January 10, 2017

2016 saw a continuation of some recent trends in criminal antitrust enforcement, including the growth of enforcement efforts outside the United States and Europe, continuing efforts by enforcers to increase their levels of cooperation across borders, and a continuing increase in the complexity and severity of the repercussions of collusive activity (traditionally in the form of criminal sanctions, but, more-recently, civil penalties as well).  This Update provides a summary overview of these trends and criminal antitrust enforcement activity in 2016.

This year's Update debuts a more streamlined format than our previous Criminal Antitrust Updates.  First, we focus on major international policy and legislative developments from jurisdictions around the world, including the implications of the election of Donald Trump as President of the U.S. and the Brexit process in Europe.  The clear message from these developments is that collusion will be vigorously prosecuted with growing intensity and frequency as more and more jurisdictions around the world adopt and refine their anti-cartel enforcement regimes.  Second, we summarize the most significant and notable investigations, actions, and court rulings that have occurred in those jurisdictions where anti-cartel enforcement is most active.  Several of these investigations are multi-jurisdictional in nature, so we address them first.  We also summarize domestic cases in countries where anti-cartel enforcement is most active.  Our usual tables and charts describing the most significant fines and sentences in 2016 are included in these sections.  Third, we have a country-specific section providing additional detail per country on the topics discussed in our substantive sections.

As we discussed in our recent Gibson Dunn client alert "Antitrust in the Trump Administration,"[1] we expect the Antitrust Division's cartel enforcement and policy positions during the Trump Administration to track roughly the approaches of recent Republican administrations, producing the same or higher levels of anti-cartel enforcement.  Republicans and Democrats alike tend to believe that collusive conduct is particularly harmful to competition and consumers, so we do not anticipate that the presidential transition will result in any major shakeups in how the Antitrust Division approaches cartel investigations and prosecutions.  Notably, Mr. Trump's appointee for Attorney General, Jeffrey Sessions, as well as those involved in the administration's antitrust transition, including Josh Wright and David Higbee, have in the past placed significant emphasis on cartel enforcement and strengthening the Antitrust Division's leniency program.  Additionally, if the Administration is successful in increasing infrastructure spending, as President-elect Trump has indicated may be a priority, there may be an upswing in bid-rigging investigations.

In Europe, one of the key topics for 2017 will be the continuing consideration of Brexit and its impact on antitrust enforcement and private actions in the UK.  At the moment, there is still considerable uncertainty regarding how and when Brexit will actually be triggered and, importantly, whether Brexit will be "hard" or "soft" and whether transitional arrangements will be negotiated.  During 2017, we will undoubtedly see further developments in this respect.  Until the UK actually leaves the EU, however, EU law remains in force and the UK is obliged to give effect to EU legislation (including competition law).  Further, regardless of whether Brexit is "soft," "hard," or something in between, the UK's deep infrastructure, professional service industries, culture, geography, language, and well-established legal processes and protections should continue to ensure that London remains an important global center, including for damages actions in the future.

Antitrust enforcement has continued to increase in the Asia Pacific region.  This trend is likely to accelerate in 2017 as several countries have or are in the process of adopting their leniency rules (Singapore, China), or have ongoing investigations reaching their final stages (Hong Kong, South Korea).  It is noteworthy that in 2016, several enforcers have devoted considerable resources to investigating abuse of dominance cases, in particular in high tech industries, but this does not detract from their stated goal to root out cartels.  South America also saw continuing enforcement efforts, not only in countries typically known for aggressive cartel enforcement such as Brazil, but in several other jurisdictions including, Chile, Columbia, Peru, Argentina, and Costa Rica, as well. 

I.      POLICY/LEGISLATIVE DEVELOPMENTS

In this section we cover, first, the major policy and legislative developments emerging generally from the international antitrust enforcement community and, second, major domestic developments from specific countries and regions.

A.      International Trends

Throughout 2016 international anti-cartel enforcers continued their efforts to increase cooperation and coordination.  The year also saw continuing progress toward the implementation of the EU Damages Directive and similar legislation in other jurisdictions, and some signs that the odds of cartel participants being extradited may be increasing.

a.      EU Damages Directive / Global Settlement Regimes

i.      Implementation of the EU Damages Directive and major private actions

As noted in earlier Updates, the European Union adopted a Directive on Private Damages Actions in Competition Law (the "Directive") in November 2014.  The deadline for transposition of the Directive into the national laws of Member States was December 27, 2016. 

The overarching aim was to establish a less fragmented regime for the pursuit of antitrust damages actions across the 28 Member States of the EU.  It was intended to approximate the procedural rules of national courts in relation to damages actions based on the infringement of EU or national competition rules.  The Directive seeks to make it more straightforward for victims of anticompetitive conduct across the EU to obtain compensation.  It sets out minimum standards to achieve its goals, while leaving it open to Member States to introduce measures that might go beyond the prescribed standard in the Directive, provided that they are consistent with the Directive's aims.

While implementation of the Directive has progressed, there is currently something of a patchwork across EU Member States, with some States having fully implemented the Directive, others nearing the end of the process, and still others being far from completion.

Member States including Denmark, Finland, Luxembourg, and Sweden have implemented the Directive in full, and the relevant legislation is scheduled to enter into force.  The United Kingdom has laid its legislative proposals before Parliament.  Hungary is also on the cusp of completing the process, with implementation scheduled for January 15, 2017. 

In Austria, France, Germany, Ireland, the Netherlands, Poland and Portugal, legislation is pending, with implementation expected to occur over the course of 2017.  In Belgium, a public consultation has been completed, and legislation is expected to be introduced shortly. 

In other Member States, such as Greece and Spain, the process is further delayed.  Legislation is not yet pending, and implementation is not expected for quite some time.

Pending EU-wide implementation of the EU's Damages Directive, damages actions in competition cases continue to be brought mainly in Germany, the Netherlands, and the UK.  The most significant of these include a claim following-on from the Commission's 2008 Decision in the Car Glass cartel case, class actions in the Netherlands arising out of the Paraffin Wax and Elevators cartel decisions, and various actions (both individual and collective) in the UK against MasterCard.  Detail on each of these can be found in Section IV, below.

It is too early to tell whether the implementation of the Directive will lead to a significant increase in claims being brought in other Member States (particularly as the Directive will require a significant departure from previous domestic law in many countries, such as Greece).  However, we anticipate that by the end of 2017 some indications of the prospects for increased claims may be available.  Further, as discussed below, it will be some time before we can see whether Brexit will cause the UK to lose its position as one of the three preeminent jurisdictions.

ii.      Private litigation developments in Brazil

European efforts to boost private litigation have found an echo in Brazil.  On December 7, 2016, Brazil's Administrative Council for Economic Defense (the "Conselho Administrativo de Defesa Econômica" or "CADE") launched a public consultation process on a number of regulatory amendments to enhance the effectiveness of Brazil's rules on private enforcement and their interaction with Brazil's leniency program.[2]  The consultation is open until February 6, 2017.[3]  Some of CADE's proposals appear to mirror the solutions adopted by the EU in the Damages Directive.[4]  According to publicly available information, the changes include: (i) fine reductions for cartelists who provide compensation to victims of the infringement; (ii) a recommendation that leniency applicants should no longer be held jointly liable for damages in follow-on civil litigation; and (iii) guidelines on the operation of limitation periods for damages claims.

CADE also proposes to provide access to some documents filed in support of leniency applications.  CADE's previous position was never to make such documents public.  The policy shift is expected to foster damages claims by making more evidence available to potential plaintiffs.  It remains to be seen, however, how much this policy shift will actually assist private litigants, because not all documents are subject to disclosure.  Whether a document will be disclosed to third parties will depend on (i) the nature of the document and (ii) the procedural stage at which CADE's investigation is pending.  Documents prepared specifically to assist CADE's investigation are not subject to disclosure.

 iii.      Israeli Court Limits Class Actions for Extraterritorial Conduct

Israel has a well-established private redress system, which includes class action relief.  The availability of that relief in follow-on litigation related to international cartels has, in recent days, come into question.  The case involved claims based on global investigations regarding certain TFT-LCD panels and wholly extraterritorial conduct.  That is, no acts of collusion occurred in Israel, and no defendant sold the allegedly price-fixed product (TFT-LCD panels) in Israel or to an Israeli customer.  The district court found that in those circumstances, where the parties to the cartel did not perform "an action or an omission" in Israel, Israeli procedural law did not provide for service of the petition to certify the action as a class action on the foreign defendant companies.  If the district court's decision withstands appellate review, and absent any corrective action by the Knesset, it will limit the reach of Israeli price-fixing law in civil actions to overseas entities with only indirect sales in Israel.

b.      Developments International Cooperation and Extradition

The Antitrust Division of the U.S. DOJ ("Antitrust Division" or "Division") has continued to strengthen international cooperation in antitrust investigations with its foreign counterparts,[5] and in no area is this development more apparent than in the extradition of individuals.  Recent extraditions and official remarks demonstrate that the Antitrust Division is determined to use this tool to prosecute individuals abroad. 

Most recently, in October 2016, the Division secured the extradition from Bulgaria of an Israeli national, Yuval Marshak, a former owner and executive of an Israel-based defense contractor.  Marshak allegedly participated in multiple schemes between 2009-2013 to defraud the United States Foreign Military Financing (FMF) program.  His extradition was based on charges of fraud for allegedly falsifying bid documents to make it seem like certain contracts for the FMF program had been bid on competitively when they had not.[6]  Marshak was charged with two counts of wire fraud, one count of mail fraud, one count of major fraud against the United States, and one count of international money laundering.[7]  He pleaded not guilty to all charges in federal court.[8]  In announcing the indictment, Acting Assistant Attorney General Renata Hesse emphasized the Division's resolve to work with foreign authorities in order to prosecute individuals abroad:  "Marshak's extradition marks another step forward in [the Division's] efforts to coordinate investigations with foreign authorities and is further evidence that the Antitrust Division will continue to vigorously pursue individuals and companies that compromise essential government programs regardless of where they reside."[9]

The extradition of Mr. Marshak follows the extradition of two individuals of Italian and Canadian nationality in 2014.  As described in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the extradition of Italian businessman Romano Pisciotti was the first successfully litigated extradition on an antitrust charge.[10]  As Assistant Attorney General William Baer commented in connection with the Pisciotti case, the conviction "demonstrates the Antitrust Division's ability to bring to justice those who violate antitrust laws, even when they attempt to avoid prosecution by remaining in foreign jurisdictions."[11]  The extradition of a Canadian national, John Bennett, was based on fraud charges, rather than the bid-rigging charges also asserted against him.[12] 

In light of the Division's recent activity and increased focus on international cooperation, more extraditions for antitrust charges will likely follow.  Because extradition generally requires that the conduct be criminal in both countries, as more countries criminalize price fixing and bid rigging, we expect that extraditions based on antitrust charges will increase.  For example, Assistant Attorney General Baer noted earlier this year during the ABA International Cartel Workshop that extradition is still on the tables for individuals indicted on charges of auto-parts price fixing: "[o]nce we file charges, and that foreign national has not come back to the United States, he or she is considered a fugitive under U.S. law."[13]  Looking ahead, we expect "deeper, more frequent, and more extensive case cooperation" by the Antitrust Division with international counterparts, with an increased focus on legal assistance.[14] 

B.      Americas

a.      United States

i.      Anti-Poaching Guidelines

On October 20, 2016, the Antitrust Division of the Department of Justice ("DOJ") and Federal Trade Commission ("FTC") jointly issued guidance for human resource ("HR") professionals regarding the application of the U.S. federal antitrust laws to hiring practices and compensation decisions.[15]  The guidance focuses on HR professionals as gatekeepers, explaining that they "often are in the best position to ensure that their companies' hiring practices comply with the antitrust laws."  According to the U.S. DOJ and FTC, "HR professionals can implement safeguards to prevent inappropriate discussions or agreements with other firms seeking to hire the same employees." 

In addition to providing practical guidelines for HR professionals, the guidance announces a significant shift in the DOJ's enforcement policies with its statement that the DOJ intends to proceed criminally against "naked wage-fixing and no-poaching agreements," i.e., standalone agreements that are not a legitimate part of a broader joint venture or other lawful collaboration.  In the past, both the DOJ and FTC instituted civil enforcement actions against companies for allegedly entering into such agreements. Many of those actions ended in consent decrees.  For example, in 2010 the DOJ entered into a widely-publicized consent decree with six high tech companies after alleging that the companies agreed not to cold call one another's employees.[16] 

It is unclear whether the courts will agree with the DOJ and FTC that no-poaching agreements are per se unlawful criminal violations under the U.S. antitrust laws.  While the U.S. antitrust agencies and private plaintiffs have previously argued for per se treatment in the civil context, no U.S. court has yet applied the per se analysis (much less criminal sanctions) to employee "no-poach" agreements, and there is a general judicial hesitance to extend the per se rule to new categories of conduct.  Moreover, many of the recent no-poaching cases have been settled before courts could reach the issue of whether a per se, quick look, or rule of reason standard applied.  In the civil litigation that followed the DOJ's investigation of high tech employers, a U.S. district court found that plaintiffs had plausibly plead a violation of the Sherman Act, but at the same time declined to decide, on the pleadings, what mode of analysis applied.[17]  The litigation was settled before the court reached the issue.  Thus, while the guidance makes clear that the U.S. antitrust agencies will pursue these types of agreements as per se offenses in certain circumstances, it is less clear whether U.S. courts will agree and ultimately hold defendants liable under such an analysis.  

The guidance, which directs HR professionals to avoid sharing competitively sensitive information with competitors, may also signal an increased focus by the U.S. antitrust agencies on information exchanges.  Specifically, the agencies assert that even absent an express or implicit agreement on wages or terms of employment between firms, evidence of exchanges of wage information (including discussion of compensation levels or policies at industry meetings or events) could be sufficient to establish an antitrust violation.  The guidance for H.R. professionals acknowledges that information exchanges would most likely be reviewed under the rule of reason and are permissible in certain circumstances.  For example, the U.S. antitrust agencies note that it may be appropriate for a company to obtain competitively sensitive information in the course of M&A due diligence, but only if suitable precautions are taken.  Under past guidance regarding information exchanges (i.e., the so-called "safe harbor provisions"), the U.S. antitrust agencies asserted that antitrust risk presented by sharing competitively sensitive information can be mitigated under certain circumstances.[18]

With the issuance of this guidance, the U.S. antitrust agencies have clearly communicated their intent, going forward, to closely scrutinize recruitment and hiring practices, as well as information exchanges between competing employers, for potential antitrust violations.  This includes the pursuit of criminal charges and per se liability against HR professionals and companies alleged to participate in wage-fixing and no-poaching agreements.  While it remains to be seen whether courts will follow the agencies' lead and afford per se treatment to no-poaching agreements, the added specter of individual and corporate criminal liability creates increased risk for companies.    

ii.      Prosecution of Individuals

The end of 2016 marked the anniversary of U.S. Deputy Attorney General Sally Q. Yates issuing the so-called "Yates Memo," which sought to formalize department-wide policy concerning the prosecution of individuals responsible for corporate misconduct in violation of the civil and criminal enforcement regime.  Among other things, the memorandum requires prosecutors to focus on individual wrongdoers at the inception of investigations and to determine whether any individuals should be prosecuted before a corporate settlement will be approved.  In addition, to settle or receive credit for cooperating with the government, corporations must identify and disclose all relevant facts concerning all individuals involved in or responsible for the misconduct being investigated, regardless of their position in the company, in an expeditious manner.  The memorandum applies to both settlement agreements and to sentencing factors taken into consideration following a successful prosecution.  Significantly, however, the Yates Memo explicitly states that it does not alter the prevailing practices of the Antitrust Division's Corporate Leniency Program.[19] 

In our 2015 Year-End Criminal Antitrust and Competition Law Update, we emphasized that "[t]he implications of the Yates [Memo], including the extent to which it alters Antitrust Division policy, will be borne out in the coming years."[20]  Although understanding the full impact of the Yates Memo will require additional passage of time, a number of trends have already emerged, some of which may inadvertently undermine the speed, utility, and efficacy of internal and government investigations of corporate misconduct.

One trend that has emerged is the potential change in calculus for corporations undertaking internal investigations of possible collusive conduct and considering whether to avail themselves of the Antitrust Division's Corporate Leniency Program.  Consistent with Gibson Dunn's observations elsewhere, the adoption of the Yates Memo has not altered this pillar of U.S. antitrust enforcement, which allows the first corporation to self-report possible cartel violations to receive immunity from prosecution.  However, the DOJ Criminal Division has been reluctant to give corporations such credit and, in contrast to how the Antitrust Division administers its Leniency Program, often requires corporate guilty pleas as a condition of settlement, despite the fact that the Yates Memo expressly recognizes that the Antitrust Division's Corporate Leniency Program is a legitimate framework to resolve instances of corporate wrongdoing generally and, overall, is intended to promote uniformity across the DOJ divisions. 

The potential for divergent policies between the Criminal and Antitrust Divisions presents serious complications for "hybrid" or "mixed-conduct" cases.  These cases involve conduct that has traditionally been considered as falling under the federal antitrust enforcement regime, such as bid-rigging, but that also has the potential to be characterized as violations of other criminal statutes that would fall under the purview of the Criminal Division.  In these situations, where a leniency application to the Antitrust Division could be referred to the Criminal Division, a corporation that is considering whether to self-report must recognize that the benefits of the Antitrust Division's Leniency Program might be entirely illusory.  Indeed, the prospect that an application for leniency might be referred to the Criminal Division, which often demands a plea of guilty, places an almost irreversible thumb on the scale in favor of not self-reporting possible antitrust violations to the Antitrust Division, or at least substantially delaying self-reporting until the corporation has fully investigated the conduct and understands all relevant facts.  This applies with even greater force to companies involved in government contracting or governmental licenses.  Such an outcome would clearly undermine the well-settled expectations provided by the Antitrust Division's universally acclaimed Leniency Program, as well as frustrate the DOJ's broader commitment to the Yates Memo and policy uniformity.

Another unintended consequence of the Yates Memo is the potential for its emphasis on holding individuals accountable for corporate misconduct to undermine the ability of the corporation to resolve any related charges in a reasonable and appropriate manner.  For example, upon submitting a leniency application and disclosing all known, relevant facts about the individuals responsible for the underlying conduct, in most instances the "target" of resulting government investigation will retain his or her own counsel and embark on his or her own negotiations with the government, particularly over the degree to which the target will cooperate.  As a result, the corporation may very well lose access to a central figure and find it difficult to continue any internal investigation concerning the scope of potential wrongdoing.  In such instances, it is the corporation, not the individual, who should be rewarded with cooperation credit, and the DOJ should be mindful that complying with the Yates Memo's requirement for expeditious cooperation may inadvertently frustrate the corporation's attempt to ferret out and disclose additional evidence relevant to the investigation.  

iii.      Changes in Cooperation Credit for Companies with an Inability to Pay the Sentencing Guidelines Fine

2016 saw a significant change to the manner in which the Antitrust Division provides credit, in the form of a fine reduction, for companies that demonstrate an inability to pay.  Section 8C3.3(b) of the United States Sentencing Guidelines provides that a court may impose a fine below that otherwise required if it finds "that the organization is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay the minimum fine required by §8C2.7 (Guideline Fine Range - Organizations) and §8C2.9 (Disgorgement).  Provided, that the reduction under this subsection shall not be more than necessary to avoid substantially jeopardizing the continued viability of the organization."[21]  The Antitrust Division is skeptical of claims of an inability to pay and subjects them to great scrutiny, but has accepted those claims and recommended a reduction of a fine when the circumstances warrant.  When doing so, the Division's historical practice has been to calculate the proposed fine under the guidelines and (where the circumstances warranted it) a downward departure pursuant to §8C4.1(a) for substantial assistance before assessing whether the organization has the ability to pay the fine.[22]

2016 marked a change in the Division's approach.  In recommending a proposed fine against Rubycon Corporation for rigging bids and fixing prices of capacitors, the Division changed the order of the calculations.  It calculated the proposed fine under the guidelines, then determined that the fine should be reduced because of an inability to pay, and then recommended a further reduction for substantial assistance.[23]  The effect of the change is to reduce the level of the proposed fine.  The United States District Court for the Northern District of California held an initial hearing on the proposed sentence on October 12, 2016, after which it entered an order requiring the Division and Rubycon to submit additional information concerning Rubycon's financial condition and to make the Division's outside forensic accounting expert available for questioning by the Judge.[24]  Another hearing is set for January 25, 2017.

There is a strong argument in favor of the Division's new approach.  Under the old approach, a corporation that was confident that it would be in an ability to pay status would have to question whether it made economic sense to invest resources in providing the government with higher levels of assistance because the inability to pay assessment ultimately determined the level of the proposed fine.  By applying the downward departure after the fine has already been reduced to reflect an inability to pay, the Division has provided a clear economic incentive for financially weak corporations to nevertheless provide high levels of cooperation and assistance. 

b.      South America

Significant developments have taken place in 2016 in South America, both on the legislative front and in terms of policy announcements.  In Chile, as anticipated in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, a new antitrust bill was signed into law.[25]  The Bill introduces a series of measures to strongly deter companies against participating in "hard-core" cartels, including increased fines, the introduction of a "collusion" felony, and facilitation of class actions to recover damages.  In Argentina, the National Commission for Competition Defense (CNDC) launched a consultation process on a bill that will be sent to Congress in the next few months to amend Argentine's Law 25,156.[26]  The changes in the bill are similar to the Chilean legislation, in that they introduce stricter fines and facilitate private litigation. They also introduce a leniency program.  Finally, as noted in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, in May, Brazil's CADE adopted Leniency Guidance in the form of Frequently Asked Questions ("FAQs").[27]

In Mexico, COFECE is preparing to bring its first criminal charges for cartelistic conduct.  Finally, in November, Guatemala announced that it would shortly adopt competition regulations but has so far not yet enacted any law to this effect.

C.      Europe

Other than the continuing progress towards implementation of the EU Damages Directive, there were relatively few developments in EU national cartel laws.  The changes that did occur include the adoption of new leniency guidelines in Belgium, the introduction of a cartel settlement procedure in Greece, and the codification in Spain of practices relating to dawn raids on domestic premises.  In Hungary, changes were introduced to settlement procedure and the possibility of obtaining leniency in relation to vertical agreements was introduced.  In the Netherlands, the national authority's fining guidelines were amended to increase the maximum fines that can be imposed--now 10% of an undertaking's annual turnover.  Finally, in Germany, a draft bill was adopted to bring company liability into line with the existing European model of a single economic unit.

D.      Africa and the Middle East

Developments in this region were seen in Egypt, Kenya, and Israel.  In a somewhat controversial development, in September 2016, the Egyptian Prime Minister issued executive regulations that, among other things, create a rebuttable presumption that separate companies owned by members of the same family are a single economic unit in antitrust investigations.  How this presumption will work in Egypt, where much of the economy is owned by the same families, remains to be seen.  In Kenya, amendments have been proposed to the consumer protection provisions of the Competition Act, including changes that would enable the Competition Authority to conduct investigations on its own volition.  In Israel, the Antitrust Authority proposed legislative changes relating to the disclosure of documents to companies that are appealing authority decisions.

E.      Asia and the Pacific

2016 saw significant developments in the region.

As we have reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, several jurisdictions have adopted or modified their arsenal to combat collusive conduct.  In particular, China has published draft guidelines dealing with leniency, and with the calculation of fines and the Philippines have adopted implementation rules for its new competition regime.

In November 2016, the Competition Commission of Singapore ("CCS") published amendments to a number of guidelines.  According to the CCS, the new guidelines "will make it easier for businesses, consumers and other stakeholders to understand how CCS will administer and enforce the Competition Act."[28]  

The new guidelines, which took effect on November 1, 2016, include several key changes related to cartel enforcement.  Most notably, revisions to the CCS' Leniency Programme now require applicants for leniency to: (1) give an unconditional admission of the conduct for which leniency is sought, although an admission of an infringement of the Competition Act is still not mandated; (2) provide detailed information at the stage of applying for a marker, including the relevant markets in which the cartel activity occurred and the impact of the conduct on the markets identified by the applicant; and (3) grant an "appropriate" waiver of confidentiality that will permit the CCS to communicate with other competition authorities in jurisdictions where the applicant has applied for leniency.  The requirement of mandatory waivers of confidentiality was included despite strong opposition from many quarters, and may reduce the willingness of multinational companies to apply for leniency in Singapore.  Further, the new guidelines clarify that coercers and initiators of cartels may apply for leniency and qualify for a 50% discount in financial penalty.  This stands in contrast to regimes in other jurisdictions, notably the United States, where the "ringleader" of a cartel is not eligible for any reduction.

Other significant changes include amendments to CCS's financial penalty framework.  The guidelines now utilize six separate and distinct steps used to calculate a financial penalty, which closely resemble the approaches used by the European Commission and the Competition and Markets Authority in the United Kingdom.  Of particular note, a company's turnover used in the calculation of the base penalty in step one of the process will now be the company's turnover during the last year of the alleged infringement, as opposed to the turnover in the year prior to the imposition of the fine.  Another important feature is the special emphasis the CCS has placed on the seriousness of bid rigging, by clarifying that the duration of an infringement for bid rigging will not typically be set at less than one year because of the recognition that this type of violation has long-lasting negative effects.

The CCS also amended Section 34 of the guidelines related to anticompetitive agreements.  These amendments include clarification and/or explanation that: (1) being parties in a vertical relationship with each other does not preclude the finding of a horizontal agreement or concerted practice between them; (2) aside from agreements relating to price fixing, bid rigging, market sharing and output limitations, if an agreement is found to restrict competition, it will be similarly regarded as restrictive of competition to an appreciable extent, and there is no need to prove appreciable adverse effects on competition; (3) any provision and/or exchange of information, including price or non-price information, with the objective of restricting competition, will generally be considered as a restriction of competition by object; and (4) price recommendations by a trade or professional recommendations may be harmful to competition.

Lastly, the CCS adopted a new "Fast Track Procedure" that is designed to provide parties with a financial incentive to settle a case at the beginning of an investigation.  More specifically, a party will be granted a 10% reduction in the overall financial penalty in exchange for (1) unequivocally admitting liability for the infringement, and (2) agreeing to limit their representations during the decision-making process procedure.  Before utilizing this procedure, the CCS and the party must sign an agreement, which will include the maximum amount of financial penalties that may be imposed (taking into consideration any reductions from participation in the leniency program).

In Hong Kong, the Competition Ordinance marked its first anniversary on December 14, 2016.  During its first year, approximately130 cases have been subject to a further assessment and about10 percent of these cases were subject to an in-depth investigation.[29]  The Hong Kong Competition Commission ("HKCC") expects to bring its first case before the Competition Tribunal in 2017.

On September 27, 2016, the Korea Fair Trade Commission ("KFTC") announced amendments to its "Public Notification on Implementation of Leniency Program including Corrective Measures Against Voluntary Confessors, etc. of Unfair Cartel Activities."[30]  According to the KFTC, the purpose of the amendments "includes improvement of the leniency application procedure, clarifying the standard of amnesty plus, employing stricter conditions for order of rank succession and amendment of the judging criteria on repeated violations."[31] 

II.      INVESTIGATIONS/FINES

A.      International

a.      Largest Worldwide Fines

As discussed more fully below in relation to each country's domestic developments, the international community of anti-cartel enforcers has had a busy 2016.  The top ten fines in terms of dollar volume in 2016 were as follows:

Fine

Competition Authority

Date

Industry

$3.04 billion (2.926 billion euro)

European Commission

7/19/2016

Trucks

$1 billion (Rs 6700 crores)

Competition Commission of India

8/31/2016

Cement

$520 million (485 million euro)

European Commission

12/7/2016

Interest rate derivatives

$306 million (351.6 billion won)

Korea Fair Trade Commission

4/26/2016

Korea Gas Corp. bids by construction companies

$185 million (214.8 billion won) (combined fines for the same charge)

Korea Fair Trade Commission

6/14/2016

Corrugated cardboard suppliers

$176.2 million (166 million euros)

European Commission

12/12/2016

Rechargeable lithium-ion batteries

$149 million (137.8 million euro)

European Commission

1/27/2016

Automobile parts

$143 million (128.8 million euro)

Spanish National Authority for Markets and Competition

5/26/2016

Adult Diapers

$130 million United States Dep't of Justice 9/23/16 Automobile parts

$112 million (100 million euro)

Italian Competition Authority

6/14/2016

Vending operators in the food and beverage sector

 

These fines were imposed in Europe, Asia, and Africa.  Not one of the top ten fines was imposed in the United States.  There can be no question that international cartel enforcement is now truly global in nature.

b.      Financial Markets

For the past several years the financial sector has faced intense scrutiny by a diverse range of financial regulators, competition agencies, and prosecuting authorities around the globe in connection with alleged collusive conduct involving the London Interbank Offered Rate (LIBOR), the Euro Interbank Offered Rate (EURIBOR), other benchmark rates, and foreign exchange (FX) markets. 

2016 was no different, with fines exceeding $768 million and investigations in the U.S. and UK increasingly focused on individual prosecutions.  While government investigations against banks may be winding down with respect to LIBOR and EURIBOR, we see the focus on the financial sector continuing with respect to FX and other areas for the foreseeable future.  Indeed, as we went to press, the U.S. Antitrust Division announced its first individual guilty plea for price fixing in connection with its FX investigation.[32] 

i.      LIBOR

The long-running and far-reaching "LIBOR" related investigations continued into 2016 with resolutions reached domestically and internationally involving a working group of U.S. State Attorneys General and the Swiss Competition Commission ("COMCO") respectively.

In August, the New York Attorney General (NYAG) announced a $100 million, 44-state settlement with Barclays for fraudulent and anticompetitive conduct involving the alleged manipulation of U.S. dollar (USD) LIBOR and EURIBOR.  The NYAG alleged that nonprofit organizations in New York and elsewhere as well as government entities "were defrauded of millions of dollars when they entered into swaps and other financial contracts with Barclays without knowing that Barclays and other banks on the USD-LIBOR-setting panel were manipulating LIBOR."  Eligible entities with "LIBOR-linked swaps and other investment contracts with Barclays" were set to receive restitution from the $93.35 million fund, with the remainder of the proceeds covering investigation and other expenses under state law.  New York and Connecticut led the working group of State Attorneys General investigating Barclays.[33]

In December, COMCO reached settlements with a number of banks in connection with its investigations into Swiss franc, Japanese yen (JPY) LIBOR, and the Euroyen Tokyo Interbank Offered Rate (TIBOR), imposing total fines of approximately CHF 48.3 million ($47 million) on four banks.  JPMorgan Chase (JPMorgan) was fined approximately CHF 35.6 million ($34.7 million) to settle both investigations, Royal Bank of Scotland (RBS), which received full immunity for revealing the existence of the conduct related to Swiss franc LIBOR, received a fine of approximately CHF 3.9 million  ($3.8 million) related to its conduct involving JPY LIBOR and Euroyen TIBOR, while Deutsche Bank and Citigroup received fines in connection with JPY LIBOR and Euroyen TIBOR of approximately CHF 5 million ($4.8 million) and CHF 3.8 million ($3.7 million), respectively.[34] 

In a separate but related investigation, COMCO also reached settlements with Crédit Suisse, JPMorgan, RBS, and UBS related to conduct involving "bid-ask" spreads on certain Swiss franc interest rate derivatives and issued total fines of approximately CHF 5.4 million ($5.3 million).  COMCO fined JPMorgan approximately CHF 2.5 million ($2.4 million), Credit Suisse 2 million ($1.95 million), and RBS CHF 856,000 ($835,000), while granting UBS full immunity for revealing the conduct.  While COMCO's investigations into the two Swiss franc investigations are now terminated, its investigation into JPY LIBOR and Euroyen TIBOR continues against four banks (HSBC, Lloyds, Rabobank, and UBS), and other financial firms (interdealer/Cash Brokers: ICAP, RP Martin, and Tullett Prebon).[35]  

In 2016, the U.S. and UK continued their prosecutions of numerous individuals for LIBOR-related conduct.  In the U.S., four former traders from Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank) received sentences ranging from two years to time served (based on one trader's cooperation with the prosecution).  In August, the U.S. DOJ obtained superseding indictments for alleged LIBOR manipulation by two former Deutsche Bank traders; after they pleaded not guilty in September, the District Court scheduled a trial for January 2018.[36]

Perhaps the most significant development for this sector in 2016 has been the UK's Serious Fraud Office's ("SFO") prosecution of individuals for alleged LIBOR manipulation, notwithstanding the acquittal of six derivatives brokers early in the year.  On June 29, 2016, after an 11-week trial, a jury in London found two former Barclays traders and a former Barclays LIBOR submitter guilty of plotting to manipulate LIBOR.  The jury failed to reach a verdict on the involvement of two other former Barclays traders, and the SFO has announced plans for a retrial.  Subsequently, the court handed down jail sentences ranging between two years and nine months and six-and-a-half years (for a combined total of 17 years) against the three defendants and a fourth co-conspirator who had previously pled guilty.[37]  In November, a London judge declined the three defendants' request for permission to appeal.[38] 

ii.      EURIBOR

In December, both the European Commission (EC) and COMCO issued fines in connection with their investigations related to the EURIBOR benchmark interest rate.  The EC found a violation with respect to Euro-based interest rate derivatives, including the sharing of desired or intended EURIBOR submissions, and imposed fines totaling €485 million (about $520 million) including a fine of €337 million (about $352 million) issued against JPMorgan and fines of €115 (about $123 million) and €34 million (about $36 million) issued against Crédit Agricole and HSBC, respectively.  The banks have denied wrongdoing and were said to be weighing an appeal to the European Union courts.  The fines followed the EC's settlement in December 2013 with four other financial institutions concerning the same conduct.[39]

In December, COMCO also reached a settlement with the same four banks that had settled with the EC regarding the same EURIBOR-related conduct.  COMCO imposed individual fines totaling approximately CHF 45.3 million (about $44.2 million) on three of the four settling banks: Barclays (CHF 29.8 million ($29.1 million)), RBS (CHF 12.3 million ($12.0 million)), and Société Générale (CHF 3.3 million ($3.2 million)).  The fourth bank, Deutsche Bank, received full immunity for revealing the conduct to COMCO.  The Swiss agency said its investigation would continue against BNP Paribas, Crédit Agricole, HSBC, JPMorgan, and Rabobank.[40]

With respect to individual prosecutions, in 2016 the UK's SFO issued criminal proceedings against 11 individuals accused of manipulating EURIBOR.  Six of the 11 appeared in court on January 11, 2016, where they were charged with conspiracy to defraud.  Five individuals did not appear and prosecutors were granted European Arrest Warrants for four Germans and one Frenchman.  The SFO is in the process of enforcing those warrants as the case proceeds against the other six.[41]

iii.      Foreign Exchange (FX)

In December, Brazil's antitrust enforcement agency, CADE, announced that it had reached settlements with five banks concerning its FX investigation involving offshore conduct affecting the Brazilian real (BRL) and foreign currencies, as well as manipulation of FX benchmarks.  CADE approved cease-and-desist orders against Barclays, Citicorp, Deutsche Bank, HSBC, and JPMorgan with penalties issued against the banks totaling BRL 183.5 million (about $54.3 million).  CADE also announced that it had opened a new investigation regarding the onshore FX market based on "strong evidence of anticompetitive conduct" in the FX spot and futures markets involving at least five banks and evidence of involvement "to a lesser extent" by another five.  The new allegations include attempts to affect the PTAX, a BRL exchange benchmark maintained by the Brazilian Central Bank.[42]

In the U.S., U.S. District Judge Stefan R. Underhill of the District of Connecticut held sentencing hearings on the criminal pleas entered into by Citigroup, Barclays, JPMorgan, and RBS in May 2015.  The court issued fines totaling $2.5 billion--Citigroup ($925 million), Barclays ($650 million), JPMorgan ($550 million) and RBS ($395 million))--consistent with the plea agreements the banks had reached with DOJ but less than the fines that could have been imposed under federal sentencing guidelines.  The DOJ had urged the court to agree to the fine departures in light of the cooperation provided by each of the banks.  While UBS was not charged by the DOJ for FX-related conduct, the court also sentenced UBS on separate charges for breach of an earlier Non-Prosecution Agreement (NPA) related to the DOJ's LIBOR investigation and issued the $203 million fine agreed to under UBS's plea agreement.  The DOJ determined that UBS's involvement in certain FX-related conduct had breached that NPA.[43] 

Meanwhile, a published report suggests that South Korea's competition agency (KFTC) was expected to finalize an investigation report in its investigation of FX rates for the U.S. dollar and euro.[44] 

iv.      Other Benchmarks

In 2016, the reach of the benchmark investigations broadened to include rates set by the Association of Banks in Singapore.  In November, two banks agreed to pay AUD $13.5 million (approximately $11.2 million), plus contributions to the Australia Competition authority's costs.[45]

c.      Other International Investigations

i.      Auto Parts

The long-running investigations into collusive activity in the automotive parts industry continued in the second half of 2016, with four additional corporate guilty pleas in the United States, and one substantial fine in Mexico.  As of year-end 2016, 47 companies and 65 executives had been charged in the U.S. alone in the investigation, which began in 2010.[46]  According to Deputy Assistant Attorney General Brent Snyder, "[t]his investigation is not completed, and the division will continue to prosecute automotive parts manufacturers and executives that sought to maximize their profits through anticompetitive means."[47]  To date, the DOJ has collected some $2.9 billion in criminal fines in the course of the investigation.

Notably, 2016 brought a second guilty plea for Hitachi Automotive Systems Ltd., which previously pleaded guilty to price fixing and bid rigging in 2013.[48]  In 2013, Hitachi pleaded guilty and paid a $195 million fine for price fixing and bid rigging as to starters, alternators, and certain other automotive parts, and received substantial assistance credit for cooperating with the DOJ's investigation.  However, Hitachi's subsequent internal investigation failed to reveal that Hitachi had also conspired as to shock absorbers.  Acting Assistant Attorney General Renate Hesse stated that Hitachi "compound[ed] its error" by "fail[ing] to clean house and uncover its participation in the shock absorbers conspiracy.  The Division will continue to take a hard line when companies fail to uncover additional anticompetitive behavior."[49]  The Division recommended a substantial increase in Hitachi's fine relative to the range provided under the Sentencing Guidelines, and recommended that Hitachi serve three years of probation.  Hitachi agreed to pay an additional fine of at least $55.48 million; sentencing is set for February 2017.

Despite the long-running nature of the DOJ's investigation, companies pleaded guilty with respect to additional products, including steel tubes, body-sealing products, and access mechanisms.  In late July, Nishikawa Rubber Co. Ltd. agreed to plead guilty to price fixing and bid rigging as to body-sealing products, including weather-stripping, trunk lids, and related products, and to pay a $130 million criminal fine.[50]  Nishikawa's U.S. plea also resolved an investigation into its conduct by the Competition Bureau of Canada, because sales of parts manufactured in the U.S. and shipped to Canada for assembly into cars sold in the U.S. were included in the volume of affected commerce used to calculate Nishikawa's U.S. fine and, accordingly, the Commissioner of the Competition Bureau of Canada exercised his discretion not to pursue an enforcement action.  The Nishikawa fine demonstrates that the DOJ continues to cooperate actively with foreign competition authorities and to take an expansive view of what constitutes affected commerce in the United States for purposes of sentencing calculations.

Later in the year, Alpha Corporation agreed to plead guilty and pay a $9 million fine for price fixing and bid rigging related to access mechanisms, including door handles, trunk handles, keys, and locks.[51]  Alpha is, to date, the sole entity charged related to access mechanisms, but became the 46th entity charged in the auto parts investigation.  Likewise, in November, Shimizu-based parts manufacturer Usui Kokusai Sangyo Kaisha Ltd. agreed to plead guilty and pay a $7.2 million fine for price-fixing and bid-rigging as to automotive steel tubes.[52]  As we reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, Maruyasu Industries and four of its sales executives were indicted for alleged conduct related to steel tubes earlier this year, which marked the DOJ's first corporate indictment in several years.

In August, Mexico's Federal Economic Competition Commission (COFECE) fined Mitsubishi Heavy Industries and DENSO for collusive activity related to air conditioning systems for automobiles.[53]  Mitsubishi Heavy Industries provides engineering and services for such systems, which DENSO manufactures.  COFECE fined the two entities 36 million pesos each (approximately $1.74 million) for rigging a bid to supply General Motors with certain air conditioning compressors between 2012 and 2016.  Although the ultimate fine amounts were small by U.S. standards, COFECE's decision is noteworthy because it appears to have withdrawn leniency status and benefits to a leniency applicant because of a failure to cooperate fully with the authority throughout the investigation.  According to some commentators, this is the first such decision by COFECE, but it may be part of a continued trend to exact more substantial and extensive cooperation from leniency applicants before leniency is ultimately awarded.  Later this year, the Korea Fair Trade Commission levied a $9.7 million fine against the companies for the same conduct, as it affected cars sold by General Motors in Korea.[54]

ii.      Ocean Shipping/Roll-on, Roll-off Cargo

During the second half of this year, both the U.S. DOJ and the Australian Competition and Consumer Commission (ACCC) continued their investigations related to the roll-on, roll-off cargo industry.  Roll-on, roll-off cargo is non-containerized cargo--cars, trucks, and mining, construction, and agricultural equipment--that can be rolled onto and off of an ocean-going vessel.  To date, four companies have pleaded guilty and paid nearly $235 million in criminal fines, along with the indictments of eight individuals, four of whom have since been convicted and sentenced.[55]

In July 2016, Wallenius Wilhelmsen Logistics AS (WWL), a Norwegian Corporation, agreed to plead guilty and pay a $98.9 million fine.[56]  WWL's fine was the largest by far in DOJ's investigation, accounting for nearly half of the total fines collected to date.  Later in the year, the ACCC brought its first-ever criminal charges against two roll-on, roll-off cargo companies, Nippon Yusen Kabushiki Kaisha (NYK) and Kawasaki Kisek Kaisha (K-Line), both of whom had previously pleaded guilty in the United States and agreed to pay significant fines.[57]  NYK pleaded guilty in Australia as well, and will face significant fines there.  The Australian Competition and Consumer Act exposes cartel defendants to fines totaling the largest of A$10 million ($7.6 million), three times the total illegal benefits obtained as a result of the conduct, or ten percent of the company's total turnover in Australia.  K-Line, however, is contesting the charges.[58]

iii.      Capacitors

As we reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update,[59] enforcement authorities in Asia, South America, Europe, and the U.S. have been investigating manufacturers of certain types of capacitors.  During the second half of 2016, most public activity related to these investigations occurred in the U.S.  The DOJ filed charges against three companies in August, bringing to five the total number of companies that have been charged and agreed to plead guilty.[60]  One of those companies, Rubycon Corporation, pleaded guilty in October and agreed to pay a reduced fine based on its alleged inability to pay; but while the U.S. District Court for the Northern District of California accepted the guilty plea, the court deferred sentencing and requested additional information about Rubycon's financial status.[61]  As such, none of the three companies that announced plea agreements in August have yet been sentenced.  In November and December, the DOJ announced superseding indictments charging a total of nine executives from at least four different companies who allegedly colluded regarding electrolytic capacitor prices.[62]

iv.      Posters

In August 2016, Trod Ltd. pled guilty in the U.S. to a one-count indictment for fixing the prices of posters sold through the Amazon.com Marketplace, allegedly through means of a price-fixing algorithm.  Trod was originally indicted in late 2015, as part of an investigation dating to 2013.[63]  Trod ultimately agreed to pay a $50,000 fine in the U.S..  Daniel Aston, a Trod director who was also indicted, agreed to guarantee the payment.[64]  UK authorities continued their investigation into the online poster space as well, and settled their case against Trod in late July.  Trod was fined £163,371 (approximately $201,000) after 20% discount reflecting resource savings to the UK Competition and Markets Authority (CMA) as result of its admission of guilt and cooperation, and Aston was disqualified from serving as the director of any UK company for five years.[65]  The CMA's decision to debar Aston was the first successful imposition of this sanction, which was first enacted in 2003.[66]  GB eye, a co-conspirator, was a successful applicant under the CMA's leniency policy and received immunity from fines.[67]  We expect that these investigations will not be the last we see in the e-commerce space, as Acting Assistant Attorney General Renate Hesse has signaled the Division's ongoing commitment to such investigations, noting that "customers must be confident that they will receive the same benefits of vigorous competition on the web as they do at brick-and-mortar stores."[68]

B.      Americas

a.      United States

i.      Fines and Sentences

The Antitrust Division secured approximately $321 million in criminal fines and monetary penalties in FY2016.  As we reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, this is a dramatic slowdown from FY2015's record-topping $3.9 billion in fines and penalties, although that record year was largely spurred by significant fines and penalties arising from the Division's investigation into the manipulation of certain foreign exchange rates and the LIBOR investigation.  FY2016's $321 million figure is also a significant decline from the level of penalties assessed in each of the last ten years.  Indeed, it is the lowest total in the last decade.  While one would not have anticipated a third consecutive year of record fines, this dramatic drop off is, to say the least, unexpected. 

Of the criminal fines and monetary penalties thus far, the vast majority were imposed for violations of the Sherman Act.  The largest single criminal fine of the year was levied for price fixing and bid rigging of ceramic substrates used in automobiles.  The fine was the latest in the DOJ's long-running investigation into collusive activity in the automotive parts industry, which gave rise to more than half of the fines assessed this year.

Total Criminal Fines 

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 2013 Year-End Criminal Antitrust and Competition Law Update).  While the Antitrust Division continues to embrace multi-agency investigations, the below chart indicates a significant dip in the use of other monetary assessments as a prosecutorial tool.  Nonetheless, we believe this combined metric remains the most accurate gauge of fining activity.

Total Criminal Fines and other Monetary Assessments 

Monetary assessments are also down dramatically from prior years, with just $7.6 million levied in total this Fiscal Year.  This, too, represents the smallest total of monetary assessment activity in the last eight years, and just over 1% of the monetary assessments collected in FY2011, when non-fine assessments peaked.

Other Monetary Assessments 

Although fine activity has fallen dramatically thus far in FY2016, the average length of prison sentences secured by the Antitrust Division is more or less on trend.  The average length of a prison sentence increased from 16 months in FY2015 to 22 months this year.  Both numbers are a significant departure from the average sentence secured in FY2014, when average sentence length peaked at 38 months after four years of consecutive increases.  In our 2015 Year-End Criminal Antitrust and Competition Law Update, we noted that it would remain to be seen whether this initial reduction (from 38 months to 16 months) was a trend or an aberration.  Although average sentences have rebounded some this year, they have not regained their FY2014 height.  Nonetheless, we believe that the specific details of the largely domestic cases in which sentences have been imposed this year explain the apparent departure from past records and that the Antitrust Division will continue to seek significant prison terms in price-fixing cases.

Average Length of Prison Sentence 

Total Prison Days 

Number of Defendants Sentenced to Prison 

ii.      Real Estate Foreclosure Auctions

In the second half of 2016, the DOJ's investigation into bid rigging at real estate foreclosure auctions in California and Georgia netted 17 new guilty pleas, numerous prison sentences, and over $4.3 million in criminal fines.  However, the DOJ also suffered a setback when a California federal judge suppressed warrantless FBI recordings made of alleged conspirators at foreclosure auctions, even as a different federal judge denied a similar motion to suppress in a separate case.

Specifically, as reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, defendants in two different foreclosure cases in the Northern District of California filed motions to suppress recordings made outside local courthouses where public foreclosures auctions were held.  The defendants each argued that the warrantless recordings violated their Fourth Amendment rights against unreasonable search and seizure.  The two judges reached different results.  First, on July 22, 2016, U.S. District Judge Phyllis J. Hamilton denied the motion to suppress, finding that although it was "unsettling" that the government would plant warrantless audio recording devices outside a courthouse, doing so did not violate the Fourth Amendment.[69]  Judge Hamilton also held that the defendants failed to show they had a "subjective expectation of privacy in the conversations at issue."[70]  Trial in these cases is set for May 15, 2017.[71]

Less than two weeks later, on August 1, 2016, U.S. District Judge Charles R. Breyer--who presided over the second foreclosure case--reached the opposite conclusion and granted defendants' motion to suppress.[72]  Judge Breyer found that the defendants established an expectation of privacy in the recorded conversations.  Judge Breyer took the government to task, holding that it had "utterly failed to justify a warrantless" bugging of a courthouse, and further noting that the recording equipment was able to pick up conversations in "hushed tones" by judges, attorneys, and court staff entering and exiting the courthouse.[73]

Meanwhile, the DOJ's nationwide investigation into bid-rigging and fraud at public real estate foreclosure auctions continued to result in guilty pleas and prison sentences in the second half of 2016.  A total of 15 defendants were sentenced for their alleged roles in conspiracies to designate winning bidders at foreclosure auctions in Northern California and Georgia, with the average prison sentence totaling just over five months among defendants who received a prison sentence.[74]  The California defendants were ordered to pay on average much larger fines than defendants sentenced in Georgia:  the 10 defendants sentenced in California were ordered to pay fines of between $5,000 and $1 million, with the average fine at approximately $460,000.  Georgia defendants, on the other hand, were ordered to pay between $20,000 and $75,000 in fines, with the average fine at approximately $40,000.  In total, 15 defendants in both California and Georgia were ordered to pay approximately $2.3 million in restitution to victims.  Finally, an additional four defendants--three in California and one in Georgia--pleaded guilty during the latter half of 2016 to participating in similar bid-rigging conspiracies.  As of the time of publication, these four defendants had not yet been sentenced.

At the time of this report, at least 100 individuals have agreed to plead guilty or been indicted in connection with collusion with respect to mortgage foreclosure auctions.

iii.      Tuna

The DOJ's investigation into alleged price-fixing in the packaged seafood sector saw its first criminal charges this year, with two executives from Bumble Bee Foods agreeing to plead guilty in late December.  First, on December 7, 2016, Bumble Bee Seafood's current senior vice president of sales Walter Scott Cameron[75] agreed to plead guilty to a single charge of price fixing for conspiring with competitors to fix the price of canned seafood.  Two weeks later on December 21, 2016, Kenneth Worsham, the current senior vice president trade of marketing for Bumble Bee, agreed to plead guilty to a one-count felony price-fixing charge.[76]  The DOJ alleged that Worsham and others entered into a price-fixing conspiracy over packaged seafood, including canned tuna, sold in the U.S. from approximately 2011 through 2013.  Both pleas are subject to court approval and will require cooperation with the ongoing investigation.

As reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, as well as our 2015 Year-End Criminal Antitrust and Competition Law Update, the DOJ's investigation into the packaged seafood industry began in July 2015, when the department issued subpoenas to Chicken of the Sea and Bumble Bee Seafoods.  The subpoenas came in the wake of the announcement of a proposed merger between Chicken of the Sea, owned by Thai Union Frozen Products, and Bumble Bee, owned by the private equity firm Lion Capital.  The merger would have united the second and third largest tuna producers in the U.S., but it was called off in December 2015 after the DOJ expressed serious concerns that it would harm competition.

iv.      Generic Drugs

On December 14, the Antitrust Division announced the first criminal charges to result from its investigation into the generic pharmaceuticals industry.  Jeffrey Glazer and Jason Malek, former senior executives at Heritage Pharmaceuticals Inc., were each charged in a two-count felony information for their respective roles in conspiracies to fix prices, rig bids, or allocate customers in the markets for two generic drugs; a plea hearing has been scheduled for January 9.  Heritage Pharmaceuticals terminated both executives in August 2016 following an internal investigation and subsequently initiated its own legal action against them in November 2016 for stealing millions of dollars in profits and property through an elaborate embezzlement and self-dealing scheme they operated for at least seven years.  The Antitrust Division's investigation into the generic pharmaceuticals industry is ongoing and further charges are expected in the coming year.

b.      Canada

The Canadian Competition Bureau has brought significant bid-rigging charges in the last six months.  In August, a former director at a technology company pleaded guilty to bid rigging in connection with IT supply contracts.  She received an 18-month conditional sentence, a $20,000 fine, and 90 hours of community service.  The first six months of her sentence are to be served under home confinement.  While the fine amount is relatively small compared to other fines discussed in this Update, the sentence is notable because the defendant also agreed to participate in two public presentations aimed at raising awareness about Canada's Competition Act, the first time this has happened in Canada.[77] 

In October, a construction company pleaded guilty to participating in a bid-rigging conspiracy related to a road construction and sewage treatment project.  The remaining defendants involved in the alleged conspiracy are scheduled to be tried in early 2017.  Since June 2012, the investigation into road construction and sewage treatment projects has resulted in 83 criminal charges against 13 individuals and 11 companies.[78]

c.      South America

2016 saw considerable enforcement activity in South America, particularly in Brazil, Chile, and Colombia.

In Brazil, between January and October 2016, CADE adopted 24 infringement decisions, imposed a total of BRL 115,647,480 in fines (approximately $33,759,500), and reached 35 settlements, collecting a total of BRL 208,512,038 (approximately $63,669,400) from settling parties.  CADE has focused particularly on bid-rigging conduct, given the importance of procurement to the national economy.  To further this objective, CADE launched a screening platform which in turn has resulted in a number of cases. In 2016, CADE also reached a historic BRL 300 million (approximately $91.5 million) settlement in relation to collusion in the procurement of oranges from farmers, and imposed fines related to DRAM (for conduct that ended in June 2002).  New investigations included those in the real estate sector and liquefied petroleum gas market.

In Chile, the National Prosecutor's Office (the "Fiscalía Nacional Económica" or "FNE") lodged a formal complaint against laboratories for rigging bids in public tenders for the procurement of injectable medicines.  Chile's judicial bodies have also been active, considering appeals in relation to a December 2015 decision relating to asphalt producers, and ruling on the circumstances in which information obtained from leniency applications can be provided to criminal prosecutors.

In Colombia, the Colombian competition authority, the Superintendencia de Industria y Comercio ("SIC"), issued fines totaling 185 billion pesos (approximately $62 million) to four manufacturers and twenty-one individuals for conspiratorial activity in the tissue paper market, and found that two companies had participated in a cartel on the price of notebooks, imposing a fine of 14.8 billion pesos ($4.9 million).

The latter half of 2016 also saw enforcement action in other South American countries.  In Peru, fines were imposed on five pharmacy chains for fixing the prices of diabetes, migraine, stomach and neurological drugs, as well as vitamins.  The five chains were also ordered to conduct ongoing training of board members.  In Argentina, the CNDC opened investigations into industries that allegedly present market concentration and other characteristics facilitating antitrust infringements.  These industries include laundry detergent, aluminum, steel, petrochemical, mobile communications, credit cards and electronic payments, oil, milk, meat, city ground transportation and air transport.  Finally, the Costa Rican Commission to Promote Competition ("Comisión para Promover la Competencia" or "COPROCOM") opened an investigation against two public institutions for unfair practices relating to their procurement regarding an electronic invoicing project, as well as an investigation into sugar manufacturers for anticompetitive practices.

C.      Europe

As illustrated in the charts below, the fines imposed by the European Commission (the "Commission" or "EC") in 2016 significantly exceed the level of fines imposed in 2015 and are more in line with Commission practice between 2012 and 2014, where annual fines ranged between EUR 1.6 -1.9 billion ($1.67 – 1.98 billion).  While 2015 had marked a moderate start to Margrethe Vestager's term as European Commissioner for Competition, the Commission's results in 2016 show that it will continue to strictly enforce competition rules by imposing significant fines for collusive behavior. 

However, the second half of 2016 saw relatively limited enforcement at the national level against horizontal cartels.  Instead, more emphasis is being placed on vertical agreements, for which significant penalties can also be imposed.  This trend is expected to continue into 2017. 

a.      EU Fines

Fines Levied by EC 

Average Fines Levied by EC 

* Pursuant to the Commission's methodology, the figures above do not take into account subsequent rulings of the European Courts adjusting the levels of fines, or the impact on previous years of the re-issue of fines by the Commission following the annulment of previous decisions by the European Courts.

b.      EU cartel decisions

Aside from the Commission's EURIBOR decision in December 2016 (discussed above), the primary EU decisions during the second half of 2016 are as follows. 

i.      Trucks

On July 19, 2016, the Commission imposed a fine of EUR 2.926 billion ($3.04 billion) on five major international truck manufacturing groups for their participation in price-fixing.[79]  The Commission found that the companies infringed EU antitrust rules by colluding on truck prices, the timing for the introduction of emission technologies, and passing on to consumers the costs for meeting environmental standards.

The infringement covered the entire European Economic Area and lasted 14 years, from 1997 until 2011, when the Commission carried out unannounced inspections of the firms.  According to the Commission, between 1997 and 2004, meetings were held at the senior manager level, sometimes at the margins of trade fairs or other events.  Such meetings were complemented by phone conversations.  From 2004 onwards, the cartel was organized via the German subsidiaries of the truck producers, with participants generally exchanging information electronically. 

The case was begun by a whistleblower, who received full immunity.  Further leniency applications were made by three other parties.  All parties agreed to settle the case with the Commission, thereby achieving a reduction of 10% in their respective fines.  The highest individual fine (EUR 1.009 billion, or $1.051 billion) took into account a further 30% reduction under the leniency regime.  The remaining fines were EUR 753 million ($784 million), EUR 670 million ($697.6 million) and EUR 495 million ($515 million) respectively, which included some discounts under the leniency regime.

ii.      Rechargeable Batteries

On December 12, 2016, the Commission fined three rechargeable battery makers companies a total of EUR 166 million ($184 million) for price fixing.[80] The Commission's investigation was triggered by an immunity application from one of the participants.

According to the Commission, the four companies agreed on temporary price increases that were triggered by a temporary increase in the price of cobalt, a raw material used in the production of lithium-ion batteries.  The parties also reportedly exchanged commercially sensitive information such as supply and demand forecasts, price forecasts or intentions concerning particular competitive bids organized by specific manufactures of products such as phones, laptops or power tools.

All parties agreed to settle the case, thereby achieving a reduction of 10% in their respective fines, which otherwise ranged between EUR 29.8 million ($33.06 million) and EUR 97.15 million ($101.15 million).

iii.      Heat Stabilizers

On June 29, 2016, the Commission re-adopted two amending decisions relating to heat stabilizers, following an earlier annulment of the decisions by the EU General Court.[81]  In 2009, the Commission had fined ten producers of heat stabilizers EUR 173 million ($180 million) for fixing prices, sharing customers, allocating markets, and exchanging sensitive commercial information.  As a result of a calculation error, the fine imposed on one of the companies exceeded the ceiling set by EU antitrust rules, namely 10% of the company's turnover.  To correct this error, the Commission adopted an amending decision in 2010.  In 2011, following a judgment by the EU Court of Justice in a different case which held that the claim was time-barred as to a second company, the Commission repealed the 2009 Decision as to that company and adopted an amending decision.  However, in July 2015, the EU General Court annulled the 2010 amending decision, as one of the other companies concerned was not able to submit its views before the Commission adopted the amending decision.  

In 2016, the Commission gave all companies the opportunity to present their views and re-adopted the 2010 and 2011 amending decisions.  

c.      Country-level investigations

Enforcement at country-level across Europe continued in 2016 but, on the whole, was not as significant in terms of output as 2015.  All the same, there were important enforcement activities during the second half of 2016 particularly in France, Germany, Spain, and the UK.

In Germany, the Bundeskartellamt imposed fines in 2016 totaling EUR 46.3 million ($48.4 million).  Compared to the fines imposed in 2015 (EUR 190 million; $207 million) and 2014 (EUR 1 billion; $1.01 billion), this is a relatively low figure.  The most significant enforcement actions were taken against TV-studio operators and in the retail food market.  The latter involved vertical price fixing of beer and the total fines imposed amounted to approximately EUR 18.3 million (approximately $19.1 million).

For the UK, on the other hand, 2016 was ground-breaking in a number of respects.  The CMA's enforcement record includes the first director disqualification, which was secured in the Trod Ltd. posters case, discussed above.  In addition, the CMA imposed the highest ever fine on an undertaking (£84.2 million, or approximately $104 million) for unfair pricing in relation to pharmaceuticals.[82]  The CMA's enforcement activity focused on the online sector, where it had a number of cases, and on its ongoing criminal cartel cases.  The Serious Fraud Office also saw significant developments in the LIBOR and EURIBOR cases, as discussed above.   

In France, while fines were low, the authority was quite active during the latter half of 2016.  It imposed fines on the main professional union of modelling agencies and 37 individual modelling agencies for price-fixing conduct,[83] and also on two suppliers and one distributor of liquid fuel back-up heating units for horizontal and vertical pricing infringements.[84]  Interestingly, as none of the infringing companies in either investigation received immunity from fines, it appears that neither case stemmed from a leniency application.  The authority also launched new investigations, carrying out dawn raids in relation to the energy services and energy supply sectors,[85] as well as in relation to the manufacture and distribution of sandwiches.[86] 

The Spanish competition authority continued its vigorous enforcement through the second half of the year, imposing a number of significant fines. Highlights include fines totaling EUR 29.17 million (approximately $30.73 million) on 23 cement companies for price fixing and market allocation[87] and fines totaling EUR 46.44 million (approximately $48.93 million) in relation to a market-allocation cartel involving the secure handling and transportation of cash in Spain.[88]  In the latter case, the CNMC also imposed fines on executives of the cartel members, in what is part of a wider trend of reliance on its (rarely invoked) power to impose fines on individuals involved in hard-core cartels.

Enforcement action in other countries was more limited but nonetheless ongoing during the second half of 2016.  In Belgium, two river cruise operators were fined for market allocation.  In December 2016, the Danish competition authority reportedly brought to an end its long-running case involving a price-fixing cartel in the construction sector.  In Portugal, the authority imposed fines on five companies for a price-fixing and customer-allocation cartel in relation to paper envelopes.[89]  The Swedish court imposed a fine on two telecom operators for a non-compete agreement, halving the fine originally proposed by the competition authority.  Finally, in Switzerland, eight road-building and civil engineering companies were fined for their involvement in a bid-rigging cartel.[90]

D.      Africa and the Middle East

Significant enforcement action in 2016 took place in South Africa and Israel. In South Africa, in August, the Competition Commission filed six new complaints covering a host of alleged collusive conduct in such industries as community newspapers, rail maintenance, fabric supply for government uniforms, gear pumps, coffee capsules, and Council for Geoscience bids, involving 13 different firms.[91]  In July, the Competition Tribunal approved a consent agreement between Sime Darby Hudson Knight Ltd. and the competition authority, under which Sime Darby will pay an administrative penalty of 35 million rand (approximately $2,563,126) for customer allocation practices and invest 135 million (approximately $9,886,344) to build and commission a new packaging and warehousing facility.[92]  2016 also saw the end to a ten-year investigation into the South African steel scrap metal industry.[93] 

In Israel, the most significant development relates to the conviction of a lawyer for helping to cover up a bid-rigging scheme.  The lawyer was sentenced to three months' imprisonment and fined 50,000 shekels.  The criminal case against the individuals involved in the scheme is ongoing.[94]

E.      Asia and the Pacific

Enforcement authorities in Asia and the Pacific continued to be active and aggressive, with no signs that increased enforcement in this region will slow down any time in the near future.  Indeed, the $1 billion fine imposed by the Competition Commission of India ("CCI") on August 31, 2016, against ten cement manufacturers for allegedly forming and using a trade organization to exchange information in order to control prices was the second-largest fine imposed anywhere in the world during the second half of 2016.[95]  India's enforcement activities have spanned several diverse industries, both domestic and foreign.  For example, in November 2016, the CCI was ordered to investigate allegations that six Hollywood movie studios foreclosed the market by requiring theaters to carry projectors supplied by Digital Cinema Initiatives (a joint venture between the studios) in order to screen their films.[96] 

As discussed earlier, the Australian Competition and Consumer Commission ("ACCC") brought its first ever criminal charges under the criminal cartel provisions of the Competition and Consumer Act.  Specifically, the ACCC filed separate charges against two global shipping companies in July and November 2016, as part of its ongoing investigation of the international roll-on, roll-off ocean shipping industry.[97]  The ACCC has stated that it is aiming for a steady stream of one to two criminal cases per year.[98]

Japan focused on bid-rigging conspiracies during the second half of 2016, with the Japan Fair Trade Commission ("JFTC") issuing cease and desist orders and levying administrative fines in three separate investigations, including a $12.3 million fine in September 2016 against participants in bidding requested by a company for public works following the Great East Japan Earthquake.[99]  There is also increased intolerance of anticompetitive behavior in China, particularly against foreign companies operating in the country.  In December, authorities in the Guangdong province fined five express delivery companies a total of 650,000 Yuan ($93,889) for agreeing to fix and elevate the price of delivery services in violation of China's Anti-Monopoly Law.  Although the overall fine amount was relatively small, the allegations appeared to center on a single meeting at which the agreement was reached, and the five-day period in which it was implemented.[100]

The increased cartel enforcement activities in these countries stand in contrast to South Korea, which has aggressively pursued collusive conduct in recent years and was recently ranked as an "elite" competition authority by the Global Competition Review after receiving the 2016 award for Agency of the Year for Asia Pacific, Middle East and Africa in April.[101]  During the second half of 2016, however, Korea's Fair Trade Competition seems to have shifted resources to investigations of abusive conduct, and therefore issued only relatively few fines for collusive conduct--the most significant of which were a $9.7 million fine against two automobile manufacturers for allegedly conspiring to fix prices on vehicle air conditioner compressors,[102] and a $975,000 fine against three doctors' organization for pressuring medical equipment companies not to sell equipment to doctors of Oriental medicine.[103]

III.      COUNTRY-SPECIFIC DEVELOPMENTS

A.      Argentina

a.      Policy/Legislative Developments

In 2016, the CDNC launched a consultation process for proposed legislation to amend Argentina's Law 25,156.[104]  The bill, which will be sent to the Congress in the next few months, proposes the following changes to the country's anti-cartel laws:

  • The introduction of more stringent fines, of up to 30% of the value of commerce affected by the collusion.  Under the current legislation, fines cannot exceed 150 million Argentine Pesos (approximately $9.5 million).

  • The establishment of a leniency program to foster the detection of cartels.

  • The facilitation of private litigation.

b.      Investigations/Fines

In August 2016, the CDNC opened a number of antitrust investigations, including a cartel investigation into Prisma, the only company authorized to issue Visa cards in the country, after finding that the local credit card and electronic payment markets lack competition and transparency.  The authority is also seeking to open an investigation into the 14 banks that are Prisma's shareholders to establish whether cartel agreements have taken place between them.[105] 

The CDNC has also ordered an in depth investigation into eleven industries that allegedly present market concentration and other characteristics facilitating antitrust infringements, inter alia, potential cartelization.[106]  These industries include laundry detergent, aluminum, steel, petrochemical, mobile communications, credit cards and electronic payments, oil, milk, meat, city ground transportation, and air transport.

B.      Brazil

According to data from CADE, from January 2016 until October 2016, CADE adopted 24 Decisions of Infringement in antitrust investigations, imposing a total of BRL 115,647,480 in fines (approximately $33,759,500), and reached 35 settlements, collecting a total of BRL 208,512,038 (approximately $63,669,400) from settling parties.[107] 

As noted by the president of CADE, Mr. Márcio de Oliveira Júnior, "[within] cartel practices, special attention has been granted to public bids.  Brazil's statistics of procurement procedures are startling.  Since 2010, the country has had more than 3 million procurement procedures, adding up to more than $300 billion."  Due to the importance of procurement, CADE is developing a "Screening Project," a platform that allows the integration of large public procurement databases by applying data mining tools and economic filters capable of measuring the probability of the formation of a cartel in relation to public bids.[108]  Ongoing high profile bid-rigging investigations include the following:

"Operation Car Wash:[109] As described in our 2015 Year-End and 2016 Mid-Year Criminal Antitrust and Competition Law Updates, CADE is investigating, together with a number of other Brazilian authorities, high-profile conduct related to public bids and other alleged corruption.  The investigation is commonly referred to as "Operation Car Wash" ("Lava Jato" in Brazilian, after the network of laundromats and gas stations allegedly used to move illicit funds). 

On December 2, 2016, the General Superintendence, the investigative branch of CADE, released details of an immunity agreement it had signed with Carioca Engenharia, a Brazilian engineering and construction company.[110]  The agreement provides details of alleged collusion related to three separate bids for construction projects organized by Petrobras between 2006 and 2008.[111]  It also contains allegations that Carioca Engenharia and eleven of its competitors exchanged commercially sensitive information in an attempt to manipulate Petrobras's tendering process.  The immunity agreement with Carioca Engenharia was signed after eight months of negotiations, and will provide the company with full immunity from fines if it continues to cooperate with CADE.  According to publicly available information, CADE is negotiating up to 30 additional leniency agreements linked to "Operation Car Wash".

World Cup Stadiums:[112] CADE has initiated an investigation into alleged bid-rigging affecting the construction of at least five of Brazil's 2014 World Cup stadiums, after entering into a leniency agreement with Andrade Gutierrez, a construction company.  The agreement was reached after 11 months of negotiation.  On December 6, 2016, CADE made public certain allegations contained in Andrade Gutierrez's leniency application, outlining a scheme to coordinate bids for the construction of stadiums in Brazilian cities between October 2007 and mid-2011.[113]  

Other conduct investigated by CADE in 2016 includes:

Orange producers:[114] On November 23, 2016, CADE reached a historic BRL 300 million (approximately $91.5 million) settlement with six orange juice producers, an industry trade association, and nine individuals for concerted activities in the procurement of oranges from farmers.  Under the settlement agreement, the companies admitted their involvement in collusive conduct aiming at lowering the prices paid to farmers for the sourcing of oranges.  The settlement was reached 17 years after CADE launched the investigation in 1999.  Administrative proceedings continue against four smaller orange juice producers that are also involved in the alleged conduct.  This fine is particularly noteworthy because it involves collusion by common customers with respect to purchase prices. 

DRAM:[115] On November 23, 2016, CADE's decisional body (the "Tribunal") imposed fines of approximately BRL 6.8 million (approximately $2 million) on five multinational technology companies and two individuals for their participation in alleged collusion related to Dynamic Random Access Memory ("DRAM") chips, which are used in personal computers, printers, mobile phones, game consoles, and digital cameras.  As reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, although the activity took place outside the country and the alleged participants did not include Brazilian entities, CADE asserted that the conduct had indirectly affected prices in Brazil, given the country's reliance on imports of products containing the chips.  CADE's investigation dates back to 2010 when the European Commission imposed fines of EUR 331.3 million (approximately $346.2 million) on producers of DRAM chips.  The conduct itself ended in mid-2002.  In 2015, five other companies involved and 14 individuals reached settlements with CADE.[116]

Real Estate:[117] In late November and early December 2016, it was reported that CADE launched an investigation into Brazil's real estate sector, after uncovering evidence of collusion involving real estate agents.  The investigation is reported to focus on Brazil's federal real estate agent regulator ("Conselho Federal de Corretores de Imóveis" or "COFECI"), which allegedly released a resolution that influenced its regional partners to fix the price of broker fees in the selling, leasing and management of buildings within four areas of Brazil.  CADE's investigation also covers 22 regional regulators suspected of monitoring and helping to implement the arrangements.  According to press reports, the regulators may have opened disciplinary proceedings against brokers that failed to follow uniform charges issued by COFECI.

Liquefied Petroleum Gas ("LPG"):[118] On September 19, 2016, CADE opened administrative proceedings against five LPG distributors, 31 resellers, 39 individuals, and two trade associations allegedly involved in collusive conduct.  CADE indicated that it had found evidence that the companies and individuals attempted to restrict competition by allocating markets and fixing prices.  The proceedings follow a similar investigation CADE had previously initiated in North-Eastern Brazil.[119]

C.      Belgium

River cruises: In 2016, two river cruise operators in the southern Belgian tourist town of Dinant were found to have engaged in two agreements to divide the market for local river cruises between 1983 and 2014.  One party was fined EUR 64,100 ($67,000), the other received full immunity.[120]

D.      Chile

a.      Policy/Legislative Developments

As anticipated in our 2016 Mid-Year Criminal Antitrust and Competition Law Update, Chile's President, Ms. Michelle Bachelet, has signed into law Chile's new antitrust bill, which introduces a series of measures to strongly deter companies against participating in "hard-core" cartels.[121]   President Bachelet had strongly argued in favor of the criminalization of cartel conduct:  "I want to ask lawmakers of all political stripes to support the government's initiative to end once and for all the sense of impunity in cases of collusion."   On July 6, 2016, the Senate of Chile finalized the antitrust bill, which she then signed on August 19, 2016.  Notable measures include:

  • Increasing the possible fines to be imposed on "hard-core" cartels to up to 30% of the value of affected commerce, or double the profits obtained by these companies.  Furthermore, cartel members can be precluded from contracting with the Chilean State, a sanction which, if enforced judiciously, can have a major deterrent effect on potential collusive arrangements.

  • Introducing a "collusion" felony, which can be sanctioned with (i) prison from three to ten years; as well as (ii) the prohibition to undertake certain professions or activities thereafter.  However, first-in leniency applicants will obtain immunity from the application of Chile's new criminal provisions.  

  • Facilitating the initiatives of third parties to recover damages, including by means of class actions.

b.      Investigations/Fines

Pharmaceuticals: On August 3, 2016, the National Prosecutor's Office (the "Fiscalía Nacional Económica" or "FNE") lodged a formal complaint before the Tribunal de Defensa de la Libre Competencia ("TDLC") against laboratories Laboratorio Biosano, Fresenius Kabi Chile and its subsidiary Laboratorio Sanderson.  The FNE accused the companies of rigging bids in public tenders for the procurement of injectable medicines (small sealed vials that can contain a wide array of medicines, such as analgesics, anticoagulants, anti-inflammatories or antibiotics, among others).  The suspected cartel lasted from 1999 to the first half of 2013, during which more than 1,000 tenders were handled for the sourcing of ampoules.  Evidence supporting the case was seized during several dawn raids, obtained through wiretapping, and provided by a leniency applicant.  The FNE requested the imposition of $16.7 million in fines for Sanderson, and $1.9 million for Fresenius Kabi Chile.  No fines were requested for Biosano, the leniency applicant.[122]

Asphalt: On October 12, 2016, the Chilean Supreme Court ("Corte Suprema") partly repealed the TDLC's December 2015ruling in relation to asphalt producers.[123]  The Court confirmed the findings of the FNE and of the TDLC that several asphalt producers had colluded in regard to three projects for the supply of asphalt for construction and the reparation and replacement of roads.  However, the Court disagreed with the TDLC's ruling with regard to three other projects, which it found to be outside the collusive arrangement. 

Procedural matters: On April 4, 2016, a Chilean Court of Appeals confirmed a ruling of two Chilean lower courts to deny access to a Chilean prosecutor to certain information provided by a leniency applicant.  According to publicly available information, the Santiago Court of Appeals has indicated that the FNE can hand over information obtained from leniency applications to criminal prosecutors only when such disclosure is in line with confidentiality standards in Chile's competition laws, rather than those outlined in the country's criminal procedure rules.  The ruling could have major implications in terms of enhancing the predictability and effectiveness in the application of Chile's leniency program, particularly in the light of the country's criminalization of cartel conduct, as discussed above.[124]

E.      Colombia

Paper products: On August 24, 2016, Colombia's Superintendencia de Industria y Comercio ("SIC") announced fines related to paper notebooks.  Two companies were afforded leniency (one had acquired the other); a third was fined 14.8 billion pesos ($4.9 million) for colluding on the price of notebooks between 2001 and 2014.[125]

F.      Costa Rica

Procurement: In August 2016, Costa Rica's Commission to Promote Competition ("Comisión para Promover la Competencia" or "COPROCOM") opened an investigation against two public institutions for unfair practices relating to their procurement of electronic invoicing.[126]  

Food and beverages: Also in August, COPROCOM began an investigation into whether sugar manufacturers, associated under an Agricultural Industrial Cane League pressured wholesale businesses to refuse to sell sugar from a competitor in exchange for beneficial treatment.[127] 

G.      Denmark

Construction: In December 2016, a long-running construction cartel case reportedly came to an end when Julius Nielsen & Søn reached a settlement.[128]  The case had been ongoing since 2010 and has resulted in 25 companies being fined a total amount of DKK 31 million (approximately $4.3 million) for their involvement in a long-standing cartel in the construction sector, which was uncovered by the national authority in 2010.  The case involved price agreements totaling a value of DKK 400-500 million (approximately $56-70 million) and covered both private and public construction works, including schools and nursing homes.[129]  

H.      Egypt

On September 20, 2016, the office of the Egyptian Prime Minister issued executive regulations that, among other things, create a rebuttable presumption that separate companies owned by members of the same family are a single economic unit in antitrust investigations.  These new regulations appear to make Egypt's competition regime the first to treat separate companies owned by relatives as a single economic entity.  The regulations create a rebuttable presumption of unity, but are silent on the evidence necessary to rebut the presumption.  NYU law professor Eleanor Fox remarked that it is "perverse to define entities owned by separate people as one entity."[130]  "Precisely because so much of the Egyptian economy is owned by the same families," Professor Fox elaborated, "it is critical to competition that entities owned by separate people are recognized as separate."[131]  Gibson Dunn partner Peter Alexiadis, based in the Brussels office, said that "[m]any will find it difficult to understand how this could be portrayed as a positive development in the field of competition law."  One particularly thorny issue, Mr. Alexiadis added, is "whether competition enforcement treats the [rebuttable] presumption in an analogous manner across alleged infringements relating both to multilateral and unilateral conduct," in which case the rebuttable presumption would cut in opposite directions.  "That will not be an easy evidentiary horse to ride."[132]

I.      France

Fashion industry:[133] On September 29, 2016, the French competition authority (L'Autorité de la Concurrence) imposed fines totaling EUR 2,381,000 (approximately $2.5 million) on the main professional union of modelling agencies and 37 individual modelling agencies for price-fixing conduct.  The authority found that, between 2000 and 2010, the union had drawn up and distributed annual pricing schedules to which the agencies adhered.  The agencies also took part in meetings between 2009 and 2010 in which they voted on increasing union prices and/or discussed a ban on distributing individual pricing schedules.  These practices are alleged to have resulted in an alignment of pricing across the industry.

Heating supplies:[134] On July 21, 2016, the authority fined two suppliers and one distributor of liquid fuel back-up heating units for horizontal and vertical pricing infringements.  The horizontal infringement between the two suppliers took place between 2005 and 2008, and involved customer sharing and collusion on the wholesale and resale price and supply volumes of liquid fuel backup heating units.  The vertical infringement, which took place between the two suppliers and their respective distributors during the same period, consisted of resale price maintenance regarding sales to consumers.  The authority imposed fines totaling EUR 9,013,000 (approximately $9.4 million).  The fine on one of the suppliers was increased by 50% to reflect its membership in a wider corporate group.

Food and beverages:[135] In September 2016, the authority announced that it had carried out dawn raids in the sector of manufacturing and distribution of sandwiches intended for supply to supermarkets.

Energy:[136] In November, the authority confirmed reports that it had carried out dawn raids in relation to the energy services and energy supply sectors.

J.      Germany

a.      Policy/Legislative Developments

On September 28, 2016 the German government adopted a draft bill for the ninth amendment to the German Act Against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen –"GWB"), which will implement, among other things, the European Damages Directive. 

The draft bill also brings company liability rules into line with the existing European model of a single economic unit, whereby parent companies can be held liable for their subsidiary's anticompetitive conduct even if they were not a party to the infringement themselves.

The draft bill also closes what is known as the so-called "sausage gap."  The gap became apparent  in October 2016, when the German Cartel Office (Bundeskartellamt) closed proceedings against two sausage companies because they no longer existed following internal restructuring.[137]  Even though the corporation still existed, the fines imposed on the two subsidiaries in 2014 (EUR 128 million (approximately $136 million)) could no longer be enforced.  To remedy this situation, the draft bill provides that future fines may be imposed on the legal successor as well as the economic successor of a company that has infringed German competition law.

b.      Investigations/Fines

TV-Studio Operators:  In July 2016, four TV studio operators were found to have engaged in an anticompetitive information exchange.  Three TV studio operators in Berlin and Munich were fined a total amount of EUR 3.1 million (approximately $3.2 million).  The fourth received full immunity.[138]

Retail food market:  In December 2016, the Bundeskartellamt closed its last proceedings for vertical price-fixing in the retail food market.  It imposed fines of EUR 18.3 million ($19.1 million) on two food retailers for fixing retail beer prices.  The overall fines imposed on one brewery and eleven retailers by the Bundeskartellamt in 2015 and 2016 for vertically fixing beer prices total approximately EUR 112 million ($117 million).[139]

c.      Private Actions

In one recent case, a German complainant, HUK-Coburg, is seeking EUR 21.6 million (approximately $22.5 million), plus interest, in damages reportedly reaching the same amount from Asahi Glass, a Japanese glass manufacturing company.  The claim is based on the Commission Decision in the Car Glass cartel case of 2008.  The Regional Court dismissed the lawsuit on November 19, 2015, but HUK-Coburg is appealing this judgment before the Düsseldorf Appeal Court.  The appeal is ongoing.

K.      Greece

In July 2016, the national competition authority introduced a settlement procedure in cartel cases.  Notably, when companies acknowledge liability for participation in cartels, they can now obtain a 15% reduction in penalty, provided that certain conditions are fulfilled.[140]  This further aligns Greek settlement procedures with those in many other countries as well as the European Union, which allow reductions in fines for acceptance of responsibility.

L.      Guatemala

Guatemala is one of only a handful of Latin American countries without competition regulations.  It was due to adopt such regulations by November, as part of a trade agreement with the European Union.[141]  Ricardo Sagastume, President of the Institute of Mercantile Law, announced in early November that the government would meet the deadline, but while several proposals have been submitted to Guatemala's Congress, no law has yet been enacted as of the date of this publication.[142]

M.      Hong Kong

The Competition Ordinance celebrated its first anniversary on December 14, 2016.  During its first year, the Hong Kong Competition Commission ("HKCC") received nearly 1900 complaints and inquiries.  Around 130 cases have been subject to a further assessment, and around 10 percent of these cases were subject to an in-depth investigation.  The HKCC has used its statutory powers, including dawn raids and requests for information, to gather evidence of anticompetitive conduct in several cases.  The HKCC is also assessing a potential block exemption for the shipping industry, and is conducting a market study into retail gasoline. The HKCC expects to bring its first case before the Competition Tribunal in 2017.[143]

N.      Hungary

In late 2016, the Hungarian legislature adopted significant amendments to the Competition Act, introducing the possibility to apply for leniency in relation to vertical infringements and increasing the national authority's margin of discretion in settlement proceedings.  As a result of these changes, the reduction in fines available in settlement cases has increased from 10% to 30%.[144]  The amendments are expected to enter into force in early 2017.[145]

O.      India

Building and construction:  In August 2016, the Competition Commission of India ("CCI") fined 10 cement companies over $1 billion for allegedly forming a cartel (under the guise of a trade organization) to exchange private information in an effort to control prices.  These fines follow a 2012 court decision finding the companies guilty of price fixing, which was set aside by the Competition Appellate Tribunal ("COMPAT") in 2015.[146]  In November, COMPAT stayed the CCI penalty pending their appeal, but asked the companies to deposit 10% of the penalty to be held until the case is resolved.[147]

Tires:  As our 2016 Mid-Year Criminal Antitrust and Competition Law Update reported, CCI held hearings on an alleged tire manufacturing conspiracy earlier this year and the investigation is still ongoing.[148]  On July 4, 2016, COMPAT refused to hear an appeal which challenged the CCI director general's order to treat documents submitted by one of the companies as confidential only until the CCI investigation and proceedings are completed.[149]

P.      Israel

a.      Policy/Legislative Developments

On November 22, 2016, Israel's Antitrust Authority proposed legislative changes that reportedly would both insulate it from freedom of information requests and balance third parties' confidentiality concerns with the rights of companies appealing the authority's decisions.  Specifically, the proposed changes would allow the authority to give appellants access to documents containing sensitive business information, but only to the appellants' outside legal counsel and economic experts. Currently, companies appealing an Authority decision must seek approval from Israel's Antitrust Tribunal before accessing a case file.[150]

b.      Investigations/Fines

Bid-rigging:  On November 8, 2016, the District Court of Tel Aviv sentenced a lawyer, Haim Novogrotzky, to three-months' imprisonment and imposed a 50,000 shekel fine (approximately $12,500) for helping two business owners cover up a bid-rigging scheme.  Mr. Novogrotzky was convicted on September 6, 2016, for assisting businessmen Aharon Eizenberg and Abish Tzeinvyrt cover up an agreement wherein one would not tender a bid for six acres of government-owned land in Jerusalem in exchange for $1.1 million.  The Court rejected Mr. Novogrotzky's defense that he was unaware of his clients' alleged agreement and that he believed the agreement was legitimate, in part due to his attempts to conceal the agreement.  Not only have there been only a handful of cases where defendants have been imprisoned for violating Israel's competition laws, but Mr. Novogrotzky's sentence also marks the first time an Israeli court has imprisoned a lawyer for participation in collusive conduct.  A criminal case against Mr. Eizenberg and Mr. Tzeinvyrt is ongoing.[151]

Q.      Japan

Communications equipment: On July 12, 2016, the JFTC issued cease and desist orders and surcharge payment orders, totaling approximately ¥403 million (approximately $4.6 million), to several distributors of electric power security communication equipment.  The JFTC alleged that the companies substantially restrained competition by designating successful bidders and enabling those bidders to win bids for the equipment.[152] 

Bid-rigging: On September 6, 2016, in the course of its investigation of bid riggings for disaster recovery paving works following the Great East Japan Earthquake (as reported in our 2016 Mid-Year Criminal Antitrust and Competition Law Update[153]), the JFTC issued cease and desist orders and surcharge payment orders to several additional companies totaling approximately ¥1.4 billion (approximately $12.3 million).[154]  And on September 21, 2016, the JFTC issued additional cease and desist orders and surcharge payment orders, totaling ¥480 million (approximately $4.2 million), to additional companies related to the same conduct.[155]

R.      Kenya

In 2016, the Cabinet Secretary/National Treasury proposed amendments to the consumer protection provisions of the Competition Act to enable the Competition Authority to conduct investigations on its own volition under section 36, 37, and 38 of the Act.[156]  The legislation also seeks to target abuse of buying power in Kenya's retail sector as a result of complaints that many buyers fail to pay for goods they receive from suppliers.  Other proposed amendments would require stakeholders to provide required information during inquiries; set a financial threshold for financial penalties; clarify that acquiring assets can amount to an acquisition of control through the purchase of assets; and provide penalties against parties that provide wrong information during the merger approval application process, among others.

S.      Mexico

a.      Policy/Legislative Developments

In September 2016, during the annual Global Antitrust Enforcement Symposium at Georgetown Law School, the head of the Federal Commission of Economic Competition ("Comisión Federal de Competencia Económica", "COFECE"), Ms. Alejandra Palacios Prieto, announced that COFECE is fine tuning cooperation with criminal prosecutions in order for Mexico to bring its first criminal charges for cartelistic conduct.  According to publicly available information, Mexico criminalized cartel conduct in 2011 but has yet to send a case to prosecutors.[157]  As of the date of this publication, no such criminal charges have been announced.

b.      Investigations/Fines

Gasoline and dieselIn July 2016, COFECE announced it would continue its investigation into service stations in the State of Baja California.  The investigation, opened in January 2015, concerns the possible existence of a cartel in relation to gasoline and diesel sales.[158]

Automobile compressors:  In August 2016, COFECE imposed fines on two companies totaling MXN 72 million (approximately $3.56 million) for their involvement in a suspected cartel in relation to air conditioner compressors used in automobiles.  The fine marks the first time Mexican authorities have withdrawn benefits attached to a leniency application because of the failure of a company to fully cooperate with COFECE until the end of the proceedings.[159]  Car parts makers are being investigated by a variety of competition authorities around the world, as set out above.

Ferries:  In November 2016, COFECE imposed fines totaling MXN 45.2 million (approximately $2.2 million) on six ferry companies and three individuals for price fixing and market allocation.[160]  The fines were particularly large in proportion to the affected volume of commerce in the light of the following considerations:  (i) the extent of market damage, which COFECE estimated as MXN 32 million (approximately $1.5 million), (ii) COFECE found maritime passenger transport to constitute an "essential service" to the local economies; and (iii) two individuals were recidivists.

T.      The Netherlands

a.      Policy/Legislative Developments

In 2016, the national authority's fining guidelines were amended to increase the maximum fines that can be imposed to 10% of an undertaking's annual turnover.[161]

b.      Private Actions

CDC, a cartel damages interest group representing claimants, filed a lawsuit in the Netherlands in 2011 following the Commission's Decision in the Paraffin Wax cartel in 2008.  Having previously ruled on questions of jurisdiction, the validity of the transfer of claims to CDC, and the applicable law by way of separate interim judgments, in September 2016, the Hague District Court assessed the effects of a settlement between CDC and one of the cartel members.  The Court ruled that it could still decide on this aspect of the case without involving the other cartel members.

On July 20, 2016, the District Court of the Middle Netherlands in Utrecht ruled in a claim based on the Commission's 2007 Decision in the Elevators investigation.  The claim was brought by a special purpose vehicle representing 144 hospitals and other healthcare institutions.  The Court held that the parent companies of Otis Elevator Corp., Schindler Elevator Corp., Thyssenkrupp and Kone (who were the addressees of the Decision) could not automatically be held liable for damages in the Dutch market.  There was no presumption of decisive influence, and the plaintiff had not sufficiently proved the parent companies' involvement.

U.      Peru

In October 2016, Peru's National Institute for the Defense of Competition and Protection of Intellectual Property ("Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual" or "Indecopi") imposed fines of a total of $2.6 million on five pharmacy chains for fixing the prices diabetes, migraine, stomach and neurological drugs, as well as vitamins.[162]  The five chains were also ordered to conduct ongoing training of board members.  This is the first time that Indencopi has imposed both fines and other sanctions simultaneously. 

V.      Portugal

Paper envelopes:  The national authority imposed total fines in excess of EUR 600,000 ($620,000) on five companies active in the production and distribution of paper envelopes.  The companies were found to have participated in a price-fixing and customer-allocation cartel lasting four years.[163]

W.      South Africa

Food and beverages:  In July, the Competition Tribunal approved a consent agreement between Sime Darby Hudson Knight Ltd. and CCSA under which Sime Darby will pay an administrative penalty of 35 million rand (approximately $2,563,126) and invest 135 million (approximately $9,886,344) to build and commission a new packaging and warehousing facility.  The CCSA began its investigation in 2012 after a third-party complaint.  The investigation found that between 2004 and 2013 the companies allocated customers of edible fats and oils.  In practice, the agreement kept Sime Darby out of the retail margarine sector and limited the company to producing edible oils in sizes only industrial customers would seek.[164] 

Additionally, late in the year, the CCSA conducted a search and seizure of five other companies involved in manufacturing and distributing refined edible oils, baking fats, and margarine on suspicion of price-fixing.[165]

Various industries:  In August, the Competition Commission filed six new complaints covering a host of alleged collusive conduct in such industries as community newspapers, rail maintenance, fabric supply for government uniforms, gear pumps, coffee capsules, and the Council for Geoscience bids, involving 13 different firms.[166]

Steel:  On September 21, 2016, the Competition Tribunal brought an end to a ten-year investigation into the South Africa steel industry's scrap metal industry.  The final remaining steel company subject to the investigation accepted a fine of 3 million rand (approximately $219,716) for engaging in price fixing, market allocation, and exclusive dealing agreements with over ten other companies.  The fine constitutes five percent the company's turnover for scrap metal since June 30, 2006.[167]  Relatedly, on November 17, 2016, the Competition Tribunal confirmed the Competition Commission's 1.5 billion rand (approximately $104.2 million) fine on another steel company for its participation in the conduct, in which the company admitted to fixing prices and allocating markets for scrap metal.[168] 

X.      South Korea: Leniency program amendments

On September 27, 2016, the Korea Fair Trade Commission ("KFTC") announced amendments to its "Public Notification on Implementation of Leniency Program including Corrective Measures Against Voluntary Confessors, etc. of Unfair Cartel Activities."[169]  According to the KFTC, the purpose of the amendments "includes improvement of the leniency application procedure, clarifying the standard of amnesty plus, employing stricter conditions for order of rank succession and amendment of the judging criteria on repeated violations."[170] 

The amendments took effect on September 30, 2016, and significant changes or clarifications included the following.   First, the amendments clarify that a leniency application can be made verbally and, in such instances, the "time of filing [the] application will be when the recording begins considering recording can take relatively longer time."  Second, with respect to amnesty plus applicants, the amendments provide that the discount from fines imposed for the original cartel activity will be based on a comparison of the "combined scale of original cartel activity and combined scale of other cartel activities."  Third, the amendments provide that in situations where one applicant is disqualified or withdraws its application, another applicant "can succeed the higher rank only when he or she qualifies for the leniency requirements."[171]  Notably, this means that a second-in-line applicant cannot move to the first position if the KFTC has already obtained sufficient evidence of the violation through the first applicant.  

Y.      Spain

a.      Policy/Legislative Developments

In 2016, the national authority (the "Comisión Nacional de Mercados y de la Competencia" or "CNMC") issued an Information Notice on the conduct of inspections ("dawn raids") on private premises.[172]  The Notice codifies existing legislation and case law regarding screening of irrelevant or personal data, and the sanctions applicable in the event of obstruction.  It also highlights the long-standing Spanish case law whereby the presence of a lawyers is not necessary for the initiation of an inspection.

b.      Investigations/Fines

Construction materials:  In September, the CNMC imposed fines totaling EUR 29.17 million (approximately $30.73 million) on 23 cement companies for price fixing and market sharing in relation to the production and commercialization of concrete.  According to the CNMC, the cartel lasted for over 15 years (1999-2014).[173] 

Travel:  In October, the CNMC imposed fines of EUR 1.8 million (approximately $1.9 million) on two travel agencies for bid rigging in relation to a government backed travel program.  The two companies had previously been penalized for the same conduct.[174]

Cash-handling services:  In November, the CNMC imposed fines totaling EUR 46.44 million (approximately $48.93 million) in relation to a market-sharing cartel involving the secure handling and transportation of cash in Spain.  The CNMC also imposed fines totaling EUR 52,600 (approximately $55,427) on two directors (one from each of the cartel participants).[175]

Z.      Sweden

Telecoms:  Two Swedish telecom operators were fined a total of SEK 16 million ($1.7 million) for agreeing not to compete for a data-services contract in the city of Gothenburg in 2009.[176]  The fine imposed by the Court was half the level originally proposed by the national authority.[177]

AA.      Switzerland[178]

Civil engineering:  Eight road-building and civil engineering companies were fined a total of CHF 5 million ($5 million) for their involvement in a bid-rigging cartel between 2002 and 2009.[179]

BB.      UK

a.      Investigations/Fines

Online refrigeration sales:  In May 2016, the CMA imposed a fine of just over £2 million (approximately $2.5 million) on fridge supplier ITW Ltd for engaging in resale price maintenance (RPM) in internet sales of its Foster commercial fridges from 2012 to 2014.  It had operated a 'minimum advertised price' policy and threatened dealers with sanctions (including threatening to charge them higher prices for Foster products or stopping supply) if they advertised below that minimum price.[180]

Pharmaceuticals:  In December 2016, the CMA imposed a record £84.2 million (approximately $104 million) fine on Pfizer, the manufacturer of phenytoin sodium (an anti-epilepsy drug), and a £5.2 million (approximately $6 million) fine on its distributor Flynn Pharma.[181]  Prior to September 2012, the CMA alleged, Pfizer manufactured and sold phenytoin sodium capsules to UK wholesalers and pharmacies under the brand name Epanutin and the prices of the drug were regulated.  In September 2012, Pfizer sold the UK distribution rights for Epanutin to Flynn Pharma, which de-branded (or 'genericized') the drug, meaning that it was no longer subject to price regulation. After de-branding, Pfizer allegedly supplied the drug to Flynn Pharma at prices between 780% and 1,600% higher than Pfizer's previous prices.  Flynn Pharma then sold the products to UK wholesalers and pharmacies at prices between 2,300% and 2,600% higher than those they had previously paid.  The Pfizer case is not the CMA's only investigation in this area.  During 2016, the CMA opened three new investigations into alleged anticompetitive practices in the pharmaceutical industry and is continuing to investigate another case opened in 2015.

Galvanized steel tanks:  As reported in our Mid-Year Report, the CMA's civil proceedings in relation to a price-fixing, market-sharing and bid-rigging cartel in respect of galvanized steel tanks continued in 2016 (following the termination of criminal proceedings in 2015).  Following a settlement announced in March 2016 and a formal statement of objections in May 2016, the CMA issued a final decision on December 19, 2016, imposing fines totaling more than £2.6 million (approximately $3.2 million) on three suppliers.  The fourth participant in the cartel received immunity.  In a separate infringement decision, the CMA also found that three of the suppliers and one other supplier (who was not part of the cartel) exchanged information about current and future pricing intentions at a single meeting in July 2012.  The three cartel participants were not fined for this separate infringement.  However, the non-cartel member was fined £130,000 (approximately $160,000).[182]

Fashion Industry:  The CMA, in December, fined five modeling agencies and a trade association a total of £1.5 million (approximately $1.8 million) for the exchange of confidential and sensitive information, including future pricing information.[183]

Building and Construction:  As reported in our Mid-Year Report, the CMA took criminal enforcement action in relation to suspected collusive conduct related to the supply of UK precast concrete drainage products.  On March 7, 2016, the CMA confirmed that it had charged one individual, Barry Cooper, for the criminal offense.  Cooper pleaded guilty to the criminal offense at a Pre-Trial Preparatory Hearing on March 21, 2016.

b.      Private Actions

The most significant private actions in the UK in 2016 related to the MasterCard interchange fees, which were the subject of a Commission infringement decision in 2007.  During 2016, a private action by Sainsburys, which was brought as a standalone action but relied heavily on the Commission's findings, came to a conclusion and resulted in damages of GBP 68.5 million (approximately $85 million), plus interest, being awarded. 

MasterCard currently faces a number of separate follow-on claims in the UK High Court and Competition Appeal Tribunal (CAT) brought by various retailers, and a collective action has been brought before the CAT on behalf of consumers.  The class certification hearing is expected to take place in January 2017.  The consumer class action is only the second opt-out claim to be brought under the new UK collective actions regime.[184]  (The first opt-out claim was brought in June 2016, following on from an infringement decision of the Competition and Markets Authority (CMA) relating to mobility scooters.)  In December 2016, the claim certification hearing was held but no decision has as yet been issued by the CMA.

In addition, cases based on the EU's Decisions in the detergents and glass cartels have settled or been withdrawn, and other cases have been launched based on the EU's Decisions in the DRAM, car glass, polyurethane foam and ball bearings cases.


  [1]       Gibson Dunn, Antitrust in the Trump Administration at 3.

  [2]       Press Release, Administrative Council for Economic Defense, CADE Submits for Public Consultation Bylaw on Procedures Related to the Access to Documents from the Antitrust Investigations, (Dec. 14, 2016), available at http://en.cade.gov.br/press-releases/cade-submits-for-public-consultation-resolution-on-procedures-related-to-the-access-to-documents-from-the-antitrust-investigations and including links, in Portuguese only, to the texts of the consultation documents.

  [3]       Comments can be sent to consultapublica52016@cade.gov.br.

  [4]       Henry Stockley, CADE Moves to Boost Private Enforcement, Global Competition Review, (Dec. 14, 2016), available at http://globalcompetitionreview.com/article/1078897/cade-moves-to-boost-private-enforcement.

  [5]       In September 2016, Acting Assistant General Renata Hesse of the Antitrust Division remarked on developments in international cooperation during the Obama Administration: "From day one, increased international cooperation in antitrust investigations has been a priority."  By way of example, Hesse cited "cooperation among enforcers" for the successful prosecution of Italian and Canadian nationals in 2014.  Press Release, U.S. Dep't of Justice, Acting Assistant Attorney General Renata Hesse of the Antitrust Division Delivers Remarks at Fordham Competition Law Institute's 43rd Annual Conference on International Antitrust Law and Policy (Sept. 23, 2016), available at https://www.justice.gov/opa/speech/acting-assistant-attorney-general-renata-hesse-antitrust-division-delivers-remarks.

  [6]       Press Release, U.S. Dep't of Justice, Israeli Executive Extradited and Arraigned on Fraud Charges Involving the Foreign Military Financing Program (Oct. 14, 2016), available at https://www.justice.gov/opa/pr/israeli-executive-extradited-and-arraigned-fraud-charges-involving-foreign-military-financing.

  [7]       Indictment, United States v. Marshak, No. 3:16 CR 11 (D. Conn. Jan. 1, 2016).

  [8]       Natalie Olivo, Ex-Defense Contractor Denies Military Aid Fraud Charges, Law360 (Oct. 14, 2016), available at https://www.law360.com/articles/851766/ex-defense-contractor-denies-military-aid-fraud-charges.

  [9]       Press Release U.S. Dep't of Justice, Israeli Executive Extradited and Arraigned on Fraud Charges Involving the Foreign Military Financing Program (Oct. 14, 2016), available at https://www.justice.gov/opa/pr/israeli-executive-extradited-and-arraigned-fraud-charges-involving-foreign-military-financing.

[10]       Press Release, U.S. Dep't of Justice, First Ever Extradition on Antitrust Charge (Apr. 4, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/304888.htm.

[11]       Press Release, U.S. Dep't of Justice, Marine Hose Executive Who Was Extradited to United States Pleads Guilty for Participating in Worldwide Bid-Rigging Conspiracy (Apr. 24, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/305376.htm.

[12]       Press Release, U.S. Dep't of Justice, Canadian Executive Extradited on Major Fraud Charges Involving a New Jersey Environmental Protection Agency Superfund Site (Nov. 17, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309928.pdf; U.S. Dep't of Justice, "Division Wins Conviction of Former CEO Extradited for Role in Kickback and Fraud Conspiracy," in DOJ Spring 2016 Update (Apr. 5, 2016), available at https://www.justice.gov/atr/division-wins-conviction-former-ceo-extradited-role-kickback-and-fraud-conspiracy.

[13]       Hans Greimel, Price Fixing Probes Wane U.S. Official Renews Extradition Threat, Automotive News (Feb. 15, 2016), available at http://www.autonews.com/article/20160215/OEM02/302159902/price-fixing-probes-wane.

[14]       Press Release, U.S. Dep't of Justice, Acting Assistant Attorney General Renata Hesse of the Antitrust Division Delivers Remarks at Fordham Competition Law Institute's 43rd Annual Conference on International Antitrust Law and Policy at 4 (Sept. 23, 2016), available at https://www.justice.gov/opa/speech/acting-assistant-attorney-general-renata-hesse-antitrust-division-delivers-remarks

[15]       Press Release, U.S. Dep't of Justice & Fed. Trade Comm'n, Antitrust Guidance for Human Resources Professionals (October 2016), available at https://www.justice.gov/atr/file/903511/downloadSee also Press Release, U.S. Dep't of Justice, Justice Department and Federal Trade Commission Release Guidance for Human Resource Professional n How Antitrust Law Applies to Employee Hiring and Compensation (Oct. 20, 2016), available at https://www.justice.gov/opa/pr/justice-department-and-federal-trade-commission-release-guidance-human-resource-professionals; Press Release, Fed. Trade Comm'n, FTC and DOJ  Release Guidance for Human Resource Professional on How Antitrust Law Applies to Employee Hiring and Compensation, (Oct. 20, 2016), available at https://www.ftc.gov/news-events/press-releases/2016/10/ftc-doj-release-guidance-human-resource-professionals-how

[16]       U.S. Dep't of Justice, Justice Department Requires Six High Tech Companies to Stop Entering into Anticompetitive Employee Solicitation Agreements (Sept. 24, 2010), available at https://www.justice.gov/opa/pr/justice-department-requires-six-high-tech-companies-stop-entering-anticompetitive-employee

[17]       In re High-Tech Employee Antitrust Litig., 856 F. Supp. 2d 1103, 1122 (N.D. Cal. 2012). 

[18]       See U.S. Dep't of Justice & Fed. Trade Comm'n, "Statement 6 – Provider Participation in Exchanges Of Price And Cost Information," in Statements of Antitrust Enforcement Policy in Health Care (1996), available at https://www.justice.gov/atr/statements-antitrust-enforcement-policy-health-care#CONTNUM_49

[19]  See Gibson Dunn, 2015 Year-End Criminal Antitrust and Competition Law Update, at I.A.4.b.

[20]  See Gibson Dunn, 2015 Year-End Criminal Antitrust and Competition Law Update, at Introduction.

[21]       U.S. Sentencing Guidelines Manual § 8C3.3(b) (U.S. Sentencing Comm'n 2015). 

[22]       Id. at § 8C4.1(a).

[23]       U.S. Sentencing Memo., Motion for Departure, and Request for Expedited Sentencing, ECF No. 5 at 7-15, United States v. Rubycon Corp., No. CR-16-0367-JD (N.D. Ca. Sept. 7, 2016). 

[24]      Criminal Mins., ECF No. 17, United States v. Rubycon Corp., No. CR-16-00367-JD (N.D. Ca. Oct. 16, 2016).

[25]       Tom Webb, Chile Beefs Up Competition Laws, Global Competition Review (Jul. 13, 2016), available at http://globalcompetitionreview.com/article/1068078/chile-beefs-up-competition-laws; see also Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.D.2.

[26]       See Newsletter, The Argentine Antitrust Agency will be Sending to Congress a Bill to Introduce Positive Amendments to the Antitrust Law, Alfaro Abogados (Aug. 2016), available at http://www.theworldlawgroup.com/wlg/Antitrust__Competition.asp.

[27]       See Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.C.6.a.

[28]       Press Release, Competition Comm'n of Singapore, CCS Revises Guidelines to Foster a Level Playing Field for Businesses (Nov. 1, 2016), available at https://www.ccs.gov.sg/media-and-publications/media-releases/ccs-revises-guidelines-to-foster-a-level-playing-field-for-businesses.

[29]       Press Release, Competition Comm'n of Hong Kong, Competition Commission Marks One Year Anniversary of Full Commencement of the Competition Ordinance (Dec. 14, 2016), available at https://www.compcomm.hk/.

[30]       Press Release, Korea Fair Trade Comm'n, KFTC amended its leniency program (Sept. 27, 2016), available at http://www.ftc.go.kr/eng/bbs.do

[31]       Id.

[32]       See Press Release, U.S. Dep't of Justice, Foreign Currency Exchange Dealer Pleads Guilty to Antitrust Conspiracy (Jan. 4, 2017), available at https://www.justice.gov/opa/pr/foreign-currency-exchange-dealer-pleads-guilty-antitrust-conspiracy.

[33]       Press Release, N.Y. Att'y Gen., A.G. Schneiderman Announces $100 Million Multi-State Settlement With Barclays Over Role Artificially Manipulating Interest Rates (Aug. 8, 2016), available at http://www.ag.ny.gov/press-release/ag-schneiderman-announces-100-million-multi-state-settlement-barclays-over-role; Alex Wilts, Barclays settles state Libor probe for $100 million, Global Competition Review (Aug. 9, 2016), available at http://globalcompetitionreview.com/article/1068360/barclays-settles-state-libor-probe-for-usd100-million.

[34]       Press Release, Swiss Competition Comm'n, COMCO fines Swiss franc LIBOR cartel (Dec. 21, 2016), available at https://www.newsd.admin.ch/newsd/message/attachments/46695.pdf.; Press Release, Swiss Competition Comm'n, COMCO fines banks for participating in Yen LIBOR / Euroyen TIBOR cartels (Dec. 21, 2016), available at https://www.newsd.admin.ch/newsd/message/attachments/46701.pdf.

[35]       Press Release, Swiss Competition Comm'n, COMCO fines Swiss franc Spread cartel (Dec. 21, 2016), available at https://www.newsd.admin.ch/newsd/message/attachments/46713.pdf.

[36]       Y. Peter Kang, Ex-Rabobank Trader Gets 3 Months For Fixing Libor, Law 360 (Nov. 9, 2016), available at https://www.law360.com/articles/861470/ex-rabobank-trader-gets-3-months-for-fixing-libor; Press Release, U.S. Dep't of Justice, Former Rabobank Derivatives Trader Pleads Guilty for Scheme to Manipulate LIBOR Benchmark (July 7, 2016), available at https://www.justice.gov/opa/pr/former-rabobank-derivatives-trader-pleads-guilty-scheme-manipulate-libor-benchmark; see Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.a; Press Release, U.S. Dep't of Justice, Two Former Rabobank Traders Sentenced to Prison for Manipulating U.S. Dollar and Japanese Yen LIBOR Interest Rates (Mar. 10, 2016), available at https://www.justice.gov/opa/pr/two-former-rabobank-traders-sentenced-prison-manipulating-us-dollar-and-japanese-yen-libor.  Y. Peter Kang, Ex-Rabobank Trader Dodges Jail Time For Fixing Libor, Law 360 (Nov. 14, 2016), available at https://www.law360.com/articles/862353/ex-rabobank-trader-dodges-jail-time-for-fixing-libor; United States v. Connolly et al., No. 1:16-cr-370-CM (S.D.N.Y. Aug. 18, 2016), ECF No. 22 (Superseding Indictment); Richard Vanderford, Former Deutsche Bank trader pleads not guilty to Libor manipulation, MLex (Sept. 8, 2016); see Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.a.

[37]       Press Release, SFO, Libor defendants acquitted (update) (Jan. 29, 2016), available at https://www.sfo.gov.uk/2016/01/29/libor-defendants-acquitted-update/; Press Release, SFO, LIBOR traders and submitters found guilty (July 4, 2016), available at https://www.sfo.gov.uk/2016/07/04/libor-traders-submitters-found-guilty/; Press Release, SFO, Convicted LIBOR manipulators sentenced (July 7, 2016), available at https://www.sfo.gov.uk/2016/07/07/convicted-libor-manipulators-sentenced/; Melissa Lipman, UK to Retry 2 Ex-Barclays Traders on Libor Changes, LAW 360 (July 6, 2016), available at http://www.law360.com/articles/814217/breaking-uk-to-retry-2-ex-barclays-traders-on-libor-charges; see Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.a.

[38]       Suzi Ring & Jeremy Hodges, Jailed Barclays Libor Traders Lose Bid to Appeal Convictions, Bloomberg News (Nov. 25, 2016), available at https://www.bloomberg.com/news/articles/2016-11-25/jailed-barclays-libor-traders-lose-bid-to-appeal-convictions; see Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.a.

[39]       Press Release, European Comm'n, Commission fines Crédit Agricole, HSBC and JPMorgan Chase € 485 million for euro interest rate derivatives cartel (Dec. 7, 2016), available at http://europa.eu/rapid/press-release_IP-16-4304_en.htm; Gapard Sebag, JPMorgan Hit Hardest as EU Fines Euribor Trio $521 Million, Bloomberg News (Dec. 7, 2016), available at https://www.bloomberg.com/news/articles/2016-12-07/jpmorgan-hsbc-credit-agricole-fined-521-million-over-euribor; Sonya Lalli, Banks vow to fight Euribor decision, Global Investigations Review (Dec. 7, 2016), available at http://globalinvestigationsreview.com/article/1078444/banks-vow-to-fight-euribor-decision.

[40]       Press Release, Swiss Competition Comm'n, COMCO fines banks for participating in the EURIBOR cartel (Dec. 21, 2016), available at https://www.newsd.admin.ch/newsd/message/attachments/46707.pdf.

[41]       Kirstin Ridley, UPDATE 2-UK prosecutors granted arrest warrants for Euribor Five, Reuters (Mar. 18, 2016), available at http://in.reuters.com/article/britain-euribor-arrests-idINL5N16Q20D.

[42]       Press Release, CADE, CADE signs five agreements regarding a cartel investigation in the foreign exchange market and opens a new cartel investigation in the Brazilian exchange market (Dec. 9, 2016), available at http://en.cade.gov.br/cade-signs-five-agreements-regarding-a-cartel-investigation-in-the-foreign-exchange-market-and-opens-a-new-cartel-investigation-in-the-brazilian-exchange-market; see Gibson Dunn, 2015 Year-End Criminal Antitrust and Competition Law Update, at I.C.3.

[43]       United States' Sentencing Mem. & Mot. for Departure, United States v. Citigroup, No. 3:15-cr-78 (D. Conn. Dec. 1, 2016), ECF 34, at 13-14; United States' Sentencing Mem. & Mot. for Departure, United States v. Barclays PLC, No. 3:15-cr-77 (D. Conn. Dec. 1, 2016), ECF 44, at 17; United States' Sentencing Mem. & Mot. for Departure, United States v. JPMorgan, No. 3:15-cr-79 (D. Conn. Dec. 1, 2016), ECF 38, at 13-14; United States' Sentencing Mem. & Mot. for Departure, United States v. Royal Bank of Scotland PLC, No. 3:15-cr-80 (D. Conn. Dec. 1, 2016), ECF 30, at 16; Erik Larson, Tom Schoenberg & Chris Dolmetsch, As Big Banks' FX Case Ends, Judge Urges Probe of Traders, Bloomberg News (Jan. 5, 2017), available at https://www.bloomberg.com/news/articles/2017-01-05/rbs-jpm-citi-barclays-fined-2-5-billion-in-fx-rigging-case; Tom Schoenberg & David McLaughlin, Barclays, JPMorgan, Citigroup Help U.S. Broaden Currency Probe, Bloomberg News (Dec. 12, 2016), available at https://www.bloomberg.com/news/articles/2016-12-12/barclays-jpmorgan-citigroup-help-u-s-broaden-currency-probe; see Gibson Dunn, 2015 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.a.

[44]       Danbee Lee, KFTC expected to finalize examiner's reports on alleged foreign exchange rate rigging by year-end, MLex (Aug. 18, 2016), available at http://www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=821934&siteid=202&rdir=1.

[45]       Press Release, Australian Competition & Consumer Commission, ACCC takes proceedings against ANZ and Macquarie bank for attempted cartel conduct (Nov. 25, 2016), available at https://www.accc.gov.au/media-release/accc-takes-proceedings-against-anz-and-macquarie-bank-for-attempted-cartel-conduct; Sonya Lalli, ACCC fines Malaysian forex rigging, Global Competition Review (Nov. 25, 2016), available at http://globalcompetitionreview.com/article/1076772/accc-fines-malaysian-forex-rigging.

[46]       See Press Release, U.S. Dep't of Justice, Japanese Auto Parts Company Agrees to Plead Guilty to Antitrust Conspiracy Involving Steel Tubes (Nov. 8, 2016), available at https://www.justice.gov/opa/pr/japanese-auto-parts-company-agrees-plead-guilty-antitrust-conspiracy-involving-steel-tubes.

[47]       Id.

[48]       See Press Release, U.S. Dep't of Justice, Hitachi Automotive Systems Agrees to Plead Guilty to Involvement in Anti-Competitive Auto Parts Conspiracy (Aug. 9, 2016), available at https://www.justice.gov/opa/pr/hitachi-automotive-systems-agrees-plead-guilty-involvement-anti-competitive-auto-parts.

[49]       Id.

[50]       See Press Release, U.S. Dep't of Justice, Nishikawa Agrees to Plead Guilty and Pay $130 Million Criminal Fine for Fixing Prices of Automotive Parts (July 20, 2016), available at https://www.justice.gov/opa/pr/nishikawa-agrees-plead-guilty-and-pay-130-million-criminal-fine-fixing-prices-automotive.

[51]       See Press Release, U.S. Dep't of Justice, Alpha Corporation Agrees to Plead Guilty in Price-Fixing and Bid-Rigging Conspiracy (Sept. 15, 2016), available at https://www.justice.gov/opa/pr/alpha-corporation-agrees-plead-guilty-price-fixing-and-bid-rigging-conspiracy.

[52]       See Press Release, U.S. Dep't of Justice, Japanese Auto Parts Company Agrees to Plead Guilty to Antitrust Conspiracy Involving Steel Tubes (Nov. 8, 2016), available at https://www.justice.gov/opa/pr/japanese-auto-parts-company-agrees-plead-guilty-antitrust-conspiracy-involving-steel-tubes.

[53]       Sonya Lalli, Mexico Revokes Leniency in Air Conditioning Investigation, Global Competition Review (Aug.  3, 2016), available at http://globalcompetitionreview.com/article/1068151/mexico-revokes-leniency-in-air-conditioning-investigation.

[54]       Press Release, Korea Fair Trade Comm'n, KFTC sanctions an international auto-part (compressor) bid-rigging case (Nov. 2, 2016), available at http://www.ftc.go.kr/eng/solution/skin/doc.html.

[55]       See Press Release, U.S. Dep't of Justice, WWL to Pay $98.9 Million for Fixing Prices of Ocean Shipping Services for Cars and Trucks (July 13, 2016), available at https://www.justice.gov/opa/pr/wwl-pay-989-million-fixing-prices-ocean-shipping-services-cars-and-trucks.

[56]       Id.

[57]       Press Release, Australian Competition & Consumer Commission, Australia's first criminal cartel charge laid against NYK (July 18, 2016), available at https://www.accc.gov.au/media-release/australia%E2%80%99s-first-criminal-cartel-charge-laid-against-nyk ("'This is the first criminal charge laid against a corporation under the criminal cartel provisions of the Competition and Consumer Act,' ACCC Chairman Rod Sims said."); Tom Madge-Wyld, Australian prosecutor rolls out first criminal case, Global Competition Review (July 18, 2016), available at http://globalcompetitionreview.com/article/1068092/australian-prosecutor-rolls-out-first-criminal-case; Press Release, Australian Competition & Consumer Commission, Criminal cartel charges laid against K-Line (Nov. 15, 2016), available at https://www.accc.gov.au/media-release/criminal-cartel-charges-laid-against-k-line; Tom Webb, ACCC files its second criminal charge, Global Competition Review (Nov. 15, 2016), available at http://globalcompetitionreview.com/article/1076303/accc-files-its-second-criminal-charge.

[58]       See Svilen Petrov, K Line Appeals Prosecution for Cartel Charges in Australia, Maritime Herald (Nov. 15, 2016), available at http://www.maritimeherald.com/2016/k-line-appeals-prosecution-for-cartel-charges-in-australia/.

[59]       Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.A.2.e

[60]       Press Release, U.S. Dep't of Justice, Three Companies Agree to Plead Guilty for Fixing Prices of Electrolytic Capacitors (Aug. 22, 2016), available at https://www.justice.gov/opa/pr/three-companies-agree-plead-guilty-fixing-prices-electrolytic-capacitors.

[61]       Criminal Minutes, United States v. Rubycon Corporation, No. 16-cr-367-JD (N.D. Cal. Oct. 12, 2016), ECF No. 17.

[62]       Press Release, U.S. Dep't of Justice, Five More Individuals Indicted for Their Roles in Capacitors Price-Fixing Conspiracy (Nov. 2, 2016), available at https://www.justice.gov/opa/pr/five-more-individuals-indicted-their-roles-capacitors-price-fixing-conspiracy; Press Release, U.S. Dep't of Justice, Three More Individuals Indicted for Their Roles in Capacitors Price-Fixing Conspiracy (Dec. 15, 2016), available at https://www.justice.gov/opa/pr/three-more-individuals-indicted-their-roles-capacitors-price-fixing-conspiracy.

[63]       Press Release, U.S. Dep't of Justice, Online Retailer Pleads Guilty for Fixing Price of Wall Posters (Aug. 11, 2016), available at https://www.justice.gov/opa/pr/online-retailer-pleads-guilty-fixing-prices-wall-posters.

[64]       Kevin Penton, UK Retailer Fined $50K In Amazon Price-Fixing Row, Law360 (July 1, 2016), available at http://www.law360.com/articles/813291/uk-retailer-fined-50k-in-amazon-price-fixing-row.

[65]       CMA, Online sales of posters and frames, available at https://www.gov.uk/cma-cases/online-sales-of-discretionary-consumer-products.

[66]       Alan Davis & Matt Evans, Antitrust Alert: UK Corporate Director Disqualified for Breach of Competition Law, Lexology (Dec. 6, 2016), available at http://www.lexology.com/library/detail.aspx?g=39869a3e-87c4-4510-a2bb-be6576b7478e.

[67]      CMA, Online sales of posters and frames, available at https://www.gov.uk/cma-cases/online-sales-of-discretionary-consumer-products.

[68]       Press Release, U.S. Dep't of Justice, Online Retailer Pleads Guilty for Fixing Price of Wall Posters (Aug. 11, 2016), available at https://www.justice.gov/opa/pr/online-retailer-pleads-guilty-fixing-prices-wall-posters.

[69]       Pretrial Order No. 3, United States v. Marr, No. 4:14-cr-00580-PJH (N.D. Cal. July 22, 2016), ECF No. 142.

[70]       Id. at 9.

[71]       Criminal Minutes, United States v. Marr, No. 4:14-cr-00580-PJH (N.D. Cal. Nov. 30, 2016), ECF No. 191.

[72]       Order Suppressing Electronic Surveillance Evidence Collected at San Mateo County Courthouse, United States v. Giraudo, No. 3:14-cr-00534-CRB (N.D. Cal. Aug. 1, 2016), ECF No. 150.

[73]       Id. at 1.

[74]       Press Release, U.S. Dep't of Justice, Two Northern California Real Estate Investors Agree to Plead Guilty to Bid Rigging at Public Foreclosure Auctions (Nov. 16, 2016), available at https://www.justice.gov/opa/pr/two-northern-california-real-estate-investors-agree-plead-guilty-bid-rigging-public-2; Press Release, U.S. Dep't of Justice, Northern California Real Estate Investor Agrees to Plead Guilty to Bid Rigging at Public Foreclosure Auctions (Sept. 29, 2016), available at https://www.justice.gov/opa/pr/northern-california-real-estate-investor-agrees-plead-guilty-bid-rigging-public-foreclosure-7;  Press Release, U.S. Dep't of Justice, Ten Eastern California Real Estate Investors Sentenced for Roles in Bid-Rigging and Mail-Fraud Conspiracies Involving Real Estate Purchased at Public Foreclosure Auctions (Sept. 13, 2016), available at https://www.justice.gov/opa/pr/ten-eastern-california-real-estate-investors-sentenced-roles-bid-rigging-and-mail-fraud; Press Release, U.S. Dep't of Justice, Georgia Real Estate Investor Pleads Guilty to Bid Rigging at Public Home Foreclosure Auctions (Aug. 19, 2016), available at https://www.justice.gov/opa/pr/georgia-real-estate-investor-pleads-guilty-bid-rigging-public-home-foreclosure-auctions; Press Release, U.S. Dep't of Justice, Two Real Estate Investors Plead Guilty to Rigging Bids at Public Home Foreclosure Auctions (Aug. 11, 2016), available at https://www.justice.gov/opa/pr/two-real-estate-investors-plead-guilty-rigging-bids-public-home-foreclosure-auctions; Press Release, U.S. Dep't of Justice, Georgia Real Estate Investor Pleads Guilty to Bid Rigging and Bank Fraud at Public Home Foreclosure Auctions (July 25, 2016), available at https://www.justice.gov/opa/pr/georgia-real-estate-investor-pleads-guilty-bid-rigging-and-bank-fraud-public-home-foreclosure; Press Release, U.S. Dep't of Justice, Three Georgia Real Estate Investors Plead Guilty to Bid Rigging and Bank Fraud at Public Home Foreclosure Auctions (July 1, 2016), available at https://www.justice.gov/opa/pr/three-georgia-real-estate-investors-plead-guilty-bid-rigging-and-bank-fraud-public-home.

[75]       Press Release, U.S. Dep't of Justice, First Charges Brought in Investigation of Collusion in the Packaged Seafood Industry (Dec. 7, 2016), available at https://www.justice.gov/opa/pr/first-charges-brought-investigation-collusion-packaged-seafood-industry.

[76]       Press Release, U.S. Dep't of Justice, Packaged Seafood Executive Agrees to Plead Guilty to Price-Fixing Conspiracy (Dec. 21, 2016), available at https://www.justice.gov/opa/pr/packaged-seafood-executive-agrees-plead-guilty-price-fixing-conspiracy; Jason Smith, Another Bumble Bee VP, Ken Worsham, to Plead Guilty to Tuna Price Fixing, Undercurrent News (Dec. 21, 2016), available at https://www.undercurrentnews.com/2016/12/21/another-bumble-bee-vp-ken-worsham-to-plead-guilty-to-tuna-price-fixing/.

[77]       Press Release, Canadian Competition Bureau, Second individual sentenced for rigging bids for federal government contracts (Aug. 24, 2016), available at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04131.html.

[78]       Press Release, Canadian Competition Bureau, Guilty plea in bid-rigging conspiracy in Saint-Jean-sur-Richelieu, Quebec (Oct. 11, 2016), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04138.html; Henry Stockley, Canada obtains guilty plea in Quebec bid-rigging probe, Global Competition Review (Sep. 12, 2016), available at http://globalcompetitionreview.com/article/1070629/canada-obtains-guilty-plea-in-quebec-bid-rigging-probe.

[79]       Press Release, European Commission, Antitrust: Commission fines truck producers € 2.93 billion for participating in a cartel (July, 19, 2016), available at http://europa.eu/rapid/press-release_IP-16-2582_en.htm.

[80]       Press Release, European Commission, Antitrust: Commission fines rechargeable battery producers €166 million in cartel settlement (Dec. 12, 2016), available at http://europa.eu/rapid/press-release_IP-16-4356_en.htm.

[81]       European Commission Daily News, Antitrust: Commission re-adopts two amending decisions on heat stabilisers cartel (June 29, 2016), available at http://ec.europa.eu/competition/antitrust/cases/dec_docs/38589/38589_4909_4.pdf.

[82]       Angela Monaghan, Pfizer fined record £84.2m over NHS overcharging, The Guardian (Dec. 7, 2016), available at https://www.theguardian.com/business/2016/dec/07/pfizer-fined-nhs-anti-epilepsy-drug-cma.

[83]       Press Release, Autorité de la concurrence, Modelling sector (Sept. 29, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?lang=fr&id_rub=630&id_article=2870.

[84]       Press Release, Autorité de la concurrence, Liquid fuel backup heating units (July 21, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=630&id_article=2833.

[85]       Press Release, Autorité de la concurrence, The General Rapporteur of the Autorité de la concurrence confirms that unannounced inspections were carried out on 22 November in the sector of energy services and energy supply (Nov. 25, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?lang=fr&id_rub=630&id_ article=2908.

[86]       Press Release, Autorité de la concurrence, Manufacturing and distribution of sandwiches intended to food supermarkets (Sept. 16, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php? lang=fr&id_rub=630&id_article=2864.

[87]       Eric Kroh, Spain Fines 23 Cement Cos. €29M For Cartel, Law 360 (Sept. 12, 2016), available at https://www.law360.com/articles/838797/spain-fines-23-cement-cos-29m-for-cartel.

[88]       Eric Kroh, Spain Fines Cash Handling Cos., Execs €46.4M Over Cartel, Law 360 (Nov. 17, 2016), available at https://www.law360.com/articles/863693/spain-fines-cash-handling-cos-execs-46-4m-over-cartel.

[89]       Malina McLennan, Portugal seals envelope cartel investigation, Global Competition Review (Dec. 6, 2016), available at http://globalcompetitionreview.com/article/1078392/portugal-seals-envelope-cartel-investigation.

[90]       Malina McLennan, Switzerland fines construction cartel detected with data, Global Competition Review (Oct. 4, 2016), available at http://globalcompetitionreview.com/article/1070590/switzerland-fines-construction-cartel-detected-with-data.

[91]       Press Release, South Africa Competition Comm'n, Competition Commission Files Six Cartel Complaints with the Competition Tribunal (Aug. 11, 2016), available at http://www.compcom.co.za/wp-content/uploads/2016/01/Competition-Commission-to-Files-six-cartel-complaints-with-the-Tribunal.pdf.

[92]       Press Release, South Africa Competition Comm'n, Consent Agreement Between Competition Commission and Sime Darby Gets Approval (July 21, 2016), available at http://www.compcom.co.za/wp-content/uploads/2016/01/Consent-agreement-between-Competition-Commission-and-Sime-Darby-gets-approval.pdf.

[93]       Malina McLennan, South Africa settles final scrap metal cartel case, Global Competition Review (Sept. 26, 2016), available at http://globalcompetitionreview.com/article/1070551/south-africa-settles-final-scrap-metal-cartel-case.

[94]       Sonya Lalli, Israeli lawyer Jailed for Assisting Cartel, Global Competition Review (Nov. 10, 2016), available at http://globalcompetitionreview.com/article/1073191/israeli-lawyer-jailed-for-assisting-cartel.

[95]  Dorothy Atkins, Cement Cos., Trade Org In India Fined $1B for Price-Fixing, Law 360 (Aug. 31, 2016), available at  http://www.law360.com/articles/834863/cement-cos-trade-org-in-india-fined-1b-for-price-fixing.

[96]  Tom Madge-Wyld, Indian tribunal orders movie studio abuse probe, Global Competition Review (Nov. 15, 2016), available at http://globalcompetitionreview.com/article/1076300/indian-tribunal-orders-movie-studio-abuse-probe.

[97]       Press Release, Australian Competition & Consumer Comm'n, Australia's first criminal cartel charge laid against NYK (July 18, 2016), available at https://www.accc.gov.au/media-release/australia%E2%80%99s-first-criminal-cartel-charge-laid-against-nyk; Tom Madge-Wyld, Australian prosecutor rolls out first criminal case, Global Competition Review (July 18, 2016), available at http://globalcompetitionreview.com/article/1068092/australian-prosecutor-rolls-out-first-criminal-case; Press Release, Australian Competition & Consumer Comm'n, Criminal cartel charges laid against K-Line (Nov. 15, 2016), available at https://www.accc.gov.au/media-release/criminal-cartel-charges-laid-against-k-line; Tom Webb, ACCC files its second criminal charge, Global Competition Review (Nov. 15, 2016), available at http://globalcompetitionreview.com/article/1076303/accc-files-its-second-criminal-charge.

[98]       Press Release, Australian Competition & Consumer Comm'n, ACCC Chairman reports on key court actions, mergers and market studies (Aug. 5, 2016), available at https://www.accc.gov.au/media-release/accc-chairman-reports-on-key-court-actions-mergers-and-market-studies.

[99]       Press Release, Japan Fair Trade Comm'n, 東日本高速道路株式会社東北支社が発注する東日本大震災に係る舗装災害復旧工事の入札参加業者に対する排除措置命令及び課徴金納付命令について. (Sept. 6, 2016), available at http://www.jftc.go.jp/houdou/pressrelease/h28/sep/20160906.html (Japanese only).

[100]     罚!圆通等5快递合伙涨价遭广东发改委罚款65万, China Securities Journal (Dec. 29, 2016), available at http://www.cs.com.cn/xwzx/cj/201612/t20161229_5139792.html (Chinese only).

[101]     Press Release, Korea Fair Trade Comm'n, KFTC was ranked as elite, the highest ranking in the Rating Enforcement of the Global Competition Review 2016 (Aug. 2, 2016), available at http://www.ftc.go.kr/eng/solution/skin/doc.html.

[102]     Press Release, Korea Fair Trade Comm'n, KFTC sanctions an international auto-part (compressor) bid-rigging case (Nov. 2, 2016), available at http://www.ftc.go.kr/eng/solution/skin/doc.html.

[103]     Press Release, Korea Fair Trade Commission, KFTC sanctions conduct of refusal to deal by the three doctors' organizations (Oct. 21, 2016), available at http://www.ftc.go.kr/eng/solution/skin/doc.html

[104]     Alfaro Abogados, The Argentine Antitrust Agency will be Sending to Congress a Bill to Introduce Positive Amendments to the Antitrust Law, Mondaq (Sept. 8, 2016), available at http://www.mondaq.com/Argentina/.

[105]     Press release, CNDC, La CNDC propone medidas de transparencia y abre investigación por conductas anticompetitivas, (Aug. 29, 2016), available at http://www.produccion.gob.ar/la-cndc-propone-medidas-de-transparencia-y-abre-investigacion-por-conductas-anticompetitivas/ (Spanish only); see also Tom Webb, Argentina cracks down on credit card market, Global Competition Review (Aug. 31, 2016), available at http://globalcompetitionreview.com/article/1070425/argentina-cracks-down-on-credit-card-market.

[106]     Press Release, CNDC, La CNDC investiga once sectores por presuntas fallas de competencia, (Apr. 2, 2016), available at http://www.produccion.gob.ar/la-cndc-investiga-once-sectores-por-presuntas-fallas-de-competencia/; see also Rachel Beltz, 11 Argentine Industries Under Investigation For Potentially Being Monopolies, the bubble (Aug. 11, 2016), available at http://www.thebubble.com/11-argentine-industries-under-investigation-for-potentially-being-monopolies/ (Spanish only).

[107]     Data from CADE (includes non-cartel theories of fines), CADE em números, available at http://cadenumeros.cade.gov.br/QvAJAXZfc/opendoc.htm?document=Painel%2FCADE%20em%20N%C3%BAmeros.qvw&host=QVS%40srv004q6774&anonymous=true (Portuguese only). 

[108]     Márcio de Oliveira Júnior, Brazil:  Administrative Council for Economic Defence, Global Competition Review (Aug. 30, 2016), available at http://globalcompetitionreview.com/insight/the-antitrust-review-of-the-americas-2017/1068704/brazil-administrative-council-for-economic-defence.

[109]     Press Release, CADE, Within the scope of the Car Wash Operation, CADE Investigates Another Cartel in Petrobras public bids (Dec. 6, 2016), available at http://en.cade.gov.br/within-the-scope-of-the-car-wash-operation-cade-investigates-another-cartel-in-petrobras-public-bids. See also Márcio de Oliveira Júnior, Brazil:  Administrative Council for Economic Defence, Global Competition Review (Aug. 30, 2016), available at http://globalcompetitionreview.com/insight/the-antitrust-review-of-the-americas-2017/1068704/brazil-administrative-council-for-economic-defence.

[110]     Henry Stockley, CADE leniency agreement reveals Lava Jato details, Global Competition Review (Dec. 5, 2016), available at http://globalcompetitionreview.com/article/1078371/cade-leniency-agreement-reveals-lava-jato-details.

[111]     Historico da Conduta, Ministério da Justicia, available at http://res.cloudinary.com/gcr-usa/image/upload/v1481044963/HISTORICO_DA_CONDUTA_PUBLICA_qcjpgc.pdf.

[112]     Press Release, CADE, CADE investigates cartel in public bids for the construction of World Cup 2014 stadiums (Dec. 7, 2016), available at http://en.cade.gov.br/press-releases/cade-investigates-cartel-in-public-bids-for-the-construction-of-world-cup-2014-stadiums.  See also Malina McLennan, CADE targets Word Cup bid rigging, Global Competition Review (Dec. 6, 2016), available at  http://globalcompetitionreview.com/article/1078399/cade-targets-world-cup-bid-rigging.

[113]     Historico da Conduta, Ministério da Justicia,  available at http://res.cloudinary.com/gcr-usa/image/upload/v1481050064/compressed_20161206_historico-da-conduta-versao-publica_qlvk6f.pdf.

[114]     Press Release, CADE, Cade concludes agreements in cartel investigation in the market for orange acquisitions (Nov. 25, 2016), available at http://en.cade.gov.br/cade-concludes-agreements-in-cartel-investigation-in-the-market-for-orange-acquisitionsSee also Sonya Lalli, CADE breaks settlement record in longest-running antitrust case, Global Competition Review (Nov. 24, 2016), available at http://globalcompetitionreview.com/article/1076717/cade-breaks-settlement-record-in-longest-running-antitrust-case.

[115]     Press Release, CADE, Cade condemns companies for international cartel of memory chips (Nov. 24, 2016), available at http://en.cade.gov.br/press-releases/cade-condemns-companies-for-international-cartel-of-memory-chips-1.  See also Malina McLennan, Brazil imposes DRAM fines, Global Competition Review (Nov. 28, 2016), available at http://globalcompetitionreview.com/article/1078191/brazil-imposes-dram-fines. See also Tom Madge-Wyld, Brazilian enforcer recommends DRAM cartel charges, Global Competition Review (March. 30, 2016) available at http://globalcompetitionreview.com/article/1064304/brazilian-enforcer-recommends-dram-cartel-charges.

[116]     Press Release, CADE, Superintendência do Cade pede condenação de cartel internacional de placas de memória para computadores (Mar. 28, 2016), available at  http://www.cade.gov.br/noticias/superintendencia-do-cade-pede-condenacao-de-cartel-internacional-de-placas-de-memoria-para-computadores.

[117]     Henry Stockley, Brazil targets real estate sector for the first time, Global Competition Review (Nov. 7, 2016), available at http://globalcompetitionreview.com/article/1072584/brazil-targets-real-estate-sector-for-the-first-time.

[118]     Press Release, CADE, Cade instaura processo para investigar supostos cartéis de GLP na Região Centro-Oeste do Brasil (Sep. 19, 2016), available at http://www.cade.gov.br/cade-instaura-processo-para-investigar-supostos-carteis-de-glp-na-regiao-centro-oeste-do-brasil.  See also Henry Stockley, Brazil extends LPG investigation, Global Competition Review (Sep. 27, 2016), available at http://globalcompetitionreview.com/article/1070556/brazil-extends-lpg-investigation.

[119]     Mark Briggs, Brazil opens LPG cartel probe, Global Competition Review (Aug. 26, 2016), available at http://globalcompetitionreview.com/article/1068676/brazil-opens-lpg-cartel-probe.

[120]     See https://www.bma-abc.be/sites/default/files/content/download/files/20160527_persbericht_10_bma_0.pdf.

[121]     Tom Webb, Chile beefs up competition laws, Global Competition Review (Jul. 13, 2016), available at http://globalcompetitionreview.com/article/1068078/chile-beefs-up-competition-laws.

[122]     Press Release, Fiscalía Nacional Económica, FNE accuses two pharmaceutical companies of rigging bids for the public procurement of ampoules (Aug. 4, 2016), available at http://www.fne.gob.cl/english/2016/08/04/fne-accuses-two-pharmaceutical-companies-of-rigging-bids-for-the-public-procurement-of-ampoules/#more-1910. See also Sonya Lalli, Chile pursues injectable medicines cartel, Global Competition Review (Aug. 8, 2016), available at http://globalcompetitionreview.com/article/1068160/chile-pursues-injectable-medicines-cartel

[123]     Press Release, Fiscalía Nacional Económica, Fallo de la Excma. Corte Suprema acoge parcialmente requerimiento de la FNE en contra de Empresas Asfalteras por haberse coludido en su provisión para obras específicas, (Oct. 13, 2016), available at http://www.fne.gob.cl/2016/10/13/fallo-de-la-excma-corte-suprema-acoge-parcialmente-requerimiento-de-la-fne-en-contra-de-empresas-asfalteras-por-haberse-coludido-en-su-provision-para-obras-especificas/#more-75548 (Spanish only).

[124]     Sonya Lalli, Chilean Court Denies Criminal Prosecutor Tissue-Paper Evidence, Global Competition Review (Apr. 4, 2016), available at http://globalcompetitionreview.com/article/1064329/chilean-court-denies-criminal-prosecutor-tissue-paper-evidence

[125]     Mark Briggs, Colombia Turns the Page on Notebook Cartel, Global Competition Review (Aug. 24, 2016), available at http://globalcompetitionreview.com/article/1068211/colombia-turns-the-page-on-notebook-cartel.  

[126]     Carlos Cordero, COPROCOM Opens Investigation into Hacienda and ESPH for Possible Anticompetitive Practices, El Financiero (Oct. 5, 2016), available at http://www.elfinancierocr.com/tecnologia/Camtic-Infocom-Hacienda-ESPH-Coprocom-factura_electronica_0_1043295661.html

[127]     Sugar: Investigation Into Anti-Competitive Practices, Central America Data (Sept. 13, 2016), available at http://en.centralamericadata.com/en/article/home/Sugar_Investigation_Into_AntiCompetitive_Practices; Sugar War in Costa Rica, Central America Data (June 16, 2016), available at http://en.centralamericadata.com/en/article/home/Sugar_War_in_Costa_Rica.

[128]     Press Release, Danish Competition and Consumer Authority, Construction Cartel Ended With a Settlement (Dec. 7, 2016), available at http://www.kfst.dk/Indhold-KFST/Nyheder/Pressemeddelelser/2016/20161206-Byggekartel-afsluttet-med-et-tiltalefrafald?tc=B97FCBBEC1494B5B91CE2377E06855FD.

[129]     See id.

[130]    Sonya Lalli, Egypt Brings in "Perverse" Competition Law Reform, Global Competition Review (Sept. 28, 2016), available at http://globalcompetitionreview.com/article/1070565/egypt-brings-in-"perverse"-competition-law-reform.

[131]    See id.

[132]     See id.

[133]     Press Release, L'Autorité de la Concurrence, The Autorité fines for anticompetitive agreement the modelling sector's main professional union and 37 modelling agencies (Sept. 29, 2016), available at: http://www.autoritedelaconcurrence.fr/user/standard.php?lang=en&id_rub=630&id_article=2870.

[134]     Press Release, L'Autorité de la Concurrence, The Autorité de la concurrence fines both PVG and Ligne Plus suppliers for anticompetitive agreement on wholesale prices and sharing of customer base (horizontal agreement) (July 21, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?lang=en&id_rub=630&id_article=2833.

[135]     Press Release, L'Autorité de la Concurrence, The General Rapporteur of the Autorité de la concurrence states that unannounced inspections were carried out on September 15 in the sector of manufacturing and distribution of sandwiches intended to food supermarkets (Sept. 16, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=630&id_article=2864&lang=en.

[136]     Press Release, L'Autorité de la Concurrence, The General Rapporteur of the Autorité de la concurrence confirms that unannounced inspections were carried out on 22 November in the sector of energy services and energy supply (Nov. 25, 2016), available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=630&id_ article=2908&lang=en.

[137]     See Bundeskartellamt, Proceedings against companies of ClemensTönnies group concluded – fines of 128 million euros cancelled due to restructuring measures (Oct. 19, 2016), available at https://www.bundeskartellamt.de/.

[138]     See Bundeskartellamt, Bundeskartellamt imposes fines on TV studio operators (July 27, 2016), available at http://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2016/27_07_2016_TV%20Studios.html.

[139]     See Bundeskartellamt, Fine proceedings for vertical price fixing in the German food retail sector concluded (Dec. 15, 2016), available at http://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2016/15_12_2016_Vertikalfall%20Abschluss.html.

[140]     Decision No. 628/2016; see also press release of the Hellenic Competition Commission, "HCC introduces settlement procedures for cartels", dated 21 July 2016. https://www.epant.gr/en/.

[141]     Permanent Mission of the European Union to the World Trade Organization, EU Statement at the Trade Policy Review of Guatemala (Nov.  16, 2016), available at https://eeas.europa.eu/delegations/world-trade-organization-wto/15057/eu-statement-at-the-trade-policy-review-of-guatemala-16-november-2016_en.

[142]     Marcos Ibargüen, Competition Law Set to be Adopted in Guatemala Shortly, QIL+4 Abogados (Sept.  21, 2016), available at http://www.qil4abogados.com/insights/2016/9/21/competition-law-set-to-be-adopted-in-guatemala-shortly.

[143]     Press Release, Hong Kong Competition Comm'n, Competition Commission Marks One Year Anniversary of Full Commencement of the Competition Ordinance (Dec. 14, 2016), available at https://www.compcomm.hk/.

[144]     Press Release, Hungarian Competition Auth., Reduced Administrative Service Fees, More Effective Merger Control, Increased Possibilities for Reduction of Fines – New Regulations of the Hungarian Competition Act Enter into Force (Dec. 22, 2016), available at http://www.gvh.hu/en/press_room/press_releases.

[145]     See Act CLXI of 2016 amending Act LVII of 1996 on the Prohibition of Unfair Trading Practices and Unfair Competition.

[146]     Dorothy Atkins, Cement Cos., Trade Org In India Fined $1B for Price-Fixing, Law 360 (Aug. 31, 2016), available at  http://www.law360.com/articles/834863/cement-cos-trade-org-in-india-fined-1b-for-price-fixing.

[147]     Tribunal Stays CCI penalty on India Cements, The Hindu (Nov. 29, 2016), available at http://www.thehindu.com/business/Industry/Tribunal-stays-CCI-penalty-on-India-Cements/article16716823.ece.

[148]     See Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at I.D.

[149]     M.M. Sharma, COMPAT Refuses to Hear Appeal Against CCI Order Rejecting Confidentiality Claims, Lexology (Nov. 3, 2016), available at http://www.lexology.com/library/detail.aspx?g=4af7eeab-86cb-4d03-aaa8-bd7d4dbb7995.

[150]     Sonya Lalli, Israel's Enforcer Asks for More Confidentiality, Global Competition Review (Nov. 22, 2016), available at http://globalcompetitionreview.com/article/1076569/israel%E2%80%99s-enforcer-asks-for-more-confidentiality.

[151]     Sonya Lalli, Israeli Lawyer Jailed for Assisting Cartel, Global Competition Review (Nov. 10, 2016), available at http://globalcompetitionreview.com/article/1073191/israeli-lawyer-jailed-for-assisting-cartel.

[152]     Press Release, Japan Fair Trade Comm'n, The JFTC Issued Cease and Desist Orders and Surcharge Payment Orders to the Manufacturing Distributors Selling Equipments for Electric Power Security Communication Ordered by TEPCO. (July 12, 2016), available at http://www.jftc.go.jp/en/pressreleases/yearly-2016/July/160712.html.

[153]     See Gibson Dunn, 2016 Mid-Year Criminal Antitrust and Competition Law Update, at III.F.

[154]     Press Release, Japan Fair Trade Comm'n, 東日本高速道路株式会社東北支社が発注する東日本大震災に係る舗装災害復旧工事の入札参加業者に対する排除措置命令及び課徴金納付命令について. (September 6, 2016), available at http://www.jftc.go.jp/houdou/pressrelease/h28/sep/20160906.html (Japanese only).

[155]     Press Release, Japan Fair Trade Comm'n, The JFTC Issued Cease and Desist Order and Surcharge Payment Orders to the Participants in Bidding for the Disaster Restoration Paving Works for the Great East Japan Earthquake Ordered by the Kanto Branch of East Nippon Expressway Company Ltd.  (September 21, 2016), available at http://www.jftc.go.jp/en/pressreleases/yearly-2016/September/160921.html.

[156]     Competition Authority of Kenya – News Letter, Competition Authority of Kenya (Oct. 1, 2016), available at http://www.cak.go.ke/images/docs/Competition%20Authority%20of%20Kenya%20News%20Bulletin.pdf.

[157]     Ron Knox, Mexico Inching Closer to First Criminal Case, Global Competition Review (Sept. 20, 2016), available at http://globalcompetitionreview.com/article/1070518/mexico-inching-closer-to-first-criminal-case.

[158]     Press Release, COFECE, COFECE Investigates the Retail Market of Gasoline and Diesel Through Service Stations in the State of Baja California (Jul. 4, 2016), available at http://www.cofece.mx/cofece/ingles/images/Comunicados/Comunicados_ingles/COFECE-035-2016.pdf.

[159]     Sonya Lalli, Mexico Revokes Leniency in Air Conditioning Investigation, Global Competition Review (Aug. 3, 2016), available at http://globalcompetitionreview.com/article/1068151/mexico-revokes-leniency-in-air-conditioning-investigation

[160]     Henry Stockley, COFECE: Mexico Issues Maximum Fines Against Ferry Companies, Global Competition Review (Nov. 16, 2016), available at http://globalcompetitionreview.com/article/1076307/mexico-issues-maximum-fines-against-ferry-companies

[161]     See https://www.acm.nl/nl/publicaties/publicatie/15996/Wijziging-Boetebeleidsregel-ACM-2014-per-01-07-2016/

[162]     Press Release, Indecopi, El Indecopi multa a 5 cadenas de farmacias, en primera instancia, por concertar precios de medicamentos y les ordena cumplir un programa de prevención (Oct. 25, 2016), available at https://www.indecopi.gob.pe/inicio/-/asset_publisher/ZxXrtRdgbv1r/content/el-indecopi-multa-a-5-cadenas-de-farmacias-en-primera-instancia-por-concertar-precios-de-medicamentos-y-les-ordena-cumplir-un-programa-de-prevencion (Spanish only); see also Henry Stockley, Peru Fines Pharmacy Chains, Global Competition Review (Nov. 1, 2016), available at http://globalcompetitionreview.com/article/1070740/peru-fines-pharmacy-chains.

[163]     See http://www.concorrencia.pt/vPT/Noticias_Eventos/Comunicados/Paginas/Comunicado_AdC_201624.aspx?lst=1&dat=A+partir+de&txt=envelopes.

[164]     Press Release, Competition Comm'n of S. Afr., Consent Agreement Between Competition Commission and Sime Darby Gets Approval (July 21, 2016), available at http://www.compcom.co.za/wp-content/uploads/2016/01/Consent-agreement-between-Competition-Commission-and-Sime-Darby-gets-approval.pdf.

[165]     Press Release, Competition Comm'n of S. Afr., Competition Commission Raids Manufacturers of Margarine, Edible Oils and Baking Fats (Dec. 8, 2016), available at http://www.compcom.co.za/wp-content/uploads/2016/01/Oils-Media-Release-_-final1.pdf.

[166]     Press Release, Competition Comm'n of S. Afr., Competition Commission Files Six Cartel Complaints with the Competition Tribunal (Aug. 11, 2016), available at http://www.compcom.co.za/wp-content/uploads/2016/01/Competition-Commission-to-Files-six-cartel-complaints-with-the-Tribunal.pdf.

[167]     Malina McLennan, South Africa Settles Final Scrap Metal Cartel Case, Global Competition Review (Sept. 26, 2016), available at http://globalcompetitionreview.com/article/1070551/south-africa-settles-final-scrap-metal-cartel-case.

[168]     Henry Stockley, South Africa Amends ArcelorMittal Record Fine, Global Competition Review (Nov. 18, 2016), available at http://globalcompetitionreview.com/article/1076422/south-africa-amends-arcelormittal-record-fine.

[169]     Press Release, Korea Fair Trade Comm'n, KFTC amended its leniency program (Sept. 27, 2016), available at http://www.ftc.go.kr/eng/bbs.do. 

[170]     Id.

[171]     Id.

[172]     Press Release, CNMC, Nota informativa sobre las inspecciones realizadas por la Dirección de Competencia de la CNMC en materia de Defensa de la Competencia (June 27, 2016), available at https://www.cnmc.es/Portals/0/Ficheros/Competencia/Inspecciones/201606_Nota%20informativa%20inspecciones%20competencia.pdf (Spanish only).  

[173]     Press Release, CNMC, La CNMC sanciona con 29 millones de euros a 23 empresas cementeras y hormigoneras por su participación en un cartel (Sept. 9, 2016), available at https://www.cnmc.es/portals/0/notas%20de%20prensa/20160909_np_sancionador_cementos.pdfSee also Sonya Lalli, Spain Dumps Fines on Cement Cartel, Global Competition Review (Sept. 12, 2016), available at http://globalcompetitionreview.com/article/1070481/spain-dumps-fines-on-cement-cartel.

[174]     Press Release, CNMC, CNMC confirma el incumplimiento por parte de Halcón Viajes y Viajes Barceló del Expediente Sancionador a las Agencias de Viajes  (Aug. 7, 2016), available at https://www.cnmc.es/Portals/0/Ficheros/notasdeprensa/2015/COMPETENCIA/20150807_NP_AgenciasViaje.pdfSee also Henry Stockley, Spain Fines Travel Agent Repeat Offenders, Global Competition Review (Oct. 24, 2016), available at http://globalcompetitionreview.com/article/1070691/spain-fines-travel-agent-repeat-offenders.

[175]     Henry Stockley, Spain Sanctions Cash-Handling Companies, Global Competition Review (Nov. 17, 2016), available at http://globalcompetitionreview.com/article/1076353/spain-sanctions-cash-handling-companies.

[176]     See Press Release, Konkurrensverket, Telia and Gothnet convicted of collusive tendering (Dec. 21, 2016), available at http://www.konkurrensverket.se/en/news/telia-and-gothnet-convicted-of-collusive-tendering/.

[177]     See Press Release, Konkurrensverket, TeliaSonera and GothNet in bid-rigging cartel (Dec. 18, 2014), available athttp://www.konkurrensverket.se/en/news/teliasonera-and-gothnet-in-bid-rigging-cartel/

[178]     For information regarding the Swiss Competition Commission's Decisions of December 21, 2016 regarding Swiss Franc Spreads, EURIBOR, Yen LIBOR, Euroyen TIBOR and Swiss Franc LIBOR, see Section II.A.b., above.

[179]     See Press Release, Wettbewerbskommission, WEKO büsst Strassen- und Tiefbauunternehmen (Oct. 4, 2016), available at https://www.weko.admin.ch/weko/de/home/aktuell/medieninformationen/nsb-news.msg-id-64011.html.

[180]     See Press Release, Competition and Markets Authority, Fridge supplier fined £2.2 million for restricting online discounts (May 24, 2016) available at https://www.gov.uk/government/news/fridge-supplier-fined-22-million-for-restricting-online-discounts.

[181]     See Press Release, Competition and Markets Authority, CMA fines Pfizer and Flynn £90 million for drug price hike to NHS (Dec. 7, 2016), available at https://www.gov.uk/government/news/cma-fines-pfizer-and-flynn-90-million-for-drug-price-hike-to-nhs.

[182]     See Press Release, Competition and Markets Authority, CMA fines water tank firms over £2.7 million (Dec. 19, 2016), available at https://www.gov.uk/government/news/cma-fines-water-tank-firms-over-27-million.

[183]     See Press Release, Competition and Markets Authority, Model agencies fined £1.5 million for price collusion (Dec. 16, 2016), available at https://www.gov.uk/government/news/model-agencies-fined-15-million-for-price-collusion.

[184]     See Gibson Dunn, UK Consumer Rights Act 2015 Ushers in Class Action-Style Collective Proceedings Regime in the Competition Appeals Tribunal, available at http://www.gibsondunn.com/publications/Pages/UK-Consumer-Rights-Act-2015--Class-Action-Style-Collective-Proceedings-Regime-in-Competition-Appeals-Tribunal.aspx for a discussion of the UK's collective action regime


 

The following Gibson Dunn lawyers assisted in the preparation of this client update:  Rachel S. Brass, Sebastien Evrard, Pablo Figueroa, Jens-Olrik Murach, Trey Nicoud, Michael Walther, Deirdre Taylor, Kai Gesing, Joshua Dick, Caeli Higney, Matthew Parrott, and Sloane Rosenthal, with additional contributions from Lauren Assaf, Nicholas Autet, Zoe Carpou, Sheli Chabon, Andrew Cline, Eric Cohen, Rupal Doshi, Meghan Dunn, Justin Epner, Scott Hammond, Shannon Han, Monica Haymond, Scott Hvidt, Elissavet Kazili, Charlotte Lawson, Amanda Machin, Shannon Mader, Sarretta McDonough, Jason McKenney, Jacob Rierson, Lena Sandberg, Jason Schwartz, Elsa Sependa, Joshua Soven, Rod Stone, Emma Strong, Indraneel Sur, Daniel Swanson, Chelsea Thomas, and Jessica Wright.  

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