.--agreed
to submit high bids that were sure to lose or agreed to accept payment from rivals not to bid at all. The
investigation was sparked in May 2013 when Siemens entered into a leniency agreement. CADE then
conducted dawn raids at the offices of 13 companies in July 2013. CADE has shared its evidence with
federal and state prosecutors, who are conducting a parallel investigation.
In April, CADE announced the dismissal of charges against a suspected construction cartel. CADE
had opened the investigation after it received an anonymous tip that the companies and a trade
association had conspired to fix prices and divide the construction market. [127]
CADE also has aggressively pursued other alleged cartel activity this year. In January, CADE tried a
case against four companies and 10 individuals accused of fixing the price of metal
detectors. [128] Then in May, CADE raided the offices of 10 companies that allegedly conspired to
fix prices of chemical resins. [129] CADE believes the companies, whose identities remain
undisclosed, arranged the conspiracy through phone calls, emails, and weekly meetings at hotels,
shopping centers, and social and corporate events. It marked CADE's eighth dawn raid since Brazil
enacted new competition laws in 2012.
Finally, CADE continues to strengthen its cooperation posture with other leading global authorities. In
April 2014, Brazil strengthened its ties to Japan's anti-competition enforcement agency, the Fair Trade
Commission, when the agencies signed an agreement to cooperate in enforcement actions. Under the
agreement, regulators will share information, notify their counterparts of enforcement actions that
might be important to the other country, and consider coordinating enforcement actions. [130]
D.
Chile
The first half of the year saw Chile's Competition Tribunal ("TDLC") sentence several transport
companies for colluding to exclude competitors from intercity bus terminals in the cities of Valparaiso,
Coquimbo, La Serena, and Antofagasta. [131] The sentences were issued in January 2014, following
an August 2013 settlement in which the companies admitted to the charges and agreed to abide by a
series of measures including evacuating office space in the terminals and informing the National
Competition Agency ("FNE") of any future construction or company mergers. Specifically, the TDLC
20
fined Empresa de Transportes Rurales Limitada (Tur Bus) UTA 1,800 ($1.6 million), Transportes
Cometa S.A. UTA 1,125 ($1 million), Servicios Pullman Bus Costa Central S.A. UTA 675 ($600,000),
and Sociedad Transportes y Turismo del Norte Compania Limitada (Romani) UTA 52
($50,000). Another company was also found to have colluded to fix prices, but because it filed for
leniency with the FNE and disclosed the existence of the cartel, it escaped without fines. This
represents another application of Chile's developing leniency program. [132]
E.
Colombia
The Superintendence of Industry and Commerce ("SIC") sanctioned three public companies and ten
individuals for their involvement in collusion related to creating and implementing a trash collection
regime in Bogota. The sanctions included termination of the scheme and an order that all behavior
designed to block or limit competitors' participation in the garbage collection market cease. The
companies involved have six months to design and institute and new organizational structure, which
then must be approved by the Constitutional Court. [133]
F.
El Salvador
On March 20, 2014, the Superintendencia de Competencia ("SC") imposed a fine on insurer AIG Vida
of $33,180 for providing inaccurate information to the SC in the course of its investigation regarding
an alleged price fixing arrangement between three providers of pension and disability insurances. [134]
Also in March and April 2014, the SC imposed a total of $37,446 in fines on two hotels for providing
inaccurate information to the SC, this time in the course of the SC's investigation into an alleged price
fixing arrangement between the catering services of certain hotels. [135]
G.
Mexico
This year has seen developments on both the enforcement and legislative fronts in Mexico. Mexico's
president, Enrique Peña Nieto, a long-time supporter of competition efforts, backed a new competition
bill that Mexico's Congress recently enacted. The legislation is expected to give antitrust regulators
heightened powers. The law follows closely behind last year's constitutional amendments that
bolstered Mexico's competition policy, establishing the Federal Telecommunications Institute, a new
authority designed to foster competition in the telecommunications market. The law also comes after a
recent OECD study found that nearly one-third of all household spending in Mexico goes to industries
laden with competition concerns, and that people spend on average forty percent more in those markets
than they would if adequate competition existed. [136] Notably, the law ratifies the fines companies
face for anticompetitive practices, which were raised in 2011. The law is expected to become effective
this month, in July 2014. [137]
The Federal Competition Commission ("COFECE") has also been active during 2014. Most notably, it
followed several other jurisdictions in sanctioning ACC, Panasonic, Tecumseh Brasil, and Whirlpool
for price fixing and other anticompetitive practices in the refrigeration compressors market. In
connection with this investigation, COFECE imposed total fines of more than MXN 223 million ($17
21
million). This investigation is particularly significant because it marks the first time COFECE utilized
its immunity program. [138]
H.
Peru
On January 30, 2014, the Instituto Nacional de Defensa de la Competencia y de la Protección de la
Propiedad Intelectual ("Indecopi") fined 72 companies, all members of the Cargo Carriers Union,
Peruvian Soles 2,711,794 (approximately $ 969,192). According to Indecopi, these entities had
engaged in price fixing and customer allocation in certain markets for freight. [139]
On April 25, Indecopi initiated proceedings against 132 Peruvian and Chilean taxi drivers for allegedly
engaging in price fixing in relation to the international transportation of passengers by road. [140]
In June, Indecopi raided the headquarters of major distributors of liquefied petroleum gas on the
suspicion that the companies had colluded to fix gas prices. The companies included Repsol (Solgas),
Flame Gas, and Lima Zeta Gas. Indecopi initiated proceedings against 19 total liquid gas producers on
June 4, 2014. [141] This level of action is a notable development in Peru. Since May 2009, Indecopi
has brought only three charges for antitrust violations. [142]
II.
EUROPE
A.
European Commission
1.
Fines
Following the trend reported in our 2013 Year-End Criminal Antitrust and Competition Law
Update, [143] the European Commission ("EC" or "Commission") remains on pace for another year of
noteworthy enforcement. The Commission has levied €1,438 million (nearly $1,958 million) in cartel
fines during the first half of 2014. This is almost four times the fines that had been imposed during the
same time-frame in 2013 (totaling €367 million – about $499 million). It is also noteworthy that the
EC has resorted to the settlement procedure in five of the six cartel decisions adopted during the first
half of 2014.
22
(* Through 7/3/2014)
(** Pursuant to the methodology used by the Commission, the figures above do not take into account
subsequent Rulings of the European Courts adjusting the levels of fines.)
The average fines levied by the European Commission continue to increase. The average fines over
the past five years are significantly higher than they have been over the last decade and a half.
23
(* Through 7/3/2014)
(** For the purposes of calculating the Average Fines Levied per decision and per undertaking, an
average for each period was gathered for both figures. In calculating the averages for each period, the
overall fine imposed was divided by the number of decisions and the number of undertakings
(including any immunity applicants) in that year respectively.)
a.
Auto Parts
The continued sanction of companies involved in collusion directed at auto parts continues in
Europe. In March, the Commission imposed fines for a total of €953 million (about $1,297 million) on
six automotive bearings manufacturers for (i) coordinating their activities in relation to the passing-on
of steel price increases to their customers; (ii) colluding on Requests for Quotations and for Annual
Price Reductions from customers; and for (iii) exchanging commercially sensitive
information. [144] Each company received a 10% reduction for agreeing to the EC settlements
procedure. The Commission indicated that absent its successful immunity application, JTEKT would
have faced fines of over €86 million (approximately $117 million). [145] This decision follows the
fines that the EC has already imposed on producers of electric wires, [146] and on producers of foam
24
used in car seats, [147] and is aligned with the Commission's ongoing effort to investigate other
suspected cartels in other markets for car parts, which include new on-spot investigations. [148]
b.
Canned Mushrooms
In June, the Commission imposed fines for a total of over €32 million (nearly $43.6 million) on three
producers of canned mushrooms who allegedly engaged in price fixing and market
allocation. [149] Lutèce received full immunity for reporting the violation, thereby avoiding a fine of
€20.7 million (nearly $28.2 million). In addition to the reductions granted under the Commission's
Leniency Programme, the three companies received a 10% reduction in fines for agreeing to settle the
case.
2.
Ongoing Investigations
a.
Interest Rate Derivatives
In the course of 2014, the Commission sent Statements of Objections to three banks and one broker in
separate investigations into alleged collusion in the markets for interest rate derivatives.
The Commission has conducted several investigations into banks and brokers regarding certain alleged
101 TFEU infringements in these markets. Interest rate derivatives are financial instruments which are
used by banks and companies to manage the risks resulting from interest rate fluctuations. These
products derive their value from the level of a benchmark interest rate, such as the Euro Interbank
Offered Rate (EURIBOR) for the euro or the Tokyo Interbank Offered Rate (TIBOR) for the yen.
Most notably, as reported in our 2013 Year-End Criminal Antitrust and Competition Law
Update, [150] in December 2013, the Commission imposed fines for a total of €1.71 billion (around
$2.3 billion), on certain financial institutions in connection with the alleged manipulation of interest
rate benchmarks. According to the Commission, the financial institutions had colluded to manipulate
the LIBOR and EURIBOR benchmarks by which the value of certain interest rate derivatives (e.g.,
forward rate agreements, swaps, futures, options) are calculated. Four of these institutions participated
in conduct relating to interest rate derivatives denominated in euro. The four banks reached a
settlement with the Commission in return for a fine reduction of 10%.
Since that time, the investigation with regard to Crédit Agricole, HSBC and JPMorgan has continued
under the standard, non-settlement, cartel procedure. On May 20, 2014, the Commission sent these
banks a Statement of Objections, indicating its concern that the banks "may have breached EU antitrust
rules by colluding to influence the pricing of interest rate derivatives denominated in the euro
currency". [151]
The fines imposed in December also encompassed a separate alleged infringement in relation to
interest rate derivatives denominated in Japanese yen. [152] The fine was imposed as a result of a
settlement with the Commission accepted by the majority of the parties in exchange for a fine
reduction of 10%. A UK broker did not accept settling its case with the Commission; as a result, the
investigations of that broker have continued. [153]
25
b.
Investigations
The Commission had confirmed that the investigations into the oil and biofuel markets, as reported in
our 2013 Year-End Criminal Antitrust and Competition Law Update, [154] continue progressing and
that it has requested information from multiple companies. [155] The Commission is concerned that
companies may have manipulated various oil and biofuel benchmarks on the Platts's exchange.
On February 18, 2014, the Commission announced that it had closed its probe into the sugar
industry, [156] which it had originally initiated after on-spot inspections conducted in the spring of
2013. [157] The Commission has further said that while the information it has collected did not
confirm its allegations of a price-fixing cartel, it may resume investigating the sugar industry at a later
stage. [158]
3.
Significant Rulings of the European Courts in Cartel Cases
a.
Nexans
On June 25, 2014 the Court of Justice of the European Union ("CJEU") issued its Ruling on the
Nexans Case, which involved allegations of anticompetitive behavior in the electric cables
market. [159] Early on in the power cables market sharing investigation, the Commission had
conducted dawn raids on Nexans and others. Nexans appealed against the inspection decisions,
arguing that the Commission's authorization was too widely drafted. Nexans's appeal before the
General Court ("GC") was successful, as the GC held that the Commission can only examine
documents relating to products for which it has "reasonable grounds" to suspect an
infringement. However, the CJEU adopted a more nuanced approach, departing from the GC's
decision. It held that the Commission is not required to limit its investigations to documents relating to
products affecting the EU. Since the Commission suspected an infringement that "probably had a
global reach", documents linked to projects outside the EU could be examined lawfully.
b.
Deltafina
In its Deltafina Judgment, [160] the CJEU, upheld a Ruling of the GC [161] supporting the position of
the Commission in the Italian Raw Tobacco Decision. [162] The Commission had granted Deltafina
conditional immunity, a step prior to the granting of final immunity at the end of the
investigation. However, Deltafina's conditional immunity was withdrawn by the Commission in
October 2005 on the basis that it had breached its cooperation obligation by disclosing its immunity
application to other parties in an alleged cartel. More specifically, the CJEU confirmed the GC's
conclusion that, since there had been no express authorization by the Commission to Deltafina to
disclose its immunity application, the unsolicited and voluntary disclosure was sufficient to constitute a
breach of its obligation to cooperate with the Commission.
c.
Kone
On June 5, 2014, the CJEU issued a Ruling in relation to so-called "umbrella pricing" cartel damage
actions. These claims refer to damages allegedly suffered due to the surcharge applied by non26
cartelists who, independently and rationally, adapted to a price increase resulting from a cartel by
increasing their own prices. Pursuant to the ruling of the CJEU in Case C-557/12 Kone, [163] the joint
application of Article 101 TFEU and the general principle of effectiveness of EU law preempt the EU
Member States--as would be the case in Austria--from having in place domestic regulations that
"categorically exclude []" umbrella pricing claims deriving from breaches of EU competition law.
d.
Saint-Gobain
On March 27, 2014, the GC significantly reduced the fines imposed on the Saint-Gobain group for its
participation in a car glass cartel. [164] In November 2008, the Commission imposed a fine of €880
million (approximately $1.2 billion) on the Saint-Gobain group. [165] Saint-Gobain appealed the
Commission's decision and argued that the Commission had unduly applied an aggravating
circumstance for recidivism. [166] The CJEU stated that the aggravating circumstance of recidivism
may be applied only if the various infringements have been committed by the same
company. However, the 1988 decision used by the Commission to establish a repeated infringement
referred to a different subsidiary of the Saint-Gobain group and was not addressed to the parent
company. Therefore, the Court held that the subsidiaries in the present case and the parent company
could not be held liable "for an earlier infringement for which they have not been penalised by the
Commission". In light of the above, the Court reduced the fine imposed on Saint-Gobain from €880
million to €715 million ($973 million).
4.
Legislative Developments
a.
Extension Liner Shipping Block Exemption
On June 24, 2014, the European Commission extended the Block Exemption Regulation by which
liner shipping consortia are automatically exempted from EU antitrust rules if certain conditions are
met (the "Block Exemption"). [167] The Block Exemption will remain in place until April 2020.
The Block Exemption applies to "consortia", i.e. agreements between at least two vessel-operating
carriers that provide international liner shipping services exclusively for the carriage of cargo, with the
object of jointly operating services of maritime transport of cargo. [168] The Block Exemption
provides a list of activities which are automatically exempt if the thresholds indicated therein are not
exceeded, i.e., if the combined market share of the consortium members does not exceed 30% and the
activities concerned do not amount to any of the "hard-core" restrictions.
In 2009, the original (1995) Block Exemption for liner shipping services was revised and extended
until April 2015. [169] In addition, the market share threshold for the automatic application of the
exemption was reduced, while at the same time the scope of the exemption was extended to cover all
cargo liner shipping services, whether containerized or not. Following a market investigation in 2013
and a public consultation in February 2014, the Commission has now extended the Block Exemption
by another five years until 2020. [170]
Where the Block Exemption does not apply, restrictive business practices are not necessarily
unlawful. The business practices in question may not fall under the automatic exemption but may still
27
be exempt under Article 101(3) TFEU when the companies concerned establish that certain strict
conditions are met, including the efficiencies generated by the practices outweigh the negative effects
of the practices on competition.
b.
EU Damages Directive
In April 2014, the European Union Parliament adopted a Directive governing damages actions for
infringements of EU competition law. [171] The Directive is designed to facilitate damages actions by
companies and individuals that have suffered as a result of cartel activity--something that to date has
gained traction mainly in some Member States such as the UK, Germany, and the
Netherlands. [172] The Directive covers areas such as the disclosure of documents (including
protections for immunity and leniency materials), limitation periods, joint and several liability, the
passing-on defense, collective actions, and quantification of harm. [173] The text of the Directive is
not yet final, requiring approval by the Council of the European Union. The final approved text is
expected to be published in September or October of this year. Once the Directive is adopted, EU
Member States will have two years to incorporate the Directive into their own national laws.
c.
Competition de minimis Notice and Guidance on Restrictions "
By Object"
On June 25, 2014, the European Commission adopted a revised notice on agreements of minor
importance that do not appreciably restrict competition under Article 101(1) of the TFEU (the socalled "de minimis notice", or the "Notice"). [174] The revised Notice defines what the Commission
considers not to be an appreciable restriction of competition by reference to market share
thresholds. In short, absent any "restriction by object", the Notice creates a "safe harbor" for
companies whose market shares do not exceed 10% for agreements between competitors ("horizontal")
or 15% for agreements between non-competitors ("vertical"). These remain unchanged from the
previous Notice.
As previously indicated, agreements containing restrictions by object can never benefit from the safe
harbor even if the market share thresholds are met. The revised Notice is accompanied by a new
guidance on restrictions of competition "by object" for the purpose of defining which agreements may
benefit from the de minimis notice. [175] It identifies the restrictions in agreements between
competitors and non-competitors which are generally regarded as restrictions by object (including, e.g.,
horizontal price fixing, market sharing or resale price maintenance).
B.
Belgium
On March 12, 2014, the Brussels Court of Appeal partly annulled a March 2013 decision by the
Belgian Competition Authority ("BCA"), which had imposed fines on certain flour mills for price
fixing. The Court annulled the fine imposed on one of the flour mills due to insufficient evidence as to
the involvement of the entity in question. [176] In addition, the BCA carried out dawn raids in the
industrial battery [177] and animal feed sectors. [178]
28
C.
France
On February 28, 2014 [179] and March 19, 2014 [180], France reshuffled the composition of the
directing bodies of its National Competition Authority, the "Autorité de la Concurrence"
("AdC"). Bruno Lasserre was reappointed by decree of the French president of the republic, as
president of the AdC, on February 28, 2014. [181] First appointed in 2004, Mr. Lasserre's current term
will expire in March 2019. [182]
Through a June 25, 2014 ruling [183] the French Supreme Court ("Cour de Cassation") ordered the
AdC to return evidence seized from Crédit Agricole during a dawn raid. According to the Supreme
Court, the French Ministry for the Economy, which was in charge of on-spot inspections at the time of
the events, had denied the bank access to its counsel during the dawn raid, thereby breaching the
European Convention on Human Rights.
D.
Germany
1.
Extradition of Foreign Nationals to the US from Germany
As discussed above, see supra Section I.A.4.c, on April 3, 2014, an Italian citizen became the first
foreign national to be extradited to the US solely based on an antitrust violation. In June 2013,
Romano Pisciotti was arrested at the Frankfurt Airport for participating in the Marine Hose pricefixing cartel. The cartel was uncovered in 2007 and subsequently sanctioned by means of high fines,
prison sentences, and damage claims in Europe and the US. [184] Mr. Pisciotti, a citizen of Italy, is
alleged to have joined the conspiracy primarily through attendance at cartel meetings and by
facilitating information exchanges between his employer and other cartel members.
While the Court of Appeals in Frankfurt confirmed the lawfulness of his extradition to the US, [185]
the German government, the Higher Regional Court in Berlin and the German Constitutional Court
were also involved in the proceedings. According to the German Act on International Cooperation in
Criminal Matters, the principle of mutual criminal liability is applicable. Therefore, Germany may
extradite an individual only if the behaviour under consideration is also a criminal offence in
Germany. This usually applies to antitrust infringements only if fraud or bid rigging offenses are
involved. The Frankfurt Court of Appeals determined that the Marine Hoses cartel involved bid
rigging, which provided the criminal offence basis for the extradition. However, one reservation has to
be made in this context: Article 16 (2) of the German constitution prevents extraditions of German
citizens to non-EU countries. Therefore, the principles established by the recent case concerning Mr.
Pisciotti are not transferable to German nationals.
Notably, while Mr. Pisciotti pleaded guilty and accepted a 24 months prison sentence (reduced for his
jail time in Germany) and a fine of 50,000 USD, Mr. Pisciotti is not expected to serve the remaining
time in a US jail. Under the DOJ's International Prisoner Transfer Program, federal prisoners may
request transfers to a prison in their home country. The DOJ indicated already that it would not object
to such a request in Pisciotti's case. If Mr. Pisciotti is transferred back, his home country (Italy) may
make further determinations regarding the actual sentence to be served. For instance, also in the
Marine Hoses cartel case, a French national, Christian Caleca, received a prison sentence of 14 months
29
in the US and was subsequently transferred back to France upon his request. French authorities
ultimately released him since price fixing in itself is not considered a criminal offence in France.
2.
Intense Fining and Enforcement Activities
Germany continued to garner attention as a jurisdiction to watch for antitrust infringers in 2014. This
year the FCO steadily aims at a new record in terms of administrative fines imposed for breaches of its
antitrust laws. So far in 2014, it imposed fines of approximately 635 Million EUR. [186] Further
procedures concerning groceries and food retail are expected to be concluded this year and therefore
2014 is likely to mark a new record year in terms of the FCO's fining activities. As in the past, the
majority of cases come to the FCO's attention due to applications under its leniency program, which as
in much of the world, has become the FCO's major tool in order to uncover secret cartel activity. [187]
a.
Beer Cartel
In January and April 2014 the FCO fined 11 companies, an industry association and 14 individuals at
total of 338 million EUR for fixing the prices of beer. [188] The cartel combined several national and
regional price fixing arrangements between premium breweries and regional breweries. It allegedly
was carried out largely through joint meetings and bilateral contacts held between the breweries
whereby inter alia a price increase was set on a per-bottle basis.
Relevant proceedings were triggered by a leniency application filed by the brewery Anheuser-Busch
which, in accordance with the FCO's leniency program, was not assessed any fine. Other cartel
participants were able to receive fine reductions due to their cooperation with the FCO once
proceedings had commenced and due to settlement agreements which they reached with the authority.
b.
Sugar Cartel
In February 2014, the FCO imposed fines totaling 280 million EUR on three major German sugar
manufacturers. [189] Relevant cartel activities included anticompetitive agreements on sales areas,
quotas, and prices concerning industrial sugar (sugar for the processing industry) and retail sugar
(sugar for end consumers). In principle, the three manufacturers had divided up the German market
along the lines of their respective home sales areas and avoided deliveries into another manufacturer's
territory. Sugar was exported rather than sold to customers in their competitors' sales areas. This
territorial agreement, which formed the core of the cartel, was flanked by an extensive information
exchange on strategic and operational level (concerning plant closures, expansion strategies, quotas,
and prices). The fines were partially reduced due to cooperation under the FCO's leniency notice and
settlement agreements.
c.
Wallpaper Cartel
Also in February 2014, the FCO fined wallpaper manufacturers, including their representatives and a
trade association, a combined 17 million EUR for price fixing arrangements. [190] According to the
FCO, the trade association was used for several years as a forum for agreements on price
increases. This case started with dawn raids in late 2010 following one participant's application for
30
leniency. The leniency applicant accordingly escaped a fine by the FCO. For other participants,
cooperation with the FCO during the investigation and conclusion of the procedure by way of
settlement was taken into account for purposes of fine calculation.
d.
Coffee Roaster Cartel – Fine Confirmed Against Legal Successor
Also in February, the Court of Appeals in Düsseldorf, which is responsible for claims brought against
the FCO's fining decisions, confirmed a fine of 55 million EUR imposed Melitta Europa GmbH & Co.
KG in December 2009. [191] The court proceedings focused on whether Melitta was liable to pay the
fine despite interim restructuring measures concerning the entity on which it was originally
imposed. Originally, the FCO's fine was imposed on Melitta Kaffee GmbH, which was merged
subsequently into the Melitta Europa GmbH & Co. KG by way of universal legal succession. To limit
the use of such "restructuring maneuvers" in mind to avoid liability for antitrust infringements, the
German legislature introduced legislation concerning the liability of a legal successor for antitrust fines
during the course of the 8th ARC amendment in 2013. However, the merger concerning Melitta took
place before these legislative amendments. The Court of Appeals in Düsseldorf, therefore, had to
decide the case based on the law as it stood before the amendment came into force. Ultimately, the
Court of Appeals adopted an economic analysis that found Melitta Kaffee GmbH and Melitta Europa
GmbH & Co KG are identical, and confirmed the fine. The judgment of the Court of Appeals in
Düsseldorf is not yet final. Melitta Europa GmbH & Co. KG has appealed to the Federal Court of
Justice on points of law.
All in all, the FCO had imposed fines of 159.5 million EUR against various coffee roasters for alleged
price fixing activities in 2009. The appeal of Melitta against this fining decision was the only one left
since other cartel participants settled the case with the FCO, withdrew the appeal or avoided a fine
altogether due to successful leniency applications.
e.
Heat Exchanger Cartel
In July 2014, the FCO imposed a fine of 1.89 million EUR to sanction a customer allocation agreement
that covered services provided for heat exchangers used in power plants. [192] Regenerative heat
exchangers are devices which increase the efficiency of power plants by, for instance, using waste heat
from flue gas to preheat combustion air. To function properly, these devices must be serviced and
exchanged on a regular basis. According to the FCO, the participating companies preferred having
orders for service contracts placed with the company that had originally installed the heat
exchanger. To achieve this outcome, they exchanged information regarding prices for services and
then submitted excessively high priced bids to ensure that the original manufacturer would win the
service contract for a given power plant operator.
In setting the fine, the FCO considered that one participant--Alstom Power Energy Recovery GmbH-cooperated extensively with the authority and agreed to close the procedure via a settlement. A second
participant, Balcke-Dürr GmbH, escaped a fine altogether due to a successful application for
leniency. Of note, in addition to the FCO, the public prosecutor in Mannheim also opened proceedings
31
on suspicion of bid rigging because the conduct may have affected also public tenders and infringed
section 298 of the German Criminal Act.
E.
Hungary
The Hungarian Competition Authority ("Gazdasági Versenyhivatal", or "GVH") imposed fines totaling
more than €337,000 ($447,000) on four contact lens distributors for breaching EU and national
antitrust rules. According to the GVH, the four companies exchanged sensitive commercial
information, including sales volumes and income. Johnson Johnson Egészségügyi és Babaápolási
Termékeket Gyártó és Forgalmazó Kft received full immunity from fines for self-reporting the conduct
to the GVH. [193]
F.
The Netherlands
On April 10, 2014, the College of Appeals for Trade and Industry upheld the decision of the Dutch
Competition Authority ("ACM") sanctioning tree nurseries for engaging in bid rigging arrangements in
relation to the supply of tree nursery products to municipalities between 1998 and 2004. [194]
The District Court of Rotterdam has annulled the decision of the ACM imposing fines on the members
of an insulated glass cartel due to the lack of sufficient incriminating evidence. More specifically, the
Court found that the market behavior of the parties was not sufficient to support the existence of an
anticompetitive agreement given that the parties had provided a plausible alternative explanation for
their behavior. [195]
On March 20, 2014, the District Court of Rotterdam upheld the ACM's decision imposing fines on a
silverskin onion cartel. Of note, the Court also upheld the ACM's reasoning that the fine should be
based on the "affected turnover" generated by sales in the entire EU rather than limiting sales to the
Netherlands. [196]
G.
Poland
Poland's parliament approved extensive amendments to the country's antitrust law in June 2014,
extending the Office of Competition and Consumer Protection's (the "UOKiK") power to impose fines
on individuals while expanding the leniency program. The law (expected to enter into force in early
2015) enables the authority to levy a fine of up to €500,000 against company manager(s) responsible
for anti-competitive agreements. Previously, individuals could be fined under Polish Competition law
only for procedural errors. The new fines are administrative, not criminal, in nature.
The amendments also expand Poland's leniency program, under which full immunity is granted only to
the company that first informs the authority of illegal practices. Furthermore, the new act introduces a
"leniency plus" system. Under this system, additional fine reductions of up to 30% are available for
companies that are not first in line to self-report collusive activity, provided they supply information
regarding additional anti-competitive practice not known to the authority. [197]
32
H.
Spain
On November 7, 2013, the Spanish Supreme Court ("Tribunal Supremo") issued a seminal ruling on
follow-on cartel damage claims. [198] Among other things, the Supreme Court established (i) a
rebuttable presumption as to the binding nature of the factual findings of Competition Authorities and
(ii) the acceptability, under Spanish law, of the "passing on" defense.
The Spanish National Court ("Audiencia Nacional", "AN") has curtailed the discretion of the newly
created Spanish Competition Authority (the "Comisión Nacional de los Mercados y la Competencia",
"CNMC") when imposing fines by ordering, on April 21, 2014, the CNMC to reduce a fine of
€440,000 (approximately $600,000) imposed on a provincial association of travel agents. [199] The
AN considered that the CNMC, when determining the amount of the fine to be imposed on a trade
association, is entitled to take into account the turnover of the members of the association only when it
has been established that the latter constituted the instrument to which its members resorted in order to
engage in the anti-competitive agreement. In addition, on April 15, 2014, the AN annulled a decision
of the CNMC [200] imposing a fine of more than €5 million ($6.8 million) on Rhenus Logistics in its
condition of successor of IHG Logistics Iberia, with which Rhenus had previously merged, on account
of IHG's alleged participation in a cartel regarding certain freight markets. In doing so, the AN took
into account that the entity resulting from the merger had made a significant reshuffle in its directing
bodies and had publicly distanced itself from the allegedly infringing conduct. [201]
I.
United Kingdom
1.
Structural Change
On 1 April 2014, the UK's Competition and Markets Authority ("CMA") came into being. The CMA
was created by the merger of the Office of Fair Trading ("OFT") and the Competition Commission
("CC") under the Enterprise and Regulatory Reform Act 2013 ("ERRA 2013"). As reported in our
2013 Year-End Criminal Antitrust and Competition Law Update, in the areas of cartel enforcement
and competition investigations, the CMA has increased investigative powers compared to those
previously exercised by the OFT, including compulsory interview powers for current and former
employees of companies under investigation and the ability to impose financial penalties for failure to
comply with investigative steps. [202]
2.
Legislative Developments
As well as the commencement of the CMA's operations, April saw the entry into force of the revised
provisions regarding the criminal cartel offense. For all criminal cartel agreements that are entered
into after April 1 2014 and relate to arrangements made or to be made on or after that date, the
prosecution will no longer be required to prove dishonesty, and the exclusions and defenses set out in
ERRA 2013 will apply. The CMA published its Criminal Cartel Prosecution Guidance in March 2014,
setting out the principles the CMA will apply in determining whether to institute proceedings against
an individual. [203]
33
In addition to the Criminal Cartel Prosecution Guidance, the CMA has published a large number of
guidance documents in the area of antitrust enforcement. [204] Many of these are re-published
guidance from the OFT. However, although based on previous guidance, the CMA's guidance on its
Investigation Procedures in CA98 cases is particularly important as it sets out how the CMA will use
its new investigative powers in civil antitrust cases. [205]
Finally, the CMA has published a number of Memoranda of Understanding between it and various
other enforcement bodies in the antitrust arena, including the Serious Fraud Office ("SFO"), the Crown
Office Scotland, the Financial Conduct Authority ("FCA"), OFCOM (the telecoms regulator), the
Water Services Regulation Authority ("Ofwat"), and the Civil Aviation Authority ("CAA").
3.
Enforcement Highlights
The first half of 2014 has seen the CMA get off to an impressive start in cartel enforcement, securing a
guilty plea in the first criminal prosecution since May 2010. The prosecution was brought in relation
to suspected cartel conduct in the supply of galvanized steel tanks for water storage. [206] A related
civil investigation is also being conducted by the CMA. [207]
The CMA has also opened a new investigation in the pharmaceutical sector and continues to
investigate a number of suspected breaches in cases initially opened by the OFT. [208]
In June, the CMA closed the investigation into alleged resale price maintenance in relation to sports
bras, finding that it had no grounds for action following a thorough review of the evidence and
submissions of the parties in response to the statement of objections. [209] This case is the first case
closed by the CMA under the new procedures, pursuant to which responsibility for a case passes to a
case decision group following the statement of objections. According to the CMA, this process is
designed to ensure "a clear separation between the investigation and decision in each case." [210]
Prior to the entry into operation of the CMA, the OFT took a number of enforcement decisions in the
first three months of 2014, finding infringements on the part of a mobility scooter manufacturer and
eight of its online retailers in relation to the pricing of mobility scooters and a market sharing
infringement between pharmaceutical distributors in relation to care home medicines. The latter
decision follows a settlement agreement reached between the OFT and the parties in December 2013.
Finally, as part of the CMA's focus on promoting compliance (see speech by CMA's Chief Executive,
Alex Chisholm, to the Law Society's Competition Section Annual Conference on 16 May), [211] the
CMA published an open letter to the motor industry highlighting important lessons for the industry
arising out of the OFT's 2013 decision finding an infringement of the CA98 on the part of Mercedes
Benz and five distributors. [212]
34
III.
ASIA AND THE PACIFIC
A.
Australia
In 2014, Australia's Competition and Consumer Commission ("ACCC") has pursued actions related to
price-fixing primarily in two industries. First, the ACCC continued its ongoing criminal investigation
of ball and roller bearings manufacturers, discussed in our 2013 Year-End Criminal Antitrust and
Competition Law Update. [213] In May 2014, the Federal Court of Australia ordered NSK Australia
to pay AUD 3 million (approximately $3 million) for its involvement in the scheme. [214] Second, the
ACCC initiated proceedings against egg producers and related individuals for their alleged agreement
to artificially reduce the supply of eggs. [215] That investigation is ongoing.
B.
China
Newly announced regulatory policies by Chinese competition authorities may result in increased
enforcement in the near future. In June, China's Ministry of Commerce ("Mofcom"), one of the
country's three antitrust regulators, announced that it would be opening reviews across 80 major
industries, including automobiles, pharmaceuticals, and alcoholic beverages. [216] As part of these
investigations, Mofcom sent notices to major industry associations requesting collection of information
from their member companies. [217]
In a "landmark move," the National Development and Reform Commission ("NDRC") has joined
competition authorities from Japan and the United States in an ongoing global probe of certain
capacitor manufacturers. [218] In apparent coordination with other regulators, NDRC conducted dawn
raids of Chinese companies earlier this year. Moreover, it is believed that this matter represents
China's first international matter triggered by leniency. [219]
C.
Hong Kong
In May 2014, Hong Kong's Competition Commission ("the Commission") released a report to prepare
the public for implementation of the Competition Ordinance ("the Ordinance"), which prohibits cartel
activity, price fixing, and bid rigging, and details "severity factors" that will determine whether the
Commission will investigate proscribed activity. [220] Passed in 2012, the Ordinance is expected to
enter into force by mid-2015. The Commission now seeks to obtain feedback on proposed guidelines,
and the Commission plans to release draft guidelines in September 2014.
D.
India
The Competition Commission of India ("CCI") remained active in the first half of 2014. In February,
CCI levied fines in response to two local anticompetitive schemes. In the first, suppliers of feed valves
for diesel trains were fined over INR 623 million (approximately $10.4 million) for bid rigging in
connection with an Indian Railway procurement contract. [221] In the second, CCI found that the
Chemists and Druggists Association of Ferozpur ("CDAF") had artificially limited the supply of
pharmaceuticals by requiring potential distributors to pay for and obtain a No Objection Certificate
35
("NOC") from the organization. [222] As a penalty, CCI imposed a fine of INR 15,136 ($252) on
CDAF and sought a total of about INR 5.5 million ($92,000) from seven of its executives.
Later in the year, in a case involving another trade association, CCI fined the Bengal Chemist and
Druggist Association (BCDA), along with seventy eight individuals, for preventing members from
offering discounts on the maximum retail price of drugs. CCI penalized BCDA at a rate of ten percent
of its annual income (amounting to about $22,000). The individuals implicated were also fined
between seven and ten percent of their income. [223]
In 2014, CCI also investigated complaints that manufacturers of signaling cables conspired to fix
prices and rigged bids submitted to the Indian Railway. CCI reportedly has contacted thirty seven
companies that may have been involved in this alleged misconduct. [224]
While CCI has continued its relatively aggressive approach this year, the Competition Appellate
Tribunal ("Compat") issued a significant ruling. In April 2014, Compat ordered a partial stay of the
INR 62 million (about $1 million) penalty levied by CCI last year on eleven shoe
manufacturers. While Compat found that an absolute stay would be improper in light of the proven
bid-rigging, the Tribunal appeared concerned about several factors that the CCI did not take into
consideration, including that this was a first violation for the companies and the effects that large fines
would have on the small defendant businesses. As a result, Compat stayed the penalty as a whole,
requiring the companies to pay only 5% of the fine within two months. [225]
E.
Indonesia
In March 2014, Indonesia's Commission for the Supervision of Business Competition ("KPPU") fined
nineteen companies for collusion in the market for garlic, levying fines between IDR 20 billion ($1.7
million) and IDR 921 billion ($78.9 million). [226]
In May 2014, KPPU alleged that six tire manufacturers engaged in price-fixing. [227] KPPU has
stated that the companies entered into agreements to control production and fix prices under the
auspices of the Indonesian Tire Manufacturers' Association (APBI). These companies each face a $2.1
million fine. [228]
F.
Japan
The Japan Fair Trade Commission ("JFTC") remained active, as observers have come to expect, during
the first half of 2014. In January and February, the JFTC imposed fines stemming from two separate
bid-rigging schemes related to construction projects. First, the JFTC imposed a total of ¥2.37 billion
($23.3 million) fines on several companies that bid on a transmission line works
project. [229] Second, the JFTC imposed a total of ¥223.52 million ($2.2 million) fines on a group of
engineering companies that bid on engineering and paving projects ordered by Chiba Prefecture. [230]
In March 2014, the JFTC fined four automotive shipping companies for price-fixing in the
international ocean shipping services industry. [231] In total, these fines constituted ¥22.718 billion
36
($224 million), with Nippon Yusen Kabushiki Kaisha receiving the largest fine of ¥13.1 billion ($129
million).
Also in March 2014, the JFTC filed criminal bid-rigging charges against eight air-conditioning
equipment engineering companies and eight individuals. The alleged bid-rigging concerned snowmlting equipment engineering projects for the Hokuriku Shinkansen. The JFTC alleged that the
companies met several times between September 2011 and November 2012 to designate successful
bidders and set bids at designated prices. [232] This marks an increasing trend in Japan toward
charging domestic price fixing and bid rigging conspiracies criminally, as discussed in our 2013 YearEnd Criminal Antitrust and Competition Law Update. [233]
In June 2014, the JFTC fined 61 corrugated cardboard manufacturers a total of ¥13.3 billion ($131
million) for price-fixing. [234] The JFTC found that the manufacturers utilized the industry's trade
association to carry out their scheme. [235]
Most recently, in June, the JFTC, in apparent coordination with other antitrust regulators, conducted
raids at nine capacitor manufacturers to gather information related to alleged price fixing and
information exchanges. [236]
In April 2014, the JFTC appointed a new Commissioner, Takashi Yamamoto, upon the expiration of
former Commissioner Michiyo Hamada's term. [237] Mr. Yamamoto had previously served as
Secretary General of the JFTC General Secretariat. The JFTC also announced that it had signed a
memorandum of cooperation with the Administrative Council for Economic Defense of the Federative
Republic of Brazil ("CADE"), Brazil's primary competition authority. The regulators plan to cooperate
on various enforcement activities. [238]
G.
Malaysia
In 2014, Malaysia's Competition Commission ("MyCC") investigated potentially collusive conduct in
the ice and stationery markets after both markets experienced price increases that did not appear to the
MyCC to reflect natural movement. [239] In February 2014, representing its second-ever decision
levying fines for cartel activity, MyCC found that the ice manufacturers had indeed colluded and fined
those firms a total of MYR 240,000 (about $75,000). [240]
H.
New Zealand
In 2014, New Zealand's Commerce Commission ("NZCC") continued to levy fines in long-running
investigations. First, the final defendant charged in the cardboard packaging matter, Amcor Ltd.
executive James Hodgson, was ordered to pay a penalty of NZD 60,000 (about $53,000) and costs of
NZD 38, 352 (about $34,000). [241] Second, Keuhne + Nagel International AG ("Keuhne") became
the latest company to be fined in a case involving six international freight forwarding companies that
allegedly conspired to surcharge air freight forwarding services. Keuhne was ordered to pay penalties
of NZD 3.1 million ($2.7 million). [242]
37
In March 2014, the NZCC fined wood merchant Carter Holt Harvey NZD 1.85 million ($1.6 million)
for its role in a price-fixing arrangement involving Fletcher Distribution Limited ("Fletcher"). The
NZCC became aware of the two firms' collusive agreement when Fletcher utilized the NZCC leniency
program. [243]
I.
Pakistan
In June 2014, Pakistan abolished the International Clearing House ("ICH") agreement, which had
created cartel-like conditions in the telecommunications industry. This effectively vindicated an April
2013 order of the Competition Commission of Pakistan ("CCP") directing fourteen Long Distance &
International service operators to cease their anticompetitive activities. [244]
In legislative developments, the adoption of new whistleblowing regulations, by which informants will
be ensured confidentiality and may receive between PKR 200,000 (approximately $2,000) and PKR 2
million (approximately $20,000), indicates that Pakistan's interest in combating anticompetitive
conduct remains strong. [245]
J.
Singapore
In April 2014, the Competition Commission of Singapore ("CCS") issued a Proposed Infringement
Decision ("PID") against eleven freight forwarding companies for collectively fixing fees and
exchanging information related to shipments from Japan to Singapore. [246] The CCS began its
investigation after receiving an application for immunity under the PID leniency program. [247] This
follows similar investigations into freight forwarding by the Japan Fair Trade Commission, European
Commission, and U.S. Department of Justice.
In May 2014, the CCS issued what it characterized as its first-ever decision against a global cartel,
imposing fines totaling more than S$ 9.3 million ($7.4 million) on four Japanese manufacturers of ball
and roller bearings along with their Singapore subsidiaries. [248]
K.
South Korea
As we reported in our 2013 Year-End Criminal Antitrust Update, the Korea Fair Trade Commission
("KFTC") was expected to strengthen its efforts against bid-rigging practices in South Korea's
construction industry. The KFTC followed through on these expectations during the first half of 2014,
issuing penalties against numerous companies for engaging in unlawful bid rigging.
The KFTC paid particular attention to large-scale transportation projects throughout the country. In
March 2014, the KFTC imposed a fine of KRW 40.1 billion ($39.6 million) against twelve
construction companies implicated in a bid-rigging scheme involving the construction of Daegu metro
line 3. [249] Then in April 2014, the KFTC imposed a fine of KRW 99.1 billion ($97.9 million)
against eleven construction companies, including some of South Korea's largest, for bid rigging related
to the construction of the Ara Waterway between Seoul and Incheon. The KFTC also referred five
executives from the companies to prosecutors for further criminal investigation. [250] That same
38
month, the KFTC fined six construction companies KRW 12.2 billion ($12 million) for participating in
a bid-rigging scheme involving the Busan subway line. [251]
The KFTC also issued fines against two separate sewage construction bid-rigging cartels. In March
2014, the KFTC fined two companies KRW 12.1 billion ($12 million) for rigging a 2009 tender
organized by a state owned developer. [252] Then in April 2014, the KFTC fined two construction
companies KRW 3.2 billion ($3.16 million) for bid-rigging related to a public sewage treatment
project. [253]
In June 2014, the KFTC issued a fine of KRW 7.4 billion ($7.3 million) against seventeen artificial turf
manufacturers for rigging bids on more than 200 public projects. Five of these companies were also
referred to the public prosecutor for criminal cartel prosecution. [254]
The enforcement efforts of the KFTC also resulted in South Korea's first prison sentences for
individual executives involved in cartel activity. On February 5, 2014, the Busan Eastern District
Court sentenced three individuals to six months' imprisonment for rigging bids on tenders to supply
cables to nuclear power plants. The next day, on February 6, 2014, the Seoul Central District Court
sentenced a number of executives who were found guilty of participating in a bid-rigging cartel
stemming from a public parks project. While most of the executives received suspended prison
sentences or fines, the court sentenced one senior executive who played a leading role in the cartel to
two years in prison. [255]
L.
Taiwan
In April 2014, the Taiwan Fair Trade Commission ("TFTC") announced the results of two separate
investigations into domestic cartel activity in the asphalt industry. The TFTC fined sixteen asphalt
concrete suppliers a total of NT $39.5 million ($1.32 million) for coordinating to raise prices of asphalt
in violation of Article 14(1) of the Fair Trade Act. [256] The TFTC found that the suppliers collected
stabilization funds from downstream customers to raise the price of asphalt. The TFTC also fined
seven asphalt suppliers a total of NT $20.5 million ($685,000) for their participation in a price-fixing
cartel in the Chiayi area. [257]
IV.
MIDDLE EAST
A.
Egypt
In December 2013, as reported in our 2013 Year-End Criminal Antitrust and Competition Law Update,
the Egyptian Competition Authority ("ECA") announced its referral of Egypt's three largest mobileservices operators to the public prosecutor regarding an alleged price-fixing conspiracy. [258] Since
that referral, one of the three operators has refused to cooperate with the ECA, arguing that the
National Telecommunications Regulatory Agency alone has jurisdiction over its activities. In June
2014, the Economic Court disagreed and affirmed a fine of 100,000 Egyptian pounds (approximately
$14,000) on the operator. [259] Following the decision, the ECA's chairwoman issued a statement
strongly implying that the ECA would be aggressive in monitoring anticompetitive conduct across all
of Egypt's economic sectors. [260]
39
B.
Israel
The Israel Antitrust Authority ("IAA") recently flexed its regulatory muscle allowing it to levy
personal penalties on executives whose companies committed anticompetitive activities. In February
2014, the IAA announced that it was considering levying a personal fine of 200,000 shekels
(approximately $57,000) each on two port executives who allegedly conspired to prevent another
Israeli port from importing vehicles. [261]
C.
Kuwait
Kuwait continues to experience growing pains in its efforts to regulate competition. In March 2014,
the chief executive of Kuwait's Protection of Competition Authority resigned her post. According to
the Kuwait Times, the resignation was submitted in protest of the authority's failure to begin operating
despite its establishment in 2012. [262]
D.
Oman
In the past several months, the Times of Oman has reported in numerous articles that Oman will soon
enact a formal competition law. [263] According to one report, the draft law has been referred to the
Council of Oman for final approval. [264]
E.
Turkey
Turkey's Competition Authority ("CA") continues to investigate price-fixing, focusing on domestic
activity. Earlier this year, the CA issued small administrative fines for price-fixing committed by
bread bakeries, [265] and driving courses. [266] In May 2014, the CA launched an investigation into
whether recent cement price increases resulted from collusion among cement manufacturers. [267]
In January 2014, a draft competition bill amending Turkey's 20 year-old competition law was referred
to the nation's parliament. The bill would give the CA increased discretion to investigate
anticompetitive conduct. [268]
V.
AFRICA
A.
East African Community
In January 2014, the East African Community ("EAC") Sectoral Council of Ministers of Trade,
Industry, Finance and Investment proposed amending the EAC's 2006 Competition Act to increase the
penalties for anticompetitive activities, currently capped at $10,000. The penalties would increase to a
percentage of a company's annual turnover, up to two years' imprisonment, or both. The amendments
also would create an East African Competitions Authority to coordinate anticompetitive efforts
throughout the region. Currently, each of the EAC's five nations--Burundi, Kenya, Rwanda, Tanzania,
and Uganda--vary in terms of their enactment of a competition law and establishment of a competition
authority. [269]
40
B.
Kenya
During the year's first half, the Competition Authority of Kenya ("CAK") launched investigations and
inquiries into anticompetitive activities in a broad number of markets: artificial insemination, banking,
cable television, cement, coffee, cooking oil, health care, insurance, milling, mobile money transfer,
seed, shipping, soft drinks, sugar, tea, and transportation. [270] The CAK's Director General warned
that any company found to have engaged in cartel behavior would face a punitive fine of up to 10
million Kenyan shillings (approximately $114,300), five years' imprisonment, or both. [271]
These warnings were proven not to be idle later in the year, when the CAK carried through on its threat
to penalize companies engaged in collusion. In June 2014, the CAK issued fines of 5.3 million
Kenyan shillings (approximately $60,300) to two supermarket chains for unfair trade
practices. According to the CAK, one of the chains effectively--but not formally--acquired the other
chain, and then used that control to fix prices at both chains. [272]
C.
Malawi
The newly formed Competition and Fair Trading Commission of Malawi ("CFTC") initiated
operations during the first half of 2014. February 2014 marked the CFTC's deadline for public
comments on its Competition and Fair Trading Regulations. [273] The proposed regulations outlined,
for example, the CFTC's authority to conduct market inquiries. [274] In May 2014, the CFTC held
public hearings on a variety of cases, including alleged price fixing by the Insurance Association of
Malawi. [275]
D.
Mauritius
In March 2014, the Competition Commission of Mauritius ("CCM") launched its first cartel
investigation into two beer companies suspected of colluding to allocate sales in Madagascar and
Mauritius. One of the companies was the first to apply for leniency under the CCM's leniency
program. But despite that application, in June 2014, the CCM recommended penalties of MUR 6.6
million (approximately $215,000) on the applicant, and MUR 20.3 million (approximately $662,000)
on the non-applicant. The CCM may see its enforcement powers expand, as the Prime Minister has
announced his intention to further empower the Competition Commission in order to better fight
cartels. [276]
E.
Rwanda
Rwanda's regulation of competition remains in the early stages. In March 2014, the Rwandan Ministry
of Trade and Industry held a two-day workshop with members from the World Bank regarding the
nation's efforts to increase competition enforcement. [277]
F.
Seychelles
Although Seychelles has enacted a Fair Competition Act, competition enforcement in Seychelles also
is in its infancy. To improve enforcement activities, the Seychelles Fair Trading Commission ("STC")
41
met with more established competition authorities during May 2014. First, members of the STC met
with members of the Competition Commission of South Africa to discuss enforcement activities
against cartels and against bid-rigging. [278] Second, members of the STC conducted a three-day
workshop with delegates from the COMESA Competition Commission ("CCC"). To that end, the
conference participants created a "roadmap" for Seychelles' enactment of a national competition
policy, which would be aligned with the CCC's competition regulations. [279]
G.
South Africa
Demonstrating its status as one of Africa's more mature competition commissions, the Competition
Commission of South Africa ("CC") had an active first half of 2014. In March, the CC referred two
investigations to the Competition Tribunal for adjudication of alleged price-fixing activities. The first
investigation concerned five suppliers of power cables, who allegedly agreed to increase prices and to
allocate markets. The CC requested fines of ten percent of annual turnover for all of the suppliers
except the leniency applicant, which was immune from fines. [280] The second investigation
concerned two fishing companies alleged to have divided their market. The CC requested that one of
the companies be fined up to ten percent of annual turnover, whereas the other company had applied
for and obtained leniency and was therefore protected from imposition of a fine. [281]
But referral to the Competition Tribunal is no rubber stamp for penalization, as demonstrated by the
Tribunal's recent dismissal of a major investigation referred by the CC. In December 2007, the CC
referred a complaint against a South African beer manufacturer and a number of its distributors,
alleging that the manufacturer colluded with the distributors to fix prices. In April 2014--following a
lengthy trial and years of procedural wrangling--the Tribunal rejected the charges and held that the
companies had not acted in an anticompetitive manner. The CC immediately announced its intention
to appeal the ruling to the Competition Appeal Court. [282] The Tribunal's dismissal marks a major
loss for the CC, which sought to impose an administrative penalty of 1.85 billion South African Rand
(approximately $174.4 million) on the companies.
Meanwhile, the CC's investigatory activities continue. In January 2014, the CC announced that it
would conduct a wide-ranging market inquiry into the private healthcare sector. [283] Initially, this
inquiry was restricted to private healthcare providers, but the CC subsequently announced its intention
to investigate public providers as well. [284] More recently, in June 2014, the CC announced it would
initiate a market inquiry of the liquefied petroleum gas sector. [285]
The CC has also conducted additional dawn raids of various companies this year. For example, in
April 2014, the CC raided Unilever South Africa and Sime Darby Hudson & Knight as part of an
investigation into alleged price-fixing of edible oils and margarine. [286]
Following up on our 2013 Year-End Criminal Antitrust and Competition Law Update on the staff
turnover at the CC, 2014 saw further staff developments. [287] In May 2014, Tembinkosi Bonakele-previously the Acting Commissioner of the CC--was appointed its permanent Commissioner for a fiveyear term. [288] During the first quarter of 2014, the CC announced the appointments of a new chief
economist, head of mergers and acquisitions, head of enforcement and exemptions, and chief financial
42
officer. [289] Although some have raised concerns regarding "the effect [the high turnover of senior
managers at the CC] has had on the organisation's stability," the CC's enforcement activities during the
first half of 2014 demonstrate that the organization will remain active. [290]
[1] Motorola Mobility LLC v. AU Optronics Corp., 746 F.3d 842 (7th Cir. 2014) (Posner, J.).
[2] Br. for the United States and the Fed. Trade Comm'n as Amici Curiae in Support of Panel R'hng
or R'hng En Banc (ECF No. 30) at 10.
[3] See Dkts. 36 & 47.
[4] See Order Granting R'hng (ECF No. 58).
[5] United States v. Hsiung, No. 12-10492, at *28 (9th Cir. July 10, 2014).
[6] Id.
[7] While the Second Circuit joined the Seventh Circuit's standard articulated in Minn-Chem, it
observed a tension between that standard and the now-vacated decision in Motorola Mobility, noting
that " [t]here is nothing inherent in the nature of outsourcing or international supply chains that
necessarily prevents the transmission of anticompetitive harms or renders any and all domestic effects
impermissibly remote and indirect." Lotes Co., Ltd. v. Hon Hai Precision Industry Co., No. 13-2280,
2014 WL 2487188 (2d Cir. June 4, 2014).
[8] U.S. Dep't of Justice, Antitrust Div., Corporate Leniency Policy (Aug. 10, 1993), available at
http://www.justice.gov/atr/public/guidelines/0091.htm (requiring disclosure of wrongdoing "with
candor and completeness").
[9] Leah Nylen, Recidivism added more than $100 million to Bridgestone fine, prosecutor says,
MLex (June 13, 2014).
[10] As of this writing, only the aggregate fine for the three companies has been publically
announced.
[11] We tabulated the average prison sentence using publicly available data reflecting total prison
days sentenced and total number of defendants receiving prison sentences during each fiscal year. For
the underlying data for years prior to FY2014, see U.S. Dep't of Justice, Antitrust Div., Antitrust
Division Workload Statistics, FY2004–2013 [hereinafter FY 2004–2013 Workload Statistics],
available at http://www.justice.gov/atr/public/workload-statistics.pdf; U.S. Dep't of Justice, Antitrust
Div., Antitrust Division Workload Statistics, FY 2003–2012 [hereinafter FY 2003–2012 Workload
Statistics] U.S. Dep't of Justice, Antitrust Div., Antitrust Division Workload Statistics, FY 2002–
2011 [hereinafter FY 2002–2011 Workload Statistics]; U.S. Dep't of Justice, Antitrust Div., Antitrust
Division Workload Statistics, FY 2001–2010 [hereinafter FY 2001–2010 Workload Statistics].
43
[12] See infra Section I.A.3.e.
[13] The underlying data for years before FY 2012 can be found in the Antitrust Division Workload
Statistics. See supra note 11.
[14] See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.a.
[15] Eric Holder, Attorney General, Speech at Auto Parts Press Conference (Sep. 26, 2013),
available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1309261.html.
[16] U.S. Dep't of Justice, Antitrust Div., Division Update Spring 2012, available at
http://www.justice.gov/atr/public/division-update/2012/criminal-program.html.
[17] Press Release, U.S. Dep't of Justice, Bridgestone Corp. Agrees to Plead Guilty to Price Fixing
on Automobile Parts Installed in U.S. Cars (Feb. 13, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/303743.htm.
[18] Id.
[19] Press Release, U.S. Dep't of Justice, Bridgestone Corp. Executive Agreed to Plead Guilty for
Fixing Prices and Rigging Bids on Auto Parts Installed in U.S. Cars (Apr. 16, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/305235.htm.
[20] Press Release, U.S. Dep't of Justice, Three Bridgestone Corp. Executives Indicted for Roles in
Fixing Prices and Rigging Bids on Auto Parts Installed in U.S. Cars (Apr. 15, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/305205.htm.
[21] Press Release, U.S. Dep't of Justice, Kotio Manufacturing Co. Ltd. Agrees to Plead Guilty to
Price Fixing on Automobile Parts Installed in U.S. Cars (Jan. 16, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/303036.htm.
[22] Press Release, U.S. Dep't of Justice, Aisan Industry Co. Ltd. Agrees to Plead Guilty to Price
Fixing on Automobile Parts Installed in U.S. Cars (Feb. 3, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/303363.htm.
[23] Press Release, U.S. Dep't of Justice, Japanese Automotive Parts Manufacturer Agrees to Plead
Guilty to Price Fixing and Bid Rigging on Automobile Parts Installed in U.S. Cars (Apr. 23, 2014),
available at http://www.justice.gov/atr/public/press_releases/2014/305347.htm.
[24] Press Release, U.S. Dep't of Justice, Former President and Vice President of Diamond Electric
Agree to Plead Guilty to Participating in Auto Parts Price-Fixing Conspiracy (Jan. 31, 2014), available
at http://www.justice.gov/atr/public/press_releases/2014/303331.htm.
[25] Id.
[26] Id.
44
[27] Press Release, U.S. Dep't of Justice, Former Top Executive of Japanese Automotive Parts
Manufacturer Indicted for Role in Conspiracy to Fix Prices (June 5, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/306344.htm.
[28] Press Release, U.S. Dep't of Justice, Former Denso Corp. Executive Agrees to Plead Guilty to
Obstructing
Automotive
Parts
Investigation
(Feb.
20,
2014),
available
at
http://www.justice.gov/atr/public/press_releases/2014/303822.htm.
[29] Press Release, U.S. Dep't of Justice, Japanese Automotive Parts Manufacturer Executive
Indicted For Role in Conspiracy to Fix Prices and For Obstruction of Justice (May 22, 2014), available
at http://www.justice.gov/atr/public/press_releases/2014/306153.htm.
[30] Press Release, U.S. Dep't of Justice, Former Denso Corp. Executive Agrees to Plead Guilty to
Obstructing
Automotive
Parts
Investigation
(Feb.
20,
2014),
available
at
http://www.justice.gov/atr/public/press_releases/2014/303822.htm.
[31] Press Release, U.S. Dep't of Justice, Three Former Rabobank Traders Charged With
Manipulating Yen LIBOR (Jan. 13, 2014), available at http://www.justice.gov/atr/public/press_
releases/2014/302973.htm.
[32] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.b.
[33] Press Release, U.S. Dep't of Justice, Former Rabobank Trader Pleads Guilty For Scheme To
Manipulate Yen LIBOR (June 10, 2014), available at http://www.justice.gov/atr/public/press_
releases/2014/306471.htm.
[34] Id.
[35] Tom Schoenberg, U.S. Said to Open Criminal Probe of FX Market Rigging, Bloomberg News
(Oct. 12, 2013), available at http://www.bloomberg.com/news/2013-10-11/u-s-said-to-open-criminalprobe-of-fx-market-rigging.html.
[36] See, e.g., Arno Schuetze and Jamie McGeever, RPT-UPDATE 3-Commerzbank fires one forex
trader and suspends another-sources,
Reuters
(May 21,
2014),
available at
http://www.reuters.com/article/2014/05/21/commerzbank-forex-idUSL6N0O71NP20140521; Paritosh
Bansal and Emily Flitter, Exclusive: Deutsche fires three New York forex traders -source, Reuters
(Feb. 4, 2014), available at http://www.reuters.com/article/2014/02/04/us-deutschebank-forexidUSBREA131SP20140204.
[37] Press Release, U.S. Dep't of Justice, Three Foam Manufacturers Plead Guilty in Price Fixing
Scheme (June 27, 2014), available at http://www.justice.gov/opa/pr/2014/June/14-at-678.html.
[38] Press Release, U.S. Dep't of Justice, AU Optronics Corporation Executive Sentenced for Role in
LCD Price-Fixing Conspiracy (Apr. 29, 2013), available at http://www.justice.gov/atr/public/press_
releases/2013/296336.htm.
45
[39] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.d.
[40] Gibson Dunn, 2013 Mid-Year Criminal Antitrust and Competition Law Update at A.2.b.
[41] Order, United States v. Leung, No. 13-10242 (9th Cir. Oct. 23, 2013), ECF No. 22.
[42] Press Release, U.S. Dep't of Justice, Former Executive Convicted for Role in Price-Fixing
Conspiracy Involving Coastal Freight Services Between the Continental United States and Puerto Rico
(Jan. 29, 2013), available at http://www.justice.gov/atr/public/press_releases/2013/291962.htm.
[43] Press Release, U.S. Dep't of Justice, Former Sea Star Line President Sentenced to Serve Five
Years in Prison for Role in Price-Fixing Conspiracy Involving Coastal Freight Services Between the
Continental
United
States
and
Puerto
Rico
(Dec.
6,
2013),
available
at
http://www.justice.gov/atr/public/press_releases/2013/302027.pdf.
[44] Beth Winegarner, Ex-Sea Star Prez Gets Longest-Ever Antitrust Sentence, Law360 (Dec. 11,
2013), available at http://www.law360.com/articles/495165/ex-sea-star-prez-gets-longest-everantitrust-sentence.
[45] United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Mar. 21, 2013), ECF No. 1 at 4,
available at http://www.justice.gov/atr/cases/f295300/295373.pdf.
[46] United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Apr. 3, 2014), ECF No. 81 at 11-12.
[47] Id. As cited in Farmer's brief, the guidelines state that " [w]here there is an ongoing parallel
civil proceeding in which Department civil attorneys are participating, such as a qui tam case, the civil
case files should also be reviewed.'" Id. at 12 (quoting U.S. Dep't of Justice, Memorandum for
Department Prosecutors, Jan. 4, 2010, at ¶ B.4. (attached as Ex. 6 to ECF No. 81)).
[48] United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Apr. 16, 2014), ECF No. 97 at 8-9.
[49] Id. at 10.
[50] United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Apr. 16, 2014), ECF No. 101.
[51] Id. at 3.
[52] See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Apr. 23, 2014), ECF No. 109.
[53] See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. June 17, 2014), ECF No. 149.
[54] See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.c.
[55] Press Release, U.S. Dep't of Justice, Three Former UBS Executives Sentenced to Serve Time in
Prison for Frauds Involving Contracts Related to the Investment of Municipal Bond Proceeds (July 24,
2013), available at http://www.justice.gov/opa/pr/2013/July/13-at-839.html.
46
[56] Id.
[57] Kurt Orzeck, Ex-UBS Bankers Denied Retrial Over Muni Bid-Rigging, Law360 (May 15, 2014),
available at http://www.law360.com/articles/538529/ex-ubs-bankers-denied-retrial-over-muni-bidrigging.
[58] United States v. Ghavami, et al., No. 10-cr-01217 (S.D.N.Y. Sept. 16, 2013), ECF Nos. 404,
406.
[59] Id., ECF Nos. 457, 459.
[60] Id., ECF No. 474 at 6-12, 37.
[61] Id., ECF Nos. 475, 477, 479.
[62] Richard Vanderford, Ex-UBS employees ask for bail pending appeal of muni-bond convictions,
MLex
Market
Intelligence,
at
1-2
(June
17,
2014),
available
at
http://www.mlex.com/US/Content.aspx?ID=549290.
[63] See id. at 2.
[64] United States v. Heinz, et al., No. 13-3296 (2d. Cir. June 20, 2014), ECF No 71.
[65] Id.
[66] See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.c.
[67] United States v. Grimm, et al., 738 F.3d 498, 504 (2d Cir. 2013).
[68] Id. at 501-02.
[69] United States v. Carollo, et al., No. 10-cr-654 (HB) (S.D.N.Y. Nov. 20, 2012), ECF No. 285 at
11.
[70] Press Release, U.S. Dep't of Justice, Three Former Financial Services Executives Sentenced To
Serve Time in Prison for Roles in Conspiracies Involving Investment Contracts for the Proceeds of
Municipal Bonds (Oct. 18, 2012), available at http://www.justice.gov/opa/pr/2012/October/12-at1258.html.
[71] Grimm, 738 F.3d at 504.
[72] Id.
[73] Id.
[74] United States v. Grimm, et al., No. 12-4310 (2d Cir. Jan. 22, 2014), ECF No. 241.
47
[75] See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.3.b.
[76] Press Release, U.S. Dep't of Justice, Two Northern California Real Estate Investors Charged
with Bid Rigging at Public Foreclosure Auctions (Mar. 11, 2014), available at
http://www.justice.gov/opa/pr/2014/March/14-at-255.html; Press Release, U.S. Dep't of Justice,
Northern California Real Estate Investor Agrees to Plead Guilty to Bid Rigging and Fraud at Public
Foreclosure Auctions (Feb. 25, 2014), available at http://www.justice.gov/opa/pr/2014/February/14-at201.html; Press Release, U.S. Dep't of Justice, Three Northern California Real Estate Investors Agree
to Plead Guilty to Bid Rigging at Public Foreclosure Auctions (Jan. 2, 2014), available at
http://www.justice.gov/atr/public/press_releases/2014/302717.htm.
[77] Press Release, U.S. Dep't of Justice, Two Northern California Real Estate Investors Charged
with Bid Rigging at Public Foreclosure Auctions (Mar. 11, 2014), available at
http://www.justice.gov/opa/pr/2014/March/14-at-255.html.
[78] Leah Nylen, DOJ seeks to move forward with sentencing in real-estate foreclosure case despite
appeal, MLex (July 2, 2014), available at http://www.mlex.com/US/Content.aspx?ID=555721.
[79] Press Release, U.S. Dep't of Justice, Two Real Estate Investors Convicted for Roles in BidRigging Conspiracy in San Joaquin County, Calif. Real Estate Foreclosure Auctions (Mar. 11, 2014),
available at http://www.justice.gov/atr/public/press_releases/2014/304304.htm.
[80] Press Release, U.S. Dep't of Justice, Georgia Real Estate Investor Pleads Guilty to Bid Rigging
and
Fraud
at
Public
Foreclosure
Auctions
(Apr.
17,
2014),
available
at
http://www.justice.gov/opa/pr/2014/April/14-at-402.html; Press Release, U.S. Dep't of Justice, Georgia
Real Estate Investor Pleads Guilty to Bid Rigging and Fraud at Public Real Estate Foreclosure
Auctions
(Feb.
20,
2014),
available
at
http://www.justice.gov/atr/public/press_
releases/2014/303834.htm.
[81] Press Release, U.S. Dep't of Justice, Georgia Real Estate Investor Pleads Guilty to Bid Rigging
and
Fraud
at
Public
Foreclosure
Auctions
(Apr.
17,
2014),
available
at
http://www.justice.gov/opa/pr/2014/April/14-at-402.html.
[82] Press Release, U.S. Dep't of Justice, Two Alabama Real Estate Investors and Their Company
Sentenced for Their Roles in Bid-Rigging and Mail Fraud Conspiracies Involving Real Estate
Purchased
at
Public
Foreclosure
Auctions
(May
20,
2013),
available
at
http://www.justice.gov/opa/pr/2013/May/13-at-585.html.
[83] Press Release, U.S. Dep't of Justice, Former New York Tax Liens Investment Company
Executive Pleads Guilty for Role in Bid Rigging Scheme at Municipal Tax Lien Auctions (May 12,
2014), available at http://www.justice.gov/atr/public/press_releases/2014/305817.htm.
[84] See Press Release, U.S. Dep't of Justice, Former Project Manager Sentenced to Serve Time in
Prison for Role in Bid Rigging and Other Fraudulent Schemes Involving Two EPA Superfund Sites in
48
New Jersey (March 3,
releases/2014/304133.htm.
2014),
available
at
http://www.justice.gov/atr/public/press_
[85] See infra Section I.A.4.c.
[86] U.S. Dep't of Justice, Antitrust Div., Division Update Spring 2014, available at
http://www.justice.gov/atr/public/division-update/2014/criminal-leadership.html.
[87] See Joel M. Athey, Vince Farhat, and Nicholas B. Meltzer, United States: DOJ Shifts Stance On
False Statements Prosecutions, Mondaq (Jun. 2, 2014), available here.
[88] Brief of Respondent in Opposition, Natale v. United States, No. 13-744 (March 14, 2014).
[89] Harry Phillips, US extradites first ever antitrust defendant, Global Competition Review (Apr. 4,
2014), available at http://globalcompetitionreview.com/news/article/35699/us-extradites-first-everantitrust-defendant.
[90] Harry Phillips, Italian marine hose exec pleads guilty but will still appeal extradition for
"discrimination",
Global
Competition
Review
(Apr.
25,
2014),
available
at
http://globalcompetitionreview.com/usa/article/35839/italian-marine-hose-exec-pleads-guilty-willappeal-extradition-discrimination.
[91] Melissa Lipman, DOJ Official Warns Extradition 'Safe Havens' Fading, Law360 (Jun. 5, 2014),
available
at
http://www.law360.com/articles/545218/doj-official-warns-extradition-safe-havensfading.
[92] W. Michael G. Osborne, Canada: US Obtains First Ever Extradition From Canada On Antitrust
Charges, Mondaq (May 14, 2014), available at http://www.mondaq.com/canada/x/313430/
Antitrust+Competition/US+Obtains+First+Ever.
[93] U.S. Dep't of Justice and Federal Trade Commission, Antitrust Policy Statement on Sharing of
Cybersecurity Information (Apr. 10, 2014), available at http://www.justice.gov/atr/public/guidelines/
305027.pdf.; see also Harry Phillips, DoJ & FTC approve cybersecurity information sharing, Global
Competition Review (Apr. 10, 2014), available at http://globalcompetitionreview.com/usa/article/
35740/doj-ftc-approve-cybersecurity-information-sharing/.
[94] Press Release, U.S. Department of Justice, Readout of Assistant Attorney General Bill Baer's
Meeting with International Competition Network Members (Mar. 25, 2014), available at
http://www.justice.gov/opa/pr/2014/March/14-at-308.html.
[95] Leah Nylen, DOJ Prosecutor to Visit JFTC as Part of Exchange Program, MLex, (June 10,
2014), available at http://www.mlex.com/US/Content.aspx?ID=546832.
49
[96] Philip Giordano, Here Comes Tougher International Antitrust Enforcement, Forbes Leadership
Forum (June 9, 2014), available at http://www.forbes.com/sites/forbesleadershipforum/2014/06/09/
here-comes-tougher-international-price-fixing-enforcement/.
[97] Id.
[98] Faaez Samadi, Japan Raids Capacitor Companies, Global Competition Review (June 25, 2014),
available at http://globalcompetitionreview.com/news/article/36265/japan-raids-capacitor-companies/;
Philip Giordano, Here Comes Tougher International Antitrust Enforcement, Forbes Leadership Forum
(June 9, 2014), available at http://www.forbes.com/sites/forbesleadershipforum/2014/06/09/herecomes-tougher-international-price-fixing-enforcement/.
[99] Philip Giordano, Here Comes Tougher International Antitrust Enforcement, Forbes Leadership
Forum (June 9, 2014), available at http://www.forbes.com/sites/forbesleadershipforum/2014/06/09/
here-comes-tougher-international-price-fixing-enforcement/; Faaez Samadi and Harry Phillips, NDRC
and DOJ Likely Cooperating on Capacitor Investigation, Global Competition Review (May 6, 2014),
available at
http://globalcompetitionreview.com/news/article/35892/ndrc-doj-likely-cooperatingcapacitor-investigation/.
[100] See Order Granting R'hng (ECF No. 58).
[101] While the Second Circuit joined the Seventh Circuit's standard articulated in Minn-Chem, it
observed a tension between that standard and the decision in Motorola Mobility, noting that " [t]here is
nothing inherent in the nature of outsourcing or international supply chains that necessarily prevents
the transmission of anticompetitive harms or renders any and all domestic effects impermissibly
remote and indirect." This tension may well be resolved in the forthcoming Motorola decision.
[102] United States v. Hsiung, No. 12-10492, at *28 (9th Cir. July 10, 2014).
[103] Id. at *33.
[104] Id.
[105] Id. at *41.
[106] Id. at *36.
[107] See United States Sentencing Commission, Federal Register Notice of Proposed Priorities and
Request for Comment (June 2, 2014), available at http://www.ussc.gov/sites/default/files/pdf/
amendment-process/federal-register-notices/20140602_FR_Proposed_Priorities.pdf.
[108] Kurt Orzek, Sentencing Commission Considers Hike of Price-Fixing Fines, Law360 (July 7,
2014),
available at http://www.law360.com/whitecollar/articles/555212/sentencing-commissionconsiders-hike-of-price-fixing-fines.
50
[109] The American Antitrust Institute, Letter from Albert A. Foer to United States Sentencing
Commission (July 8, 2013), available at http://www.antitrustinstitute.org/sites/default/
files/USSCAAILetter.pdf.
[110] J.M. Connor & R.H. Lande, Cartels as Rational Business Strategy: Crime Pays, The American
Antitrust Institute (Nov. 26, 2012), available at http://www.antitrustinstitute.org/sites/default/
files/CONNOR.LANDE_.34.2.pdf.
[111] We have previously reported on this investigation in the 2013 Year-End Update and the 2013
Mid-Year Update. See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update
at I.B; Gibson Dunn, 2013 Mid-Year Criminal Antitrust and Competition Law Update at B.2.e.
[112] Press Release, Canadian Competition Bureau, Japanese Bearings Manufacturer Fined $4.5
Million (Jan. 30, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cbbc.nsf/eng/03652.html.
[113] Press Release, Canadian Competition Bureau, Panasonic Fined $4.7 Million for Rigging Bids
(Feb. 20, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03669.html.
[114] Press Release, Canadian Competition Bureau, Competition Bureau lays criminal charges
related
to
infrastructure
projects
in
Quebec
(Jan.
27,
2014),
available
at
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03645.html.
[115] Press Release, Canadian Competition Bureau, Fourth Guilty Plea in the Competition Bureau's
Investigation
in
Ocean
Freight
Industry
(Apr.
9,
2014),
available
at
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03720.html; Press Release, Competition
Bureau Investigation in Ocean Freight Industry Results in $1M Fine for Price-fixing (Apr. 8, 2014),
available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03718.html.
[116] Press Release, Canadian Competition Bureau, Criminal Charges Laid Against a Company and
Six Individuals Involved in Bid-rigging Scheme (May 2, 2014), available at
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03734.html.
[117] Richard Vanderford, Canada's charges a 'mistake,' bid-rigging defendant says, MLex (May 16,
2014), available at http://www.mlex.com/US/Content.aspx?ID=537205; Richard Vanderford: US
resident faces unprecedented extradition to Canada for alleged bid-rigging, MLex (May 7, 2014),
available at http://www.mlex.com/US/content.aspx?ID=534447.
[118] Id.; Press Release, Canadian Competition Bureau, Criminal Charges Laid Against a Company
and Six Individuals Involved in Bid-rigging Scheme (May 2, 2014), available at
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03734.html.
[119] Richard Vanderford, Canada's charges a 'mistake,' bid-rigging defendant says, MLex (May 16,
2014), available at http://www.mlex.com/US/Content.aspx?ID=537205.
51
[120] Richard Vanderford, Gasoline price-fixing defendants ask Canada high court to keep wiretap
evidence private, MLex (Apr. 24, 2014), available at http://www.mlex.com/US/Content.
aspx?ID=529984.
[121] Leah Nylen, Canada's Competition Bureau looking to enter MOU with China's antitrust
regulators this year, MLex (May 21, 2014), available at http://www.mlex.com/US/
Content.aspx?ID=538915.
[122] Henry Vane, Huge fine and first structural remedy for Brazil cement cartel, Global
Competition Review (May 29, 2014), available at http://globalcompetitionreview.com/news/article/
36077/huge-fine-first-structural-remedy-brazil-cement-cartel/.
[123] Alex Lawson, Brazil Hits 6 Cement Cos. With $1.4B In Cartel Fines, Law 360 (May 29, 2014),
available at http://www.law360.com/articles/542551/brazil-hits-6-cement-cos-with-1-4b-in-cartelfines.
[124] Henry Vane, Huge fine and first structural remedy for Brazil cement cartel, Global
Competition Review (May 29, 2014), available at http://globalcompetitionreview.com/news/article/
36077/huge-fine-first-structural-remedy-brazil-cement-cartel/.
[125] Dan Ivers, Brazil Hits 2 Freight Airlines With $35M In Bid-Rigging Fines, Law 360 (Feb. 20,
2014), available at http://www.law360.com/articles/511626/brazil-hits-2-freight-airlines-with-35m-inbid-rigging-fines.
[126] Harry Phillips, CADE announces subway case findings, Global Competition Review (Mar. 21,
2014), available at http://globalcompetitionreview.com/news/article/35575/cade-announces-subwaycase-findings/.
[127] Lulu Rumsey, CADE dismisses construction cartel allegation, Global Competition Review
(Apr. 10, 2014), available at http://globalcompetitionreview.com/news/article/35736/cade-dismissesconstruction-cartel-allegation/.
[128] Melissa Lipman, Brazil's Antitrust Watchdog Takes on Metal Detector Cartel, Law 360 (Jan. 3,
2014), available at http://www.law360.com/articles/498218/brazil-s-antitrust-watchdog-takes-onmetal-detector-cartel.
[129] Katy Oglethorpe, CADE raids resin makers, Global Competition Review (May 23, 2014),
available at http://globalcompetitionreview.com/news/article/36014/cade-raids-resin-makers/.
[130] Allissa Wickham, Japan, Brazil Antitrust Regulators Ink Cooperation Deal, Law 360 (Apr. 25,
2014), available at http://www.law360.com/competition/articles/532091?nl_pk=3d4ec931-e27a-4bd58331-aa218b2f596d&utm.
52
[131] Press Release, National Competition Agency, TDLC condemns intercity transport companies
for collusion, available at http://www.fne.gob.cl/english/2014/01/31/tdlc-condemns-intercitytransport-companies-for-collusion/#more-1771.
[132] Michael Jacobs & Felipe Irarrazabal Ph, Chile: National Economic Prosecutor's Office, Global
Competition Review (2014), available at http://globalcompetitionreview.com/reviews/54/sections/
185/chapters/2156/chile-national-economic-prosecutors-office/.
[133] Press Release, Superintendence of Industry and Commerce, SIC Ad Hoc ceases Bogota garbage
collection scheme (Apr. 23, 2014), available at http://www.sic.gov.co/es/el-superintendente-deindustria-y-comercio-ad-hoc-ordena-cesar-el-esquema-de-recoleccion-de-basuras-vigente-en-laciudad-de-bogota1.
[134] Press Release, SC, SC multa a AIG Vida y a Hoteles de Centro América por entregar
información inexacta, available at http://www.sc.gob.sv/pages.php?Id=1450; see also CPI, El
Salvador: Competition Superintendence (SC ) fine to AIG Vida and Hoteles en Centro América for
providing inaccurate information (May 5, 2014), available at https://www.competitionpolicy
international.com/el-salvador-competition-superintendence-sc-fine-to-aig-vida-and-hoteles-en-centroam-rica-for-providing-inaccurate-information/.
[135] Press Release, SC, SC multa a AIG Vida y a Hoteles de Centro América por entregar
información inexacta, available at http://www.sc.gob.sv/pages.php?Id=1450; Press Release, SC, SC
multa a Hoteles e Inversiones S.A de C.V. por entregar información inexacta, available at
http://www.sc.gob.sv/pages.php?Id=1461; see also CPI, El Salvador: Competition Superintendence
(SC ) fine to AIG Vida and Hoteles en Centro América for providing inaccurate information (May 5,
2014),
available
at
https://www.competitionpolicyinternational.com/el-salvador-competitionsuperintendence-sc-fine-to-aig-vida-and-hoteles-en-centro-am-rica-for-providing-inaccurateinformation/.
[136] Anthony Harrup, Mexico's President Sends New Competition Bill to Congress, Wall Street
Journal (Feb. 19, 2014), available at http://online.wsj.com/article/BT-CO-20140219-714483.html.
[137] Press Release, Federal Competition Commission, Nueva Ley Federal de Competencia
Económica
[New
federal
competition
law]
(May
23,
2014),
available
at
http://www.cfc.gob.mx/cofece/index.php/prensa/noticias/nueva-ley-federal-de-competenciaeconomica.
[138] Press Release, Federal Competition Commission, COFECE fines global network of
refrigeration
compressor
manufacturers
(Mar.
11,
2014),
available
at
http://www.cfc.gob.mx/cofece/index.php/prensa/noticias/multa-cofece-a-red-global-de-fabricantes-decompresores-para-refrigeracion. The public version of the resolution is available at
http://www.cfc.gob.mx:8080/cfcresoluciones/docs/Asuntos%20Juridicos/V85/19/1797812.pdf.
53
[139] Anadina, Indecopi multa a gremio de transportistas de carga de Áncash por concertación de
precios,
available
at
http://www.andina.com.pe/espanol/noticia-indecopi-multa-a-gremiotransportistas-carga-ancash-concertacion-precios-492474.aspx#.U7bhhJhOUoZ.
[140] Press Release, Indecopi, INDECOPI investiga presunta concertación del precio del taxi
colectivo entre Tacna y Arica, available at http://www.indecopi.gob.pe/0/modulos/NOT/
NOT_DetallarNoticia.aspx?PFL=0&NOT=804.
[141] Press Release, Indecopi, El INDECOPI inicia procedimiento sancionador a 19 empresas
comercializadoras de GLP vehicular, available at http://www.indecopi.gob.pe/0/modulos/NOT/
NOT_DetallarNoticia.aspx?PFL=0&NOT=826.
[142] Pallavi Guniganti, Peru raids fuel companies, Global Competition Review (June 28, 2013),
available at http://globalcompetitionreview.com/news/article/33724/peru-raids-fuel-companies/.
[143] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.A.1.
[144] Press Release, European Comm'n, Antitrust: Commission fines producers of car and truck
bearings €953 million in cartel settlement (Mar. 19, 2014), available at http://europa.eu/rapid/pressrelease_IP-14-280_en.htm.
[145] Id.
[146] Press Release, European Comm'n, Antitrust: Commission fines producers of wire harnesses
€141 million in cartel settlement (July 10, 2013), available at http://europa.eu/rapid/press-release_IP13-673_en.htm.
[147] Press Release, European Comm'n, Antitrust: Commission fines producers of foam for
mattresses, sofas and car seats €114 million in cartel settlement (Jan. 29, 2014), available at
http://europa.eu/rapid/press-release_IP-14-88_en.htm.
[148] Press Release, European Comm'n, Antitrust: Commission confirms unannounced inspections in
the sector of automotive exhaust systems (Mar. 25, 2014), available at http://europa.eu/rapid/pressrelease_MEMO-14-218_en.htm.
[149] Press Release, European Comm'n, Antitrust: Commission fines three producers of canned
mushrooms €32 million in cartel settlement (June 25, 2014), available at http://europa.eu/rapid/pressrelease_IP-14-727_en.htm.
[150] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.A.1.a.
[151] Press Release, European Comm'n, Antitrust: Commission sends Statement of Objections to
Crédit Agricole, HSBC and JPMorgan for suspected participation in euro interest rate derivatives cartel
(May 20, 2014), available at http://europa.eu/rapid/press-release_IP-14-572_en.htm.
54
[152] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.A.1.a.
[153] See also id.
[154] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.A.4
[155] See, e.g., Gaspard Sebag et al., Probe Breakthrough Elusive a Year After EU Raids Big Oil,
Bloomberg News (May 12, 2014), available at http://www.bloomberg.com/news/2014-05-11/probebreakthrough-elusive-a-year-after-eu-raids-big-oil.html.
[156] See, e.g., Aoife White & Isis Almeida, EU Shuts Sugar Price-Fixing Investigation on Lack of
Evidence, Bloomberg News (Feb. 19, 2014), available at http://www.bloomberg.com/news/2014-0219/eu-shuts-sugar-price-fixing-investigation-on-lack-of-evidence.html.
[157] Press Release, European Comm'n, Antitrust: Commission confirms unannounced inspections in
the sugar sector (May 15, 2013), available at http://europa.eu/rapid/press-release_MEMO-13443_en.htm.
[158] Parliamentary Questions, Answer given by Mr. Almunia on behalf of the Comission, European
Parliament (Apr. 10 2014), available at http://www.europarl.europa.eu/sides/getAllAnswers.do?
reference=E-2014-001978&language=EN.
[159] See Case C-37/13P Nexans, Ruling of 25 June 2014 [Not yet reported], available
at http://curia.europa.eu/juris/liste.jsf?language=en&num=C-37/13.
[160] Case C-578/11, Deltafina SpA v Comm'n, (June
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-578/11.
12
2014),
available
at
[161] Case T-12/06, Deltafina SpA v Comm'n, a proceeding under Article 81(1) of the EC Treaty
2011 ECR II-05639, available at http://curia.europa.eu/juris/liste.jsf?num=T-12/06&language=en.
[162] Commission Decision 20/X/2005, relating to a proceeding under Article 81(1) of the EC Treaty
(Case COMP/C.38.281/B.2 – Raw tobacco Italy), available at http://ec.europa.eu/competition/
antitrust/cases/dec_docs/38281/38281_508_1.pdf.
[163] Case C-557/12, Kone AG and Others v ÖBB Infrastruktur AG, (June 5, 2014), available at
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-557/12.
[164] Cases T-56/09 and T-73/09, Saint-Gobain Glass France SA and Others v Comm'n, available at
http://curia.europa.eu/juris/documents.jsf?num=T-56/09.
[165] Press Release, European Comm'n, Antitrust: Commission fines car glass producers over €1.3
billion for market sharing cartel (Nov. 12, 2008), available at http://europa.eu/rapid/press-release_IP08-1685_en.htm?locale=en.
55
[166] Press Release, General Court of the European Union, The General Court reduces the fine
imposed on the Saint-Gobain group for the car glass cartel from €880 million to €715 million (Mar. 27,
2014), available at http://europa.eu/rapid/press-release_CJE-14-43_en.htm.
[167] Press Release, European Comm'n, Antitrust: Commission extends validity of special
competition regime for liner shipping consortia until April 2020 (June 24, 2014), available at
http://europa.eu/rapid/press-release_IP-14-717_en.htm.
[168] European Comm'n, Exemption for certain agreements between liner shipping companies
("consortia") (June 1, 2011), available at http://europa.eu/legislation_summaries/competition/specific_
sectors/transport/cc0009_en.htm.
[169] Press Release, European Comm'n, Antitrust: Commission adopts new Block Exemption
Regulation for liner shipping consortia (Sept. 28, 2009), available at http://europa.eu/rapid/pressrelease_IP-09-1367_en.htm?locale=en.
[170] Press Release, European Comm'n, Antitrust: Commission extends validity of special
competition regime for liner shipping consortia until April 2020 (June 24, 2014), available at
http://europa.eu/rapid/press-release_IP-14-717_en.htm.
[171] European Comm'n, Proposal for a Directive on Antitrust Damages Actions (April 17, 2014),
available at http://ec.europa.eu/competition/antitrust/actionsdamages/proposed_directive_en.html.
[172] European Comm'n, Frequently Asked Questions: Commission proposes legislation to facilitate
damage claims by victims of antitrust violations (June 11, 2013), available at
http://europa.eu/rapid/press-release_MEMO-13-531_en.htm.
[173] European Comm'n, Proposal for a Directive on Antitrust Damages Actions (April 17, 2014),
available at http://ec.europa.eu/competition/antitrust/actionsdamages/proposed_directive_en.html.
[174] European Comm'n, Memorandum, Antitrust: Commission adopts revised safe harbours for
minor agreements ("De Minimis Notice") and provides guidance on "by object" restrictions of
competition--Frequently asked questions (June 25, 2014), available at http://europa.eu/rapid/pressrelease_MEMO-14-440_en.htm?locale=FR.
[175] See Commission Staff Working Document, Guidance on restrictions of competition "by object"
for the purpose of defining which agreements may benefit from the De Minimis Notice, at 5, 13 (June
25,
2014),
available
at
http://ec.europa.eu/competition/antitrust/legislation/de_minimis_
notice_annex.pdf.
[176] Hof van Beroep [HvB] [Court of Appeal] Brussels, Mar. 12, 2014, AR 2013/MR/6, available at
http://economie.fgov.be/nl/binaries/20140312_eindarrest_HvB_Brabomills_tcm325-245407.pdf.
[177] Press Release, Belgian Competition Authority, Het Auditoraat van de Belgische
Mededingingsautoriteit bevestigt de huiszoekingen bij verschillende ondernemingen actief in de sector
56
van industriële batterijen (Apr. 3, 2014),available in Dutch at http://economie.fgov.be/
nl/binaries/20140403_BMA_Persbericht_5_tcm325-245674.pdf, and in French at http://economie.
fgov.be/fr/binaries/20140403_ABC_Communiqu%C3%A9_presse_5_tcm326-245674.pdf.
[178] Press Release, Belgian Competition Authority, Het Auditoraat van de Belgische
Mededingingsautoriteit bevestigt de huiszoekingen bij verschillende ondernemingen actief in de sector
van
de
veevoeders
voor
kippen
(Apr.
3,
2014),
available
in
Dutch
at http://economie.fgov.be/nl/binaries/20140403_BMA_Persbericht_4_tcm325-245673.pdf, and in
French
at
http://economie.fgov.be/fr/binaries/20140403_ABC_Communiqu%C3%A9_
presse_4_tcm326-245673.pdf.
[179] Décret EFIX1404638D du 28 février 2014 portant nomination du président de l'Autorité de la
concurrence - M. Lassere (Bruno) [Decree EFIX1404638D of February 28, 2014 appointing the
president of the Autorité de la concurrence - M. Lassere (Bruno)] Journal Officiel de la République
Française [J.O.] [Official Gazette of France], March 1, 2014, available at
http://www.autoritedelaconcurrence.fr/doc/joe_20140301_0043.pdf.
[180] Décret EFIC1406117D du 19 Mars 2014 portant nomination de membres du collège de
l'Autorité de la concurrence [Decree EFIC1406117D of March 19, 2014 appointing members of the
Autorité de la concurrence] Journal Officiel de la République Française [J.O.] [Official Gazette of
France], March 20, 2014, available here.
[181] Décret EFIX1404638D du 28 février 2014 portant nomination du président de l'Autorité de la
concurrence - M. Lassere (Bruno) [Decree EFIX1404638D of February 28, 2014 appointing the
president of the Autorité de la concurrence - M. Lassere (Bruno)] Journal Officiel de la République
Française [J.O.] [Official Gazette of France], March 1, 2014, available at
http://www.autoritedelaconcurrence.fr/doc/joe_20140301_0043.pdf.
[182] Press Release, Republique Française Autorité de la Concurrence, 29th July 2004 : Bruno
Lasserre is appointed Chairman of the Conseil de la concurrence (July 29, 2004), available at
http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=134&id_article=335;
Id.
Organisation
–
Le
College,
available
at
http://www.autoritedelaconcurrence.fr/
user/standard.php?id_rub=33.
[183] Cour de cassation [Cass.] [supreme court for judicial matters] crim., Ruling No. 2996 of 25
June
2014
in
Case
13-81.471,
available
at:
http://www.courdecassation.fr/
jurisprudence_2/chambre_criminelle_578/2996_25_29591.html.
[184] See Press Release, European Commission, IP/09/137, Antitrust: Commission Fines Marine
Hose Producers € 131 Million for Market Sharing and Price-Fixing Cartel (Jan. 28, 2009), available at:
http://europa.eu/rapid/press-release_IP-09-137_en.htm; European Commission, EC Competition Policy
Newsletter, Number 2 – 2009, page 53 et seq., available at: http://ec.europa.eu/
competition/publications/cpn/cpn_2009_2.html.
57
[185] See Court of Appeals Frankfurt, order of Jan. 22, 2014, File No. 2 Ausl A 104/13; see also DOJ
Press Release of April 4, 2014, available at http://www.justice.gov/opa/pr/2014/April/14-at-340.html.
[186] See Press Release, Federal Cartel Office, Activities Report 2013 [not yet published in English
yet, contains also information on the FCO's activities in the first half of 2014] (Jul. 8, 2014), available
here.
[187] See Federal Cartel Office, Leniency Programme – Number of Leniency Applications Filed –
2001 to 2013, available here.
[188] See Press Release, Federal Cartel Office, Cartel Proceedings against Breweries Concluded with
Imposition of Further Fines (Apr. 2, 2014), available here.
[189] See Press Release, Federal Cartel Office, Bundeskartellamt Imposes Fines on Sugar
Manufacturers (Feb. 18, 2014), available here.
[190] See Press Release, Federal Cartel Office, Price Agreements between Wallpaper Manufacturers
Bundeskartellamt Imposes Fines of around 17 Million Euros (Feb. 25, 2014), available here.
[191] See Press Release, Federal Cartel Office, Düsseldorf Higher Regional Court Confirms Fines
against Melitta (Feb. 11, 2014), available here.
[192] See Press Release, Federal Cartel Office, Bundeskartellamt Imposes Fine on Account of
Customer Allocation Agreement Concerning Services Provided for Heat Exchangers Used in Power
Plants (Jul. 4, 2014), available here.
[193] Press Release, GVH, Restrictive agreements on the market of contact lenses (June 23, 2014),
available at http://www.gvh.hu/en//data/cms1028855/sk_96_2010_lezart_kontaktlencse_kartell_a.pdf.
[194] Case AWB 10/828 AWB 10/829, College of Appeals for Trade and Industry (Apr. 10, 2014),
available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:CBB:2014:118.
[195] Case ROT 13/867 & ROT 13/868, District Court of Rotterdam (Apr. 3, 2014), available at
http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2014:2273&keyword=ACM.
[196] Cases ROT 12/4807, 12/4808, 12/4810 & 12/4844, District Court of Rotterdam (Mar. 20,
2014), available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2014:2045.
[197] Press Release, UOKiK, Parliament Adopts New Antitrust Law (Jun. 18, 2014), available at
http://www.uokik.gov.pl/news.php?news_id=11074.
[198] See S.T.S., Nov. 7, 2013 (R.J., No. 5819) (Spain), available at http://www.poderjudicial.es/
search/documento/TS/6916038/Competencia%20desleal/20131223.
[199] See S.A.N., Apr. 21, 2014 (R.J., No. 1757) (Spain), available at http://audiencianacional.vlex.es/vid/-510313158; see also M.Á. Montero, La asociación de agencias de viajes se libra
58
de la multa de 440.000 euros, ABC (May 12, 2014), available at http://www.abc.es/localcanarias/20140512/abci-audiencia-agencias-viajes-201405112356.html.
[200] See CNMC Decision, Case S/0120/08 (July 31, 2010), available at http://www.cnmc.es/eses/competencia/buscadores/expedientes.aspx?num=S/0120/08&ambito=Conductas.
[201] See S.A.N., Apr. 15, 2014 (R.J., No. 1798) (Spain), available at http://audiencianacional.vlex.es/vid/-510313322.
[202] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.B.1.i.
[203] Guidance: Cartel offence prosecution guidance, Competition and Markets Authority (March 12,
2014), available at https://www.gov.uk/government/publications/cartel-offence-prosecution-guidance.
[204] Collection: CMA CA98 and cartels guidance, Competition and Markets Authority (March 31,
2014), available at https://www.gov.uk/government/collections/cma-ca98-and-cartels-guidance.
[205] Guidance: Guidance on the CMA's investigation procedures in Competition Act 1998 cases,
Competition
and
Markets
Authority
(March
12,
2014),
available
at
https://www.gov.uk/government/publications/guidance-on-the-cmas-investigation-procedures-incompetition-act-1998-cases.
[206] Competition and Markets Authority case: Criminal investigation into the supply of galvanised
steel tanks for water storage, Competition and Markets Authority (March 12, 2014), available at
https://www.gov.uk/cma-cases/criminal-investigation-into-the-supply-of-galvanised-steel-tanks-forwater-storage.
[207] Competition and Markets Authority case: Investigation into the supply of galvanised steel tanks
for water storage, Competition and Markets Authority (January 27, 2014), available at
https://www.gov.uk/cma-cases/investigation-into-the-supply-of-galvanised-steel-tanks-for-waterstorage.
[208] Competition and Markets Authority cases, Competition and Markets Authority (March 12,
2014), available at https://www.gov.uk/cma-cases?keywords=&case_type%5B%5D=ca98-and-civilcartels.
[209] Competition and Markets Authority case: Sports bras RPM investigation, Competition and
Markets Authority (June 13, 2014), available at https://www.gov.uk/cma-cases/sports-bras-rpminvestigation#change-log.
[210] Press Release, CMA issues no grounds for action decision in sports bras investigation,
Competition
and
Markets
Authority
(June
13,
2014),
available
at
https://www.gov.uk/government/news/cma-issues-no-grounds-for-action-decision-in-sports-brasinvestigation.
59
[211] Speech, Achieving a culture of compliance, Competition and Markets Authority and Alex
Chisholm (May 16, 2014), available at https://www.gov.uk/government/speeches/achieving-a-cultureof-compliance.
[212] Correspondence: Letter from the CMA to the motor industry about cartel enforcement,
Competition
and
Markets
Authority
(July
12,
2014),
available
at
https://www.gov.uk/government/publications/letter-from-the-cma-to-the-motor-industry-about-cartelenforcement.
[213] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at III.A.
[214] Press Release, Australian Competition & Consumer Commission (May 13, 2014), available at
http://www.accc.gov.au/media-release/3-million-penalty-for-bearings-cartel-conduct.
[215] Press Release, Australian Competition & Consumer Commission (May 28, 2014), available at
http://www.accc.gov.au/media-release/accc-takes-action-following-alleged-egg-cartel-attempt.
[216] Faaez Samadi, Mofcom Launches Industry-wide Sector Probes, Global Competition Review
(June 10, 2014), available at http://globalcompetitionreview.com/news/article/36151/mofcomlaunches-industry-wide-sector-probes/.
[217] Samuel Shen and Kazunori Takada, China launches anti-trust review across 80 industries,
includes
cars,
pharmaceuticals,
Reuters
(June
9,
2014),
available
at
http://www.reuters.com/article/2014/06/09/china-antitrust-idUSL4N0OQ1AB20140609.
[218] Faaez Samadi, Japan raids capacitor companies, Global Competition Review (June 25, 2014),
available at http://globalcompetitionreview.com/news/article/36265/japan-raids-capacitor-companies/.
[219] Faaez Samadi & Harry Phillips, NDRC and DoJ likely cooperating on capacitor investigation,
Global Competition Review (May 6, 2014), available at http://globalcompetitionreview.com/
news/article/35892/ndrc-doj-likely-cooperating-capacitor-investigation/.
[220] Press Release, Hong Kong Competition Commission, Competition Commission publishes a
paper "Getting Prepared for the Full Implementation of the Competition Ordinance" (May 26, 2014),
available at http://compcomm.hk/en/pdf/press/SScanner-KM-20140526-en.pdf.; Faaez Samadi, Hong
Kong sets out enforcement roadmap, Global Competition Review (May 29, 2014), available at
http://globalcompetitionreview.com/news/article/36059/hong-kong-sets-enforcement-roadmap/.
[221] Order, Competition Commission of India, Case No. 03/2012 (February 05, 2014), available at
http://www.cci.gov.in/May2011/OrderOfCommission/27/032012.pdf.
[222] Order, Competition Commission of India, Case No. 60/2012 (February 05, 2014), available at
http://www.cci.gov.in/May2011/OrderOfCommission/27/602012.pdf.
60
[223] Order, Case No. 0/22012 and Ref. Case No. 01/2013 (March 11, 2014), available at
http://www.cci.gov.in/May2011/OrderOfCommission/27/022012.pdf.
[224] Faaez Samadi, CCI opens railway cable investigation, Global Competition Review (Apr. 22,
2014), available at http://globalcompetitionreview.com/news/article/35795/cci-opens-railway-cableinvestigation/.
[225] Competition Appellate Tribunal (Apr. 22, 2014), available at http://compat.nic.in/
upload/PDFs/aprilordersApp2014/22_04_14.pdf.
[226] Press Release, Komisi Pengawas Persaingan Usaha, KPPU's Decision on the Case of Garlic's
Importation (March 20, 2014), available at http://eng.kppu.go.id/?p=2754.
[227] Press Release, Komisi Pengawas Persaingan Usaha, Six Big Corporations of Car Tire
Suspected on Cartel Practices (May 21, 2014), available at http://eng.kppu.go.id/?p=2825.
[228] Pingit Aria, Six Tire Producers Face US $2.1 Million Fines, Tempo.co (May 26, 2014),
available at http://en.tempo.co/read/news/2014/05/26/056580519/Six-Tire-Producers-Face-US21Million-Fines.
[229] Press Release, Japan Fair Trade Commission, The JFTC Issued Cease and Desist Orders and
Surcharge Payment Orders against Participants in Bidding for Overhead Transmission Line Works and
Underground Transmission Line Works Ordered by KEPCO (Jan. 31, 2014), available at
http://www.jftc.go.jp/en/pressreleases/yearly-2014/jan/140131.html.
[230] Press Release, Japan Fair Trade Commission, The JFTC Issued Cease and Desist Orders and
Surcharge Payment Orders against Participants in Biddings for Engineering Works and Paving Works
Ordered by Chiba Prefecture (Feb. 3, 2014), available at http://www.jftc.go.jp/en/pressreleases/yearly2014/Febrarry/140203.html.
[231] Press Release, Japan Fair Trade Commission, The JFTC Issued Cease and Desist Orders and
Surcharge Payment Orders against International Ocean Shipping Companies (Mar. 18, 2014),
available at http://www.jftc.go.jp/en/pressreleases/yearly-2014/March/140318.html.
[232] Press Release, Japan Fair Trade Commission, The JFTC Filed a Criminal Accusation on BidRigging Concerning Snow-Melting Equipment Engineering Works for Hokuriku Shinkansen Ordered
by the Japan Railway Construction, Transport and Technology Agency (Mar. 4, 2014), available at
http://www.jftc.go.jp/en/pressreleases/yearly-2014/March/140304.html.
[233] See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at III.F.
[234] Press Release, Japan Fair Trade Commission, The JFTC Issued Cease and Desist Orders and
Surcharge Payment Orders to Corrugated Board Manufacturers (June 19, 2014), available at
http://www.jftc.go.jp/en/pressreleases/yearly-2014/June/140619.html.
61
[235] Faaez Samadi, Japan Rips Up Cardboard Cartel, Global Competition Review (June 20, 2014),
available at http://globalcompetitionreview.com/news/article/36240/japan-rips-cardboard-cartel/.
[236] Faaez Samadi, Japan Raids Capacitor Companies, Global Competition Review (June 25,
2014), available at http://globalcompetitionreview.com/news/article/36265/japan-raids-capacitorcompanies/.
[237] Press Release, Japan Fair Trade Commission, New Commissioner of the JFTC (April 1, 2014),
available at http://www.jftc.go.jp/en/pressreleases/yearly-2014/apr/140401.html.
[238] Press Release, Japan Fair Trade Commission, The Japan Fair Trade Commission Concluded
Memorandum on Cooperation with the Administrative Council for Economic Defense of the
Federative Republic of Brazil (April 25, 2014), available at http://www.jftc.go.jp/en/
pressreleases/yearly-2014/apr/140425.html.
[239] Faaez Samadi, MyCC Opens New Cartel Probes, Global Competition Review (Jan. 6, 2014),
available at http://globalcompetitionreview.com/news/article/34968/mycc-opens-new-cartel-probes/.
[240] Faaez Samadi, Malaysia Breaks Ice Cartel, Global Competition Review (Feb. 24, 2014),
available at http://globalcompetitionreview.com/news/article/35308/malaysia-breaks-ice-cartel/.
[241] Press Release, Commerce Commission of New Zealand, Commission Completes Long
Running Trans-Tasman Cartel Case (Apr. 8, 2014), available at http://www.comcom.govt.nz/thecommission/media-centre/media-releases/detail/2014/commission-completes-long-running-transtasman-cartel-case.
[242] Press Release, Commerce Commission of New Zealand, Air Freight Cartel Nets Almost NZD
12 Million in Penalties (Apr. 8, 2014), available at http://www.comcom.govt.nz/thecommission/media-centre/media-releases/detail/2014/air-freight-cartel-nets-almost-12-million-inpenalties; see also Gibson Dunn, 2010 Year-End Criminal Antitrust Update at 8.
[243] Press Release, Commerce Commission of New Zealand, Carter Holt Harvey Fined for "Classic"
Price Fixing Breaches (Mar. 26, 2014), available at http://www.comcom.govt.nz/thecommission/media-centre/media-releases/detail/2014/carter-holt-harvey-fined-for-classic-price-fixingbreaches.
[244] Press Release, Competition Commission of Pakistan, CCP Stands Vindicated in ICH Decision
(June 18, 2014), available at http://www.cc.gov.pk/index.php?option=com_content&view=
article&id=354&Itemid=151.
[245] Press Release, Competition Commission of Pakistan, CCP's Reward Payment Regulations
Ensure Whistleblower's Secrecy: Dr. Joseph Wilson (Mar. 6, 2014), available at
http://www.cc.gov.pk/index.php?option=com_content&view=article&id=341&Itemid=151.
62
[246] Press Release, Competition Commission of Singapore, CCS Issues Proposed Infringement
Decision Against
11 Air Freight
Forwarders (Apr. 1, 2014),
available at
http://www.ccs.gov.sg/content/dam/ccs/PDFs/Media_Release/Media%20Release_CCS%20Issues%20
Proposed%20Infringement%20Decision%20Against%2011%20Air%20Freight%20Forwarders.pdf.
[247] Faaez Samadi, DHL first in the door in CCS freight probe, Global Competition Review (Apr.
23, 2014), available at http://globalcompetitionreview.com/news/article/35793/dhl-first-door-ccsfreight-probe/.
[248] Press Release, Competition Commission of Singapore, CCS Imposes Penalties on Ball Bearings
Manufacturers Involved in International Cartel (May 27, 2014), available at
http://www.ccs.gov.sg/content/dam/ccs/PDFs/Media_Release/Media%20Release_CCS%20fines%20B
all%20Bearings%20Manufacturers%20involved%20in%20International%20Cartel%20(27%20May%2
014)%20with%20link%20latest.pdf.
[249] Press Release, Korea Fair Trade Commission, KFTC Exposed and Sanctioned on Bid Rigging
of Daegu Metro Line 3 Turnkey/Alternative Construction (Mar. 24, 2014), available at
http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=20140530_KE_Press%20Release_Daegu%20Metro%20Bid%20Rigging.PDF.
[250] Henry Vane, KFTC stamps out more construction bid rigging, Global Competition Review
(Apr. 7, 2014), available at http://globalcompetitionreview.com/news/article/35705/kftc-stampsconstruction-bid-rigging/.
[251] Press Release, Korea Fair Trade Commission, Busan Subway Line 1 Extension (Apr. 11, 2014),
available
at
http://www.ftc.go.kr/news/policy/competeView.jsp?news_no=2148&news_div_cd=3&currpage=1&se
archKey=&searchVal=.
[252] Henry Vane, More bid-rigging fines in Korea, Global Competition Review (Mar. 4, 2014),
available at http://globalcompetitionreview.com/news/article/35369/more-bid-rigging-fines-korea/.
[253] Faaez Samadi, Korea sanctions sewage plant bid rigging, Global Competition Review (Apr.
30, 2014), available at http://globalcompetitionreview.com/news/article/35867/korea-sanctionssewage-plant-bid-rigging/.
[254] Faaez Samadi, KFTC fines turf bid riggers, Global Competition Review (June 2, 2014),
available at http://globalcompetitionreview.com/news/article/36097/kftc-fines-turf-bid-riggers/.
[255] Faaez Samadi, Korean courts put bid riggers in jail, Global Competition Review (Feb. 7,
2014), available at http://globalcompetitionreview.com/news/article/35195/korean-courts-put-bidriggers-jail/.
[256] Press Release, Taiwan Fair Trade Commission, April 2014 [Decisions] (April 9, 2014),
available at http://www.ftc.gov.tw/internet/english/doc/docDetail.aspx?uid=179&docid=13526.
63
[257] Id.
[258] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at IV.A.
[259] Deya Abaza, Egyptian court upholds Mobinil antitrust fine in landmark ruling (June 1, 2014),
available at http://english.ahram.org.eg/NewsContent/3/12/102676/Business/Economy/Egyptiancourt-upholds-Mobinil-antitrust-fine-in-l.aspx.
[260] Egyptian court upholds Mobinil antitrust fine in landmark ruling (June 2, 2014), available at
http://www.akhbarak.net/articles/15599862-Egyptian_court_upholds_Mobinil_antitrust_.
[261] Avi Bar-Eli & Daniel Schmil, Israel Antitrust Authority weighing fines on Ashdod Port
managers (Feb. 19, 2014), available at http://www.haaretz.com/business/.premium-1.575010.
[262] List of Companies Owned by MPs, Ministers on the Way (Mar. 30, 2014), available at
http://news.kuwaittimes.net/list-companies-owned-mps-ministers-way/.
[263] Fahad Al Ghadani, Case lodged to review verdict on 23 products in Oman, Times of Oman
(June 23, 2014), available at http://www.timesofoman.com/News/35659/Article-Case-lodged-toreview-verdict-on-23-products; Ona, Oman's Council of Ministers Draft law to prevent monopolies in
the Sultanate, Times of Oman (May 13, 2014), available at http://shabiba1.shabiba.com/
News/33743/Article-Omans-Council-of-Ministers-Draft-law-to-prevent-monopolies-in-the-Sultanate;
Fahad Al Ghadani, Oman anti-monopoly law soon, says Rafd CEO, Times of Oman (Apr. 19, 2014),
available at http://www.timesofoman.com/news/32665/Article-Oman-anti-monopoly-law-soon-saysRafd-CEO.
[264] Ona, Oman's Council of Ministers Draft law to prevent monopolies in the Sultanate, Times of
Oman (May 13, 2014), available at http://shabiba1.shabiba.com/News/33743/Article-Omans-Councilof-Ministers-Draft-law-to-prevent-monopolies-in-the-Sultanate.
[265] Investigation on the 14 Bakeries Operating in the Didim Province of Aydin Concluded, Turkish
Competition Authority, available at http://www.rekabet.gov.tr/default.aspx?nsw=yH0zrJKr0jevo/
2CtEgCRQ==-SgKWD+pQItw=; Investigation on 45 Bakeries Operating in the Central District of
Aksaray Concluded, Turkish Competition Authority, available at http://www.rekabet.gov.tr/default.
aspx?nsw=ZcvWbYOfQTiJXmM5IfderQ==-SgKWD+pQItw=.
[266] Investigation concerning 20 Driving Courses in Aksaray Concluded, Turkish Competition
Authority, available at http://www.rekabet.gov.tr/default.aspx?nsw=ZcvWbYOfQTgq8BiqnPxnPg==SgKWD+pQItw=; Investigation concerning 16 Driving Courses operating in Kirirkkale Concluded,
Turkish Competition Authority, available at http://www.rekabet.gov.tr/default.aspx?nsw=
ZcvWbYOfQTg++7FcKPwmkg==-SgKWD+pQItw=.
[267] Cement Sector Inquiry Initiated, Turkish Competition Authority, available at
http://www.rekabet.gov.tr/default.aspx?nsw=ZcvWbYOfQTh7my0MvzhcdA==-SgKWD+pQItw=.
64
[268] Faaez Samadi, Turkey close to approving new law, Global Competition Review (Feb. 4, 2014),
available at http://globalcompetitionreview.com/news/article/35165/turkey-close-approving-new-law/.
[269] Christabel Ligami, Unethical traders in EAC could be penalized (Jan. 11, 2014), available at
http://www.theeastafrican.co.ke/news/Unethical-traders-in-EAC-could-be-penalised-/-/2558/2143052//7bafe3z/-/index.html.
[270] James Anyanzwa, Watchdog fines Tuskys, Ukwala Sh5m for unfair trade practices, Standard
Digital (June 3, 2014), available at http://www.standardmedia.co.ke/mobile/?articleID=
2000123542&story_title=watchdog-fines-tuskys-ukwala-sh5m-for-unfair-trade-practices&pageNo=1;
Muthoki Momo, Group to probe edible oil sector over high prices, Daily Nation (May 11, 2014),
available at http://www.nation.co.ke/business/Group-to-probe-edible-oil-sector-over-high-prices//996/2311168/-/hg0kbj/-/index.html; Muthoki Mumo, Watchdog to probe key players in agriculture
sector, Daily Nation (May 10, 2014), available at http://www.nation.co.ke/business/Watchdog-toprobe-key-players-in-agriculture-sector/-/996/2310294/-/djwejkz/-/index.html;
Brenda
Okoth,
Kairiuki: The Authority has the mandate to prohibit deceptive advertisement, The Star (Jan. 27, 2014),
available at http://www.the-star.co.ke/news/article-152430/kariuki-authority-has-mandate-prohibitdeceptive-advertisement.
[271] James Anyanzwa, Watchdog fines Tuskys, Ukwala Sh5m for unfair trade practices, Standard
Digital (June 3, 2014), available at http://www.standardmedia.co.ke/mobile/?articleID=
2000123542&story_title=watchdog-fines-tuskys-ukwala-sh5m-for-unfair-trade-practices&pageNo=1.
[272] James Anyanzwa, Watchdog fines Tuskys, Ukwala Sh5m for unfair trade practices, Standard
Digital (June 3, 2014), available at http://www.standardmedia.co.ke/mobile/?articleID=
2000123542&story_title=watchdog-fines-tuskys-ukwala-sh5m-for-unfair-trade-practices&pageNo=1.
[273] Press Release, Competition and Fair Trading Commission, Review of the Competition and Fair
Trading Act Regulations, available at http://www.cftc.mw/index.php/2013-12-16-09-56-37/pressreleases/61-review-of-the-competition-and-fair-trading-act-regulations.
[274] Competition
and
Fair
Trading
Regulations,
2014
(Draft),
available
at
http://www.cftc.mw/index.php/2013-12-16-13-35-12/legislation/23-draft-competition-and-fairtrading-regulations/file.
[275] Press Release, Competition and Fair Trading Commission, Public Notice: Invitation to a Public
Hearing, available at http://www.cftc.mw/index.php/2013-12-16-09-56-37/press-releases.
[276] Press Release, Competition Commission of Mauritius, The Executive Director Recommends
Financial Penalties of Rs. 27 Million on Phoenix Beverages Limited and Stag Beverages Limited (June
18,
2014),
available
at
http://www.ccm.mu/English/Documents/Investigations/INV027Media%20Release-Final%20Report.pdf.
65
[277] Delivering for Consumers--Why Competition Policy is Important? (Mar. 20, 2014), available at
http://www.minicom.gov.rw/index.php?id=24&tx_ttnews%5Btt_news%5D=814&cHash=7f1aa60a502
ee7ca477324b1596e2ee6.
[278] Bid Rigging impedes the power of purchasers, Today in Seychelles (May 4, 2014), available at
https://www.facebook.com/todayinsey/posts/644603075577506.
[279] Competition Commission helps Seychelles harmonise laws, Common Market for Eastern and
Southern Africa, available at http://www.comesa.int/index.php?option=com_content&view=
article&id=1203:competition-commission-helps-seychelles-harmonise-laws&catid=5:latestnews&Itemid=41.
[280] Press Release, Competition Commission of South Africa, Commission Refers Cable
Investigation (Mar. 19, 2014), available at http://www.compcom.co.za/assets/Uploads/Attached
Files/MyDocuments/Media-Release-Commission-refers-cable-investigation.pdf.
[281] Press Release, Competition Commission of South Africa, The Commission Refers Fishing
Collusion Investigation (Mar. 27, 2014), available at http://www.compcom.co.za/assets/Uploads/
AttachedFiles/MyDocuments/The-Commission-refers-fishing-collusion-investigation.pdf.
[282] Amanda Visser, Competition Commission to Appeal Tribunal's SAB Ruling (Apr. 25, 2014),
available
at
http://www.bdlive.co.za/business/2014/04/25/competition-commission-to-appealtribunals-sab-ruling; Trust Matsilele, Competition Commission to Appeal SABMiller Case (Apr. 17,
2014),
available at
http://www.cnbcafrica.com/news/southern-africa/2014/04/16/competitioncommission-to-appeal-sabmiller-case/.
[283] Hanna Barry, Competition Commission Announces Healthcare Inquiry Panel (Jan. 30, 2014),
available
at
http://www.moneyweb.co.za/moneyweb-south-africa/competition-commissionannounces-healthcare-inquir.
[284] Katy Oglethorpe, SA sets Ambitious Scope for Health-care Inquiry (June 3, 2014), available at
http://globalcompetitionreview.com/news/article/36108/sa-sets-ambitious-scope-health-care-inquiry/.
[285] Natalie Greve, Competition Commission to Assess Competition in LPG Industry (June 20,
2014), available at http://www.polity.org.za/article/competition-commission-to-assess-competition-inlpg-industry-2014-06-20.
[286] Tiisetso Motsoeneng, S. Africa's Competition Watchdog Raids Unilever, Sime Darby (Apr. 3,
2014),
available
at
http://in.reuters.com/article/2014/04/03/safrica-unileveridINL5N0MV2O620140403.
[287] Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at V.B.
66
[288] Minister Patel announces appointment of new Competition Commissioner (May 16, 2014),
available at http://www.compcom.co.za/assets/Uploads/AttachedFiles/MyDocuments/Minister-Patelannounces-appointment-of-new-Competition-Commissioner.pdf.
[289] Competition Commission appoints Head of Mergers and Acquisitions (Mar. 3, 2014), available
at
http://www.compcom.co.za/assets/Uploads/AttachedFiles/MyDocuments/Commission-appointsHead-of-Mergers-and-Acquisitions.pdf; Amanda Visser, Competition Commission appoints new senior
managers (Jan. 13, 2014), available at http://www.bdlive.co.za/business/2014/01/13/competitioncommission-appoints-new-senior-managers.
[290] Amanda Visser, Competition Commission appoints new senior managers (Jan. 13, 2014),
available at http://www.bdlive.co.za/business/2014/01/13/competition-commission-appoints-newsenior-managers.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have
regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any of
the following, or any member of the firm's Antitrust and Trade Regulation Practice Group:
Washington, D.C.
F. Joseph Warin (+1 202-887-3609, [email protected])
Scott D. Hammond (202-887-3684, [email protected])
D. Jarrett Arp (+1 202-955-8678, [email protected])
David P. Burns (+1 202-887-3786, [email protected])
John Christopher Wood (+1 202-955-8595, [email protected])
Cynthia Richman (+1 202-955-8234, [email protected])
New York
Randy M. Mastro (+1 212-351-3825, [email protected])
Peter Sullivan (+1 212-351-5370, [email protected])
Lawrence J. Zweifach (+1 212-351-2625, [email protected])
James A. Walden (+1 212-351-2300, [email protected])
Denver
Robert C. Blume (+1 303-298-5758, [email protected])
Dallas
Veronica S. Lewis (+1 214-698-3320, [email protected])
Brian Robison (+1 214-698-3370, [email protected])
San Francisco
Gary R. Spratling (+1 415-393-8222, [email protected])
67
Joel S. Sanders (+1 415-393-8268, [email protected])
Trey Nicoud (+1 415-393-8308, [email protected])
Rachel S. Brass (+1 415-393-8293, [email protected])
Los Angeles
Daniel G. Swanson (+1 213-229-7430, [email protected])
Brussels
David Wood (+32 2 554 7210, [email protected])
Peter Alexiadis (+32 2 554 7200, [email protected])
Andrés Font Galarza (+32 2 554 7230, [email protected])
Jens-Olrik Murach (+32 2 554 7240, [email protected])
London
Ali Nikpay (+44 20 7071 4273, [email protected])
Philip Rocher (+44 20 7071 4202, [email protected])
Charles Falconer (+44 20 7071 4270, [email protected])
Patrick Doris (+44 20 7071 4276, [email protected])
Deirdre Taylor (+44 20 7071 4274, [email protected])
Munich
Michael Walther (+49 89 189 33-180, [email protected])
Hong Kong
Kelly Austin (+852 2214 3788, [email protected])
© 2014 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes
only and are not intended as legal advice.
68