2009 Year-End Criminal Antitrust Update

January 5, 2010

This decade’s breathtaking pace of aggressive enforcement of criminal antitrust laws in the United States and around the world continued through 2009.  This update provides an overview of criminal antitrust enforcement in 2009 and a discussion of the key trends we see from that activity over the next year and beyond.  Among the most notable developments from 2009 are the following:

1. The first part of fiscal year 2009 ("FY 2009") continued the dramatic pace of huge criminal fines imposed by the Department of Justice, Antitrust Division ("DOJ" or "Antitrust Division") in recent years, resulting in over $1 billion in fines for the year;
2. Although that pace tapered off in the second half of FY 2009, the Antitrust Division had a strong start to the new fiscal year (FY 2010)–imposing $229 million in fines in the first quarter;
3. Individual criminal antitrust defendants, including foreign nationals, continued to receive substantial, multi-year prison terms in the United States;
4. Criminal antitrust enforcement by jurisdictions outside of the United States (particularly in Australia and Japan) expanded, with the DOJ attempting to take a leading role in the convergence of international enforcement standards; and
5. Christine Varney was appointed head of the Antitrust Division, and her influence is being felt by the Antitrust Division and international antitrust enforcers.

Enforcement by the Numbers

Dramatic Fines Continue Through FY 2009 (and beyond)

In FY 2009, the DOJ imposed criminal antitrust fines on corporations and individuals of over $1 billion.[1]  As the chart below shows, this was the fourth consecutive year in which the DOJ exceeded the fines imposed in the prior year.  For all of FY 2008, the DOJ imposed approximately $675 million in fines.  This year’s total of over $1 billion in fines represents a staggering 48% increase over last year’s total.

* FY to date

The main drivers of the FY 2009 and FY 2010 fines are illustrated in the following table, which lists all fines exceeding $10 million.

United States Fines of $10 Million or More in FY 2009/2010

As Gibson Dunn reported in our mid-year update, the majority of these fines were front-loaded in the FY 2009 calendar, marked perhaps most notably by fines of $400 million, $120 million, and $65 million imposed by the DOJ in November 2008 on LG Display, Sharp, and Chunghwa Picture Tubes, respectively, in its investigation into price-fixing in the TFT-LCD flat panel industry.  There were few fines imposed in the latter months of FY 2009.  Indeed, the last three months of the fiscal year (July, August, and September) saw only $28 million in fines, although this is likely explained solely by the ebb and flow of large investigations.  But FY 2010 opened strongly with $220 million in fines imposed on Chi Mei Optoelectronics in the TFT-LCD investigation.  With numerous targets remaining under investigation, criminal fines in FY 2010 might meet or exceed the fines imposed in FY 2009.  

Though aggregate fines have been clearly trending upwards over this decade, large fines are not new to the criminal antitrust arena.  The DOJ recently published a table on its website summarizing all historical Sherman Act violations yielding a corporate fine of $10 million or more.[2]  As of October 16, 2009, there were 72 instances of corporate fines exceeding $10 million.

2009 was also a significant year for international antitrust fines: $3.6 billion (€2.5 billion) in antitrust fines were imposed by international enforcers.  The European Commission, which traditionally levies the largest such fines, presents a representative picture of international antitrust fines, as depicted in the following chart:

European Commission Cartel Fines (2003-2009)

Significant Sentences of Imprisonment Continue Through 2009

In addition to these fines, the recent trend of lengthy prison sentences continued in FY 2009, as the chart below demonstrates.  Although the average sentence of 24 months is slightly below the average of the past two years, it remains high compared to the early part of the decade.  This trend toward lengthier sentences was exemplified by the longest prison sentence ever imposed for a single antitrust conviction.  As Gibson Dunn reported in our mid-year update, Peter Baci was sentenced to 48 months in prison for agreeing to allocate customers, rig bids, and fix prices and fees in the market for coastal water freight transportation services between the United States and Puerto Rico. 

Average Jail Sentence for All Antitrust Defendants

Moreover, we can expect more stiff jail sentences and large fines to come.  At the end of FY 2009, the Antitrust Division had 144 pending grand jury investigations, the largest number since 1992.[3]

Significant Antitrust Investigations in 2009

International Air Cargo Investigation

Several additional guilty pleas were entered and fines levied as a result of the global investigation into price-fixing in the air cargo industry.  In addition to more than $300 million in fines in the United States, regulators in Japan, Australia, and Canada have also levied fines in the past year.  Guilty pleas began in late 2007 and have continued through 2009. 

Companies pleading guilty in the United States in FY 2009 (and their criminal fines) were:

• LAN Cargo S.A. and Aerolinhas Brasileiras S.A. ($109 million jointly)
• El Al Israel Airlines ($15.7 million)
• Cargolux Airlines International S.A. ($119 million)
• Nippon Cargo Airlines Co. Ltd. ($45 million)
• Asiana Airlines Inc. ($50 million)

The combined $339 million in new fines bring the total fines for the air cargo investigation to more than $1.6 billion, the largest total for a single criminal antitrust investigation in the United States.  Fifteen airlines have now pled guilty to criminal violations of United States antitrust laws.

Additionally, Jan Lillieborg, a foreign national and former Vice President of Global Sales for SAS Cargo, was indicted in August in the United States District Court for the District of New Jersey on charges of conspiracy to restrain trade, conspiracy to obstruct justice, and obstruction of justice arising out of the air cargo investigation.  Those charges remain pending. 

In April, Franciscus Johannes de Jong, another foreign national and an employee of Martinair Holland N.V., pled guilty to violating Section 1 of the Sherman Act.  De Jong was sentenced to 8 months in jail, fined $20,000, and has agreed to cooperate with the Antitrust Division.  De Jong is the fourth airline executive who has pled guilty and been sentenced to jail time in the United States as a result of the air cargo investigation.  And the Department of Justice has signaled that more fines and jail sentences may be yet to come.[4]

Outside the United States, the Japanese Fair Trade Commission ("JFTC") ordered 11 companies to pay a total of $92.4 million for cartel activity in the air cargo market.  Further, the Australian Competition and Consumer Commission ("ACCC") imposed fines on Martinair ($5 million), Cargolux ($5 million), and Air France-KLM ($6 million).  In Canada, Martinair, Air France, and KLM pled guilty and were fined a total of $10 million.

Marine Hose Investigation

The ongoing investigation into cartel activity in the marine hose industry produced two more corporate guilty pleas and $11 million more in fines in the United States.  Marine hose is a flexible rubber hose used to transport oil between tankers and oil storage facilities.  Two subsidiaries of Trelleborg AB, Virginia Harbor Services Inc. and Trelleborg Industrie S.A.S., agreed to fines of $7.5 million and $3.5 million respectively.  These guilty pleas bring the total for the investigation to nine individuals and three corporations.

The European Commission Directorate of Competition ("DG Comp") imposed even higher fines in its marine hose investigation.  This past year, five companies were fined a total of $173 million:  Bridgestone Corporation ($76.8 million), Parker ITR SRL ($33.5 million), Trelleborg Industrie S.A.S. ($32.1 million), Dunlop Oil & Marine Ltd. ($23.6 million), and Manuli Rubber Industries SPA ($6.4 million).  Yokohama Rubber Co. was not fined because it was the first to reveal the cartel activity to regulators.

The Korean Fair Trade Commission ("KFTC") also issued several fines: Bridgestone ($256,600); Dunlop ($117,400); Trelleborg ($40,200); and Parker ($33,700).  This was the KFTC’s first penalty for an international bid-rigging cartel.  Further, in August, the ACCC began investigating cartel activity in the marine hose industry.  That investigation remains pending.

Thin Film Transistor-Liquid Crystal Display ("TFT-LCD")

Significant fallout from the investigation into price fixing in the TFT-LCD industry that began in late 2006 continued in 2009.  TFT-LCD panels are the principal component for LCD televisions and computer monitors, among other LCD displays.  Although the fines levied this fiscal year in the United States were not quite as high as those in FY 2008, several more guilty pleas were entered and significant fines were handed out.  To date, a total of six companies have entered guilty pleas and collectively paid $860 million in fines.  Pleading guilty this fiscal year were Hitachi Displays Ltd. ($31 million) and Epson Imaging Devices Corp. ($26 million).  These fines and guilty pleas followed on the heels of several pleas from late in the 2008 calendar year that resulted in a total of $585 million in fines to LG Display Co. Ltd. ($400 million), Sharp Corp. ($120 million), and Chunghwa Picture Tubes Ltd. ($65 million).  And in December 2009, Chi Mei Optoelectronics pled guilty and agreed to pay a $220 million criminal fine.  (As of press time there was no indication whether Chi Mei executives might also face individual charges and corresponding fines and jail sentences.)

Many foreign executives also pled guilty in the United States and were sentenced to jail time this fiscal year as a result of the TFT-LCD investigation.  Chang Suk Chung of LG was sentenced to 7 months’ imprisonment and fined $25,000.  Bock Kwon, also of LG, was sentenced to a year in prison and fined $30,000.  Executives of Chunghwa were sentenced to 6, 7, and 9 month terms and were fined $20,000, $30,000, and $50,000, respectively.

Several other executives have been indicted in the United States District Court for the Northern District of California on charges that remain pending: Cheng Yuan Lin and Wen Jun Cheng of Chunghwa, Duk Mo Koo of LG, and Sakae Someya of Hitachi.  Several other competitors in the TFT-LCD industry remain uncharged, and the December 2009 fine of Chi Mei likely foreshadows more to come in 2010, as numerous known targets of the investigation have not yet been charged or agreed to plead guilty.

Cathode Ray Tubes ("CRT") Investigation

In the related CRT industry investigation that began in November 2007, this year brought the first indictments in the United States, Statements of Objections from DG Comp, and cease-and-desist letters from the JFTC. 

In the United States, two former executives of Chunghwa, Cheng Yuan Lin and Wen Jun Cheng (indicted separately in the TFT-LCD investigation, noted above), were indicted in the United States District Court for the Northern District of California in February and August, respectively, on charges related to the CRT investigation.  A trial date has not been set.

In the European Commission, DG Comp sent Statements of Objections to "a number of companies active in the [CRT] industry."[5]  (A Statement of Objections is DG Comp’s version of a charging document.)  Although DG Comp did not disclose who received the Statements of Objections, news reports confirmed that Philips and Panasonic were among those targeted. 

The JFTC sent cease-and-desist letters to MT Picture Display Co. and Samsung SDI Co. Ltd. regarding their activities in the CRT market.

We expect this investigation to generate more charges in the United States and abroad in 2010.

Optical Disk Drives Investigation

This year also saw the beginning of a new DOJ investigation into the optical disk drive industry.  Optical disk drives are used to read from and write to disks in formats such as CD, DVD, and Blu-Ray.  Sony Corp., Toshiba Corp., and Hitachi Ltd. have each reportedly been subpoenaed.  Hitachi-LG Data Storage, a joint venture of Hitachi and LG, also received a subpoena from the Antitrust Division and is under investigation by DG Comp and Singapore authorities.  Toshiba Samsung Storage Technology Corp., a joint venture of Samsung and Toshiba, is also under investigation by DOJ and foreign regulators.

Other Significant Domestic Prosecutions

On the United States domestic front, FY 2009 was an active year in a number of different criminal investigations.

Processed Tomatoes

This year brought guilty pleas and sentences for several former officers of SK Foods LP and other companies, in an alleged kickback and bribery scheme involving sales of processed tomatoes that went overt with an FBI raid of several tomato processors’ offices in May 2008.  Jeffrey Beasley, a former Vice President of SK Foods, pled guilty in August 2009; his sentencing is set for mid-January 2010.  In November, Alan Huey, a former Senior Vice President of SK Foods, pled guilty to participation in a four-year conspiracy to bribe food producers and fix prices. 

These guilty pleas follow a December 2008 plea by Randall Lee Rahal, former Sales Broker and Director of SK Foods.  Robert Watson, former Senior Purchasing Manager for Kraft Foods, Inc., was sentenced in August to 27 months in prison and fined $1.86 million.  Robert Turner, former Purchasing Manager at B&G Foods Inc. and Nabisco Inc., and James Wahl, a Former Purchasing Manager of Frito-Lay Inc., have also pled guilty and await sentencing.

Municipal Bonds

An investigation into the municipal bond industry that has been pending for at least three years saw its first indictments in November 2009.  The indictment charges Rubin/Chambers, Dunhill Insurance Services Inc., also known as CDR Financial Products, Inc. ("CDR"), and several of its officers–David Rubin, Zevi Wolmark, and Evan Zarefsky–with bid-rigging and receiving kickbacks.  CDR faces a maximum fine of more than $100 million.  Each officer faces up to 20 years in prison and more than $2 million in fines.

New Jersey Superfund Sites

A federal investigation into kickbacks and bid-rigging activity involving Environmental Protection Agency Superfund sites in New Jersey led to more guilty pleas and sentences handed down this year.  Pleading guilty in FY 2009 were: Robert Griffiths of Bennett Environmental Inc.; Christopher Tranchina of a Sewell, New Jersey subcontractor; Frederick Landgraber, co-owner of a landscaping company in Martinsville, New Jersey; National Industrial Services LLC; and a co-owner of National Industrial Services, Victor Boski.  Landgraber was sentenced to 5 months in jail and ordered to pay $35,000 in restitution.  Tranchina was sentenced to 20 months and ordered to pay $154,597 in restitution.  Griffiths is scheduled to be sentenced in April 2010.  Boski and National Industrial Services are scheduled to be sentenced in May 2010.

In September, an indictment of three more individuals arising out of the Superfund site investigation was unsealed.  That indictment charged Gordon McDonald, John Bennett, and James Haas, Jr.  Haas pled guilty in October to paying kickbacks and engaging in a conspiracy to commit fraud.  He is scheduled to be sentenced in February 2010.  Charges remain pending against McDonald and Bennett.

This investigation has now resulted in guilty pleas by three companies and eight individuals with charges still pending against other defendants.

Packaged Ice

In November, Arctic Glacier International, Inc., a St. Paul, Minnesota-based packaged-ice company, pled guilty to a Sherman Act indictment for allocating customers, and agreed to pay a $9 million criminal fine.  Arctic Glacier awaits sentencing.  Three former Arctic Glacier executives also pled guilty to individual indictments and have agreed to cooperate with the ongoing investigation.  They too await sentencing.  Home City Ice Co. previously pled guilty in June 2008 in the same customer-allocation conspiracy, but has not yet been sentenced.

Marine Fenders and Buoys

Frank A. March, CEO of a former marine products supplier to the United States Navy and Coast Guard, pled guilty to bid-rigging and customer allocation.  March was sentenced to 18 months in prison, a year of supervised release, and was fined $100,000.  Several other executives previously pled guilty to participating in the same conspiracy.

Other Notable Foreign Prosecutions

European Union

Fines from DG Comp totaled more than $2 billion in 2009.  DG Comp fined German utility E.ON AG and French natural gas provider GDF Suez $768 million each for agreeing not to compete in each other’s home natural gas markets.  DG Comp issued another $100 million in total fines to six power transformer producers for cartel activity: Toshiba Corp., Hitachi Ltd., Fuji Electrics, ABB Ltd., Areva T&D SA, and Alstom SA.  In November, DG Comp raided the offices of Czech power company CEZ AS.

Twenty-four companies that produce chemicals used as plastic additives received fines totaling $259 million in 2009 for cartel activity.  The largest fines were issued to Ciba AG ($102 million), Akzo Nobel NV ($60.5 million), Arkema France SA ($42.6 million), and Elementis PLC ($48.4 million).  Several of the fines reflected credit for cooperation with the Commission’s investigation.  Arkema’s fine, however, reflected an increase of 90% because it had participated in similar cartel activity previously. 

Europe’s highest court, the European Court of Justice, upheld earlier-imposed fines for fixing prices and fees on Le Carbone Lorraine SA, SGL Carbon AG, and four Austrian banks totaling $253 million.  Fines totaling $124 million were reinstated on Alfa Acciai, Ferriere Nord, Feralpi, IRO, Leali, Lucchini, Riva Fire, and Valsabbia for cartel activity in the concrete reinforcing bar industry.

In November, DG Comp sent a Statement of Objections to Standard & Poor’s Financial Services LLC regarding licensing fees for its securities identification numbers, the first public action in an investigation that began in January 2009.  Around the same time, Thomson Reuters received a Statement of Objections regarding real-time market datafeeds.  DG Comp also initiated other investigations into the Spanish cement industry and several pharmaceutical companies in the past year.

Non-E.U. Foreign Prosecutions

• Japan:  In addition to the fines in the air cargo investigation discussed above, the JFTC fined Sekisui Chemical Co. and Mitsubishi Plastics Inc. a total of $125 million for price-fixing in the vinyl chloride pipe industry.  The $85 million Sekisui fine was the largest the JFTC has ever imposed.  In June, the JFTC fined three steel makers $110 million for price-fixing in the steel plating and coated flat steel markets.
• The United Kingdom:  The Office of Fair Trading fined construction firms more than $211.6 million for bid-rigging in one of the agency’s largest ever competition-law investigations. 
• South Africa:  Sasol Chemical Industries Ltd. agreed to a fine of $29.8 million for price-fixing in the fertilizer industry.  The South African Competition Commission is also seeking fines against steelmaker ArcelorMittal SA for price-fixing.
• Russia:  An arbitration court overturned a $163 million fine against oil company Gazprom for price-fixing, but competition regulators continue to target the company.  Russian antitrust authorities also fined Lukoil $225.7 million for abusing its dominant market position by removing its products from circulation.

Other Developments Abroad

New Competition Commissioner for the E.U.

Neelie Kroes’s notable tenure as the E.U.’s top competition enforcer is coming to an end.  Joaquín Almunia of Spain, who is currently responsible for E.U. economic and monetary affairs, has been nominated to succeed her.  The European Parliament must consent to his nomination, which seems likely to occur in early 2010.  Mr. Almunia was the former leader of Spain’s Socialist Workers’ Party and his party’s candidate for Prime Minister in 2000.  His close political association with trade unions in Spain has raised concerns in some corners about Mr. Almunia’s ascent to Competition Commissioner.  Those concerns may be misplaced, however: Commissioner Kroes, at her confirmation hearing in the European Parliament, faced complaints that she was too close to industry interests, but she has shown herself to be a very tough enforcer.  There are few indications that Mr. Almunia will deviate materially from the active course set by Ms. Kroes.  Some experienced practitioners have speculated, though, that despite Mr. Almunia’s socialist background, future fines during the current downturn might be more lenient to stave off any threat of job losses caused by particularly punitive fines.

Major Revisions to Antitrust Laws in Australia, Canada, Japan, and Russia

The biggest legislative changes of 2009 came to the criminal antitrust legal regimes in Australia, Japan, Canada, and Russia.  Australia’s parliament provided for up to 10 years’ imprisonment, fines of up to three times the profits earned from cartel activity, and lifelong bans from serving as a company manager or director, for criminal antitrust violations.  These amendments to Australia’s Trade Practices Act became effective in July.  According to a media release by the Australian Minister for Competition Policy and Consumer Affairs, for an agreement to constitute price-fixing, "the provision must have had the purpose, effect or likely effect, of directly or indirectly fixing prices."[6]  For other forms of serious cartel conduct, "the test now provides that the provision must have had the purpose of directly or indirectly restricting outputs, sharing markets or rigging bids."[7]

Japan amended its Anti-Monopoly Act to increase the maximum sentence for engaging in cartel conduct from three to five years and increased its monetary fines by half.  The statute of limitations for cartel conduct has also been increased from three to five years.  These new rules also provide significant reductions for companies who apply for leniency before the JFTC begins an investigation, with a 100% reduction for the first company to apply and 50% for the second.  Even if no company applies for leniency before the start date of the investigation, the first three that apply will nonetheless receive a 30% reduction in fines.[8]

Canada has also overhauled its criminal antitrust laws, effective March 12, 2010.  Maximum terms of imprisonment for antitrust offenses have increased from 5 to 14 years, and maximum fines have increased from $9.5 million to $23.8 million.[9] 

Russia has also joined those jurisdictions with a criminal penalty for antitrust violations.  Russia’s new law would punish cartel conduct by as many as seven years in prison if certain aggravating factors are present.

New DOJ Leadership and Initiatives

As we reported in our mid-year update, Christine Varney has been appointed Assistant Attorney General in charge of the Antitrust Division.  Scott Hammond has remained as Deputy Assistant Attorney General for Criminal Enforcement–the only Deputy to remain in the Division with the change of administration.

AAG Varney has made several speeches related to antitrust policy, focusing especially on international enforcement.  The major themes of her recent speech to the Council on Foreign Relations in New York (October 8, 2009) were international convergence in competition policy and transparency.  AAG Varney explained that the Antitrust Division’s focus for criminal enforcement is activity that is "unambiguously harmful" and presents no possible benefit to consumers.  This type of conduct includes "hard-core cartels," and agreements to "fix prices, allocate markets or consumers, or restrict output."  AAG Varney said that Congress’s post-1974 increases of the maximum fines and prison sentences for Sherman Act violations to the current $100 million corporate criminal fine, $1 million individual fine, and 10 years of imprisonment "represent an acknowledgement that hard-core cartel activity warrants the full panoply of our most powerful enforcement tools."

These statements echo similar remarks AAG Varney made to the United States Chamber of Commerce in May:  "With the higher levels of concentration and economic instability, markets are increasingly vulnerable to collusion and other fraudulent activity.  We are especially concerned that the recent infusion of vast amounts of federal funding to distressed industries and stimulus money to federal, state, and local governments may lead to increased collusion and fraudulent activity."

As we reported in our mid-year update, the DOJ has been active in several new initiatives, including the following:

• Creation of a "Citizen Complaint Center" to accept reports of potential collusive conduct and fraud in procurement and grant awards under the American Recovery and Reinvestment Act of 2009.
• Publication of a guidance document on its website regarding the conduct it considers potentially collusive and the markets that it believes foster collusion.

Conclusion

2009 was yet another eye-popping year for criminal antitrust enforcement.  As noted in our mid-year update, guilty pleas, criminal fines, and prison sentences were front-loaded in the fiscal year.  But the $229 million in fines imposed in the first three months of FY 2010 show that the DOJ’s intense enforcement pace is not slowing down.  And international antitrust enforcement has been just as active, with numerous prosecutions and criminal fines.

FY 2010 promises to be another busy year for criminal antitrust enforcement.  We are likely to see continued developments in, among other areas, the TFT-LCD investigation and the related CRT investigation; and the optical disk drive market.