Competition Corner

The GCR Live – Cartels 2023 conference took place on June 7, 2023, in Washington, D.C. The agenda included a keynote address by Manish Kumar, Deputy Assistant Attorney General (DAAG) for Criminal Enforcement at the Antitrust Division of the U.S. Department of Justice, who discussed the Division’s current approach to criminal antitrust enforcement, as well as panels examining cartel enforcement in labor markets, criminal monopolization, and antitrust compliance in a shifting economy.

The European Commission recently announced new guidance on its leniency policy and practice in an effort to increase transparency and predictability and to make the leniency process more accessible to potential applicants. The new guidance, which comes in the form of updated Frequently Asked Questions (FAQs), clarifies certain concepts and current practices of the Commission with respect to leniency.

The ABA and IBA hosted the 2022 International Cartel Workshop in Lisbon, Portugal, over three days in late June. The biennial workshop is considered the premier international cartel conference, and was attended by senior members of the private bar and government enforcers from around the world, including several members of Winston’s Antitrust/Competition Group.

On May 5, 2022, the Senate Judiciary Committee advanced Senate Bill 977, titled No Oil Producing and Exporting Cartels Act (NOPEC), legislation that targets OPEC and other oil cartels that up until now have evaded antitrust enforcement.

In a highly anticipated ruling, an en banc Ninth Circuit panel affirmed a district court’s certification of three classes of purchasers in a price fixing case against the three largest American producers of packaged tuna.  

On April 4, 2022, the DOJ Antitrust Division announced updates to its Leniency Policy, updated frequently asked questions, and provided a new dedicated email address for corporations and individuals to use to apply for leniency.

On February 17, 2022, the Department of Justice (DOJ) announced that it would be cracking down on those taking advantage of the ongoing supply chain crisis by colluding to raise prices.

The Eastern District of Texas denied Neeraj Jindal’s and John Rodgers’ motions to dismiss the Department of Justice’s (“DOJ”) first-ever criminal indictment for wage-fixing. The court found that wage-fixing agreements were a type of price-fixing and, as such, rejected defendants’ arguments that there was a lack of precedent to criminally prosecute the alleged conduct as per se illegal.

In a speech last week, EU competition commissioner Margaret Vestager announced that the European Commission is planning to conduct a series of dawn raids in the near future.

Last week, the United States Court of Appeals for the Second Circuit reversed—for the second time—the decision of the United States District Court for the Southern District of New York that awarded treble damages to the plaintiffs in a class action suit alleging that four Chinese exporters of Vitamin C violated U.S. antitrust laws.

On December 25, 2020, the Japan Fair Trade Commission (JFTC) implemented new procedures to protect confidential communications between an enterprise and its attorney from disclosure in administrative investigations of hard-core cartels. While this may appear to be the adoption of an attorney-client privilege in Japan, the newly announced protection is notably different from the privilege in the United States in several respects.

In Olean Wholesale Grocery Co-op Inc. v. Bumble Bee Foods LLC, No. 19-56514 (9th Cir. Apr. 6, 2021), the Ninth Circuit clarified several class certification issues that have been heavily in dispute in antitrust class actions for more than a decade.

ACPERA is the federal statute meant to incentivize cartel amnesty applications to the Antitrust Division of the Department of Justice (DOJ) by providing the first-in leniency applicant with reduced civil damages exposure compared to its co-conspirators (separate from and in addition to the amnesty a first-in applicant receives on the criminal side).

On December 8, the U.S. House of Representatives passed the Criminal Antitrust Anti-Retaliation Act, which prohibits employers from retaliating against employees who report antitrust violations. The bill unanimously passed the Senate in October 2019 and is expected to be signed into law by the President.

Companies that engage in competitive bidding for government contracts should take note: the U.S. Department of Justice has announced the addition of 11 new partner offices to its “Procurement Collusion Strike Force,” bringing the total number of national agencies and offices participating in the interagency partnership to 29.  

The long-awaited leniency guidelines in China were recently published by the State Administration for Market Regulation (SAMR) (China’s antitrust authority). 

To update our earlier post about a series of rulings on the Foreign Trade Antitrust Improvements Act (FTAIA) in the In re Capacitors Antitrust Litigation, Judge Donato has now ruled on the Special Master’s Report and Recommendation that the Foreign Trade Antitrust Improvements Act (FTAIA) contains a mens rea requirement—in the Special Master’s words, that “there is a mens rea requirement under the FTAIA in that, at the very least, it must be reasonably foreseeable to a defendant its sale of goods at artificially inflated prices will be shipped to the United States where it will have an effect on U.S. commerce.”

he National Assembly of the Republic of Korea recently passed an amendment to the Monopoly Regulation and Fair Trade Act (MRFTA) meant to improve due process protections for companies under investigation by the Korea Fair Trade Commission (KFTC).

Following the recent overhaul of Japan’s leniency program, the Japan Fair Trade Commission has now released a set of proposed rules and guidelines changing the way confidential communications between attorneys and clients are treated – now providing some “privilege-like” protections, similar to the attorney-client privilege in the U.S., to companies under investigation for conduct that falls within the purview of Japan’s leniency system.

Japan has enacted an amendment to its Antimonopoly Act that revises its antitrust leniency program. As required by law, the amendment will come into effect on or before December 25, 2020, with the exact effective date to be announced.