Competition Corner

In a recent move with potential implications for foreign companies doing business with China-based individuals and entities, the Guangzhou Intellectual Property Court recently announced that it has accepted a case brought by a Chinese e-commerce company against Amazon Europe alleging a violation of China’s Anti-Monopoly Law.

On July 31, 2023, China’s antitrust law enforcement agency, the State Administration for Market Regulation (SAMR), summoned four hog-farming companies for a regulatory meeting, with concerns over a no-poach agreement among them.

Private antitrust lawsuits can be lengthy and complex, often involving several defendants and dozens of differently situated plaintiffs, including the potential for multiple putative classes of plaintiffs, as well as direct action plaintiffs pursuing individual claims. In international cartel cases, global defendants must increasingly face private lawsuits across multiple jurisdictions, making it virtually impossible to settle everything globally at the same time due to the complexity of these sprawling matters and jurisdiction-specific idiosyncrasies. Indeed, new actions may be filed in other jurisdictions many years after the initial lawsuits.

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.

On July 10, 2021, the State Administration of Market Regulation (SAMR) of the People’s Republic of China (China or the PRC) announced that it had denied the merger of online-game streaming companies Huya Company and Douyu International Holdings Co., Ltd., which are first and second in market share for online-game streaming in China.

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.

In this episode of Winston & Strawn’s Competition Corner Podcast, Attorney Kevin Goldstein speaks with Tomonori Maezawa, a visiting attorney from Nishimura & Asahi in Tokyo, about hot topics in Japanese antitrust law and the latest developments in Japanese competition policy.

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.

While the COVID-19 pandemic has increased our dependence on digital platforms more than ever, dominant platforms with significant market power continue to draw the focus of antitrust regulators around the world.

Japan’s Study Group on Competition Policy in Digital Markets (Study Group) recently published a Report on Algorithms/AI and Competition Policy (Report) to assist the Japan Fair Trade Commission (JFTC) with competition issues in the digital sector.

As part of an ongoing effort by the Japanese government to promote economic growth through open innovation, late last year, the Japan Fair Trade Commission (JFTC) and Ministry of Economy, Trade and Industry (METI) jointly released draft Guidelines on Business Collaborations with Startups.

Digital platforms are under ever-increasing regulation across the globe, with Japan being among the latest countries to pass new legislation concerning their operations. On May 27, 2020, the National Diet of Japan enacted the Act on Improvement of Transparency and Fairness in Trading on Specified Digital Platforms (the Act).

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.  

On August 6, 2020, the Chinese antitrust agency, the State Administration for Market Regulation (SAMR), published new IP antitrust guidelines—the State Council Anti-Monopoly Committee Anti-Monopoly Guidelines in the Field of Intellectual Property Rights (the “IP Guidelines”).

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.”

On June 17, 2020, the European Commission (the Commission) published a White Paper proposing new mechanisms (including three modules) for the Commission and Member State authorities to tighten control of foreign subsidised companies’ activities including in respect of acquisitions and bids for public contracts in the EU. While the proposal is open for public comments (before September 23, 2020) and broad discussions are expected before any concrete legislative moves, it’s worth noting that the Commission is considering far-reaching changes including additional scrutiny of acquirers receiving foreign subsidies in merger review.

Hong Kong’s Competition Commission and the Securities and Futures Commission (SFC) recently entered into a memorandum of understanding (MoU) to coordinate their efforts to combat anti-competitive conduct in the financial market. 

Since its enactment in 2004, Japan’s Whistleblower Protection Act has been criticized for being “toothless” and unable to adequately protect whistleblowers. On June 8, 2020, a long-awaited amendment was finally passed, providing greater legal protection for whistleblowers and strengthening corporate compliance requirements. The Whistleblower Protection Act applies to some antitrust violations (such as cartel and monopolization conducts) as well as other corporate misconduct that is subject to criminal punishment.

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).