January 8, 2015
The unrelenting expansion of countries enforcing anti-cartel laws, the increasing severity of punishments being meted out, and the ever-increasing nature of coordination among global competition authorities when it comes to detecting and investigating companies that engage in horizontal collusion remain the dominant trends in criminal antitrust enforcement. This update provides a summary overview of criminal antitrust enforcement in 2014 and a discussion of the trends we see from that activity over the coming year.
The Long Arm of U.S. Prosecutions. The United States has long posed a special risk for corporations and for individuals suspected of engaging in cartel activity because of the potential for individuals to be sentenced to prison. In 2014, the Antitrust Division of the U.S. Department of Justice (“Antitrust Division” or “Division”) bolstered its reputation for prosecuting individuals by obtaining the extradition of two individuals, including the first ever for an antitrust offense. First, in April, Romano Pisciotti, an Italian businessman, became the first person to be extradited for an antitrust offense, anywhere in the world. Pisciotti was extradited from Germany and delivered to a Florida courtroom where he stood accused in a sealed 2010 indictment of fixing prices for the sale of marine hoses. It has been reported that the U.S. authorities used a sealed indictment to place Pisciotti on an INTERPOL Red Notice, which led to his detainment in German customs. Pisciotti spent nine months incarcerated in Germany while his extradition proceedings were pending before finally being extradited. Upon his extradition to the United States, Pisciotti pled guilty to the charges and is currently serving a two-year prison sentence.
The DOJ’s second extradition this year involved a Canadian national, John Bennett, who was extradited to the United States to face charges in connection with a fraud and bid-rigging scheme involving federal contracts to clean up hazardous waste sites. As explained in Section I.B below, Bennett is being detained without bail while awaiting his trial currently scheduled for January 2015.
Competition Authorities Continue to Raise the Bar on Corporate Sanctions and Increase Their Cross-Border Cooperation. Several jurisdictions seem to be competing to inflict the heaviest sanctions on companies that violate competition laws, with the United States, the European Union, and Brazil leading the way, and a number of other jurisdictions increasingly imposing headline-grabbing sanctions. Competition authorities have also continued to develop and increase their cooperation when pursuing international cartels. Pisciotti’s and Bennett’s extraditions from Germany and Canada are further evidence of a developing network of cooperation and coordination among authorities. In the marine hose cartel that Pisciotti was charged with joining, the Antitrust Division reportedly cooperated with its foreign counterparts in parallel investigations, such as Japan, South Korea, Australia, Brazil, the European Union, and the United Kingdom. Similar levels of cooperation are reported to be taking place in the capacitors investigation, with the notable development that China’s National Development and Reform Commission has reportedly joined the group of cooperating international authorities.
The United States. In FY 2014, the Antitrust Division secured record high criminal fines, approximately $1.27 billion, as compared to the previous high of $1.13 billion in fines secured in FY 2012. The record fines included $425 million fine imposed on Bridgestone for fixing prices on anti-vibration rubber products. As discussed more fully below in Section I.A.1.a, the fine imposed on Bridgestone was particularly notable because it was increased by over $100 million based on the Antitrust Division’s application of its “Penalty Plus” policy. That policy is the flip side of the Antitrust Division’s “Amnesty Plus” policy. The Amnesty Plus policy, which several other jurisdictions have followed, incentivizes companies already under investigation to conduct thorough and extensive internal investigations by offering the company and its employees a pass from prosecution for any newly-discovered conduct that the company self-reports as well as an additional sentencing discount for the conduct already under investigation. The Antitrust Division’s Penalty Plus policy seeks to substantially increase the sanctions imposed on a company that fails to report all known cartel activity once it decides to cooperate with a DOJ antitrust investigation. In announcing the application of a Penalty Plus enhancement to Bridgestone’s auto parts fine, the Antitrust Division cited to Bridgestone’s 2011 agreement to plead guilty for collusion and making corrupt payments to foreign government officials in connection with the sale of marine hose products. Thus, Bridgestone was presumably punished for discovering but failing to report its anti-vibration rubber conduct when it agreed to plead guilty in the marine hose investigation.
The scope of the U.S. antitrust laws, and their application to foreign conduct, remains in flux. Three U.S. Courts of Appeals issued rulings in 2014 on the extraterritorial reach of those laws and the meaning of the Foreign Trade Antitrust Improvements Act (“FTAIA”). All three decisions are significant, and discussed in detail below in Section I.A.6, but the decision likely to be of the greatest interest to companies that fall under investigation is the Seventh Circuit’s decision in Motorola Mobility v. AU Optronics Corp., which substantially limited the ability of a plaintiff to claim damages when an allegedly price-fixed product is sold abroad to an intermediary or subsidiary of the plaintiff and then integrated into finished products that are eventually sold in the United States.
As is well known, the financial risk to a company subjected to an Antitrust Division investigation is greatly magnified by the near certainty that it will face even greater financial exposure in follow-on direct and indirect purchaser class actions and other private actions allowing for joint and several liability and treble damages. The enormous financial exposure can lead companies to conclude that the cases are too risky to defend, pressure in turn that can result in hefty settlements.
Motorola Mobility reduces some of that exposure. The Seventh Circuit held that even assuming that purchases made by Motorola’s foreign subsidiaries in foreign markets of allegedly price-fixed components did have “a direct, substantial, and reasonably foreseeable effect on domestic commerce,” they not meet the additional requirement that the effect on domestic U.S. commerce give rise to an antitrust cause of action. The Court found that Motorola’s subsidiaries, not Motorola, were the purchasers, and reasoned that, having elected to incorporate and conduct business in foreign jurisdictions through foreign subsidiaries, Motorola itself had no claim and its subsidiaries were limited to recovering under those nations’ antitrust laws.
As discussed below in Section I.A.6, 2014’s trio of Circuit Court decisions places continued uncertainty over the extraterritorial applicability of the U.S. antitrust laws. Two of the decisions are the subject of pending petitions for en banc review. The resolution of those petitions, and possible petitions to the U.S. Supreme Court for writs of certiorari, will remain a focal point in 2015.
The European Union. Once again in 2014, the European Commission (“EC” or “Commission”) maintains its place as the competition authority imposing the largest single and collective fines—both in absolute terms and as a percentage of the volume of commerce allegedly affected by the violation—on corporate offenders. In 2014, the Commission levied over €1.67 billion (nearly $2.3 billion) in fines, marking the third straight year that the Commission topped $2 billion in fines. As exhibited in the charts below in Section II.A.2, the average Commission fine imposed on companies in matters related to horizontal collusion has more than doubled over the last decade and is up an incredible fifteen-fold from twenty years ago. The result is that fines are now at levels that many contend are wholly disproportionate to the alleged harm claimed. The risk of catastrophic sanctions has resulted in an increase in the percentage of companies that entered into voluntary settlement agreements with the Commission this year. However, a significant percentage of companies continue to challenge Commission fines before the Court of Justice of the European Union, where the Commission has a mixed record of success.
While Commission fines are administrative rather than criminal sanctions, companies facing the prospect of massive punitive fines from the Commission are unlikely to derive any comfort from that distinction, as the Commission’s administrative system allows the Commission itself to impose fines, relying upon a lower standard of proof, encompassing a broader range of proscribed conduct, reaching back to conduct farther in time, and granting reduced rights of defense as compared to, for example, the U.S. criminal justice system.
Notwithstanding the Commission’s eye-grabbing fines, the most significant development in Europe over the last year involves the continued rise in private damages litigation in Member States—an initiative championed by the Commission and supported by the European Parliament—discussed below in Section II.A.5.a. Companies facing the prospect of a massive Commission fine are now at greater risk of facing follow-on private damages actions pursued by the alleged victims in European national courts. In Section II.B below, the Update reports on developments on this front in a number of Member States, including the United Kingdom, the Netherlands, Germany, France, and Belgium.
A November 2014 ruling by the Brussels Commercial Court dismissing the first-ever follow-on damages action brought by the Commission shows that national courts may not always be receptive to private damage claims. As discussed more fully below in Section II.B.1, the Commission filed a damages suit in 2008 seeking compensation for damages suffered by EU institutions due to the anticompetitive behavior of members of an elevator manufacturer cartel where the Commission had itself fined the participants approximately €1 billion ($1.194 billion). The Brussels Commercial Court dismissed the complaint on the basis that the Commission had failed to prove the required causal link between the market-sharing agreement and the alleged overcharges paid by EU institutions. The decision demonstrates why the national courts of the Member States may well have more to say in the long run about the future of private damages litigation in Europe than the Commission or the European Parliament.
Brazil. Brazil’s competition authority, CADE, has staked its own claim this year as the authority that companies falling under investigation might most dread. Cartel offenses in Brazil are treated as administrative offenses for companies and both administrative and criminal offenses for individuals. Therefore, as in Europe, companies subject to investigations in Brazil face a lower burden of proof, a broader range of regulated conduct, and fewer procedural and due process protections than would typically be found in a criminal regime. In addition, they face a regime that imposes structural remedies in addition to very high fines, and that has the ability to sanction conduct that ended well over a decade ago.
As discussed below in Section I.D, in May 2014, CADE’s tribunal imposed what are arguably the harshest sanctions ever levied by any enforcer in a cartel case. CADE fined six companies, six individuals, and three industry associations involved in a suspected cement cartel a record BRL 3.1 billion ($1.3 billion). On top of the record fines, CADE also ordered the companies to divest any cross-shareholdings and to reduce their concrete service assets by 20% in certain markets, and barred the defendants from cooperating on projects or buying assets from one another for five years. The case has been appealed to Brazil’s courts, where CADE has a mixed record. However, with the power and willingness to impose billion-dollar fines and structural remedies, as well as the ability to debar companies from public procurement contracting, CADE should have the attention of any company seeking to do business in Brazil.
Latin America. Brazil was joined by other Latin American countries, including Mexico, Chile, Colombia, and Peru, that ramped up anti-cartel enforcement this year by introducing new sanctions, utilizing new investigative powers, and/or imposing record sanctions.
In 2014, Mexico adopted legislation to criminalize cartel activity as well as any conduct undertaken to obstruct cartel investigations conducted by Mexico’s federal competition commission (“COFECE”). As discussed more fully below in Section I.J, new legislation in Mexico also increased COFECE’s investigative powers and provided it with the ability to impose new individual administrative sanctions. COFECE also joined other jurisdictions, notably including the United States, the Europe Union, Brazil, Chile, and Canada, in sanctioning manufacturers of refrigeration compressors for allegedly participating in an international price-fixing conspiracy affecting the Mexican market. This case marked the first instance where COFECE acknowledged affording full immunity through its corporate leniency program.
Chile’s Competition Tribunal (“TDLC”), addressed in Section I.E below, upheld the imposition of the maximum available fines available under Chilean law (UTA 30,000 or $25 million) on poultry meat producers accused of participating in a market-sharing agreement. Colombia’s competition authority (“SIC”) announced, as discussed in Section I.F below, that it had secured its first leniency applications under its new program, leading to the issuance of statements of objections in two highly-publicized investigations involving consumer products. Finally, as reported in Section I.L below, Peru bought a slew of cases and announced that several were being advanced by its new corporate leniency program. Multinational companies doing business in Latin America must treat it as a “hot spot” and ensure that compliance measures keep pace with the rising enforcement.
Asia. The number of jurisdictions in Asia prioritizing international cartel enforcement and targeting multinational companies for prosecution continues to rise. A consequence of having numerous jurisdictions investigating the same conduct, however, is the likelihood that subjects of the investigation will be subject to multiple, and at times overlapping, sanctions. Nowhere has the toll of increased enforcement hit harder than on Asian companies and their executives. For example, as many as a dozen or more jurisdictions are reported to be investigating Japanese auto part makers. The South African Competition Commission, see Section V.H below, was the latest to join with its October 2014 announcement that it was opening a formal investigation of 82 auto parts suppliers into allegations of price fixing of over 120 automotive components. The U.S. DOJ’s investigation alone has resulted in the imposition of over $2.4 billion in criminal fines, including fines of $10 million or more against 23 Japanese companies and the imprisonment of 29 Japanese executives for terms of between 1-2 years.
Asian competition authorities are also ramping up their enforcement and targeting both domestic and international cartel activity with increasingly higher fines. Longtime competition powers, the Japanese Fair Trade Commission (“JFTC”) and the Korean Fair Trade Commission (“KFTC”), discussed respectively in Sections III.F and L below, were joined by other Asian competition authorities in imposing record- or precedent-setting fines in 2014. In January, the KFTC imposed a record fine for public procurement bid rigging of $123 million. In March, the JFTC imposed its highest-ever fine on a company when it levied a $129 million sanction on a shipping company. In May, Singapore’s competition authority (“CCS”), discussed below in Section III.K, joined the growing number of enforcers sanctioning international cartel activity by imposing its first-ever fines ($7.4 million) on Japanese ball bearing producers accused of engaging in a global conspiracy that affected the Singapore market. Finally, in August, China’s NDRC, discussed in Section III.B.1 below, joined the United States, the European Commission, Canada, and other jurisdictions in imposing massive fines on Japanese auto parts manufacturers when it levied record fines totaling $151 million. Criminal prosecutors in Korea, too, obtained precedent-setting criminal sentences in cartel cases in 2014. Bid-rigging convictions secured by criminal prosecutors at the Korean Ministry of Justice resulted in the first jail sentences to be imposed and served in Korea.
In closing, competition enforcers continue to aggressively prosecute international cartel activity even where the conduct occurs entirely outside of a jurisdiction’s national borders. The rise in international cartel enforcement raises the stakes for companies competing internationally and puts an even greater premium on ensuring that corporate compliance measures quickly and accurately identify the areas of greatest risk. It also means that companies must rapidly develop a comprehensive and integrated global strategy to assess and mitigate their exposure when they discover conduct that puts them at risk of criminal and administrative sanctions from enforcement agencies working in tandem across the globe. We hope this Update will help inform your counseling and compliance efforts by assisting you in tracking developments around the world and identifying high-risk zones.
The United States Department of Justice Antitrust Division secured approximately $1.27 billion in criminal fines during FY 2014, a new record high over the $1.13 billion secured in FY 2012. Over 60% of that total resulted from the $785 million in fines paid in the Antitrust Division’s ongoing investigation into suspected collusion in the automotive parts industry. This includes Bridgestone’s $425 million payment for its role in the anti-vibration rubber cartel. In addition, $411 million in fines were levied on Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (“Rabobank”) and Lloyds Banking Group plc (“Lloyds”) in connection with the Antitrust Division’s joint investigation with the Criminal Division of alleged manipulation of global benchmark interest rates, including LIBOR. Most of the other criminal fines resulted from the Antitrust Division’s investigation into the international roll-on, roll-off ocean shipping industry (involving cargo such as cars and trucks that can “roll” off a cargo ship without the need for containers).
|Criminal Fines of More than $1 Million for Sherman Act Violations Imposed or Agreed to During FY 2014 (October 2013–September 2014)|
|Bridgestone Corp.||Automotive Parts (anti-vibration rubber)||
|Toyo Tire & Rubber Co., Ltd.||Automotive Parts (anti-vibration rubber and driveshaft products)||
|Lloyds Banking Group plc||LIBOR||
|Takata Corp.||Automotive Parts (seat belts)||
|Kawasaki Kisen Kaisha Ltd.||Shipping Services||
|Koito Manufacturing Co., Ltd.||Automotive Parts (lighting fixtures and lamp ballasts)||
|NGK Spark Plug Co. Ltd.||Automotive Parts (spark plugs)||
|Toyoda Gosei Co. Ltd.||Automotive Parts (hoses, airbags, and steering wheels)||
|Showa Corp.||Automotive Parts (power steering assemblies)||
|Compañía Sud Americana de Vapores S.A.||Shipping Services||
|Aisan Industry Co., Ltd.||Automotive Parts (electronic throttle bodies)||
|Riverside Seat Co., Woodbridge Foam Fabricating Inc., and SW Foam LLC||Polyurethane Foam (automotive foam)||
|Stanley Electric Co., Ltd.||Automotive Parts (lamp ballasts)||
The Antitrust Division has already announced four corporate plea agreements for FY 2015, which collectively resulted in more than $100 million in criminal fines.
|Criminal Fines of More than $1 Million for Sherman Act Violations Imposed or Agreed to During FY 2015 (October 2014–present)|
|Nippon Yusen Kabushiki Kaisha (NYK)||Shipping Services||
|Aisin Seiki Co. Ltd.||Automotive Parts (variable valve timing devices)||
|Continental Automotive Electronics LLC and Continental Automotive Korea Ltd.||Automotive Parts (instrument panel clusters)||
|Hitachi Metals Ltd.||Automotive Parts (brake hoses)||
The Antitrust Division continues to secure substantial prison sentences. In FY 2014, the DOJ’s average prison sentence increased substantially to 38 months, largely the result of one 14-year sentence. Disregarding this sentence, the average prison sentence length is almost 26 months—consistent with the sentences obtained in prior years.
This year, 12 individual defendants have been sentenced to serve a total of 13,603 days in prison, representing a substantial decrease from years past. However, as discussed in I.A.3.c. below, over 60 individuals have agreed to plead guilty and are awaiting sentencing in connection with the Division’s investigation of suspected bid rigging and fraud relating to real estate foreclosure auctions investigations in California and, therefore, these numbers are expected to rise again.
As predicted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the Division’s investigation into the auto parts industry continued apace in the latter half of 2014, resulting in more plea agreements with significant fines and prison sentences. The Division “continues to vigorously prosecute companies and individuals” involved in price fixing in the auto parts industry, carrying out Attorney General Eric Holder’s promise to “check under every hood and kick every tire,” dedicating significant resources to “the largest criminal investigation the Antitrust Division has ever pursued.”
In August, NGK Spark Plug Co., Ltd., an auto parts manufacturer based in Nagoya, Japan, agreed to plead guilty to one count of conspiring to rig bids and fix the prices of standard oxygen sensors, spark plugs, and air fuel ratio sensors sold to various automobile manufacturers, including DaimlerChrysler AG, Honda Motor Co. Ltd., and Toyota Motor Corp. NGK agreed to pay $52.1 million in criminal fines. In September, Toyoda Gosei Co., a company based in Aichi, Japan, agreed to plead guilty to a two-count information and to pay $26 million in criminal fines for its role in conspiring to fix prices and rig bids for automotive hoses, airbags, and steering wheels sold to car manufacturers such as Subaru and Toyota.
In October, the Division secured its first guilty plea in connection with its investigation into price fixing of brake hoses. Tokyo-based Hitachi Metals Ltd., and its successor, Hitachi Cable Ltd., agreed to plead guilty to conspiring to fix prices and rig bids of brake hoses sold to Toyota Motor Corp. Hitachi agreed to pay $1.25 million in criminal fines for its role and to cooperate with the DOJ’s ongoing investigation.
The Division secured a number of guilty pleas in November. Aisin Seiki Co., Ltd., based in Kariya, Japan, agreed to plead guilty to a conspiracy to allocate customers for variable valve timing devices sold to several car manufactures, agreeing to pay a criminal fine of $35.8 million for its participation in the charged conduct. In addition, Continental Automotive Electronics LCC and Continental Automotive Korea Ltd. agreed to plead guilty and pay a single fine of $4 million for their involvement in a conspiracy to rig bids for instrumental panel clusters. Also in November, Tenneco Inc., an auto part manufacturer, reported to the U.S. Securities and Exchange Commission that it reached an agreement with the Division to grant it conditional leniency in return for Tenneco’s self-reporting antitrust violations regarding an unspecified product.
In addition to securing the convictions of companies, the Division continues to seek to hold individuals responsible for their roles in alleged misconduct. Satoru Horisaki, an executive of Denso Corp.’s Utsunomiya office in Japan, agreed to plead guilty to a conspiracy involving price fixing of instrument panel clusters sold to car manufactures, and agreed to serve a prison sentence of one year and one day.
In July, Shingo Okuda, an executive at G.S. Electech Inc., pled guilty to a conspiracy to fix prices of speed sensor wire assemblies used in anti-lock brake systems sold to Toyota, and agreed to serve a 13-month prison sentence. Also in July, the Division filed a plea agreement with Yusuke Shimasaki, an executive with Bridgestone Corp. Shimaski agreed to serve an 18-month sentence. As reported in the 2014 Mid-Year Criminal Antitrust and Competition Law Update, Bridgestone Corp. pled guilty to conspiring with regard to anti-vibrational rubber products and paid a fine of $425 million, the largest in criminal fine paid in FY 2014 for a Sherman Act violation and the second largest paid in the auto-parts investigation to date.
In December, the Division secured plea agreements with two more individuals. Kosei Tamura, an executive with Japan-based T. RAD Co. Ltd., agreed to plead guilty to a conspiracy involving fixing prices of radiators and to serve a sentence of one year and one day. Kazumi Umahashi, an executive with Japan-based Mitsuba Corp., agreed to plead guilty to a conspiracy to fix prices of windshield wiper systems and starter motors sold to Honda Motor Co. Ltd. Umahashi agreed to serve a 13-month prison sentence. Finally, in early January 2015, former Toyoda Gosei executive Makoto Horie agreed to plead guilty to a conspiracy involving automotive hoses and to serve a sentence of one year and one day.
The Division secured indictments of 10 executives for their alleged participation in price-fixing schemes involving a wide range of automotive products. It is believed that all of the indicted individuals reside outside of the United States and none of them have voluntarily submitted to U.S. jurisdiction. In September, the Division announced the indictments of four executives at Hitachi Automotive Systems Ltd. for bid rigging and price fixing in connection with the sale of starter motors, alternators, air flow meters, valve timing control devices, fuel injection systems, electronic throttle bodies, ignition coils, inverters, and motor generators. On the same day, the Division also announced the indictment of three executives at Mitsubishi Electric Corp. for price fixing in connection with the sales of starter motors, alternators, and ignition coils. Two of the charged individuals, Minoru Kurisaki and Hideyuki Saito, were also indicted for obstructing justice by deleting documents or knowingly persuading others to delete documents. In October, the Division announced the indictment of Akira Wada, a former executive of Showa Corp., for his participation in a price fixing scheme involving the sale of pinion-assist type electric powered steering assemblies. Most recently, in November the Division announced the indictment of two former executives of NKS Ltd. and JTEKT Corporation for their participation in a conspiracy to fix prices on ball bearings.
These indictments, together with the impending five-year anniversary of the February 2010 raids of several suppliers of wire harnesses, suggest that the Division may be nearing the end of certain aspects of its expansive investigation.
To date, the Division has charged 49 individuals in the investigation into the auto parts industry, with 29 individuals having pled guilty to sentences ranging from a year and a day to two years. In addition, to date the Division has secured plea agreements with 31 companies, 24 of which were assessed criminal fines in excess of $10 million. Those fines include the third and fourth largest criminal fines ever imposed in the U.S. for antitrust violations—the $470 million fine imposed against Yazaki Corporation in 2012, and the $425 million imposed against Bridgestone Corporation in 2014. The size of Bridgestone’s fine is in part due to Bridgestone’s failure to disclose the auto part conspiracy when it agreed to plead guilty and fully cooperate in 2011 in connection with an investigation into a conspiracy involving marine hoses.
The DOJ’s investigation of potential manipulation of global benchmark interest rates, including LIBOR, EURIBOR, and others remains ongoing. In July, the DOJ announced that Lloyds entered into a deferred prosecution agreement, which requires Lloyds to pay an $86 million criminal penalty and admit and accept responsibility for its misconduct. Lloyds is the fifth major financial institution to admit to LIBOR manipulation and pay a criminal fine. Notably, the criminal information charges Lloyds only with wire fraud for its role in manipulating LIBOR; antitrust charges were not filed despite allegations that a Lloyds LIBOR submitter and a trader at Rabobank had an agreement to submit Yen LIBOR contributions that benefited their respective trading positions. Lloyds’ agreement brings the total amount of fines imposed by the Antitrust and Criminal Divisions to more than $1.2 billion: Barclays Bank ($160 million); UBS A.G. ($500 million); Royal Bank of Scotland ($150 million); Rabobank ($325 million); and Lloyds ($86 million).
The DOJ also continued its pursuit of individuals. On August 18, 2014, Paul Robson, a former Rabobank LIBOR submitter, pled guilty to charges of conspiracy to commit wire and bank fraud and substantive wire fraud by manipulating Rabobank’s Yen LIBOR submissions to benefit trading positions. And on October 16, 2014, the DOJ secured indictments charging former Rabobank traders Anthony Allen and Anthony Conti with conspiracy to commit wire fraud and bank fraud and substantive wire fraud as part of a scheme to manipulate USD and Yen LIBOR. A total of eleven individuals have been charged by the DOJ in connection with the LIBOR investigation, and it is likely that DOJ will announce additional charges and pleas in 2015.
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the DOJ has opened a criminal investigation of suspected manipulation of the $5.3 trillion-a-day foreign exchange (“FX“) markets. On November 12, 2014, financial regulators in the U.S. (the CFTC and the U.S. Office of the Comptroller of the Currency (“OCC”)), the United Kingdom (the U.K. Financial Conduct Authority (“FCA”)), and Switzerland (the Swiss Financial Markets Supervisory Authority (“FINMA”)) reached settlements with six banks that resulted in fines, penalties, and disgorgement of over $4 billion. A breakdown is provided below:
Foreign Exchange Rate Manipulation Fines and Penalties
Bank of America
The CFTC found that FX traders at the settling banks coordinated their trading with traders at other banks in their attempts to manipulate the FX benchmark rates. FX traders at the banks used private chat rooms to communicate and plan their attempts to manipulate the FX benchmark rates. In these chat rooms, FX traders disclosed confidential customer order information and trading positions, altered trading positions to accommodate the interests of the collective group, and agreed on trading strategies as part of an effort by the group to attempt to manipulate certain FX benchmark rates.
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, China’s National Development and Reform Commission was reported to have conducted raids on several manufacturers of capacitors and some companies had received subpoenas from the Antitrust Division. Although the Antitrust Division has not announced any criminal charges, developments since our update suggest that the capacitors investigation will become another substantial international cartel investigation.
Most notable, a spate of private treble damages were filed and then, consolidated in a multi-district litigation proceeding in the U.S. District Court for the Northern District of California. On November 15, 2014, putative classes of direct and indirect purchasers filed Consolidated Complaints under seal. Public Consolidated Complaints were later filed on December 4, 2014. These alleged that more than twenty different corporate families of defendants participated in one or more conspiracies to fix the prices of capacitors, which are alleged to be ubiquitous in electronic devices, with global sales exceeding $16 billion annually. Interestingly, the direct purchasers and the indirect purchasers allege different conspiracies. The direct purchasers allege that there was a single conspiracy covering three different types of capacitors: aluminum, tantalum, and film. The indirect purchasers allege that there were two separate conspiracies: one covering both aluminum and tantalum capacitors, and the other covering film capacitors. The plaintiffs also allege, referencing media reports and disclosures by various capacitor manufacturers, that enforcement authorities in Europe, Japan, Korea, and Taiwan, and well as China and the U.S., are investigating the industry.
This is an investigation that may see significant developments in 2015.
As noted in our previous updates, the TFT-LCD investigation has been a hallmark prosecution for the Division. Eight companies have been sentenced to pay criminal fines totaling $1.39 billion and 13 executives were sentenced to serve prison terms ranging from 6 to 36 months. Taiwan-based AU Optronics Corporation, its U.S. subsidiary AU Optronics Corporation America (“AUOA”), and two of its most senior executives (H.B. Chen and Hiu Hsiung) appealed their convictions at trial for conspiring to set the prices of certain TFT-LCD panels used in monitors, notebooks, and televisions.
As previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, on July 10, 2014, the Ninth Circuit affirmed the AU Optronics, AUOA, Chen, and Hsiung convictions. Ruling on an issue of first impression, the Ninth Circuit affirmed the $500 million fine on AU Optronics, holding that the Alternative Fine Statute permits the imposition of a fine based on gross gains to all coconspirators and does not require that the fine be reduced by the amount already paid by AU Optronics’ coconspirators. In addition, the Ninth Circuit held that the FTAIA does not create a jurisdictional limitation on the power of federal courts, and that the defendants’ conduct constituted “import trade” outside the scope of the FTAIA. The Ninth Circuit also held that (a) the defendants had waived the argument that an extraterritoriality defense barred their convictions; (b) the jury instructions regarding foreign conduct, viewed as a whole, were proper; (c) the conspiracy was subject to a per se analysis, as opposed to a rule of reason analysis; and (d) the government proved venue in the Northern District of California.
On August 25, 2014, AU Optronics, AUOA, Chen, and Hsiung filed petitions for panel rehearing and rehearing en banc. The Ninth Circuit ordered the government to file a response, which the government filed on October 10, 2014. AU Optronics and AUOA filed a reply. No decision has been made on the petition. A third AU Optronics Executive, Steven Leung, was also convicted at trial and sentenced to serve a 24-month sentence. The Ninth Circuit granted his motion for bail pending appeal, staying his prison sentence. The Ninth Circuit recently scheduled oral argument in Leung’s appeal for February 9, 2015.
For a more detailed discussion of the TFT-LCD cases, see our 2013 Year-End Criminal Antitrust and Competition Law Update.
As part of an ongoing investigation into price fixing and bid rigging in the international roll-on, roll-off ocean shipping industry (involving cargo such as cars and trucks that can “roll” off a cargo ship without the need for containers), the Japanese firm Nippon Yusen Kabushiki Kaisha (“NYK”) pleaded guilty and agreed to a $59.4 million criminal fine on December 29, 2014. According to the one-count felony charge, between 1997 and 2012, NYK “conspired to suppress and eliminate competition by allocating customers and routes, rigging bids and fixing prices.” Prior to NYK’s plea, Japanese firm Kawasaki Kisen Kaisha, Ltd. (“K–Line”) pleaded guilty on September 26 to charges of price fixing and customer allocation on ocean shipping services for roll-on/roll-off cargo in the United States and elsewhere and agreed to pay a $67.7 million fine, and in February 2014, Chilean shipping company Compañía Sud Americana de Vapores, S.A. pleaded guilty to fixing prices and allocating customers and agreed to an $8.9 million fine. Total fines agreed to as a result of this investigation have totaled over $135 million to date. On December 29, the Antitrust Division filed charges against K-Line executive Takashi Yamaguchi, for allegedly participating in the conspiracy to “suppress and eliminate competition” by allocating customers and routes, rigging bids, and fixing prices for roll-on/roll-off cargo.
It has been reported that both the Criminal and Antitrust Divisions of the DOJ, as well as several other U.S. and global regulators and enforcers, are actively investigating potential manipulation of precious metals markets and benchmark rates. No charges have been brought by the DOJ or any other competition authority, but we may see developments in the precious metals investigations in 2015.
On June 27, 2014, Riverside Seat Co., Woodbridge Foam Fabricating Inc., and SW Foam LLC pleaded guilty to a one-count information charging price-fixing of polyurethane flexible slab stock automotive foam over a 10-month period from June 2008-April 2009. The companies were sentenced on September 11, 2014, and ordered to pay the agreed-to criminal fine of $6.15 million in five installments over a four-year period, as well as a $400 special assessment per defendant, and to serve a term of probation.
The Division’s investigation of a scheme to allocate customers and fix the price of coastal water freight transportation contracts between the continental United States and Puerto Rico has previously led to the conviction of three companies and six individuals and resulted in the imposition of a four-year jail sentence—tying the longest jail sentence ever imposed for a single Sherman Act violation. The record fine was imposed on a former shipping executive, Frank Peake, who was convicted at trial. Peake has appealed his conviction to the First Circuit, contending that the government made unduly prejudicial and irrelevant arguments during trial in an attempt to appeal to jurors’ biases, specifically that the government had argued that jurors or their families were victims of the conspiracy, when no witnesses testified that the conspiracy affected prices paid by anyone other than companies purchasing freight services from the conspiring carriers.
Since our 2014 Mid-Year Update, there have been several notable developments in the DOJ’s prosecution of the sole remaining defendant in this investigation, Thomas Farmer. Farmer, a former executive at Crowley Liner Services, Inc., was indicted in March 2013 by a grand jury in Puerto Rico for conspiring to fix prices for freight services between Puerto Rico and the continental United States at collusive and noncompetitive rates and surcharges pursuant to agreements allegedly reached with co-conspirators. Farmer’s trial is currently set to begin in San Juan on January 26, 2015.
After Farmer’s indictment, a hotly-contested dispute arose about the scope of a prosecutor’s Brady obligation to disclose exculpatory evidence to a criminal defendant. On June 17, 2014, the United States District Court for the District of Puerto Rico ordered the Antitrust Division to “specifically inform” Farmer which of the disclosed electronic documents were required to be disclosed under Brady. On July 17, 2014, the Antitrust Division stated in its Notice of Compliance with the June 17 Order that it complied with its Brady obligations by producing approximately 17 million pages (1.6 million documents) that may include Brady material and by offering technical assistance to Farmer in searching those documents. Days later, Farmer moved for sanctions against the Division, arguing that the government’s actions did not constitute compliance with the June 17 order. On August 15, 2014, the Court held that the Antitrust Division had met its obligations in turning over the 17 million pages of documents, and having made targeted searches to try and specifically identify Brady material, in addition to offering technical assistance in searching the documents to Farmer. The Court specifically struck the language from its earlier order requiring that the Antitrust Division to “specifically inform” Farmer which of the electronic documents were “required under Brady.”
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, Farmer also filed a motion requesting documents held by other units of the Antitrust Division, specifically those related to a qui tam matter litigated by a civil section within the Division against an affiliate of his former employer. The Antitrust Division opposed the motion on the basis that civil section personnel were not part of the “prosecution team.” On September 17, the Court ruled that while the civil sections of the Antitrust Division are “very large,” that “for the purposes of Brady, the focus of the discussion is that a prosecutor is deemed to have knowledge of everything in the same investigation of the defendant.” The Court ordered the Antitrust Division to search the files of its civil section to the extent that it involved the same investigation of the defendant and to turn over any exculpatory material.
In addition, the Court required the Antitrust Division to “confer” with the FBI regarding the existence of a list of names that government filings indicated had been turned over to the government by a cooperating witness. Stating that such a list may have impeachment value because it may indicate that, in exchange for leniency, the cooperating witness was telling the FBI agents what they wanted to hear as opposed to the whole truth, the Court directed the Antitrust Division to confer with the FBI regarding the list even though the Antitrust Division had previously told the Court “it ha[d] no such document in its possession, custody, or control.” If no list was found even after conferring with the FBI, the Division was ordered then to review phone records from the investigation to deduce the names from the list.
Finally, the Court rejected Farmer’s request to have the government’s raw interview notes turned over, even though it found that the government had made numerous corrections to the interview reports it had submitted to Farmer and this indicated that there may be more errors that may indeed constitute Brady material. The Court decided, however, that the raw notes as a general matter did not constitute Brady material without a more “particularized and focused request.”
Separately, in November, the District Court in the Middle District of Florida granted a Division motion to intervene and issue a stay in Arrowpac Inc. v. Sea Star Line, LLC, a private civil antitrust suit relating to the coastal freight investigations. In September, the Division had moved for the limited stay of discovery until the end of the Farmer trial, arguing that such a prohibition on discovery would prevent compromising the integrity of the Farmer trial. The court granted the motion on November 5th.
As we reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the Municipal Bond investigation is nearing completion, with mixed results. In the past six months, former executives from UBS began serving prison sentences, while the government was denied a rehearing on the Second Circuit’s reversal of the convictions of three former executives of affiliates of General Electric Co.
In July 2014, after being convicted (of non-antitrust charges) following a five-week jury trial in 2012, former UBS AG executives Peter Ghavami, Gary Heinz, and Michael Welty were sentenced for fraud in the bidding process for municipal bonds. The district court sentenced Ghavami to serve 18 months in prison and to pay a $1 million criminal fine, Heinz to serve 27 months in prison and to pay a $400,000 criminal fine, and Welty to serve 16 months in prison and to pay a $300,000 criminal fine. Post-trial, in late 2013, the government produced an additional 400,000 documents to defendants as a result of an alleged vendor error. In September 2013, Welty and Heinz moved before the district court for release from custody pending appeal of their convictions (Ghavami did not), and on January 6, 2014, Welty, later joined by Ghavami and Heinz, moved for a new trial based on the existence of an email found in the government’s post-trial production. On May 15, 2014, the Court denied both motions, holding that the new evidence produced by the government would not have changed the outcome of the trial.
On May 23 and 28, 2014, the defendants filed their notices of appeal. Welty and Heinz also asked the Second Circuit to “allow them to remain free on bail while they appeal their convictions,” while Ghavami chose to start serving his sentence. The Second Circuit held a hearing on June 17, 2014, and denied Welty and Heinz’s motion on June 20, 2014. They began serving their prison sentences on July 17, 2014. On July 30, 2014, Welty, Heinz, and Ghavami each filed appeals with the Second Circuit, arguing that—for various reasons, including improper testimony and a statute-of-limitations issue—their convictions should be reversed; Welty and Heinz also argued that, even if their convictions are not otherwise reversed, they should each be granted a new trial. On December 17, 2014, following additional briefing by defendants on these issues, the government filed its opposition, arguing that the Second Circuit should affirm the lower court’s judgments and order denying the defendants’ motion for a new trial. The Second Circuit will likely hear oral arguments from both sides in 2015.
As discussed in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, in a setback for the DOJ, on December 9, 2013, the Second Circuit reversed the convictions of three former executives, on the ground that their indictment was barred by the applicable statute of limitations. The indictment did not allege that the defendants committed specific conspiratorial acts within the applicable limitations period. Instead, it alleged that the defendants’ employers made continuous below-market interest payments within the limitations period.
On appeal, the Second Circuit held that the employers’ continuous payment of interest “d[id] not raise the underlying concern of concerted action, and therefore [was] not a continuous action that prolong[ed] the life of the conspiracy.” Therefore, the government failed to allege that the defendants committed overt acts of conspiracy within the limitations period. The Second Circuit reversed the judgments of conviction and remanded the matter to the district court for dismissal of the indictment. The government filed its petition for rehearing/rehearing en banc on January 22, 2014, but on August 15, 2014, the Second Circuit denied a rehearing en banc. On August 28, 2014, the Second Circuit entered an order reversing the district court’s judgments and remanding the case for dismissal of the indictment.
The implications of this decision are not limited to the municipal bonds investigation. To the extent that the Antitrust Division has sought to extend the statute of limitations in other investigations based on further sales or corporate conduct implementing a conspiratorial price, it may be limited in continuing to do so.
Finally, on July 25, 2014, one of the first individuals to plead guilty in the Municipal Bonds investigation was sentenced to three years of probation, avoiding jail time. Brian Zwerner, a former Bank of America trader, pleaded guilty in 2011 to conspiring to make false entries in reports and other papers sent from his desk to bank management. Zwerner’s cooperation with prosecutors is said to have played a major part in the government’s municipal bonds investigation, which to date has resulted in nearly $750 million in settlements and numerous convictions.
The Antitrust Division continued its aggressive push to root out bid rigging in public auctions for real estate foreclosures, tacking on more prosecutions following those discussed in our 2014 Mid-Year Criminal Antitrust and Competition Law Update.
Recent criminal enforcement efforts have focused primarily on foreclosure auction big-rigging schemes in the Northern District of California. The government has filed charges against twenty-one individuals there in five separate indictments. All five of the multi-count indictments charge the defendants with conspiring both to suppress bids at public foreclosure auctions and to commit mail fraud. The alleged schemes involved properties in Alameda, Contra Costa, San Francisco, and San Mateo Counties. Since June 2014, four individuals agreed to plead guilty for their roles in the bid-rigging schemes. A fifth investor entered a guilty plea after indictment.
Garry Wan, Gernot Sebastian Zepernick, Su Chu Chou “Terry” Cheng, Chung Li “George” Cheng, and Charles Rock agreed to plead guilty to conspiring to rig foreclosure auctions and to commit mail fraud. Wan’s scheme involved properties in Alameda County, and Zepernick’s and Rock’s involved properties in Contra Costa County. Terry and George Cheng’s schemes were broader, spanning both of those counties. In total, the DOJ has now secured fifty-one guilty pleas or agreements to plead guilty in the Northern District of California from individuals who have admitted to participating in foreclosure auction bid rigging schemes. Of all these, Rock’s stands out as the first guilty plea to follow an indictment (rather than a negotiated agreement to plead guilty to a criminal information, without the need for indictment by a grand jury).
The Division was also active outside of the San Francisco Bay Area. As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, a Sacramento jury in the Eastern District of California convicted Andrew Katakis and Donald Parker of rigging foreclosure auctions in San Joaquin County. The jury also found Katakis guilty of obstruction of justice, but the district court overturned that conviction and stayed all proceedings pending the government’s appeal of that ruling. The District Court denied the government’s request for the court to lift the stay and to proceed to sentencing Katakis and Parker. The government had hoped to expedite the sentencing of others involved in the same scheme, in keeping with its general preference to sentence defendants convicted after a jury trial before cooperating defendants who plead guilty. The DOJ’s investigation in the Eastern District of California has led to thirteen convictions, with eleven guilty pleas and two convictions after trial.
To date, the Division has charged 86 individuals in the Northern and Eastern Districts of California for participating in real estate foreclosure bid-rigging schemes. Sixty-two of the individuals have already pleaded guilty, two were convicted at trial, and two were either acquitted or had their charges dismissed, with the remaining 20 individuals awaiting a trial date.
There was also continued enforcement activity involving bid rigging on real estate foreclosure auctions elsewhere in the country. The government’s continued enforcement efforts in the southeast resulted in Chad Foster pleading guilty to conspiracy to commit mail fraud for his involvement in a bid rigging scheme in southern Alabama. To date, the government’s investigation into rigged foreclosure auctions in Alabama has led to guilty pleas from ten individuals and two companies.
Mohamed Hanif Omar—who agreed to plead guilty to bid rigging and conspiracy to commit mail fraud in Georgia in April 2014—was sentenced to four months in prison on October 21, 2014. This sentence is considerably less than the United States Sentencing Guidelines recommended sentence of 15 to 21 months’ imprisonment as stated in Omar’s plea agreement, reflecting the substantial assistance Omar provided in the government’s investigation of others.
The government’s practice in the real estate foreclosure cases has been to file fraud charges along with bid rigging charges. Fraud convictions typically carry greater recommended sentences under the United States Sentencing Guidelines than traditional antitrust convictions. This strategy may have provided an added incentive for individuals to plead guilty and cooperate with the government in the hopes of getting a more lenient sentence. It may also explain why more than 20 individuals have refused to enter into plea agreements and appear poised to take their cases to trial.
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, on March 4, 2014, the United States District Court for the District of New Jersey imposed a 14-year prison sentence on Gordon D. McDonald, a former project manager for a contractor at two Superfund sites in New Jersey. McDonald was originally indicted in 2009 on charges that he participated in multiple bid-rigging, fraud, and kickback schemes, among other charges. In September 2013, after a two week jury trial, McDonald was convicted on those charges, as well as engaging in an international money laundering scheme, fraud against the United States, tax violations, and obstruction of justice. In addition to the prison sentence, McDonald was ordered to pay a $50,000 fine and restitution in an amount to be determined. McDonald’s appeal is currently pending in the Third Circuit.
In addition to McDonald, eight other individuals and three companies have pleaded guilty or have been convicted on charges related to the New Jersey Superfund Investigation. As discussed below in Section I.B, John A. Bennett, a Canadian citizen, was indicted on August 31, 2009, on charges relating to this investigation. The DOJ successfully secured his extradition to the United States on November 14, 2014. Bennett faces a maximum penalty of five years imprisonment and a $250,000 fine.
The Small Business Administration’s Business Development Program is designed to assist eligible socially and economically disadvantaged individuals in developing and growing their business by, among other things, setting aside some federal contracts for qualifying businesses. The Office of the Inspector General for the Small Business Administration investigates attempts to abuse this system, often alongside other federal investigative agencies.
On November 19, 2014, the Antitrust Division filed a criminal information related to one such investigation, and entered into a deferred prosecution agreement with the charged company. According to the information, Washington Gas Energy Systems—which was not eligible for the Small Business Administration’s set-aside contracts—colluded with an eligible business to procure several contracts to provide energy management services to federal buildings in the District of Columbia. The eligible business illegally subcontracted the eight contracts it procured to Washington Gas in exchange for 5.8% of the nearly $18 million value of the contracts.
Under the terms of the deferred prosecution agreement, Washington Gas has agreed to pay a $1.56 million fine and a monetary penalty of $1.03 million, despite the fact that it ultimately lost money on the illegally procured contracts.
In 2014, officials at the Antitrust Division published two policy speeches that focused on antitrust compliance programs and the use of probation and corporate monitors in criminal antitrust sentencings. Though consistent with past Division policies, the speeches emphasized imposing probation and corporate monitors on companies seeking to retain employees whom the Antitrust Division considers to be culpable, signaling a greater willingness by the agency to involve itself in issues of corporate governance.
In remarks before the International Chamber of Commerce and United States Council of International Business, Deputy Assistant Attorney General Brent Snyder shared his vision of what constitutes an effective compliance program. He stated that, at a minimum, a compliance program must: (1) be supported by the company’s senior executives; (2) be applied to the entire organization; (3) be designed to monitor and regularly audit risky activities; (4) discipline employees who commit antitrust crimes; and (5) prevent violations from occurring or detect wrongdoing when it does take place. In the Antitrust Division’s view, if a compliance program fails to either prevent or detect wrongdoing, it is not effective and is undeserving of credit at either the charging or sentencing stages.
Snyder challenged the often-stated claim that the Division fails to provide sufficient incentives for companies to adopt antitrust compliance programs. Snyder stated that an effective compliance program will lead to the early detection of cartel activity that will position a company to take advantage of the Division’s leniency program. He characterized the leniency program as the “the ultimate credit for having an effective compliance program.”
Citing the recent sentencing of AU Optronics after its conviction at trial, Snyder warned that the Antitrust Division will seek terms of probation, including the imposition of corporate monitors, in cases where a company demonstrates an inability or unwillingness to comply with antitrust laws. Snyder stated that most companies will be afforded the opportunity to decide for themselves what compliance programs work for them based on the general guidelines provided. However, the Division will seek additional judicial oversight through probation and compliance monitors where it believes there is a high risk of recidivism. Snyder listed three scenarios in which the Division might seek probation and a corporate monitor: (1) a company does not have a compliance program, nor plans to implement such a program; (2) recidivist companies; and (3) a company that “retains culpable individuals who do not accept responsibility in key management positions.”
Assistant Attorney General Bill Baer also emphasized the Division’s willingness to seek terms of probation, including the use of a corporate monitor, when a company seeks to retain a non-cooperating employee whom the Division deems “culpable.” In a speech at the Georgetown University Law Center Global Antitrust Enforcement Symposium, Baer stated that the Antitrust Division would have “serious doubts” about a company’s compliance if it continued “to employ culpable senior executives who do not accept responsibility and are carved out of the corporate plea agreement.” Such careful phrasing indicates that this policy would apply only to individuals whom the Division believes are culpable in the conduct but who are unwilling to enter into a disposition with the Division, such as a plea agreement. The Division will continue to take a hands-off approach if a company continues to employ a culpable individual who does accept responsibility, such as an individual who agrees to plead guilty and serve a prison sentence.
This year marked a major development in the DOJ’s efforts to extend its reach to defendants outside the United States. The DOJ successfully secured the extradition of two individuals to face charges of Sherman Act violations.
As noted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, on April 3, 2014, Italian citizen Romano Pisciotti was extradited from Germany on antitrust charges, marking the first time a foreign national was extradited to the U.S. for alleged violations of the Sherman Act. In 2010, federal prosecutors filed charges against Pisciotti in the Southern District of Florida alleging that he conspired to rig bids, fix prices, and allocate sales on behalf of Parker ITR, a marine hose company. On April 24, 2014, Pisciotti pleaded guilty and was sentenced to two years in prison and a $50,000 fine. His prison sentence was reduced by 9 months to account for the time he spent in prison in Germany before his extradition.
The DOJ also obtained the extradition of Canadian businessman John Bennett, who is charged in New Jersey for non-antitrust violations related to the Superfund kickback scheme. In May, a Canadian Court ruled that the extradition was proper, and Bennett was extradited on November 14, 2014. He made his initial appearance in the United States District Court for the District of New Jersey on November 17, 2014.
Previous attempts to extradite suspects of antitrust violations have been unsuccessful because most extradition treaties require that defendants be charged with an offense that is criminal in both countries. Historically, many countries did not criminalize antitrust violations, but the recent trend is toward criminal enforcement.
The Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, governs the application of the Sherman Act to foreign conduct. Specifically, it provides that foreign anticompetitive conduct is subject to U.S. antitrust law only when that conduct: (1) had a direct, substantial; and reasonably foreseeable effect on U.S. domestic commerce and, (2) that effect “gives rise” to a Sherman Act claim.
In 2014, three U.S. Courts of Appeals issued rulings on the extraterritorial reach of the U.S. antitrust laws and the meaning of the FTAIA. Two of the rulings arose from the ongoing litigation concerning the TFT-LCD panel industry, see supra Section I.A.2.e.
First, in United States v. Hsiung, also discussed above in Section I.A.2.e, the Ninth Circuit joined the Second, Third, and Seventh Circuits in holding that the FTAIA does not create a jurisdictional limit on the power of federal courts, but rather “provides substantive elements under the Sherman Act in cases involving nonimport trade with foreign nations.” The Court then held that the defendants’ transactions between foreign producers and purchasers located in the U.S. were “import trade” and fell “outside the scope of the FTAIA.” Because the convictions could be independently sustained on the basis of the clearly proven import trade, the Court declined to decide whether the evidence relating to foreign sales of panels that were incorporated into finished consumer products before being imported into the United States was sufficient to establish that the foreign sales had a “direct” effect for purposes of the domestic effects exception to the FTAIA.
Second, and as reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, in Motorola Mobility LLC v. AU Optronics Corp., No. 14-8003, 2014 WL 1243797 (7th Cir. Mar. 27, 2014) (Posner, J.) (“Motorola I”), a Seventh Circuit panel ruled that the FTAIA did not extend U.S. antitrust law to a scenario that now arises regularly in U.S. antitrust matters: the sale abroad of price-fixed products to a foreign buyer, which then integrates those price-fixed products into a finished product that is eventually sold in the United States. As the Court explained, the effect on U.S. domestic commerce in such a situation is not “direct” under the FTAIA, but rather a situation where foreign conduct “filters through many layers and finally causes a few ripples in the United States.” Nor did the foreign conduct “give rise” to a Sherman Act claim because Motorola—the company which sold finished products in the United States—“mediated” the effect of any price fixing by deciding what price to charge for those phones. But on July 1, 2014, the panel granted Motorola’s request for rehearing and vacated its March 27, 2014 decision, to allow for briefing and oral argument, including amici from the DOJ, FTC, Belgium, Japan, and Korea.
On rehearing in Motorola Mobility LLC v. AU Optronics Corp. (“Motorola II”), and again in writing for a unanimous panel, Judge Posner stepped back from Motorola I’s finding that the effect of the alleged conduct on U.S. commerce was not direct, reasonable, and foreseeable. Instead, he conceded that the U.S. effect fell into a gray area. He assumed for the sake of the opinion that there was a direct effect on U.S. commerce, but declined to decide that point. Instead, the panel unanimously affirmed the dismissal, holding that Motorola could not met the additional requirement that the effect on domestic U.S. commerce give rise to an antitrust cause of action because Motorola’s foreign subsidiaries that purchased the allegedly price fixed product outside of the U.S., and not Motorola itself, were the direct purchasers, Motorola did not have a claim under the Sherman Act.
The Court’s decision in Motorola II undertook an extensive analysis of antitrust standing and the indirect-purchaser doctrine of Illinois Brick, which bars indirect purchasers from pursuing Sherman Act claims for damages. While the Court acknowledged that some parent-subsidiary relationships may be from the Illinois Brick bar, it held that foreign subsidiaries are not because they are incorporated under and subject to foreign regulation. Judge Posner noted that the disadvantage of regulation shopping through foreign incorporation is that a subsidiary’s remedies are limited to those granted by its country of citizenship. Subsidiaries must “take the good with the bad,” and the Court held that Motorola, in attempting to avoid that consequence, was merely “asserting a right to forum shop.”
Although the Court barred Motorola from recovering civil damages, the Court took care to differentiate the civil remedies from the scope of the U.S. DOJ’s authority in criminal matters. The DOJ had asked the Court to “hold that the conspiracy to fix the price of LCD panels had a direct, substantial, and reasonably foreseeable effect on U.S. import and domestic commerce in cellphones incorporating these panels.” While the Court declined to make such a finding, it addressed the government’s request for “a disclaimer that a ruling against Motorola would interfere with criminal and injunctive remedies sought by the government against antitrust violations by foreign companies.” It emphasized that the ruling was limited to whether a U.S.-based parent company may sue on behalf of its subsidiaries, and did not constrain the government’s future ability to seek criminal and injunctive remedies of foreign corporations, provided that it can demonstrate the requisite statutory effect on domestic commerce.
Third, in Lotes Co. v. Hon Hai Precision Industry Co.—which concerned a Taiwanese electronics manufacturing company’s claim that the defendants, “a group of five competing electronics firms,” had attempted to gain monopoly power over the entire USB connector industry—the Second Circuit addressed whether the plaintiff stated a viable claim under the Sherman Act. In concluding that the plaintiff’s allegations fell short, the Court affirmed the lower court’s judgment dismissing the plaintiff’s claims but on alternative grounds. In doing so, the Court overruled its prior decision in Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (2d Cir. 1998), and held that “the requirements of the FTAIA are substantive and nonjurisdictional in nature,” but rejected the plaintiff’s argument that the defendants had waived the FTAIA’s requirements. Adopting the Seventh Circuit’s (as opposed to the Ninth Circuit’s) approach, the Court also held “that foreign anticompetitive conduct can have a statutorily required ‘direct, substantial, and reasonably foreseeable effect’ on U.S. domestic or import commerce even if the effect does not follow as an immediate consequence of the defendant’s conduct, so long as there is a reasonably proximate causal nexus between the conduct and the effect.” The Court, however, did not decide whether the plaintiff plausibly alleged “the requisite ‘direct, substantial, and reasonably foreseeable effect’ under the proper standard” because the Court found that the plaintiff’s claim did not satisfy the FTAIA’s “second limitation,” which requires that the “domestic effect . . . ‘give[ ] rise to’” the claim. In particular, the Court explained, “regardless of what effect the defendants’ conduct ha[d] on U.S. domestic or import commerce, any such effect did not ‘give[ ] rise to’ the plaintiff’s claim. To the contrary, in the causal chain the plaintiff allege[d], the plaintiff’s exclusion from the relevant market actually precede[d] the alleged domestic effect.”
Although these decisions provide some guidance about the extraterritorial reach of the U.S. antitrust laws, substantial uncertainty remains and the Circuit Courts are not uniform in their approaches. The Hsiung and Motorola II decisions are the subject of pending petitions for en banc review. The resolution of those petitions, and possible petitions to the United States Supreme Court for writs of certiorari, will remain at the front of observers’ attention in 2015.
In March 2014, Michigan’s Attorney’s General Office brought criminal antitrust charges against Chesapeake Energy and Encana alleging bid rigging on land auctions in October 2010. The Attorney General’s Office alleged that the companies had agreed to avoid bidding against one another in Michigan public land auctions and private negotiations related to oil and gas leases. Notably, the Antitrust Division reportedly investigated the same conduct and closed its investigation without bringing any charges.
In May 2014, Encana agreed to pay Michigan a $5 million settlement and plead no-contest to a state misdemeanor charge that it attempted to commit antitrust violations. In July 2014, a Michigan state court found that there was enough evidence of an antitrust violation against Chesapeake for rigging a state-land lease auction to proceed to trial, but dismissed two other antitrust charges related to allegations of rigging bids for land leases with individual landowners on the basis that the evidence was “lacking as to an actual conspiracy” even as the misdemeanor charge to which Encana pled no-contest related to attempts to bid-rig with Chesapeake. In addition to the antitrust charge, in June the Attorney General’s Office brought criminal racketeering and false pretenses charges accusing Chesapeake of victimizing private landowners by revoking leases after obtaining them under fraudulent pretenses to prevent Chesapeake’s competitors from obtaining those leases themselves. In September, the Michigan state court decided that the racketeering charges could also proceed to trial. At the time of this report, the case remains pending.
In the second half of 2014, the Canadian Bureau of Competition (“CCB”) secured its sixth and seventh guilty pleas in its long-running auto parts bid-rigging investigation. In August, DENSO Corporation, a Japanese supplier of motor vehicle components, pleaded guilty to three counts of bid rigging under the Competition Act and was fined CAD 2.45 million ($2.1 million). In December, Yamashita Rubber Co., Ltd., another Japanese supplier of motor vehicle components, pleaded guilty to two counts of bid rigging under the Competition Act and accepted a fine of CAD 4.5 million ($3.8 million). Overall, the CCB’s investigation involving motor vehicle components has resulted in seven company guilty pleas and over CAD 56 million ($48 million) in fines.
To date, no individuals have pleaded guilty in connection with the CCB’s auto parts investigation. Nevertheless, members of the CCB have signaled that they are looking to increase penalties for individuals convicted of criminal antitrust violations in all cases. As we have reported in previous updates, the CCB indeed seems intent on penalizing individuals, as can be seen, for example, by the individual guilty pleas the CCB secured in its ocean freight shipping industry and petrol industry investigations.
Delivering on Commissioner of Competition John Pecman’s pronouncement to prioritize domestic procurement bid-rigging conduct, in December the CCB charged one company (B. Frégeau et Fils Inc.) and one individual (Serge Frégeau) in relation to a suspected bid-rigging scheme dating back to January 2008, involving a group of contractors seeking to obtain Saint-Jean-sur-Richelieu municipal contracts for infrastructure projects. The CCB’s investigation relates to two calls for tender worth nearly CAD 2.5 million ($2.1 million) issued between January 2008 and December 2009 for infrastructure repair projects in Saint-Jean-sur-Richelieu. The December charges are the CCB’s third set of charges related to this investigation. As we previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Update, in January 2014, the CCB also charged Alain Courville and Construction Beaudin & Courville Inc. with rigging bids for contracts involving road construction, water treatment, and other infrastructure projects in the Saint-Jean-sur-Richelieu region. And, as we previously reported in our 2012 Year-End Criminal Antitrust and Competition Update, in June 2012, the CCB charged eleven individuals and nine companies with bid rigging related to similar projects in Saint-Jean-sur-Richelieu and surrounding areas.
Also as reported in our 2014 Mid-Year Criminal Antitrust and Competition Update, the DOJ had been seeking since February 2010 the extradition from Canada of Canadian businessman John Bennett to stand trial for his alleged participation in a conspiracy to defraud the U.S. Environmental Protection Agency (“EPA”) in connection with a bid-rigging scheme involving federal contracting at an environmental Superfund site. Bennett fought his extradition for almost five years in the Canadian courts. On October 30, 2014, the Supreme Court of Canada declined to hear Bennett’s appeal, thus concluding his effort to fight extradition. On November 14, Bennett was extradited to the U.S., and will face charges in the U.S. District Court for the District of New Jersey. Bennett is reportedly being detained in New Jersey without bail. His trial date is currently scheduled for early 2015.
Bennett’s extradition is a strong indication of the close working relationship that exists between U.S. and Canadian prosecutors, as well as between the CCB and the Canadian Ministry of Justice. As longstanding Co-Chairs of the International Competition Network (“ICN”) Cartel Working Group, the CCB and the DOJ have long advocated for greater cooperation and coordination among enforcers investigating suspected international cartel activity. The CCB, however, does not handle extraditions in Canada. That responsibility falls to the Canadian Ministry of Justice, and the Canadian courts make the final determination. The CCB and the Canadian Ministry of Justice work extremely close together on cartel matters. Bennett’s extradition also demonstrates that they are equally in sync in carrying through on their enforcement priorities.
Following up on another matter reported in our 2014 Mid-Year Criminal Antitrust and Competition Update, the Supreme Court of Canada issued its ruling in the gasoline price-fixing case that use of CCB wiretaps in a private civil suit does not violate antitrust defendants’ rights to privacy.
Finally, the CCB signed Memoranda of Understanding with the Competition Commission of India (“CCI”) and the Ontario Securities Commission, which are meant to enhance cross-border cooperation.
There were no reported enforcement actions in Argentina during 2014. Changes to the Argentinian antitrust enforcement regime may be in the works, however. In July 2014, the High Court for Criminal Economic Matters requested that the Argentinian Supreme Court urge the government to meet its obligations and set up the National Tribunal for the Defense of Competition (“TNDC”). The High Court made this request when it annulled a decision by the government-controlled Competition Authority (“CNDC”) on the basis that the CNDC had exceeded the scope of its authority by usurping tasks devolved to the TNDC. The Argentinian antitrust enforcement mechanism was set up fifteen years ago with Law 25.156 and most of its provisions—which include the CNDC—have been implemented, but the autonomous TNDC still remains unestablished.
In September the CNDC signed a cooperation agreement with the Spanish Competition Authority to strengthen cooperation between the two regulators, and in particular to train staff and share knowledge and case law between the two jurisdictions.
2014 was a hallmark year of firsts for Brazil’s Administrative Council for Economic Defense (“CADE”), which achieved record-high fines and jail sentences, imposed new structural remedies, and sparked new initiatives to reach out nationally, as well as internationally, on both compliance measures and measures to counteract anticompetitive practices.
As mentioned in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, in May 2014, CADE imposed a BRL 3.1 billion ($1.3 billion) fine on a cement cartel, one of the highest administrative fines imposed on a cartel anywhere in the world. In its first-ever structural remedy in a cartel case, CADE also ordered the cement companies to divest any cross-shareholdings, demanded that the companies involved reduce their assets by 20% in certain markets, and barred the cement companies from cooperating on projects or buying assets from one another for five years. In a separate matter relating to CADE’s investigation of the international air cargo industry, a Brazilian court imposed a record jail sentence of ten years and three months and a BRL 378.9 million ($165 million) fine on a convicted Brazilian air cargo executive. The decision is being appealed.
CADE did not slow its initiatives against cartel behavior in the second half of 2014. Since July, CADE has announced the initiation of investigations into power consumption measurement systems, fuel distribution markets, and port service companies. CADE also confirmed it is participating in the global investigations into antifriction bearings and capacitors, which are being prosecuted in jurisdictions including the U.S., Europe, Australia, China, Korea, and Japan.
In two cases brought in the latter part of this year, CADE exercised its authority to prosecute conduct that occurred decades ago. In July, CADE recommended the condemnation of a cartel in the international electrode market that allegedly engaged in price coordination between 1992 and 1998. In August, more than a decade after the opening of proceedings, CADE fined a German pharmaceutical company, Merck Group, BRL 4.2 million ($1.6 million). The fine was based on Merck’s tacit participation in a misconduct in 1999, on the theory that the company’s failure to voice disagreement constituted tacit acceptance of unlawful behavior. CADE Commissioner Verissimo, who adopted a decision in April 2013 closing the investigation against Merck on the basis that he “could not grasp, in light of the scarce investigative elements, any evidence able to sustain the condemnation of [Merck],” dissented.
This year, CADE also continued its scrutiny of the pharmaceutical and health care sectors. In October, CADE penalized national and regional medical organizations for fixing both the minimum fees paid by health plan companies and the number of visits patients would need for specific treatments. In December, CADE imposed fines of BRL 2.2 million ($830,000) on eleven manufacturers of orthopedics for allegedly rigging government tenders between 2009 and 2013.
2014 was also noteworthy for the application of the March 2013 reforms to the cartel settlement procedure, which now requires a defendant to admit to wrongdoing and to commit to cooperate fully with CADE’s investigation as prerequisites for entering into a settlement agreement. In total, 22 settlement agreements were signed in 2014, which brought in BRL 153.4 million ($56 million) in fines. For example, in November, a regional salt making company and an individual admitted their participation in collusion, pledged to cease the anticompetitive conduct and cooperate, and ultimately accepted a joint fine of BRL 5.5 million ($2.2 million). In December, CADE approved seven settlement agreements in investigations involving markets for electricity, dynamic random access memory (DRAM), information technology services, and cargo freight. CADE will collect over BRL 45.2 million ($17 million) in fines from these seven settlements. Three of these agreements involved the market for resins for coatings and composites, and marked the first time that CADE completed a settlement agreement prior to opening an administrative proceeding.
Since its leniency program was damaged last year when details from a leniency application during CADE’s investigation of an alleged subway cartel were leaked to the press, CADE has advocated for stronger confidentiality protections for companies that admit to their violations of competition laws, and has lobbied courts and public prosecutors to safeguard against information leaks that could expose leniency applicants to additional risk.
Internationally, CADE continues to strengthen its ties with other leading antitrust authorities. CADE signed memorandums of understanding with its Korean, Japanese, and Colombian counterparts to streamline cooperation between their respective agencies. The agreement with Japan provides that each authority will notify the other of investigations that may involve both jurisdictions and will share information about anti-competitive activity. Brazil now has sixteen such agreements in place with foreign enforcement agencies.
Finally, in August, CADE hosted an innovative, international compliance seminar in São Paulo to invite members of the national and international private bar and business community to exchange views with CADE on how to develop an effective corporate compliance program and whether CADE should accredit companies with effective compliance programs, which nevertheless engage in competition violations, at the charging and sentencing stages. This seminar, which was the first one of its kind, was particularly interesting in light of the rapid progression of cartel enforcement in Brazil and elsewhere in South America.
Chile is stepping up its efforts as an antitrust regional leader in South America with 2014 arguably considered a landmark year. The confirmation of Felipe Irarrázabal for an additional period of four years as the head of the National Economic Prosecutor (“FNE”)—in spite of the change in government—and the announcement that both the FNE and Chile’s Competition Tribunal (“TDLC”) will be expanding are good illustrations of Chile’s increasing commitment.
On the enforcement side, the TDLC upheld, for the first time ever, the imposition of the maximum available fine of UTA 30,000 ($25 million) in a decision regarding companies representing 80% of the poultry meat market for an alleged market-sharing agreement. Whereas Agrosuper and Ariztía were each sentenced to the maximum fine, Agrícola Don Pollo Limitada received a lower penalty of UTA 12,000 ($10 million) because of its smaller size. At the same time, the companies’ trade association, Asociación de Productores Avícolas de Chile, was compelled to dissolve and Agrosuper was required to inform the authorities before participating in any merger in the sector. The decision is currently under appeal.
Moreover, the TDLC imposed new sanctions on the road transportation sector in addition to those reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update. This time, the fines were imposed against defendants operating the intercity routes between Copiapó and Caldera (fines totaling UTA 90 or $75,000 against two companies and an individual), between Santiago and Cartagena (fines totaling UTA 110 or $91,000 against two companies), and against the share-taxi companies operating in the city of Valdivia (fines totaling UTA 117.5 or $98,000 against 10 companies and their trade association). All companies and individuals were found to have fixed and simultaneously increased the prices of tickets in their respective areas of operation. The FNE also filed suit against four asphalt producers for allegedly coordinating to rig bids in 2011 and 2012 in a matter that was assisted by a leniency application (Enex). The FNE requested that the TLDC impose fines of UTA 5,000 ($4.6 million) against each Asfaltos Chilenos and Química Latinoamericana and UTA 1,500 ($1.38 million) against Dynal Industrial. The matter is still pending before the TLDC.
On the legislative side, in November 2014, the FNE launched a consultation of a revised version of its “Internal Guidelines for Leniency in Collusion Cases.” Despite having been affirmed by Chile’s Supreme Court in September 2013, and despite statements indicating that there are additional immunity applications, Chile’s four-year-old leniency program has been known to have been used on only three occasions. The consultation—open until January 31, 2015—and the accompanying “Draft Guidelines” aim to facilitate leniency applications by individuals and companies and include an “exemplary list” of the type of information that a leniency applicant should provide in its application. Also, the Draft Guidelines offer the option to engage in “hypothetical consultations” to allow an applicant to confirm the availability of a marker before revealing any sensitive information. Where such a consultation is made and where the FNE advises an applicant that leniency remains available, leniency applicants must file an application for leniency or for a marker within the 24 hours following FNE’s communication.
The Draft Guidelines leave open the question of whether leniency could also result in immunity from criminal sanctions. This uncertainty is likely to remain until Chilean courts rule on whether Article 285 of the 1874 Criminal Code applies to price-fixing conduct in cartel cases. Article 285 criminalizes price alterations and had never been applied to such cases. In 2009, however, the country’s lead prosecutor brought a criminal action in the so-called “pharmacies cartel.” This action not only increased the risks immunity applicants could face when admitting their participation in a cartel, but also substantially hindered Chile’s immunity program. The criminal action is currently in trial.
Finally, on November 18, 2014, the Court of Appeals of Santiago sanctioned Farmacias Ahumada UTM 50 ($980,000) for failing to conform to a 2009 settlement agreement in which it agreed to compensate all customers affected by a price-fixing agreement among pharmacies.
Developments over the past year suggest that Colombia’s Superintendency of Industry and Commerce (“SIC”) is a competition authority on the rise because it secured its first leniency applications under its new program that led to the issuance of statements of objections in two investigations. Companies named in the SIC’s investigations face maximum fines of up to COP 61.6 billion ($25 million) per count. Individuals face maximum fines of up to COP 1,232 million ($0.5 million) per count.
In August, the SIC filed statements of objections against the country’s five largest diaper companies and 44 of their current and former employees. In line with its new leniency program, the SIC granted full immunity from sanctions to one company and its cooperating executives and a 50% reduction to a second company that came forward with valuable information on the alleged collusion.
Colombia’s leniency program came into play again in November, when the SIC adopted a statement of objections against five companies and 42 individuals for allegedly fixing prices in the hygienic paper products market. The SIC reported that three of these companies admitted wrongdoing and agreed to cooperate with the SIC’s investigation as part of the authority’s leniency program. In its statement of objections, the SIC stated that it intends to follow its previously articulated fine reductions of 100% for the first company to come forward, 50% for the second company, and 30% for the third company.
Also in November, the SIC invited practitioners and business representatives to provide feedback on the policies and practices of the authority at the Second International Congress of Competition Policy. The event featured panels and presentations by Latin American competition authorities, international economic organizations, and private practitioners.
During the second half of the year, the Ecuadorian Competition Authority (“SCPM”) did not adopt any enforcement actions against alleged cartels. The agency, however, continued to be very active in the legislative field, adopting regulations to supplement its 2011 Competition Law.
The most controversial regulation is the “Manual of good commercial practices for supermarkets and suppliers,” (“The Manual”) which took effect on November 1. The Manual establishes a compulsory code of conduct for supermarkets and their suppliers, including recommended pricing and rules against misleading advertising. The SCPM also published regulations on the treatment of restricted information, enforcement of cease-and-desist agreements, conduction of dawn raids, administrative procedural process, procedures for applying preventative measures, and the handling of investigation files.
In July 2014, SCPM published a resolution on the application of the de minimis rule for restrictive agreements and practices. According to this resolution, agreements between competitors and non-competitors will be understood to fall outside the scope of Ecuador’s Competition Law if the individual market shares of the companies involved do not exceed the 14% and 15% respective thresholds in the relevant market. Also, SCPM continued to engage in cross-border cooperation and signed a cooperation agreement with El Salvador’s Superintendencia de la Competencia.
The second half of the year was a semester of victories in the courts for El Salvador’s Competition Authority (“SC”). In July, the country’s Supreme Court affirmed SC’s ability to sanction companies for not cooperating with or for hindering investigations. Although the Court reduced the initial fine imposed by the SC, it affirmed the imposition of a $3,950 fine for non-compliance with two Requests for Information. In November, the Court overturned a 2011 decision by its Administrative Chamber and upheld the conviction of Molsa, ruling that information gathered during an on-site investigation was admissible as evidence of a collusive practice. The case began in 2008, when the SC imposed fines of approximately $2 million on the country’s largest flour manufacturers, Molsa and Harissa, for market-sharing.
In September, the SC stated that it planned to investigate the bean marketto determine if “the main suppliers agreed to increase the prices.” The inquiry stemmed from inspections conducted by Consumer Ombudsman following price increases. At the same time, the SC closed its investigation into the alleged price-fixing of catering services by hotels reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update. The SC concluded that there was not enough evidence pointing towards illegal practices.
Guatemala is one of the few Latin-American countries without a Competition Law, but change is in the works. Ricardo Sagastume, president of the country’s Institute of Business Law, when hosting the Latin-American Congress on Competition Law in October, stated that Guatemala is “committed to the EU to have a Competition Law by November 30, 2016” and proposed to start the preparatory work in the first months of 2015.
In 2014, the Mexican government continued its efforts to build its anti-cartel enforcement program with the implementation of a new law and regulations increasing the powers of Mexican enforcers to investigate and sanction such activity.
As noted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, this year Mexican President Enrique Peña Nieto backed a new competition bill recently enacted by Mexico’s Congress. Mexico’s New Federal Law on Economic Competition (“LFCE”) entered into force on July 7, 2014. The new law grants increased powers to the Mexican Federal Economic Competition Commission (“COFECE”). The LFCE also strengthens the integrity of Mexico’s immunity program by creating an investigating authority to ensure the establishment of a firewall between cartel investigation phases. Further changes may be implemented in the near future as COFECE’s 2014-2017 Strategic Plan has called for the creation of a new division in the investigations area to strengthen enforcement.
Along with the enactment of the LFCE, Mexico’s Federal Criminal Code was also amended in 2014 to include felonies for breach of antitrust provisions. The Code makes it a felony to exchange information with the purpose or effect of fixing prices, restricting supply, dividing markets, and rigging bids. Additionally, a new criminal sanction makes it a felony to alter, destroy, or disturb documents, electronic files, or any evidence during a COFECE investigation. The Code’s strengthened criminal sanctions call for between five to ten years’ imprisonment for individuals committing or participating in cartel-related offenses as defined by the LFCE, including the new felonies listed therein.
Additional regulations under the LFCE also took effect on November 11, 2014, giving COFECE broad new powers. Among other things, the regulations give COFECE the ability to bar individuals who are responsible for antitrust violations from being employed as an attorney, administrator, board director, manager, officer, or agent for up to five years, or to fine them up to MXN 1.3 million ($90,000).
Additionally, as highlighted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, this year COFECE followed several other jurisdictions in sanctioning ACC, Panasonic, Tecumseh Brasil, and Whirlpool for price fixing and other anticompetitive practices in the refrigeration compressors market. COFECE imposed total fines of more than MXN 223 million ($17 million). The fines included MXN 89.97 million ($6.9 million) each for Panasonic and Whirlpool and MXN 38.77 million ($2.96 million) for Tecumseh Brasil. This investigation marked the first time COFECE used its immunity program adopted in 2011. There are currently 18 open investigations before COFECE, at least four of which were initiated through COFECE’s immunity program.
Although the three members of Paraguay’s new antitrust authority (“CONACOM”) were supposed to be elected in September 2014, the year concluded without their nominations being effective. Paraguay established CONACOM with Law 1956/13 in June 2013, and complemented the legal framework with an April 2014 Decree. The cartel and monopolization provisions and the pre-merger notification system entered into force at the end of 2013 and mid-2014, respectively.
This year brought increased action by Peru’s Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (“INDECOPI”), which had previously brought only three charges for antitrust violations since 2009.
Early this year, as reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, INDECOPI collaborated with the Chilean competition authority in an investigation involving the ground transportation and terminals market. In October, INDECOPI also initiated administrative proceedings against 39 private companies that provide hemodialysis treatment for allegedly rigging government contract bids. The companies face fines exceeding UIT 1,000 (over $1 million).
The authority is placing particular emphasis on its emerging leniency program. In July, INDECOPI’s Chief Economist, Javier Coronado Saleh, announced that two investigations had been initiated as a result of the agency’s leniency program. The authority also increased awareness of antitrust laws with an education campaign that included seminars and the establishment of a national “Competition Day.”
In December, Uruguay’s Commission for the Promotion and Defense of Competition levied a fine of UYU 2 million (over $240,000) on a supermarket chain for instigating price collusion among producers of frozen foods. The decision came after a nearly five-year-long investigation into alleged anticompetitive practices in the frozen food market. The Disco supermarket chain allegedly pressured frozen food manufacturers into supplying their products to Disco at an agreed-upon price and threatened not to stock the companies’ products if they did not comply. A number of manufacturers also received fines of UYU 170,000 ($20,500) for complying with Disco’s instructions.
In November, the Commission found that insufficient evidence existed to bring an action against companies in the cattle refrigeration market and closed the ongoing investigation. Uruguay’s Ministry of Economy and Finance stated in a resolution that, although the cattle refrigeration market is moderately concentrated, similarities in behavior among companies did not always occur at around the same time.
In 2014, there were key changes in leadership at the European Commission (“EC” or “Commission”). Margrethe Vestager, Denmark’s former Minister of Economic Affairs and an experienced economist, is the new Commissioner for Competition and will work closely with the Vice President responsible for Jobs, Growth, Investment and Competitiveness, Jyrki Katainen. Vestager is expected to address specific issues in network industries, such as the fragmentation of the EU’s energy market and mobile telephony consolidation. The financial services sector will also be high on her agenda and will face continued scrutiny, exemplified by the Interbank Offered Rate benchmark cases, the on-going investigation into the Credit Derivatives market, and the State aid investigations into the corporate tax arrangements granted by Ireland, Luxemburg, and the Netherlands (including those which allegedly benefit a number of prominent U.S. multinational companies). The on-going investigations into whether Google has engaged in anticompetitive practices will also be very much at the forefront of her agenda. Commissioner Vestager has vowed not to bow to protectionist pressure and has stressed the need for strong deterrence—through for example, the imposition of high fines regardless of a company’s national roots. To this end, Vestager intends to cooperate and engage in a constructive international dialogue with both traditional trading partners and also emerging economies.
Vestager’s task will be a difficult one, as the necessity of co-operation with other Commissioners (especially those responsible for the digital, telecommunications, energy and financial services portfolios) will challenge her independence, while the enhanced collaborative role she will play will emphasize the rising influence of competition law in many economic spheres.
As reported in the 2014 Mid-Year Criminal Antitrust and Competition Law Update, the Commission continued its significant enforcement efforts in 2014. It levied €1.67 billion (nearly $2.3 billion) in fines in 2014. While this is considerably less than the total fines imposed in 2013, this is largely due to the record €1.71 billion ($2.27 billion) in fines levied by the Commission in December 2013 in connection with its LIBOR investigation. In all other aspects, the Commission’s 2014 enforcement track record is on par with that of the last two years, and it continues to outpace other enforcers in imposing the highest fines on companies for cartel activity.
(* 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.)
The Commission adopted a settlement procedure in 2008 to encourage companies not to contest the Commission’s findings in exchange for a fine discount and other considerations. When the settlement procedures were first announced, concerns were expressed as to whether the relatively modest standard 10% settlement discount offered by the Commission would be sufficient to induce companies to enter the settlement program. Therefore, it is notable that this year in eight of the ten cases addressing horizontal collusion, companies settled their case with the Commission. That represents the highest annual percentage of Commission cases to be resolved through the settlement procedure since its adoption 7 years ago.
The average Commission fine imposed per undertaking and per decision have more than doubled over the last decade, reaching levels that many question as disproportionate to the alleged harm claimed. As compared to two decades ago, average fines on undertakings have grown fifteen-fold.
(* For the purposes of calculating the Average Fines Levied per decision and per undertaking, an average for each period was gathered for both figures. In calculating the averages for each period, the overall fine imposed was divided by the number of decisions and the number of undertakings (including any immunity applicants) in that year respectively.)
Significant fines imposed by the EC during the second half of 2014 are as follows:
As noted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, and discussed in more detail in Section II.A.3.a. below, the Commission has been conducting a number of investigations into alleged infringements of Article 101(1) TFEU in the financial services sector. On October 21, 2014, the Commission issued two settlement decisions, imposing fines totaling €93.9 million ($124.71 million) on four banks for allegedly engaging in conduct in relation to Swiss Franc Interest Rate Derivatives and Derivatives based on Swiss Franc LIBOR.
In the first decision (Swiss Franc LIBOR), the Commission found that two banks, RBS and JPMorgan, had participated in unlawful bilateral agreements aimed at influencing the Swiss Franc LIBOR which serves as a benchmark for certain Swiss Franc interest rate derivatives. Between March 2008 and July 2009, the Commission found that RBS and JPMorgan had tried to distort the normal course of the pricing of interest rate derivatives denominated in Swiss Franc, by discussing future Swiss Franc LIBOR rate submissions of one of the banks and, at times, exchanging information concerning trading positions and intended prices. RBS, as the immunity applicant, avoided a fine of €110 million ($130.4 million), while JP Morgan received a 40% reduction in its fine for its cooperation in the Commission’s Leniency Programme and was also awarded a 10% reduction because it agreed to settle the case with the Commission. JPMorgan was fined €61.6 million ($73 million).
On the same day, the Commission imposed fines totaling €32.3 million ($38.3 million) on four banks (including RBS and JPMorgan) based on its determination of collusion on the “bid-ask spreads” charged on Swiss interest rate derivatives (Swiss spreads). Bid-ask spreads are the difference between the price at which a bank is willing to sell and buy a given product. According to the Commission, between May and September 2007, RBS, UBS, JP Morgan and Crédit Suisse agreed to quote to third parties wider, fixed bid-ask spreads on certain categories of short term over-the-counter Swiss franc interest rate derivatives, while maintaining narrower spreads for trades amongst themselves. The aim of the agreement, according to the Commission, was to lower the parties’ own transaction costs and maintain liquidity between them, whilst seeking to impose wider spreads on third parties. Another alleged objective identified by the Commission was preventing other market players from competing on the same terms as these four major players in the Swiss franc derivatives market.
The difference in the level of fines imposed in each of these Swiss Franc-related decisions may reflect the Commission’s assessment of the relative seriousness of the respective infringements and could suggest that the Commission considered the conduct aimed at influencing the Swiss Franc LIBOR as more serious than the “spreads” agreements.
These decisions are the third and fourth Commission infringement decisions to date concerning financial benchmarks. In December 2013, the Commission fined eight international financial institutions a total of €1.7 billion ($2 billion) for participation in collusion with respect to Yen LIBOR and Euro LIBOR (see our 2013 Year-End Criminal Antitrust and Competition Law Update).
In September 2014, the Commission imposed fines exceeding €138 million ($163.6 million) on Infineon, Philips, Samsung, and Renesas for coordinating their market behavior in smart card chips. Between September 2003 and September 2005, these companies, through bilateral contacts, were found to have exchanged commercially sensitive information on pricing, customers, contract negotiations, production capacity, and capacity utilization as well as their future market conduct. The Commission carried out dawn raids in 2008 and sent Statements of Objections to the parties in 2013. Renesas received full immunity, avoiding a fine of more than €51 million ($60.5 million), and Samsung received a penalty reduction of 30% for cooperating with the investigation. Infineon and Philips reportedly intend to appeal the Commission’s infringement decision.
Interestingly, in August 2014, Infineon complained to European Ombudsman that the Commission had breached its rights of defence. In November the Ombudsman opined that the Commission had in fact erred by not sending the Statement of Objections to Infineon at an earlier stage in its investigation. This is likely to play a significant role in Infineon’s appeal. It is also noteworthy how the application of equivalent of the Statute of Limitations in Commission cases differs from how it applies in, for example, U.S. DOJ cases. If the DOJ alleged that the last overt act in furtherance of a collusive scheme was in September 2005, then it would have to bring criminal charges within five years, or by no later than September 2010 in this example, or the case would be time barred. In Commission cases, under Regulation 1/2003, the Commission essentially has a period of five years from the last overt act to take its first investigative steps and a long-stop period of ten years to issue a decision imposing a fine on the undertakings.
As reported in the 2014 Mid-Year Update, the Commission continues its investigations into the oil and biofuels sectors. Its investigations began in Spring 2013 with a set of dawn raids at the premises of companies active in and providing services to the crude oil, refined oil products and biofuels sectors, including Shell, BP, and Statoil. In Spring 2014, some 30 companies reportedly received data requests from the Commission, and these were followed by dawn raids in October 2014 at the premises of companies active in the production, distribution, and trading of ethanol. The Commission is understood to be concerned that companies may have distorted price benchmarks when submitting price information to the price reporting agency, Platts. The prices assessed and published by Platts serve as benchmarks for trade in the physical markets and in the financial derivative markets for a number of commodity products in Europe and globally. The Commission apparently believes that even small distortions may have had a significant impact on prices, potentially harming consumers.
As set out in our 2013 Year-End Criminal Antitrust and Competition Law Update, in December of last year, the Commission issued two settlement decisions imposing the largest fines to date in connection with alleged manipulation of interest rates (Euro and Yen Interest Rate Derivatives). The Commission has since been pursuing the non-settling parties under the “normal procedure.” These investigations continued during 2014.
The Commission is investigating the inter-dealer broker ICAP in the Yen Interest Rate Derivatives case. In June 2014, it issued a Statement of Objections stating its preliminary view that ICAP may have facilitated several infringements in the market for Yen-denominated interest rate derivatives, the value of which are derived from either LIBOR or TIBOR (Tokyo Interbank Offered Rate) for Yen. ICAP has openly stated that it will defend itself against these allegations vigorously. According to press reports, ICAP lodged a complaint in October 2014 to the European Ombudsman about the Commission’s handling of the case.
The Commission continues to pursue its Euro currency case against three banks, Crédit Agricole, HSBC, and JPMorgan, that did not settle in 2013. In May 2014, these banks received Statements of Objections from the Commission. In relation to this proceeding, Crédit Agricole submitted a complaint to the European Ombudsman alleging that the Commission has not complied with its obligations of impartiality in the application of EU competition rules. The European Ombudsman has opened an investigation into this matter. The Commission’s infringement decision in relation to Euro IRD resulted in the imposition of fines on Deutsche Bank (€465 million or $571 million), Société Générale (€445 million or $546 million), and RBS (€131 million or $161 million).
In November 2014, the Commission sent Statements of Objections to a number of heavy- and medium-duty truck producers (including, according to public sources, DAF Trucks N.V. and Paccar) for allegedly having agreed on coordinated their pricing behavior. Volvo publicly announced that it would set aside €400 million ($499 million) to cover the costs arising from the antitrust probe, although it indicated that it may reassess this amount as these proceedings develop.
In another hybrid settlement case, the Commission imposed fines in April 2014 totaling €30.7 million ($36.4 million) on four producers in the steel abrasives sector (Ervin, Winoa, Metalltechnik Schmidt, and Eisenwerk Würth). Steel abrasives are loose steel particles used for cleaning or enhancing metal surfaces in the steel, automotive, metallurgy and petrochemical industries. They are also used for cutting hard stones such as granite and marble. The Commission commenced its investigations with dawn raids in June 2010. In December 2014, the Commission sent a Statement of Objections to Pometon, alleging that Pometon coordinated on a key price component of steel abrasives with its competitors (the “scrap surcharge”) and that Pometon may have also agreed not to compete on price with respect to individual customers.
In March 2014, the Commission confirmed that it had carried out dawn raids at the premises of companies active in the automotive exhaust systems industry in several EU Member States. The Commission expressed concerns that the companies may have violated EU antitrust laws, including rules that prohibit cartels. Exhaust systems for vehicles are composed of the “hot end” and “cold end.” The components of the “hot end” include in particular the exhaust manifold, catalytic converters, converters, diesel oxidation catalysts, and diesel particulate filters. The “cold end” is principally composed of the mufflers and tubes.
On March 27, 2014, the General Court significantly reduced the fines imposed on the Saint-Gobain Group for its alleged participation in a car glass cartel. In November 2008, the Commission had imposed fines on four companies totalling €1.35 billion ($1.66 billion) for their participation. Of this total, €880 million ($1,083 million) was imposed on the Saint-Gobain group. Saint-Gobain appealed on the basis that the Commission had erred in applying an increase for recidivism. The Court of Justice of the European Union (“Court of Justice”) agreed. According to the Court of Justice, recidivism can be an aggravating factor only if the repeated infringements are committed by the same company. However, the 1988 decision on which the Commission relied in order to establish the existence of a repeated infringement referred to a different subsidiary of the Saint-Gobain group and was not addressed to the parent company. As a result, the Court reduced the fine imposed on Saint-Gobain to €715 million ($880 million). The €880 million ($1,083 million) fine initially sought by the commission against the Saint-Gobain Group is more than twice the highest fine ever obtained by the U.S. DOJ for a similar offense ($500 million), and the reduced fine is still $380 million above the highest criminal fine ever imposed in the United States.
On November 12, 2014, the Court of Justice reduced the fine imposed on Guardian Industries, another member of this alleged cartel, from €148 million ($182 million) to €103.6 million ($127.5 million), relying upon the application of the general EU law principle requiring equal treatment.
This reduction of fines did not, however, extend to Pilkington, which had its €357 million ($440 million) fine confirmed by the Court. In a lengthy ruling, the Court dismissed all of Pilkington’s arguments and justified the Commission’s finding of a single and continuous infringement on the basis that the disclosure of information to competitors “in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice.” The Court also rejected Pilkington’s argument that the 10%-of-turnover limit on fines would have been exceeded if this fine had been considered in conjunction with a €140 million ($166 million) fine imposed on Pilkington in the 2007 Flat Glass Cartel decision. According to the Court, although they involved neighboring markets, the fining decisions related to separate infringements.
Despite its general denial of Pilkington’s claims, the Court used this decision to reprimand the Commission by departing from the traditional “loser pays” principle and ordering the European Commission to pay 10% of Pilkington’s costs. The Court justified such a move on the basis that “it was only in the course of the proceedings, several years after the adoption of the contested decision and after the closure of the written procedure, that the Commission corrected two errors made in calculating the fine imposed.” Interestingly, the Court adopted this decision sua sponte—Pilkington never specifically referred to those calculation errors in its pleadings.
On April 30, 2014, the Court of Justice upheld a 2011 ruling of the General Court, in which the General Court reduced the fines imposed on FLSmidth and its subsidiary FLS Plast from €15.3 million ($18.8 million) to €14.45 million ($17.8 million) on several grounds. A previous subsidiary of FLS Plast, Trioplast Wittenheim, which allegedly participated in the collusion, had been sold by FLS Plast before the Commission’s fining decision. Trioplast Wittenheim cooperated with the Commission, thereby benefitting from a 30% reduction in its fine. Both FLS Plast and the parent company of Trioplast Wittenheim at the time of the adoption of the decision were found to be liable for the infringement.
Although the General Court reduced the fine on FLSmidth, it had held that the new parent company, but not the previous owner, should benefit from the reduction. FLSmidth (i.e., the parent of Trioplast’s previous owner) argued that the reduction should be extended also to the previous owner. The Court of Justice dismissed this argument, holding that a fine reduction cannot be granted to an undertaking that has transferred to another undertaking a subsidiary involved in an infringement when that former parent entity did not itself cooperate with the Commission and was not the parent company at the time of the cooperation.
In its investigation into Italian Raw Tobacco, the Commission granted Deltafina conditional immunity, an intermediate step prior to the granting of final immunity at the end of the Commission’s investigation. In October 2005, however, the Commission withdrew Deltafina’s conditional immunity, on the basis that Deltafina had breached its cooperation obligation by prematurely disclosing its immunity application to other parties in an alleged cartel. In its Deltafina judgment, the Court of Justice upheld the General Court’s 2010 ruling supporting the position of the Commission.
In another fining ruling (in July 2014), the Court of Justice significantly reduced the fines imposed by the Commission on Sasol for collusion with respect to the wax used in paper, candles, and chemicals. The fine was reduced from €318 million ($391 million) to €149.9 million ($184.5 million). The Court of Justice also reduced the fines imposed on Esso, from €83.5 million ($102.8 million) to €62.7 million ($77.2 million), and on RWE, from €37.4 million ($46 million) to €35.8 million ($44 million). In each case, the Court of Justice ruled that the Commission had unfairly attributed parent-company liability in relation to periods where the companies in question were not subsidiaries of the parent companies.
The Nexans case is an important one from the standpoint of the procedural limitations on Commission action. On June 25, 2014 the Court of Justice upheld the General Court’s ruling in relation to an appeal against the Commission’s investigation of anticompetitive behavior in the electric cables market. Early on in the power cables market sharing investigation, the Commission had conducted dawn raids on Nexans and others. Nexans appealed the inspection decisions, arguing that the Commission’s authorization was too widely drafted. Nexans’s appeal was successful. The General Court held that the Commission can examine only documents for which it has “reasonable grounds” to suspect an infringement. The Court of Justice upheld the General Court’s ruling.
On September 11, 2014 the Court of Justice issued an important ruling regarding the scope of the concept of “object infringements” (roughly equivalent to per se infringements) under European Competition law. The Court of Justice reversed a ruling by the General Court that had upheld a 2007 Commission decision, whereby the latter had presumed that pricing measures adopted by Groupement des cartes bancaires, a French association of banking associations, were per se anti-competitive—without examining the actual effects of the arrangements in question. The Court of Justice concluded that both the General Court and the Commission had not correctly assessed whether there had been a restriction of competition “by object.” Most significantly, the Court of Justice indicated that the “essential legal criterion for ascertaining whether coordination between undertakings involves … a restriction of competition ‘by object’ is the finding that such coordination reveals in itself a sufficient degree of harm to competition.” Additionally, the Commission and the General Court had both failed to consider all the relevant aspects of the economic and legal context in which the coordination took place. Finally, the Court of Justice held that the General Court had erred when determining that the “concept of restriction of competition ‘by object’ must not be interpreted ‘restrictively.’”
On November 26, 2014, the European Council adopted a Directive governing damages actions for infringements of EU and Member State national competition laws. EU Member States will have two years to incorporate the Directive into their own national laws.
The Directive covers areas such as the disclosure of documents (including protections for immunity and leniency materials), limitation periods, joint and several liability, a passing-on defense, collective actions, and quantification of harm. Key elements include:
The Directive is designed to facilitate damages actions by companies and individuals that have suffered as a result of cartel activity—something that to date has gained traction mainly in some Member States such as the U.K., Germany, and the Netherlands. The Directive forms part of a broader package, which also includes a non-binding Practical Guide for national courts and Communication on quantifying harm in antitrust damages actions, both adopted in June 2013.
In the Practical Guide, the approach adopted by the Commission is that loss should generally be measured by comparing the actual position of the injured party against a hypothetical non-infringement scenario (the position that party would have been in “but for” the infringement). The Practical Guide identifies categories of harmful effects and describes and analyzes various legal and economic methods available to construct non-infringement (“but for”) scenarios. While this Practical Guide seeks to achieve a greater level of legal certainty, the Commission itself has recognized that economic techniques for the quantification of damages may need to evolve over time.
For further detail on the Damages Directive, see our client alert The EU Adopts the Damages Directive: The Emergence of an EU Level Playing Field in Private Antitrust Actions.
On December 1, 2014, a bilateral cooperation agreement signed in May 2013 between the European Union and the Swiss Confederation on competition matters came into force. The Agreement deals exclusively with antitrust matters (a so-called “dedicated agreement”) and will significantly enhance the way in which the European Commission and the Swiss Competition Authority (“COMCO”) coordinate and cooperate on enforcement activities (such as mergers, abuses of dominance, antitrust and cartels). The Agreement marks the first of what is likely to be a series of “second generation” EU agreements with third countries. While EU cooperation with competition authorities in third countries is by no means unprecedented, what distinguishes this Agreement from the so-called “first generation” of dedicated agreements is that the Agreement explicitly allows the Commission and COMCO to exchange information obtained during investigations (e.g., from dawn raids, in response to information requests and in oral statements), without the need to obtain consent from the parties. While this has significant implications for companies being investigated for alleged cartel infringements, the Agreement nonetheless provides for some limited exceptions: for example, each authority is required to request consent from the party concerned in the context of leniency and/or settlement proceedings in cartel matters before transferring the information (see our client alert New Swiss/EU Cooperation Agreement Creates Enhanced Enforcement Opportunities for Antitrust Regulators, but Leaves Uncertainty for Companies).
On the legislative front, in August 2014, the Belgian Competition Authority (“BCA”) adopted new Guidelines regarding the calculation of fines, which entered into force on November 1, 2014. The new Guidelines are more in line with existing EU practices. In particular, companies active in Belgium will be fined according to the same principles irrespective of whether the antitrust investigation is carried out by the European Commission or the BCA. The most significant change is that a heavier fine will be imposed for violations of long duration.
With regard to enforcement, in 2014, the BCA took action in several ongoing investigations.
On July 11, 2014, the BCA imposed interim measures on BMW Group Belux in the context of its ongoing investigation. The aim of the measures was to preserve the ability of a previous BMW and Mini dealer to remain in the market as an independent car repair service by ensuring access to technical information and spare parts.
In addition, on April 3, 2014, the BCA confirmed it had conducted dawn raids at the premises of several companies in the sectors of industrial batteries and chicken animal feed.
The Belgian courts also dealt with cartel enforcement during 2014. As reported in the 2014 Mid-Year Criminal Antitrust and Competition Law Update, on March 12, 2014, the Brussels Court of Appeals partly annulled a March 2013 decision by the BCA imposing fines on flour mills for price fixing, due to insufficient evidence as to the involvement of the entities in question.
In addition, on November 24, 2014, the Brussels Commercial Court ruled on the first-ever follow-on damages action brought by the European Commission concerning one of its own antitrust decisions. The Commission had filed a damages suit in 2008 seeking compensation for damages suffered by EU institutions due to the anticompetitive behavior of members of an elevator and escalator manufacturer cartel it had itself fined approximately €1 billion ($1.19 billion). The Commission claimed that EU institutions had overpaid for the maintenance of elevators and escalators by up to €6 million ($7.1 million). The Brussels Commercial Court, in applying standard Belgian civil liability law, found that the Commission had failed to prove the required causal link between the market sharing agreement and the alleged surcharges paid by EU institutions. The Court considered that, while the market sharing agreement may have been intended to increase prices, this does not prove that the prices charged to the EU institutions during the cartel period were artificially increased. As such, the Court did not follow the Commission’s argument that it could presume the market sharing agreement had led to higher prices for customers.
2014 has been an eventful year in Danish Competition law.
On March 7, 2014 the Danish authorities granted full immunity for the first time to a leniency applicant. According to the Danish Competition and Consumer Authority (the “Konkurrence- og Forbrugerstyrelsen”, or “KFST”), the application referred to an alleged cartel in certain markets of the cleaning industry. While the identity of the successful immunity applicant has not been made public, in a statement to the press, Mr Peter Langkjær, head of the cartels and investigations division at the KFST, expressed his “[…] hope that higher fining levels and the possibility of imprisonment for cartel conduct, introduced [in 2013], will lead to more applications in the future”. These developments are particularly notable because, as reported in our 2013 Year-End Criminal Antitrust and Competition Law Update, on March 1, 2013, a new Danish Competition Act came into force, providing custodial sentences of up to 18 months for individuals engaging in cartelistic behavior.
On November 3, 2014, Denmark imposed what the KFST has expressly indicated is its largest ever fine in a competition case. More specifically, the Danish construction company Elindco Byggefirma A/S entered into a settlement with the Danish Public Prosecutor for Serious Economic and International Crime in relation to 12 instances of bid rigging in relation to certain markets for construction. The infringements took place in the period from 2007 until 2009. Elindco Byggefirma agreed to pay a fine of DKK 10 million ($1.59 million) and a member of the firm’s management agreed to pay a fine of DKK 25,000 ($3,900). According to publicly available information, it would appear that three further construction companies have agreed to pay fines as part of what has become known as Denmark’s “big building” cartel, thereby bringing the total fines to DKK 13.9 million ($2.21 million).
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, France reshuffled the composition of the directing bodies of its National Competition Authority, the “Autorité de la Concurrence” (“AdC”). Bruno Lasserre, already one of the longest serving agency heads in the world since being first appointed in 2004, was reappointed by decree of the French President of the Republic as President of the AdC, on February 28, 2014. Lasserre’s current term will expire in March 2019.
On December 18, 2014, the AdC announced its resolution of one of the biggest price fixing investigations ever conducted in France. The AdC imposed fines of €951.1 million ($1.16 billion) on thirteen companies involved in two separate investigations in the markets for consumer hygiene and cleaning products. The companies allegedly engaged in price fixing between 2003 and 2006. In the cleaning products investigation, the AdC imposed fines of €345.2 million ($421 million) on Henkel, Unilever, Procter & Gamble, Sara Lee, Bolton Solitaire, and certain other consumer products companies. The AdC granted one company full immunity and other two companies received fine reductions of 50% and 25%, respectively, for cooperating with the AdC investigation. In the hygiene products matter, the AdC fined 11 companies, including Henkel, Unilever, Procter & Gamble, Sara Lee, Laboratoires Vendôme, Gillette, L’Oréal, Beiersdorf, and Vania, for € 605.9 million ($740 million). One of them received full immunity and another one received a reduction of 30% in its fine for cooperating with the AdC investigation. Some companies did not challenge the facts and proposed compliance commitments for the future, thereby benefiting from an additional fine reduction of 16 to 18%.
It is noteworthy that the AdC reportedly characterized one of the companies as “the main instigator of the collusion,” yet the same company was granted full immunity on personal care and 50% off on home care fines. Like the European Commission’s program, instigators are disqualified from receiving full immunity under the AdC’s Leniency Program only if the company also coerced others to participate in the unlawful activity—a fact not alleged here.
Also in December 2014, the AdC fined several wallpaper manufacturers a total of €5.3 million ($6.46 million) for anticompetitive conduct. The decision was published on December 22, 2014. AdC had raided companies in November 2010 and issued formal charges in June 2013. The largest fines were levied against MCF Investissement SAS (€1.4 million or $1.66 million) and Société de Conception et d’Édition SAS (€3.6 million or $4.27 million). Out of that amount, the companies’ former parent company Decoralis was jointly and severally liable for up to €1.99 million ($2.36 million). The companies’ current parent companies A.S. Création France and A.S. Création Tapeten were liable for up to €2.99 million ($3.55 million). The other companies that were sanctioned include Zambaiti France SAS, along with its parent company Zambaiti International, for €50,000 ($59,000), and Graham & Brown France, along with its parent company Graham & Brown Limited, for €247,000 ($293,000). Rasch France and its parent company Tapetenfabrik Gebr. Rasch were not fined because they blew the whistle on the illegal activity, the authority said. The company applied for immunity in June 2010. The French decision follows penalties levied in February 2014 by Germany’s Bundeskartellamt, which imposed fines totaling €17 million ($20.17 million) against four wallpaper makers for price-fixing.
The AdC received a setback from the French Supreme Court (“Cour de Cassation”) in a June 25, 2014 ruling ordering the AdC to return evidence seized from Crédit Agricole during a dawn raid. According to the Supreme Court, the French Ministry for the Economy, which was in charge of on-spot inspections at the time of the events, had denied the bank access to its counsel during the dawn raid, thereby breaching the European Convention on Human Rights.
On the legislative front, private actions in France appear to have received something of a boost in 2014 with the introduction in March 2014 of a form of class action through the Consumer Protection Law No. 2014-344 (Hamon Law). This law should encourage consumer actions for harm suffered through competition law breaches.
Lastly, Lasserre announced on December 15, 2014 that the AdC may amend its settlement procedures in the next year.
In 2014, the Bundeskartellamt (“BKartA”) had a record setting year, imposing fines of approximately €1 billion ($1.33 billion) for antitrust infringements. As in the past, the majority of cases came to the BKartA’s attention due to applications under its leniency program. In addition to fines and enforcement activities reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the following BKartA enforcement actions were taken in the latter half of 2014:
In July 2014, the BKartA fined 21 sausage manufacturers as well as 33 individuals a total amount of approximately €338 million ($449 million) for illegal price-fixing agreements. According to the BKartA, participants in the industry had engaged in a long-lasting and wide-spread practice of exchanging information regarding intended price increases. Over several decades, the participants allegedly met regularly within the so-called “Atlantic Group” (named after their first meeting place, the Hotel Atlantic in Hamburg) to discuss market developments and prices. Additionally, the sausage manufacturers were accused of entering into agreements to jointly implement price increases to the retail trade.
The initial evidence was reportedly obtained by the BKartA due to an anonymous tip-off. During the course of the proceedings 11 companies cooperated with the authority, admitted wrongdoing, and had their fines reduced.
In August, the BKartA imposed fines totaling €17.4 million ($23.1 million) on five providers of specialist underground mining services (BeMo Tunnelling GmbH, Deutschland, Deilmann-Haniel GmbH, Feldhaus Bergbau GmbH & Co. KG, Schachtbau Nordhausen GmbH, and Thyssen Schachtbau GmbH) for price fixing agreements and bid-rigging. The BKartA initiated relevant proceedings with dawn raids after the Operta GmbH applied for leniency.
According to the BKartA, the companies had divided incoming orders for service contracts among themselves and, during tender procedures, divided specific lots among themselves and coordinated price levels of their individual bids and cover quotes.
When calculating fines, the BKartA took into account the fact that all companies cooperated with the investigation. As the leniency applicant, Operta GmbH received full immunity from fines. Settlement agreements were also reached with five companies, further reducing the amount of imposed penalties. During the proceedings, the BKartA worked closely together with the public prosecutor’s office in Bochum because the conduct involved publicly tendered services. Bid rigging in that context may, therefore, also result in individual criminal prosecutions under section 298 of the German Criminal Code.
Finally, in September 2014, the BKartA imposed fines totalling approximately €6.2 million ($8.2 million) on 14 companies and 17 individuals for participating in price-fixing agreements for concrete paving stones. These fines came on top of approximately €2.3 million ($3.1 million) in fines previously imposed for similar infringements in other market regions. No fine was imposed on Berding Beton GmbH, Steinfeld, as it received full immunity under the BKartA’s leniency programme. According to the BKartA, the companies agreed to abstain from intense price competition for the sale of standard concrete paving stones. The majority of infringers also adopted a system of advance agreement regarding price increases of a specific magnitude. Because collusive meetings were organized and moderated by the regional managing director of the trade association, that association was also fined.
The state-owned German railway operator and logistics company, Deutsche Bahn AG (“DB”), filed the biggest ever follow-on damage claim for an amount of €1.8 billion ($2.4 billion) before a court in Cologne against the members of an alleged air cargo cartel, namely Lufthansa, British Airways, Singapore Airlines, Cargolux, SAS, Swiss Airlines, Air Canada, Cathay Pacific, Japan Airlines, LAN Airlines, and Qantas. In November 2010, the Commission fined 11 air cargo carriers a total of €799.5 million ($1.1 billion) for operating a worldwide cartel which affected cargo services within the European Economic area. One year ago, DB, through its indirect 100% subsidiary Barnsdale Cartel Damage Solutions AG, filed an action for a declaratory judgment against Lufthansa (the leniency applicant), and Qantas. DB also filed damage claims in the U.S. and U.K. It is also seeking €297 million ($394.4 million) in damages in the U.S., a figure that could be trebled to €880 million ($1.2 billion) if a U.S. court in the Eastern District of New York awards DB the full amount. DB has set up a website with more detail of the claim. DB is very active in damage claims. Last year, DB settled a follow-on claim with steel producers, who were fined by the Commission in its rail investigation, for €150 million ($199.2 million).
c. Extradition of Foreign Nationals
As noted above in section I.A.5, Germany made headlines because of its central role in the first ever extradition of an individual to face antitrust charges. In April 2014, an Italian citizen became the first foreign national to be extradited to the United States based solely on an antitrust violation. In June 2013, Romano Pisciotti was arrested at the Frankfurt airport for allegedly participating in the Marine Hose price-fixing cartel. The cartel was uncovered in 2007 and subsequently sanctioned by means of high fines, prison sentences, and damage claims in Europe and the U.S. Pisciotti is alleged to have joined the conspiracy primarily through attendance at cartel meetings and by facilitating information exchanges between his employer and other cartel members.
The Court of Appeals in Frankfurt confirmed the lawfulness of Pisciotti’s extradition to the U.S. by finding that mutual criminal liability existed as required under the German Act on International Cooperation in Criminal Matters. According to the Act, Germany may extradite an individual only if the charged conducts is also a criminal offence in Germany, such as where an antitrust offense involves fraud or bid rigging. The Frankfurt Court of Appeals determined that the Marine Hose cartel involved bid rigging, which provided the dual criminality basis for the extradition.
Germany’s extradition of an Italian national raised novel issues regarding Pisciotti’s rights as a citizen of the European Union. Article 16 (2) of the German Constitution prevents the extradition of a German citizen to a non-EU country. Therefore, the principles established by the recent case concerning Pisciotti, an Italian national, would not apply to German nationals. Pisciotti challenged the lawfulness of his extradition before the German Constitutional Court. The Constitutional Court held that Pisciotti’s status as an EU citizen did not require German authorities to grant him equal (German citizen) rights, which would have prevented an extradition under Article 16 (2) of the German Constitution.
Pisciotti challenged his extradition before the European Court of Human Rights (“ECHR”) in Strasbourg. The ECHR dismissed his appeal finding it inadmissible because Pisciotti did not exhaust all domestic remedies before turning to the ECHR.
Pisciotti also asked the Commission to initiate an infringement procedure against Germany based on the allegation that the German court’s decision amounted to an infringement of his right of freedom of service under the Treaty on the Functioning of the EU. However, the Commission dismissed this request because Pisciotti did not travel to Germany to offer any services, but was simply in transit. Piscotti challenged the Commission’s decision before the European Union’s General Court. On July 2, 2014, the General Court rejected his challenge as inadmissible, as EU citizens have no standing to challenge EU decisions not to open infringement proceedings against governments of EU Member States.
On the legislative front, the Dutch Competition Authority (“ACM”) announced on September 11, 2014, a revision of the rules on whistleblowing and leniency for cartel activity. The new rules provide that the first whistleblower that meets the conditions will receive full leniency, regardless of whether the ACM was already investigating. Previously, such applicants would still receive a fine, but reduced by 60-100%. In addition, the reduction in fines for second or subsequent applicants that provide new and relevant information have been increased: the second applicant may be granted a reduction of 30-50%, the third applicant 20-30%, and all subsequent applicants a maximum of 20% (previously all 10-40%).
On December 30, 2014, in a significant development, the ACM imposed fines on investment funds for the competition infringements committed by entities in their portfolio. According to the ACM’s press release, “investment firms that own businesses can be held accountable for violations of the Dutch Competition Act committed by those businesses, if the investment firms have decisive influence over them”. This fine finds its basis in a decision issued by the ACM in the so-called “Flour cartel.” According to the ACM, between 2001 and 2007, certain Dutch producers of flour made mutual arrangements in order to keep prices stable. The ACM imposed fines on three investments firms in a range between €450,000 and €1.5 million ($0.5 million and $1.79 million, respectively). It would appear that the investment firms that have now been fined successively owned one of the producers involved in the conduct during the time of the infringement.
As previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the enforcement highlights of 2014 involve action by the Dutch courts. In particular, the District Court of Rotterdam upheld the ACM’s decision imposing fines on members of a silver-skin onion cartel. Of note, the Court also upheld the ACM’s reasoning that the fine should be based on the “affected turnover” generated by sales in the entire EU rather than limiting sales to the Netherlands.
On the other hand, the District Court of Rotterdam annulled the ACM’s decision imposing fines on the members of an alleged insulated glass cartel due to the lack of sufficient incriminating evidence. More specifically, the Court found that the parties’ market behavior was not sufficient to establish the existence of an anticompetitive agreement given, that the parties had provided a plausible alternative explanation for their behavior.
During the course of 2014, Dutch courts issued a number of important decisions regarding follow-on damages.
For example, in September 2014, two separate Dutch courts issued rulings on damage claims brought by TenneT against members of a gas-insulated switchgear cartel, which was the subject of a European Commission infringement decision in 2007. First, on September 2, the Appeals Court of Arnem-Leeuwarden ruled that ABB Ltd. and its Dutch subsidiary ABB BV were rightly held liable for damages TenneT had suffered due to the cartel and that derived in overcharges paid for a gas-insulated switchgear installation. While ABB received full immunity from fines under the EU’s leniency procedure, the Court found that it was liable for damages it had caused to TenneT during the cartel period. Second, on September 24, the District Court of Gelderland, in the first instance, held that Alstom and several of its subsidiaries were in principle liable for damages TenneT suffered due to the switch-gear cartel.
The Spanish Competition Authority (the “Comisión Nacional de los Mercados y la Competencia”, “CNMC”) imposed a number of significant fines on companies active across different sectors in the second half of 2014, including the markets for safety equipment and stationary.
The judicial bodies in Spain have also been active particularly in relation to the reduction or annulment of fines imposed by the CNMC. As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, on April 21, 2014, the Spanish National Court (“Audiencia Nacional”, “AN”) ordered the CNMC to reduce a fine of €440,000 ($540,000) imposed on a regional association of travel agents on the grounds that it was disproportionate and jeopardized the viability of the association. Similarly, on April 15, 2014, the AN annulled a CNMC decision imposing a fine of more than €5 million ($6.2 million) on Rhenus Logistics as successor of IHG Logistics Iberia, with which Rhenus had previously merged.
Finally, an important Spanish Supreme Court (“Tribunal Supremo”, “TS”) ruling clarified the conditions under which a party affected by an annulment of a CNMC decision can request the execution of the annulling court order, even if it had not been a party to the main proceedings. On June 2, 2014, the TS ordered the reimbursement of a fine of €413,800 ($510,000) imposed on the largest Spanish supermarket chain, Mercadona, for its participation in a price fixing agreement with olive oil suppliers. The request for the reimbursement was made on the basis of a court order annulling the CNMC decision. Although that decision had been adopted in proceedings initiated by another party (an olive oil supplier), the TS reasoned that, as an “affected party,” Mercadona could use the annulment of the CNMC decision to request the reimbursement of the fine it had paid in those proceedings. as the Court justified it on the basis that the annulment of the CNMC decision resulted in “the invalidity of the administrative proceedings carried out in relation to [the appealing party]” which “inexorably led to the same conclusion in relation to the other parties.”
As noted in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, on April 1, 2014, the U.K.’s Competition and Markets Authority (“CMA”) came into being. The CMA was created by the merger of the Office of Fair Trading (“OFT”) and the Competition Commission (“CC”) under the Enterprise and Regulatory Reform Act 2013 (“ERRA 2013”). In the areas of cartel enforcement and competition investigations, the CMA has increased investigative powers compared to those previously exercised by the OFT, including compulsory interview powers for current and former employees of companies under investigation and the ability to impose financial penalties for failure to comply with investigative steps.
In addition to the commencement of the CMA’s operations, April saw the entry into force of the revised provisions regarding the criminal cartel offense. For all criminal cartel agreements that are entered into after April 1, 2014 and relate to arrangements made or to be made on or after that date, the prosecution will no longer be required to prove dishonesty as an element of the offense, and the exclusions and defenses set out in ERRA 2013 will apply. The CMA published its Criminal Cartel Prosecution Guidance in March 2014, setting out the principles the CMA will apply in determining whether to institute proceedings against an individual.
To assist businesses in their compliance efforts, the CMA published three “60-second summary” guidance notes in September 2014: one for company directors on how to avoid cartel infringements, one on limiting risk in relation to handling competitors’ information, and one on trade association dos and don’ts.
In March 2014, the CMA secured a guilty plea in its first criminal prosecution since May 2010. The prosecution was brought in relation to suspected cartel conduct in the supply of galvanized steel tanks for water storage. In July, two other individuals were charged with committing the criminal cartel offence under section 188 of the Enterprise Act 2002 in relation to the same alleged cartel. A related civil investigation is being conducted by the CMA.
The CMA continues its work in the pharmaceutical sector. In October, it issued a supplementary statement of objections in its investigation of patent dispute settlement agreements relating to paroxetine, a medicine used in the treatment of depression and anxiety disorder. The CMA expects a final decision in this case to be taken in late spring 2015.
We expect the CMA to continue to step up its enforcement efforts in 2015. It has received significant additional funding for cartel enforcement and is investing further in its intelligence, investigation and enforcement capabilities. In the second-half of 2014, the CMA appointed three new Directors in the roles of Intelligence, Criminal Enforcement, and Digital Forensics and Intelligence. Additional funding is also providing for better intelligence via enhanced and more sophisticated digital and forensic capability.
Substantial resources are also being used for what are known as “market investigations.” Market investigations consider whether there are features of a market that have an adverse effect on competition. If so, the CMA has the power to impose its own remedies (including structural divestitures, which it has ordered in the past) and can also make recommendations to other bodies such as sectoral regulators or the government for action, such as new legislation. In June 2014, the CMA opened a wide-ranging investigation into the energy market, involving a range of industry participants and interested parties including regulators, consumer groups, generators and suppliers. The investigation will continue through 2015, with a final report expected in December 2015. In November, the CMA also announced its decision to launch an in-depth investigation into the supply of personal current accounts and retail banking services to small and medium-sized enterprises.
During 2014, progress continued to be made on the U.K. Government’s planned reform of the U.K. private actions regime. As reported in our 2013 Year-End Criminal Antitrust and Competition Law Update, the Government had, in 2013, proposed a draft Consumer Rights Bill (the “Bill”) that includes provisions on private actions in competition law. Some important changes that the Bill proposes are: (i) widening the role of the Competition Appeal Tribunal (“CAT”) to hear stand-alone cases, as well as follow-on cases, and to grant injunctions; (ii) encouraging the use of Alternative Dispute Resolutions and settlements; and (iii) introducing a “fast track” regime, which would deal with simple cases quickly and would allow the CAT to set both a cost-cap and a cap on cross-undertakings of damages.
Most significantly, the Bill creates a limited collective opt-out regime for private actions. Under this regime, claims would be able to be brought either by claimants or by genuine representatives of the claimants, such as trade associations or consumer associations, but not by law firms, third party funders or special purpose vehicles. The CAT will be required to certify whether a collective action brought under the regime should proceed under an opt-in or an opt-out basis. Additional safeguards have been proposed to prevent speculative or unmeritorious claims and to prevent U.S.-style class actions, including a prohibition on exemplary or treble damages-type collective claims and a prohibition on the use of contingency fees. In addition, the “opt-out” aspect will only apply to U.K.-domiciled claimants, while non-U.K. claimants would be able to opt-in to a claim if desired.
These reforms clearly go further than the opt-in regime under the EC Damages Directive. They may well serve to solidify the U.K.’s position as a prime jurisdiction for bringing competition private actions claims. However, the safeguards proposed should lessen the possibility that the U.K. courts will be swamped by large numbers of unwarranted actions.
The Bill was introduced in January 2014 and has been progressing through various legislative stages. In December 2014, it had its third reading in the House of Lords and has been sent back to the House of Commons with a number of amendments, including some relating to the use of unclaimed damages and certain cost matters. The U.K. Government anticipates that the Bill will become law and will enter into force in October 2015. To this end, the CMA will publish new guidance on private actions in due course.
In 2014, Australia’s Competition and Consumer Commission (“ACCC”) pursued anti-cartel enforcement actions in a wide array of industries, including oil, retail/manufacturing, and airlines.
a. Oil and Gas
The ACCC pursued three separate actions involving alleged anticompetitive behavior of oil and gas retailers.
In February 2014, the ACCC instituted court proceedings against supermarkets Coles and Woolworths for failing to abide by undertakings made by them to limit fuel discounts linked to supermarket purchases to 4 cents per liter. The supermarkets had given the undertakings in December 2013 to resolve a previous ACCC investigation. According to the ACCC, Coles was offering a bundled discount of 14 cents per liter and Woolworths was offering a bundled discount of 8 cents per liter if consumers made qualifying supermarket purchases. In April 2014, the Federal Court found Woolworths, but not Coles, breached the December 2013 agreement because Woolworths provided its discount entirely from supermarket purchases while Coles funded a portion of its discount with purchases made at services stations. However, the court issued no penalty against Woolworths and dismissed all related proceedings against Coles and Woolworths because the supermarkets’ practice of bundling service station discounts with supermarket discounts did not violate the confines of the original agreement.
In August 2014, the ACCC charged five major petrol retailers (BP Australia, Caltex Australia Petroleum, Eureka Operations, Woolworths, and 7-Eleven Stores) for alleged improper use of Informed Sources, a subscriber-based data collection service designed to report real-time gas prices to consumers. The ACCC claims the companies used Informed Sources to unlawfully share price data, covertly test price increases, and collude with one another to set pricing in violation of section 45 of the Competition and Consumer Act 2010, and “is seeking declarations, injunctions, pecuniary penalties and costs.” On September 26, 2014, the court held a directions hearing, at which it set another such hearing for February 13, 2015, and a potential start date for trial for September 7, 2015..
In October 2014, the Federal Court ordered Renegade Gas and Speed-E-Gas to pay respective fines of AUD 4.8 million ($4 million) and AUD 3.1 million ($2.6 million) for entering into an illegal non-compete agreement and participating in a five-year-long gas cartel in Sydney. The Court also imposed one of its largest ever individual sanctions on Renegade’s managing director who received a fine of AUD 250,000 ($207,000) and was disqualified from management positions for the next three years. Two other individuals—a senior officer at Renegade Gas and a former Speed-E-Gass senior officer, respectively—were fined AUD 100,000 ($83,000) and AUD 50,000 ($41,000).
In August 2014, the ACCC filed charges against online blender retailer OmniBlend seeking fines, injunctions and mandatory compliance training for the retailer’s alleged attempt to engage in a price-fixing scheme with a major competitor. The ACCC filed for an expedited process in the Federal Court’s fast-track division. A hearing is scheduled for March 2015.
In October 2014, the ACCC brought another antitrust action against Coles supermarkets, claiming the company engaged in anticompetitive conduct in dealings with its suppliers by “appl[ying] undue pressure to its suppliers even though it had no contractual right to do so.” This action arose from the same investigation that led to the ACCC’s proceedings against Coles in May 2014 concerning gasoline discounts. In the former, the ACCC claimed that Coles “took advantage of its superior bargaining position by demanding money from suppliers that it was not lawfully entitled to, and was, in all the circumstances, unconscionable,” including by penalizing suppliers for changes in demand for the purchased goods that were outside the suppliers’ control. The ACCC sought pecuniary penalties, declarations, injunctions and costs for what it claims is an abuse of power exercised over these suppliers. These proceedings were in addition to the proceedings instituted by the ACCC against Coles relating to gasoline discounts. In December 2014, Coles settled with the ACCC by agreeing to pay AUD 11.25 million ($9.2 million) in fines and legal fees, enabling more than 200 suppliers to reclaim penalties paid under the abusive contracts.
In November 2014, the ACCC charged the Construction Forestry Mining and Energy Union in Federal Court, alleging that it engaged in unlawful secondary boycott activity when it directed shop owners to prevent use of Boral Resources’ concrete on construction sites by informing potential purchasers that it was either completely banned or that its use required special safety inspections that would delay projections.
In December 2014, after a long investigation, the ACCC filed civil charges against several electric cable companies for an allegedly engaging in bid rigging and entering into agreements to limit the supply of electrical cable available directly to contractors and other consumers. The ACCC opted not to file criminal charges in part because the alleged behavior “was not clandestine,” and therefore, better suited for civil proceedings.
In October 2014, Australia’s Federal Court dismissed all charges against Air New Zealand and Garuda in connection with the ACCC’s long-running investigation of the air cargo industry. Air New Zealand and Garuda were the only two of fifteen airlines that refused to settle with the ACCC. While the Court found that the two airlines did engage in anti-competitive behavior, they did so by imposing illegal surcharges and fees on tickets purchased outside Australia’s jurisdiction, or “market,” and therefore, could not be penalized under the Trade Practices Act of 1974 (now the Competition and Consumer Act of 2010). As previously reported, the airlines that settled provided the ACCC with its highest ever penalty, totaling AUD 98.5 million ($82 million).
The ACCC pursued these charges under the Trade Practices Act of 1974, the antitrust regime that was replaced by the Competition and Consumer Act of 2010 (“2010 Act”). The 2010 Act includes language that appears to cover a broader swath of antitrust conduct than the Trade Practices Act, encompassing conduct that extends beyond that within a “market in Australia,” including price-fixing conduct between “competitors in relation to the supply of goods or services.” These statutory differences have sparked debate as to whether the Court’s ruling would have come out differently if considered under the 2010 Act. In December 2014, the ACCC appealed the court’s finding that “no market in Australia” existed in order to “seek clarity on whether the 2010 Act applies to the collusive arrangements identified by the court.”
The 2010 Act may significantly change in 2015.
In late 2014, a report produced by the government’s Competition Policy Review Panel (“Review Panel”) proposed several changes to the 2010 Act. Review Panel Chair Ian Harper called for the replacement of the National Competition Council with a new Australian Council for Competition Policy that would have more power than its predecessor, as well as the creation of a ACCC board to oversee that agency’s enforcement efforts.
The Review Panel also recommended overhauling the 2010 Act by narrowing its scope. Currently, the ACCC can penalize any two entities or persons that enter into an anti-competitive agreement if they are “likely” to compete with one another, which currently requires proof of only “a possibility that is not remote.” The Review Panel suggested implementing a higher burden of proof that the ACCC had to establish to satisfy the “likely” requirement. The ACCC opposes this recommendation, claiming that such a change in the law would “significantly weaken” anti-cartel enforcement. The Review Panel also called for a repeal of the provisions of the 2010 Act exempting holders of IP rights from the law’s provisions, “including the transfer and licensing of such rights.”
China may be increasing scrutiny of multinational companies, though Chinese authorities insist they enforce the law equally. Overseas companies paid more than three-quarters of the CNY 2.8 billion ($455 million) in antitrust penalties handed down between 2011 and August 2014. At the same time, China’s antitrust enforcement regime has been under close scrutiny and subject to criticism by the private bar, international businesses, and the internal enforcement community over the last year because of concerns that its antitrust laws lack transparency, have inadequate procedural safeguards, and may be being used by the Chinese government to help Chinese companies by targeting foreign companies for enforcement actions. For example, FTC Chairwoman Edith Ramirez and FTC Commissioner Maureen Ohlhausen have both expressed concerns that China may be using improperly using antitrust laws to promote its “industrial policy.” Similarly, a recent U.S.-China Business Council report detailed the concerns of foreign companies about Chinese antitrust law including discriminatory treatment, a lack of due process and regulatory transparency, the role of non-competitive factors in competition enforcement, and the broad definition of monopoly agreements. Such sentiments about Chinese enforcement efforts have also been echoed by, among others, the U.S. Treasury, the U.S. Chamber of Commerce, and the E.U. Chamber of Commerce.
Possibly in response to these selective enforcement concerns, a November 2014 trade deal between South Korea and China reportedly included provisions that South Korean companies operating in China will receive the same treatment under Chinese antitrust laws as domestic companies. In December 2014, Chinese trade officials also reached an agreement with their U.S. counterparts to provide foreign companies with fair treatment, transparency, and due process during enforcement of Chinese antitrust laws.
In August, the National Development and Reform Commission (“NDRC”) fined twelve Japanese auto parts suppliers a record total of CNY 1.24 billion ($200 million) for horizontal infractions involving collusion to fix prices for components sold to automakers in China. This is the largest antitrust penalty ever imposed by the NDRC. Sumitomo Electric Industries Ltd. faced the heaviest fine at CNY 290.4 million ($47 million)—the largest antitrust penalty that the NDRC has imposed on a single company.
The NDRC also imposed China’s first antitrust fines on a foreign automaker, imposing penalties on both Chrysler and a joint venture between Chinese automaker FAW and German automaker Volkswagen. FAW-Volkswagen was fined CNY 248.6 million ($40 million) and Chrysler was fined CNY 31.7 million ($5.1 million) for alleged price fixing.
In May, the State Administration for Industry and Commerce (SAIC), responsible for regulating non-pricing antitrust behavior, fined six fireworks wholesalers in Inner Mongolia CNY 538,700 ($94,000) for an unlawful division of the fireworks retail market. The fines represented 7% to 8% of the companies’ annual revenues.
In August 2014, the local Wuxi Administration for Industry and Commerce of Chongqing Municipality fined four quarry operators a combined CNY 400,000 ($64,000) for conspiring to divide up the local sand and gravel market.
In September, the local Zhejiang Province Administration for Industry and Commerce announced fines against eight companies and the local concrete producers association a total of CNY 1,720,000 ($277,000) for an unlawful market allocation agreement.
Also, in early November, the People’s Congress approved amendments to the country’s Administrative Litigation Law that will come into force in May 2015, empowering companies to bring civil lawsuits against government entities for abuse of administrative power that eliminates or restricts competition. This change will allow companies to directly sue local governments, administrative bodies, and even potentially the antitrust authorities for anti-competitive conduct such as discriminatory behavior or price fixing. China’s Antimonopoly Law (AML) also allows private lawsuits, but the language of the legislation is ambiguous as to whether the provision covers actions by governmental authorities.
In July, Hong Kong’s Competition Commission (“Commission”) took steps towards establishing its new antitrust regime by announcing the appointment of Stanley Wong as Chief Executive Officer. Additionally, in November the Hong Kong government appointed Suen Wing-chuen to fill a recent vacancy in the Commission.
In October, the Commission and the government’s Communications Authority published draft guidelines describing the Commission’s interpretation and approach to enforcing Hong Kong’s Competition Ordinance. These guidelines describe the Commission’s interpretation of the First Conduct Rule, the Second Conduct Rule, and the Merger Rule, as well as procedural rules. The Commission now seeks to receive comments on the draft guidelines, and it plans to issue revised guidelines and finish all preparatory work by mid-2015.
The Competition Commission of India (“CCI”) fined major carmakers for suppressing competition in the market for spare parts. The total fine of INR 25.54 billion ($422 million) was imposed on 14 automotive groups including Maruti Suzuki, India’s biggest carmaker by sales, Tata Motors, Mercedes-Benz, BMW India, and General Motors. The CCI said that the companies failed to make authorized spare parts available in the open market, which in turn “has restricted the expansion of spare parts and independent repairers segment of the economy to its full potential, at the cost of the consumer, service providers and dealers.” The CCI estimated that 20 million consumers in the country have been affected.
Proposed amendments to the Indian Competition Act, which are currently before the Indian Parliament, would give the CCI enhanced powers of search and seizure. The Act currently empowers the CCI’s investigative arm, the Director General, to carry out dawn raids if it receives authorization from a court official. The amendments would empower the Chairman of the CCI to authorize dawn raids.
As reported in our 2013 Year-End Criminal Antitrust and Competition Law Update, the Competition Appellate Tribunal reduced fines assessed by the CCI against three manufacturers of aluminium phosphide by introducing the criteria of “relevant turnover” in calculating penalties. The CCI has yet to appeal that decision to the Supreme Court of India. No leniency applications before the CCI have been reported.
In July, the Indonesia’s Commission for the Supervision of Business Competition (“KPPU”) fined three companies a total of IDR 1.45 billion ($117,000) for colluding to rig bids to supply medical equipment to a hospital. The individual fines ranged from IDR 100 million ($8,000) to IDR 900 million ($73,000). The KPPU also recommended that the national police and prosecutors further investigate the bid rigging.
As reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the KPPU held preliminary hearings in May for six car tire manufacturers that allegedly fixed prices under the guise of a trade association. In October, the KPPU announced that it was investigating a total of nine additional car tire manufacturers.
In the same month, the KPPU fined seven companies a total of IDR 2.5 billion ($200,000) for colluding during the bidding process to build a new highway. Individual fines ranged from IDR 29 million ($2,300) to IDR 2 billion ($162,000). The KPPU also alleged the companies colluded with the state’s public procurement committee and recommended that Indonesia’s Corruption Eradication Commission investigate the issue.
In September, the Japan Fair Trade Commission (“JFTC”) fined a steel ball manufacturer ¥1.32 billion ($12.5 million) for exchanging information on selling prices of steel balls with a competitor.
In November, the JFTC conducted raids at five electronics companies to gather information related to alleged bid rigging regarding tenders for digital firefighting emergency radios. The raids are the first that have been made public since the JFTC conducted raids at nine capacitor manufacturers to gather information related to alleged price fixing and information exchanges, as discussed in our 2014 Mid-Year Criminal Antitrust and Competition Law Update.
This year also saw further developments in the ongoing ball bearings investigation, the first international cartel referred for criminal prosecutions in Japan. Late this year, in November 2014, the trial against NTN Corp. in the Tokyo District Court concluded with a final defense argument, and the judge will deliver a sentence in February, 2015. To recap, in 2012, ball bearings manufacturer Nachi-Fujikoshi Corp. was criminally fined ¥180 million ($2 million) and two former officials were given suspended prison sentences in the Tokyo District Court. In 2013, manufacturer, NSK Ltd., was sentenced to a criminal penalty of ¥380 million ($4 million) and two of its former officers and a former employee received suspended prison sentences in the Tokyo District Court. Previously, the JFTC also imposed administrative fines on NTN Corp., NSK Ltd., and Nachi-Fujikoshi Corp., a total of ¥13.4 billion ($132 million) before referring the companies and their executives to the Japanese Ministry of Justice for criminal prosecution, as discussed in our 2013 Year-End Criminal Antitrust and Competition Law Update.
In July, the JFTC announced that it had signed a memorandum of cooperation with the Korea Fair Trade Commission of Republic of Korea (“KFTC”). The competition authorities announced plans to cooperate on various enforcement activities and to exchange significant developments in competition policy and experiences on their enforcements. Furthermore, if anti-competitive activities in Korea affect important interests of Japan, the JFTC may request that KFTC initiate appropriate enforcement activities, and vice versa.
In December, the Advisory Panel issued a report on Administrative Investigation Procedures under Japan’s Anti-Monopoly Act. The Advisory Panel is a discussion group for the Minister of State for Special Missions and consists of representatives from various industries, legal scholars and lawyers. While the report is non-binding on the Japanese government, its announcement was widely anticipated as the Advisory Panel was expected to address a number of hotly debated issues relating to the rights of companies that are the subject of JFTC investigations. However, the report indicates that the Advisory Panel failed to reach a consensus as to whether to introduce new procedural safeguards to the JFTC’s investigative process. The summary of the report is as follows:
The report made it clear that companies may have an attorney present during a dawn raid. However, the report added that the presence of an attorney is not a right of companies, and if the attorney has not arrived, companies may not refuse the inspection by the JFTC. The current practice in Japan is the same as what the report recommends. The JFTC allows companies to have an attorney present as long as the presence does not obstruct the smooth inspection, but the JFTC may and will begin an inspection before an attorney can be summoned to the premises.
Also, the report concluded that copying materials submitted to the JFTC is not a right of companies, but agreed with the current practice where on the day of a dawn raid the JFTC allows companies to copy materials that are deemed necessary for their daily business activities at their offices as long as it does not affect the smooth execution of the JFTC’s inspection. With respect to copying seized materials after the inspection at the JFTC’s premises, the report stated that it is desirable to make paid copy machines available because currently the JFTC only permits companies to bring electronic devices, and companies have to install copy machines by themselves.
The report concluded that it is not appropriate to introduce attorney-client privilege at the present time because the grounds and scope of the privilege have yet to be determined and concerns remain that the attorney-client privilege would impede the fact-finding ability of the JFTC. The attorney-client privilege is not recognized under Japanese laws or precedents. Nevertheless, the report stated that it is desirable to deepen discussions on the attorney-client privilege further.
The Advisory Panel discussed but did not make consensus recommendations as to whether the following measures should be adopted during a deposition conducted by the JFTC:
Regarding the presence of an attorney and the audio/video recording, some panel members were of the opinion that such measures should be allowed, and the report thus stated that it is appropriate to continue discussions to consider whether it is possible to introduce such measures without impeding the effectiveness of the fact-finding abilities of the JFTC.
The report concluded that the JFTC should draft public guidelines regarding standard administrative investigation procedures in JFTC investigations. Currently, the Rules on Administrative Investigations do not provide sufficient guidance on the procedures followed by the JFTC in its investigations.
The report recommended further studies as to whether introducing additional rights for the subjects of JFTC investigations would interfere with the JFTC’s fact-finding abilities and also examine whether to introduce a discretionary surcharge system to improve incentives to cooperate with the JFTC’s investigation.
In September 2014, Malaysia’s Competition Commission (“MyCC”) levied fines against the Sibu Confectionery and Bakery Association (SCBA) after the SCBA publicly announced a uniform agreement to raise prices in late 2013. The SCBA received MyCC’s second penalty of the year (and third ever) for infringement of Section 4(2) of the Competition Act, fining the 24 member enterprises a total of MYR 439,000 ($125,000). The fine is substantial compared to the fine issued against ice manufacturers earlier this year of MYR 240,000 ($75,000).
In October 2014, MyCC cautioned the public of its intent to fully enforce the Competition Act of 2010. Consumerism and Co-operatives Minister Datuk Seri Hasan Malek announced that the MyCC is now investigating government contract bid-rigging activities despite a lack of specific reports stating “we know this is happening but we do not have the evidence to prove our suspicions.” These investigations began after the Auditor General’s Annual Report revealed several government contracts paying above market rates for substandard workmanship. Hasan indicated that these MyCC investigations, coupled with actions taken to punish entities for engaging in price fixing, show the new laws should ensure businesses can compete fairly in Malaysia. The MyCC official stated that the agency is currently investigating 47 cases of alleged price-fixing in Malaysia.
In November 2014, the Malaysian government announced new guidelines designed to improve transparency and encourage self-reporting to avoid sanctions for acts that violate the Malaysian Competition Act. The Financial Penalties Guidelines sets forth factors that the MyCC will consider when determining the size of the penalty for violations of the law. Conversely, the Guidelines on Leniency grant MyCC the power to eliminate penalties for cartel behavior if the violator reports the conduct cooperates with the investigation and meets the Guidelines’ other requirements. Sentencing reductions are also available for companies that subsequently accept responsibility and cooperate. Bid rigging can result in a fine up to a maximum of 10% of a company’s worldwide turnover.
In November 2014, New Zealand’s Commerce Commission (“NZCC”) closed its investigation of Progressive Enterprise, the owner of the Countdown supermarket chain, finding no evidence that the company violated New Zealand’s Commerce Act. The NZCC received almost 90 complaints that Progressive was bullying its suppliers to obtain information on competitors’ future retail prices or strategies or was prohibiting its suppliers from promoting rival products, but found the evidence did not show that Progressive sought to reduce competition or coerce suppliers.
In December 2014 the NZCC completed its investigation of Winstone Wallboard Limited regarding allegations of anticompetitive behavior to maintain market dominance in the manufacture and supply of plasterboard. The NZCC concluded that it did not believe that Winstone violated New Zealand’s Commerce Act after finding no evidence to support allegations of illegal exclusivity agreements, rebates, or undercutting other suppliers on jobs.
In August of 2014, the NZCC released a revised draft of its Competitor Collaboration Guidelines in order to prepare the business community for coming changes to the Commerce Act of 1986. The proposed Commerce (Cartels and Other Matters) Amendment Bill will impose criminal sanctions on “hard-core” cartel behavior but creates specific exemptions to encourage “legitimate, pro-competitive, and efficient agreements with other firms.” Under the new law, civil penalties will include penalties up to $10 million, or three times the commercial gain for entities, and up to $500,000 for individuals and/or removal from any executive role for up to five years. The legislation delays the imposition of criminal penalties for two years, but once in effect, will impose penalties of $10 million or three times the commercial gain for convicted entities, while convicted individuals will face up to seven years imprisonment.
The new law will exempt certain activities such as “vertical supply contracts, joint buying arrangements, and collaborative activities” to enable firms to enter into “pro-competitive and efficient arrangements with other firms.” The Commerce Amendment Bill is expected to become law in early 2015.
In October, the Competition Commission of Pakistan (“CCP”) issued show cause notices to an automobile dealer association and its members for allegedly cartelizing new automobile sales and automobile service markets. Additionally, the CCP has announced an investigation in the initial stages of unidentified media houses because of suspected collusion in setting advertising rates.
In procedural developments, the CCP is reported to have proposed to the Ministry of Finance that the Competition Appellate Tribunal should be closed and that appeals should instead be heard directly by the Supreme Court of Pakistan.
This was a seminal year for competition law in the Philippines. In early 2014, the Association of Southeast Asian Nations (“ASEAN”), a regional group of ten Asian nations that includes the Philippines, announced it would seek economic integration and introduced its Regional Guidelines on Competition. Currently, Philippine competition law does not fully comply with the ASEAN guidelines but ASEAN member states were called to meet these guidelines by 2015.
Thus, in October of 2014, after several years of failed attempts to pass comprehensive antitrust legislation, members of the Philippine Congress have committed to meeting ASEAN’s deadline and pass the Fair Competition Act of 2014 (“the Act”). In December 2014, the Philippine Senate unanimously approved the Act.
The Act calls for the creation of a five member Fair Competition Commission (“the Commission”) granted the authority to investigate and issue penalties appealable only before the Court of Appeals or the Supreme Court. The Commission’s chairman and his four commissioners will serve under the supervision of the president once the bill is signed into law.
In December, the Competition Commission of Singapore (“CCS”) issued an Infringement Decision against eleven freight forwarding companies for fixing fees and sharing information related to freight forwarding services for Japan to Singapore shipments, imposing financial penalties totaling S$7.1 million ($5.7 million). The Infringement Decision follows a Proposed Infringement Decision issued by the CCS in April (previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update). One of the eleven companies was not fined because it received full immunity under the CCS’s leniency program.
As previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the CCS levied financial penalties totaling S$9.3 million ($7.4 million) against four Japanese ball and roller bearings manufacturers and their subsidiaries in Singapore in what the CSS described as its first Infringement Decision against for international—as opposed to domestic—conduct.
The Korean Fair Trade Commission (“KFTC”) had an eventful second half of 2014 with several important personnel and policy developments. Most notably, the KFTC’s former chairman, Noh Dae-lae, resigned on November 19 and was replaced by Jeong Jae chan, who had formerly served as the KFTC’s vice-chairman before retiring in January 2014. In his inaugural address, Chairman Jeong stressed that the KFTC would severely punish cartel participants and increasingly target international cartels that have a significant impact on the Korean market. Chairman Jeong is thus expected to follow the path of his predecessor and continue to aggressively target international cartels and bid rigging schemes.
In July the KFTC signed a bilateral cooperation agreement with the Japanese Fair Trade Commission (“JFTC”). The KFTC announced that the two authorities would collaborate on “matters of mutual interest,” including cross border mergers and acquisitions and international cartels. In November, the Korean and Chinese governments negotiated a proposed bilateral trade agreement, part of which would provide Korean companies with similar due process and appeals protections as domestic Chinese companies during antitrust investigations in China. The proposed trade agreement is scheduled to be signed during the first half of 2015.
The KFTC also issued several relevant amendments relating to the enforcement of the Monopoly Regulation and Fair Trade Law (“FTL”). In August the KFTC amended its guidelines for criminal referrals of individuals in violation of the FTL, including those responsible for the violations as well as individuals who impede the KFTC’s investigation of these violations. The amendments may lead to an increased level of criminal prosecution for cartel participants. More recently, the KFTC issued amendments to its leniency policy regarding voluntary reporting of cartel activities. The amendments, initially released in November, prohibits leniency for repetitive offenders of the FTL or second-place applicants who participated in two-party cartels or applied for leniency more than two years after the initial applicant. The amendments also abolish the provisional leniency process conducted by the KFTC Secretary General; rather, all leniency matters must be reported directly to the KFTC commissioners without a provisional period.
The KFTC imposed large penalties in several matters. In October, the KFTC penalized six paper manufacturing companies a total of KRW 10.7 billion ($9.7 million) for colluding to raise the selling price of cup base paper used in disposable paper cups and paper meal containers. The KFTC found that the companies met numerous times both in person and through telephone conversations to set the price of cup base paper seven times between August 2007 and April 2012. Later in November, the KFTC imposed fines totaling KRW 11.4 billion ($10.4 million) against five multinational chemical manufacturers for setting prices and quantities for chemical initiators and hardeners.
The KFTC also announced the landmark results of an investigation of bearings suppliers. The KFTC issued fines totaling KRW 77.8 billion ($70.7 million) and filed criminal accusations against nine Japanese and German bearings suppliers with the Prosecutor’s Office. The KFTC found that the companies had colluded to set prices and quantities of commercial and small-sized bears for 14 years, and had instructed their Korean subsidiaries to raise prices for the Korean market by 80-100% percent during the relevant period.
As we previously reported in our 2014 Mid-Year Criminal Antitrust and Competition Law Update, the KFTC has taken an aggressive approach in punishing bid-rigging cartels in South Korea, particularly in the construction industry. In February, the KFTC’s efforts resulted in the first prison sentences for individual executives, including a two-year sentence for the ringleader of a public construction cartel. Later in July, the KFTC issued a record penalty for construction bid-rigging, fining 28 companies KRW 435.5 billion ($394 million) for colluding on tenders for a nationwide bullet train project.
The KFTC continued this approach during the second half of 2014, imposing sanctions against a variety of companies involved in bid rigging schemes. In total, the KFTC issued fines amounting to more than KRW 100 billion ($90.9 million) against bid riggers during the second half of the year. These penalties included a September 2014 fine of KRW 25 billion ($22.7 million) against three companies for colluding on bid prices for a project to extend sluice gates at estuary embankment sites along the Nakdong River. In October 2014, the KFTC imposed a fine of KRW 19 billion ($17.3 million) against two companies that colluded on bid prices for a construction project related to the Seoul Metro Line 9. The KFTC also filed a criminal complaint with the Prosecutor’s Office against the two companies. Later in October, the KFTC similarly imposed a fine of KRW 25.1 billion ($22.8 million) and filed accusations with the Prosecutor’s Office against five companies relating to the construction of facilities at the Pohang Yeongilman Port.
The KFTC’s flurry of activity has led to court challenges, and in August 2014, Korea’s Supreme Court upheld a lower court judgment that had overturned KFTC penalties against 16 life insurance companies for conspiring to set interest rates on insurance premiums from 1998 to 2006. The KFTC had initially fined the companies KRW 363 billion ($330 million), arguing that the nature and timing of the information exchanges between the companies constituted an implied agreement to collude on rate adjustments. The Supreme Court found that the presence of information exchanges alone do not necessarily constitute an illegal agreement but must be evaluated on the overall circumstances of the case, including the purpose and intent of the exchange and the degree of parallelism following the exchange.
The Supreme Court’s ruling has directly affected other aspects of the KFTC’s life insurance investigation. In our 2013 Mid-Year Update, we reported that as part of the KFTC’s investigation, the Commission had fined nine companies KRW 20 billion ($17.5 million) for fixing commission rates for variable insurance policies. The Seoul High Court recently overturned these penalties, finding that the KFTC had insufficient evidence of an anti-competitive agreement between the companies. In light of the Supreme Court’s August 2014 decision holding that the mere existence of information exchanges is insufficient to prove a conspiracy, the Seoul High Court explained that the Financial Supervisory Service had sponsored the meetings between the relevant companies for a pro-competitive purpose. The Seoul High Court also found that evidence gathered from leniency applicants was inconsistent and may have been exaggerated during the course of the leniency process.
In July, Taiwan’s Fair Trade Commission (“TFTC”) reduced the record fine it previously levied on nine power companies for alleged price fixing (previously reported in our 2013 Year-End Criminal Antitrust Update) to NT $6.007 billion ($192 million). In November, Taipei’s Administrative High Court dismissed the case because it found there to be no anticompetitive activity. The court found there was no open market because the companies were contractually required to sell power to the state-owned company, meaning the dispute was contractual rather than anticompetitive. The TFTC said that it will appeal the ruling.
Meanwhile, the TFTC continued enforcing the Fair Trade Act against other industries. In June, the TFTC imposed an administrative fine of NT $300,000 ($10,000) on the chairperson of a nut suppliers association for setting prices and instructing members not to compete over price. In August, the TFTC imposed individual administrative fines of NT $50,000 ($1,600) on four buxibans, or cram schools, for offering joint classes on certain subjects. Additionally, the TFTC is investigating a potential cartel amongst carriers of iPhone 6 cell phone plans.
In May, a Japanese capacitor manufacturer stated that it was contacted by antitrust authorities in Taiwan, which marked the first company to acknowledge the TFTC’s involvement in the investigation of anticompetitive conduct in the capacitor industry. The TFTC joins other authorities, including the U.S. DOJ, the European Commission, and China’s NDRC, that are reportedly investigation the capacitor industry.
In March 2014, Israel enacted the Law for Advancing Competition in the Food Sector (“LACFS”) in an effort to foster competition and price reduction in the food industry. In preparation for its January 2015 implementation, the Israel Antitrust Authority (“IAA”) recently published a list of the largest retailers and suppliers that would likely be subject to new regulations. Although the list targeted vertical supplier-retailer relationships, similar regulatory scrutiny on horizontal relationships is likely forthcoming as the LACFS also targets regional competition amongst retailers.
This year also saw Israeli enforcers take their usual position of participating in follow-on private actions. In September 2014, Israel’s Attorney General Yehuda Weinstein submitted a position paper in support of a recent class action brought against an alleged air cargo cartel, a case that garnered significant attention during 2009 criminal proceedings. In so doing, Weinstein seems to have attempted to breathe life into the rarely used private right of action available to victims of criminal antitrust activity.
A draft competition law, first introduced in 2012 to supplement the Competition Law of 2004, is still under parliamentary review. The new provisions seek to increase price transparency, strengthen market competition, and protect smaller enterprises from restrictive anticompetitive practices.
In the meantime, the Competition Directorate at the Ministry of Industry and Trade continues its regulatory oversight under the 2004 provisions and recently launched new initiatives to streamline government services and citizen reporting procedures. These initiatives include new procedural reviews to assess the effectiveness of public outreach and resolution of violations.
In June 2014, the Public Authority for Consumer Protection (“PACP”) issued statements reassuring the public of its intention to control and monitor food and commodity pricing. Public criticism prompting PACP statements largely focused on the proposal by the Council of Ministers (the “Council”) to limit PACP regulatory authority to only 23 products. Central to the debate were concerns over the ability of the PACP to regulate oil commodities in light of the Council’s proposal. As a result of public pressure and PACP reassurance, Sultan Qaboos bin Said issued a Royal Decree to postpone the Council’s proposal in order to wait for recently passed economic regulations to come into effect. New economic regulations, expected to come into effect in March 2015, include the Consumer Protection Law, the Commercial Agencies Law, and the Competition and Anti-Monopoly Law.
In addition, as of November 2014, the PACP is currently engaged in discussions over proposed amendments to current consumer protection laws. Under current law, the PACP is not allowed to publicly name companies found guilty of competition law violations; amendments would reverse current law and allow PACP officials to publicly name violating companies. The amendments have been referred to the State Council, and will then be reviewed by the Council.
In February 2014, Turkey revised its Code of Criminal Procedure to rein in the government’s ability to conduct surveillance activities in criminal investigations and to confiscate property in criminal proceedings. According to Law No. 6526, confiscation and surveillance actions will now require a unanimous decision by the Court of Serious Crimes, rather than approval by a single judge. In addition, the government will now need to meet a higher evidentiary standard for both types of actions, including a showing of a “strong suspicion based on concrete evidence,” rather than the previous showing of only a “strong suspicion.”
Turkish enforcement under Article 4 of the Act on the Protection of Competition continues to demonstrate government willingness to investigate and prosecute price-fixing at both the local and national level. According to the Turkish Competition Authority’s (“CA”) annual 2014 statistical report, during the months of January through March, the CA successfully prosecuted 14 instances of criminal antitrust violations. During that same period, the CA was investigating an additional 18 companies, including U.S. based international conglomerates. And in June and August, two additional price-fixing violations pertaining to fertilizer and driving course sales were prosecuted.
The Competition Authority of Botswana investigated allegations of bid rigging in a tender for the supply of building materials and tools to the Hukuntsi Sub-District Council this year. The Competition Authority suspended the execution of the multi-million pula tender in June, pending further investigation.
On December 3, 2014, the Competition Commission of Botswana heard argument from two companies accused of bid-rigging in a multi-million pula tender for the supply of sugar beans to the government. The two companies under investigation, Creative Business Solutions, trading as Bread and Butter Foods, and the Rabbit Group, argued that the complaint filed by the Competition Authority was procedurally defective. The Competition Commission dismissed the companies’ arguments and ordered that the matter proceed to the merits.
Since its inception in 2011, the Competition Authority has handled eleven bid-rigging cases. Six of those are still under investigation. Preventing bid rigging and enforcing bid-rigging violations are priorities for the Competition Authority. The Competition Authority held a series of workshops this year to train public procurement officials on how to detect, prevent and report bid-rigging violations.
Following concerns about bias, a proposal was introduced this year to separate the Competition Commission from the Competition Authority. Under the current structure established by the Competition Act of 2009, the Competition Commission is the governing board of the Competition Authority, as well as the adjudicative body for matters falling under the Act. The Chairman of the Competition Commission, Dr. Zein Kebonang, is in support of the separation. According to Dr. Kebonang, “[t]he independence and impartiality of the Commissioners cannot be guaranteed when it doubles up as a board and as a tribunal.”
Following a decision by the East African Community (“EAC”) Council of Ministers, the EAC Competition Act of 2006 became operational in December 2014, ending an eight-year delay. According to the East African Business Council Executive Director, the EAC Competition Act will create a more level playing field among merchants. The EAC Competition Act prohibits, among other things, price fixing, bid-rigging, and customer allocation, and permits a fine of up to $100,000 in the local currency for a violation of the Act. The Act also establishes the EAC Competition Authority. The Competition Authority has the power to conduct investigations, hold hearings, issue legally binding decisions, impose sanctions and remedies, and refer matters to the East African Court of Justice for adjudication. It also has the authority to reduce penalties or grant amnesty to anyone that cooperates in an investigation.
The Competition Authority of Kenya (“CAK”) introduced a new leniency program in 2014, modeled after established leniency programs in countries such as South Africa and the United Kingdom. The new program makes companies and directors that voluntarily disclose the existence of anticompetitive practices eligible for reduced penalties.
As reported in the 2014 Mid-Year Criminal Antitrust and Competition Law Update, earlier this year, the CAK fined two supermarket chains 5.3 Kenyan shillings ($60,300) for unfair trade practices in connection with one chain’s acquisition of six stores managed by its competitor. The CAK also halted the acquisition. The supermarket chains have appealed to the Competition Tribunal. However, a chairperson has not yet been appointed to the Tribunal, which must be done before it can hear appeals. The chains therefore filed a separate suit in court. In September, a court order enjoined the CAK from enforcing its directive until the case is decided on the merits, and ordered the CAK to refund the fine. The CAK continues to defend its decision and the fine it imposed.
In August, the CAK ruled that the International Air Transport Association (“IATA”) engaged in restrictive trade practices by forcing local travel agents to use a single insurance firm, and stopped IATA from dealing with that firm until an investigation could be conducted. The IATA has filed an appeal against the CAK’s directive. IATA also filed suit in court to quash the CAK’s directive and to compel the National Treasury Cabinet Secretary to appoint a chairperson to the Competition Tribunal.
The Competition and Fair Trading Commission of Malawi (“CFTC”) investigated allegations of price fixing by the Insurance Association of Malawi this year. The investigation was prompted by allegations that the Insurance Association was setting premium rates. The CFTC decided to exercise leniency on the association and not seek the imposition of sanctions. According to the Insurance Association, it set the premium rates in compliance with a request by the Registrar of Financial Institutions. Although the Registrar did ask the Insurance Association to submit for the Registrar’s benefit prices the Insurance Association thought were appropriate, the Registrar never intended to sanction the Insurance Association’s imposition of those prices on its members.
In addition, the CFTC, together with the Common Market for Eastern and Southern Africa Competition Commission and the United States Federal Trade Commission, hosted the 6th Annual Conference of the African Consumer Protection Dialogue in September 2014, under the theme “strengthening the framework for dealing with cross-border consumer violations.”
In August 2014, the Competition Commission of Mauritius (“CCM”) imposed its first financial penalties in a cartel investigation. The CCM found that two companies had a collusive agreement to share the beer market and restrict the supply of beer in Mauritius. The CCM adopted the Executive Director’s recommendations to impose a penalty of MUR 6.6 million ($208,000) on one company and MUR 20.3 million ($641,000) on the other company. The company receiving the higher penalty cooperated with the investigation and entered the CCM’s leniency program, significantly reducing its fine. The CCM also accepted various undertakings by the applicant company to mitigate the continuing effects of the collusive agreement.
The Fair Trading Commission (“FTC”) is investigating potential anticompetitive activity in a number of markets including: information and communications, insurance, waste management, retail, agriculture, manufacturing, transportation, and human health and social work.
The Fair Competition Commission (“FCC”) recently served case statements on thirteen oil companies and their directors, alleging collusion to deprive Tanzania of fuel supply in 2011. The FCC has alleged that the oil companies conspired not to supply fuel to the market, in protest against the price formula for petroleum products. If the FCC successfully proves its allegations, each company faces a penalty of 5-10% of their respective annual gross turnover.
In addition, Tanzania hosted the African Competition Forum (“ACF”) Agency Effectiveness Workshop in October 2014. The workshop was aimed at deepening the skills of competition agency heads and addressing various challenges they face in regulating competition in their jurisdictions.
In October, South Africa’s Competition Commission (“CC”) launched a massive investigation into alleged price fixing, market allocation, and bid rigging from 2000 to 2014 by 82 automotive component manufacturers relating to the sale of 121 automotive components. According to the CC’s press release, the investigation arose from information received by the CC that automotive component manufacturers colluded when bidding to supply automotive components to fourteen automotive original equipment manufacturers. CC Commissioner Tembinkosi Bonakele stated that “[t]he Commission’s investigation into this pervasive collusive conduct joins similar investigations launched in other jurisdictions internationally. The Commission will prioritise the investigation of cases that involve automotive components that are in vehicles assembled in and supplied to the South African market.”
The CC continued conducting dawn raids of various companies in the second half of 2014. In July 2014, the CC raided the offices of Precision and Sons, Eldan Auto Body, and Vehicle Accident Assessment Centre as part of its ongoing investigation into collusive conduct in the market for auto body repairs. In December 2014, the CC raided Investchem and Akulu Marchon as part of its ongoing investigation into collusive conduct in the market for a range of surfactant products—inputs in the manufacture of household goods including detergents and cosmetics.
The CC referred several antitrust cases to the Competition Tribunal (“Tribunal”) late in the year. In November, the CC referred a complaint against all of the members of the Association of Electric Cable Manufacturers of South Africa—power cable manufacturers—alleging that the manufacturers engaged in fixing prices, dividing markets, and collusive bidding practices. The CC also referred a case against a number of construction firms alleging collusive bidding for the construction of 2010 World Cup stadiums. Also in November, the CC referred a price-fixing case to the Tribunal alleging that six manufacturers and distributors in the fertilizer industry agreed on commissions to distributors. Finally, the CC approved the initiation of a complaint alleging price fixing, market allocation, and bid rigging by six competitors that sell motor vehicle exhaust systems to original equipment manufacturers.
In October 2014, the CC entered into a settlement agreement with two companies that provide furniture removal services. The settlements followed the CC’s investigation of 69 companies between 2010 and 2013 covering 3,500 relocations. Each settling company admitted to rigging fees and agreed to pay the maximum fines imposable by the Competition Tribunal, equal to 10%of its annual turnover for the 2012 fiscal year. In a large victory in June, the Tribunal imposed a R534 million fine ($46 million) on Sasol Chemical Industries Limited for overcharging customers in violation of the Competition Act.
Following up on our 2014 Mid-Year Update on the staff turnover at the CC, 2014 continued to see staff developments. In August, the CC appointed a new Spokesperson as well as Divisional Manager for the Cartels Division. In October, Minister Patel appointed two Deputy Commissioners for the CC. Both appointments are for six-month durations.
 Press Release, U.S. Dep’t of Justice, First Ever Extradition on Antitrust Charge (Apr. 4, 2014), available at http://www.justice.gov/opa/pr/first-ever-extradition-antitrust-charge.
 Steven F. Cherry, Leon B. Greenfield, Kurt G. Kastorf, Department of Justice’s First Antitrust Extradition Highlights the Danger of Foreign Travel for Executives Under Investigation, American Bar Association, (Apr. 2014), available at https://www.americanbar.org/groups/business_law/publications/blt/2014/04/keeping_current_cherry/.
 Harry Phillips, U.S. extradites first ever antitrust defendant, Global Competition Review (Apr. 4, 2014), available at http://globalcompetitionreview.com/news/article/35699/us-extradites-first-ever-antitrust-defendant.
 The total criminal fines for FY 2014 is an estimate based on our review of plea agreements announced by the Antitrust Division and other court-imposed criminal fines during the fiscal year. The underlying data for the years prior to FY 2014 can be found at U.S. Dep’t of Justice, Antitrust Div., Workload Statistics, FY 2004-2013 [hereinafter FY 2004-2013 Workload Statistics], available at http://www.justice.gov/atr/public/workload-statistics.html.
 Scott D. Hammond, Director of Criminal Enforcement, Antitrust Division, Dep’t of Justice, Speech, “When Calculating the Costs and Benefits of Applying for Corporate Amnesty, How Do You Put a Price Tag on an Individual’s Freedom?” (Mar. 8, 2001), available at http://www.justice.gov/atr/public/speeches/7647.htm.
 Press Release, U.S. Dep’t of Justice, Bridgestone Corporation Agrees to Plead Guilty to Participating in Conspiracies to Rig Bids and Bribe Foreign Government Officials (Sep. 15, 2011), available at http://www.justice.gov/atr/public/press_releases/2011/275025.htm.
 Press Release, U.S. Dep’t of Justice, Bridgestone Corp. Agrees to Plead Guilty to Price Fixing on Automobile Parts Installed in U.S. Cars (Feb. 13, 2014), available at http://www.justice.gov/opa/pr/bridgestone-corp-agrees-plead-guilty-price-fixing-automobile-parts-installed-us-cars.
 Press Release, CADE, CADE fines cement cartel in BLR 3.1 billion (May 29, 2014), available at http://en.cade.gov.br/press-releases/cade-fines-cement-cartel-in-blr-3-1-billion.
 The total criminal fines for FY 2014 is an estimate based on our review of plea agreements announced by the Antitrust Division and other court-imposed criminal fines during the fiscal year. The underlying data for the years prior to FY 2014 can be found at U.S. Dep’t of Justice, Antitrust Div., Workload Statistics, FY 2004-2013 [hereinafter FY 2004-2013 Workload Statistics], available at http://www.justice.gov/atr/public/workload-statistics.html.
 Press Release, U.S. Dep’t of Justice, Aisin Seiki Co. Ltd. Agrees to Plead Guilty to Customer Allocation on Automobile Parts Installed in U.S. Cars (Nov. 13, 2014), available at http://www.justice.gov/opa/pr/aisin-seiki-co-ltd-agrees-plead-guilty-customer-allocation-automobile-parts-installed-us-cars.
 Eric Holder, Attorney General, Speech at Auto Parts Press Conference (Sep. 26, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-1309261.html.
 Press Release, U.S. Dep’t of Justice, Remarks As Prepared For Delivery By Acting Assistant Attorney General Sharis A. Pozen At The Briefing On Department’s Enforcement Action In Auto Parts Industry (Jan. 30, 2012), available at http://www.justice.gov/atr/public/press_releases/2012/279740.htm.
 Press Release, NGK Spark Plug Co. Ltd. Agrees to Plead Guilty to Price Fixing and Bid Rigging on Automobile Parts Installed in U.S. Cars (Aug. 19, 2014), available at http://www.justice.gov/opa/pr/ngk-spark-plug-co-ltd-agrees-plead-guilty-price-fixing-and-bid-rigging-automobile-parts.
 Press Release, U.S. Dep’t of Justice, Toyoda Gosei Co. Ltd. Agrees to Plead Guilty to Fixing Prices and Rigging Bids on Automobile Parts Installed in U.S. Cars (Sept. 29, 2014), available at http://www.fbi.gov/cleveland/press-releases/2014/toyoda-gosei-co.-ltd.-agrees-to-plead-guilty-to-fixing-prices-and-rigging-bids-on-automobile-parts-installed-in-u.s.-cars.
 Press Release, U.S. Dep’t of Justice, Hitachi Metals Ltd. Agrees to Plead Guilty for Fixing Prices and Rigging Bids on Automobile Parts Installed in U.S. Cars (Oct. 31, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309636.htm.
 Press Release, U.S. Dep’t of Justice, Aisin Seiki Co. Ltd. Agrees to Plead Guilty to Customer Allocation on Automobile Parts Installed in U.S. Cars (Nov. 13, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309854.htm.
 Press Release, U.S. Dep’t of Justice, Continental Automotive Electronics and Continental Automotive Korea Agree to Plead Guilty to Bid Rigging on Instrument Panel Clusters (Nov. 24, 2014), available at http://www.justice.gov/opa/pr/continental-automotive-electronics-and-continental-automotive-korea-agree-plead-guilty-bid.
 Tenneco Inc., Form 10-Q 21 (Nov. 5, 2014), available here.
 Press Release, U.S. Dep’t of Justice, Denso Corp. Executive Agrees to Plead Guilty to Price Fixing on Automobile Parts Installed in U.S. Cars (June 30, 2014) available at http://www.fbi.gov/detroit/press-releases/2014/denso-corp.-executive-agrees-to-plead-guilty-to-price-fixing-on-automobile-parts-installed-in-u.s.-cars.
 Press Release, U.S. Dep’t of Justice, G.S. Electech Inc. Executive Pleads Guilty to Bid Rigging and Price Fixing on Automobile Parts Installed in U.S. Cars (July 31, 2014) available at http://www.justice.gov/atr/public/press_releases/2014/307524.htm.
 Plea Agreement, United States v. Shimasaki, No. 14-cr-00139 (N.D. Ohio July 14, 2014), ECF No. 14.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.1.a.(i).
 Press Release, T.Rad Executive Agrees to Plead Guilty to Bid Rigging and Price Fixing on Automobile Parts Installed in U.S. Cars (Dec. 1, 2014), available at http://www.justice.gov/opa/pr/trad-executive-agrees-plead-guilty-bid-rigging-and-price-fixing-automobile-parts-installed-us.
 Press Release, Former Mitsuba Executive Agrees to Plead Guilty to Bid Rigging and Price Fixing on Automobile Parts Installed in U.S. Cars (Dec. 1, 2014), available at http://www.justice.gov/opa/pr/former-mitsuba-executive-agrees-plead-guilty-bid-rigging-and-price-fixing-automobile-parts.
 Press Release, U.S. Dep’t of Justice, Former Toyoda Gosei Executive Agrees to Plead Guilty to Price Fixing and Bid Rigging on Automobile Parts Installed in U.S. Cars (Jan. 6, 2015) available at http://www.justice.gov/atr/public/press_releases/2015/310929.htm.
 Press Release, U.S. Dep’t of Justice, Seven Mitsubishi Electric Corp. and Hitachi Automotive Supply Ltd. Executives Indicted for Role in Conspiracy to Fix Prices (Sept. 18, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/308747.htm.
 Press Release, U.S. Dep’t of Justice, Former Executive of Japanese Automotive Parts Manufacturer Indicted for Role in Conspiracy to Fix Prices (Oct. 16, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309289.htm.
 Press Release, U.S. Dep’t of Justice, Two Executives of Japanese Automotive Parts Manufacturers Indicted for Their Role in a Conspiracy to Fix Prices and Rig Bids (Nov. 14, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309880.htm.
 Press Release, U.S. Dep’t of Justice, Former Toyoda Gosei Executive Agrees to Plead Guilty to Price Fixing and Bid Rigging on Automobile Parts Installed in U.S. Cars (Jan. 6, 2015) available at http://www.justice.gov/atr/public/press_releases/2015/310929.htm.
 See id.; Press Release, U.S. Dep’t of Justice, Former Mitsuba Executive Agrees to Plead Guilty to Bid Rigging and Price Fixing on Automobile Parts Installed in U.S. Cars (Dec. 1, 2014) available at http://www.justice.gov/atr/public/press_releases/2014/310121.htm; Press Release, U.S. Dep’t of Justice, T.Rad Executive Agrees to Plead Guilty to Bid Rigging and Price Fixing on Automobile Parts Installed in U.S. Cars (Dec. 1, 2014) available at http://www.justice.gov/atr/public/press_releases/2014/310119.htm.
 Press Release, U.S. Dep’t of Justice, Lloyds Banking Group Admits Wrongdoing in LIBOR Investigation, Agreed to Pay $86 Criminal Penalty (July 28, 2014), available at https://www.justice.gov/opa/pr/lloyds-banking-group-admits-wrongdoing-libor-investigation-agrees-pay-86-million-criminal.
 Press Release, U.S. Dep’t of Justice, Barclays Bank PLC Admits Misconduct Related to Submissions for the London Interbank Offered Rate and the Euro Interbank Offered Rate and Agrees to Pay $160 Million Penalty (June 27, 2012), available at http://www.justice.gov/opa/pr/barclays-bank-plc-admits-misconduct-related-submissions-london-interbank-offered-rate-and.
 Press Release, U.S. Dep’t of Justice, UBS Securities Japan Co. Ltd. to Plead Guilty to Felony Wire Fraud for Long-running Manipulation of LIBOR Benchmark Interest Rates (Dec. 19, 2012), available at
 Deferred Prosecution Agreement, United States v. The Royal Bank of Scotland plc, No. 3:13-cr-00074-MPS (D. Conn. Apr. 12, 2013), available at http://www.justice.gov/iso/opa/resources/28201326133127414481.pdf.
 Press Release, U.S. Dep’t of Justice, Rabobank Admits Wrongdoing in LIBOR Investigation, Agrees to pay $325 Million Criminal Penalty (Oct. 29, 2013), available at http://www.justice.gov/opa/pr/2013/October/13-crm-1147.html.
 Press Release, U.S. Dep’t of Justice, Lloyds Banking Group Admits Wrongdoing in LIBOR Investigation, Agreed to Pay $86 Criminal Penalty (July 28, 2014), available at https://www.justice.gov/opa/pr/lloyds-banking-group-admits-wrongdoing-libor-investigation-agrees-pay-86-million-criminal
 Press Release, U.S. Dep’t of Justice, Former Rabobank LIBOR Submitter Pleads Guilty for Scheme to Manipulate Yen LIBOR (Aug. 18, 2014), available at https://www.justice.gov/opa/pr/former-rabobank-libor-submitter-pleads-guilty-scheme-manipulate-yen-libor.
 Press Release, U.S. Dep’t of Justice, Two Former Rabobank Traders Indicted for Alleged Manipulation of U.S. Dollar, Yen LIBOR Interest Rates (Oct. 16, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309296.htm.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.2.c.
 Tom Schoenberg, U.S. Said to Open Criminal Probe of FX Market Rigging, Bloomberg News (Oct. 12, 2013), available at http://www.bloomberg.com/news/2013-10-11/u-s-said-to-open-criminal-probe-of-fx-market-rigging.html.
 See, e.g., Chiara Albanese, David Enrich and Katie Martin, Banks Reach Settlement in Foreign-Exchange Probe, The Wall Street Journal (Nov. 12, 2014), available at http://www.wsj.com/articles/banks-reach-settlement-in-foreign-exchange-rigging-probe-1415772504; Daniel Schäfer, Caroline Binham and James Shotter, Regulators Slap $4.3 bn Fines on Six banks in Global Forex Probe, Financial Times (Nov. 12, 2014), available at http://www.ft.com/cms/s/0/aa812316-69be-11e4-9f65-00144feabdc0.html#slide0.
 Daniel Schäfer, Caroline Binham and James Shotter, Regulators Slap $4.3 bn Fines on Six banks in Global Forex Probe, Financial Times (Nov. 12, 2014), available at http://www.ft.com/cms/s/0/aa812316-69be-11e4-9f65-00144feabdc0.html#slide0.
 Press Release, U.S. Commodity Futures Trading Commission, CFTC Orders Five Banks to Pay over $1.4 Billion in Penalties for Attempted Manipulation of Foreign Exchance Benchmark Rates (Nov. 12, 2014), available at http://www.cftc.gov/PressRoom/PressReleases/pr7056-14.
 Id. at para.6.
 Id. at paras. 5-6.
 Jack P. Figura and Deirdre A. McEvoy, United States: Cartel Suits Filed Against Capacitor Manufacturers After Reports Of Cooperation With Authorities, Mondaq (Jul. 30, 2014), available at http://www.mondaq.com/unitedstates/x/331410/Cartels%20Monopolies/Cartel%20Suits%20Filed%20Against%20Capacitor%20Manufacturers%20After%20Reports%20Of%20Cooperation%20With%20Authorities.
 See In re Capacitors Antitrust Litigation, No. 3:14-cv-03264-JD (D.P.R. Dec. 4, 2014), ECF No. 400 (relating to all direct purchaser actions) and 401 (relating to all indirect purchaser actions).
 Press Release, U.S. Dep’t of Justice, AU Optronics Corporation Executive Sentenced for Role in LCD Price-Fixing Conspiracy (Apr. 29, 2013), available at http://www.justice.gov/atr/public/press_releases/2013/296336.htm.
 Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.d.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.2.e.
 United States v. AU Optronics Corp., et al, No. 12-10492 (9th Cir. July 10, 2014).
 Consolidated Dkt., No. 12-10492 (9th Cir. Aug. 25, 2014), ECF Nos. 98-100.
 Consolidated Dkt., No. 12-10492 (9th Cir. Sept. 10 & Oct. 10, 2014 ), ECF Nos. 112 & 115.
 Consolidated Dkt., No. 12-10492 (9th Cir. Oct. 16, 2014), ECF Nos. 119.
 Gibson Dunn, 2013 Mid-Year Criminal Antitrust and Competition Law Update at A.2.b; Order, United States v. Leung, No. 13-10242 (9th Cir. Oct. 23, 2013), ECF No. 22.
 Order, United States v. Leung, No. 13-10242 (9th Cir. Oct. 23, 2013), ECF No. 22.
 Order, United States v. Leung, No. 13-10242 (9th Cir. Nov. 4, 2014), ECF No. 54.
 Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.A.2.d.
 Press Release, Third Company Agrees to Plead Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks (Dec. 29, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/310793.htm.
 Press Release, Third Company Agrees to Plead Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks (Dec. 29, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/310793.htm.
 Press Release, Japanese Company Agrees to Plead Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks (Sep. 26, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/308903.htm.
 Press Release, South American Company Agrees to Plead Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks (Feb. 27, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/304053.htm.
 United States v. Takashi Yamaguchi, 2014 MD, available at http://www.justice.gov/atr/cases/yamaguchi.html.
 Press Release, U.S. Dep’t of Justice, Three Foam Manufacturers Plead Guilty in Price Fixing Scheme (June 27, 2014), available at http://www.justice.gov/opa/pr/2014/June/14-at-678.html.
 USA v. Riverside Seat Company et al., 1:14-cr-00263-WFK-3 (E.D.N.Y. Oct. 20, 2014), Dkt. No. 34.
 See United States v. Peake, No. 14-1088 (1st Cir. Nov. 26, 2014), Doc. No. 00116769326
 Id., at 1-11.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Mar. 21, 2013), ECF No. 1
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Oct. 16, 2014), ECF No. 267.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. June 17, 2014), ECF No. 149.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. July 17, 2014), ECF No. 161.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. July 25, 2014), ECF No. 162.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Aut. 15, 2014), ECF No. 192.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Apr. 16, 2014), ECF No. 97.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Sep. 17, 2014), ECF No. 232.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Sep. 17, 2014), ECF No. 232.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Sep. 17, 2014), ECF No. 232.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Sep. 17, 2014), ECF No. 232.
 See United States v. Farmer, No. 3:13-cr-00162-JAF (D.P.R. Sep. 17, 2014), ECF No. 232.
 See Arrowpac Inc. v. Sea Star Line, LLC, No. 3:12-cv-01180 (M.D. Fla. Sep. 29, 2014), ECF No. 269.
 See Arrowpac Inc. v. Sea Star Line, LLC, No. 3:12-cv-01180 (M.D. Fla. Nov. 5, 2014), ECF No. 303.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.3.b.
 Press Release, U.S. Dep’t of Justice, Three Former UBS Executives Sentenced to Serve Time in Prison for Frauds Involving Contracts Related to the Investment of Municipal Bond Proceeds (July 24, 2013), available athttp://www.justice.gov/opa/pr/2013/July/13-at-839.html.
 Kurt Orzeck, Ex-UBS Bankers Denied Retrial Over Muni Bid-Rigging, Law360 (May 15, 2014), available at http://www.law360.com/articles/538529/ex-ubs-bankers-denied-retrial-over-muni-bid-rigging.
 Motions for Release from Custody Pending Appeal, United States v. Ghavami, No. 10-cr-01217 (S.D.N.Y. Sept. 16, 2013), ECF Nos. 404, 406.
 Opinion & Order at 6-12, 37, United States v. Ghavami, No. 10-cr-01217 (S.D.N.Y. May 15, 2014), ECF No. 474.
 Notices of Appeal, United States v. Ghavami, No. 10-cr-01217 (S.D.N.Y. May 23, 2014), ECF Nos. 475, 477; Notice of Appeal, United States v. Ghavami, No. 10-cr-01217 (S.D.N.Y. May 28, 2014), ECF No. 479.
 Id., ECF Nos. 475, 477, 479.
 Richard Vanderford, Ex-UBS employees ask for bail pending appeal of muni-bond convictions, MLex Market Intelligence (June 17, 2014), available at http://www.mlex.com/US/Content.aspx?ID=549290.
 See id.
 Motion Order, United States v. Ghavami,, No. 13-3296 (2d. Cir. June 20, 2014), ECF No 71.
 Superseding Consolidated Page Proof Briefs, United States v. Ghavami, No. 13-3119 (2d Cir. July 30, 2014), ECF Nos. 170-72.
 Final Form Brief, United States v. Ghavami, No. 13-3119 (2d Cir. Dec. 17, 2014) , ECF No. 227.
 See Oral Argument Statements, United States v. Ghavami, No. 13-3119 (2d Cir. Nov. 12, 2014), ECF Nos. 193-198.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.3.b.
 United States v. Grimm, 738 F.3d 498, 499, 504 (2d Cir. 2013).
 Id. at 501-02.
 Grimm, 738 F.3d at 504.
 Petition for Rehearing/Rehearing En Banc, United States v. Grimm, No. 12-4310 (2d Cir. Jan. 22, 2014), ECF No. 241.
 U.S. v. Grimm, 763 F.3d 221 (2d Cir. 2014).
 Judgment Mandate, Issued, United States v. Grimm, No. 12-4310 (2d Cir. Aug. 28, 2014), ECF No. 254.
 Judgment, United States. v. Zwerner, No. 11-cr-00293 (S.D.N.Y. Jul. 25, 2014), ECF No. 30.
Transcript of Proceedings as to Brian Scott Zwerner, United States v. Zwerner, No. 11-cr-00293 (S.D.N.Y. Apr. 1, 2011), ECF No. 9; Nate Raymond, Ex-Bank of America trader avoids prison in muni bond case, Reuters (July 25, 2014), available at http://www.reuters.com/article/2014/07/25/munibond-bank-of-america-sentencing-idUSL2N0Q018X20140725.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Updateat I.A.3.c.
 Press Release, U.S. Dep’t of Justice, Five Northern California Real Estate Investors Indicted for Bid Rigging and Fraud at Public Foreclosure Auctions (Dec. 3, 2014) (announcing an indictment charging John Michael Galloway, Nicholas Diaz, Glenn Guillory, Thomas Joyce, and Charles Rock, who has since pleaded guilty, for an alleged conspiracy in Contra Costa County), available at http://www.justice.gov/atr/public/press_releases/2014/310188.htm; Press Release, U.S. Dep’t of Justice, Eleven Northern California Real Estate Investors Indicted for Bid Rigging and Fraud at Public Foreclosure Auctions (Nov. 20, 2014) (announcing three separate indictments charging Michael Marr, Javier Sanchez, Gregory Casorso, Victor Marr, John Shiells, Miguel De Sanz, Alvin Florida Jr., Robert A. Rasheed, John L. Berry III, Refugio Diaz, and Stephan A. Florida for alleged schemes in Alameda County, and also charging two overlapping subsets of the defendants based on alleged schemes in Contra Costa and San Francisco Counties), available at http://www.justice.gov/atr/public/press_releases/2014/309993.htm; Press Release, U.S. Dep’t of Justice, Five Northern California Real Estate Investors Indicted for Bid Rigging and Fraud at Public Foreclosure Actions (Oct. 21, 2014) (announcing an indictment charging Joseph Giraudo, Raymond Grinsell, Kevin Cullinane, James Appenrodt, and Abraham Farag based on an alleged scheme in San Mateo County, and a subset of the defendants based on an alleged scheme in San Francisco County), available at http://www.justice.gov/atr/public/press_releases/2014/309446.htm.
 Press Release, U.S. Dep’t of Justice, Northern California Real Estate Investor Agrees to Plead Guilty to Bid Rigging and Fraud at Public Foreclosure Auctions (Dec. 2, 2014), available at http://www.justice.gov/opa/pr/northern-california-real-estate-investor-agrees-plead-guilty-bid-rigging-and-fraud-public-1.
 Press Release, U.S. Dep’t of Justice, Northern California Real Estate Investor Pleads Guilty to Bid Rigging and Fraud at Public Foreclosure Auctions (Dec. 24, 2014) [hereinafter Press Release (Dec. 24, 2014)], available at http://www.justice.gov/atr/public/press_releases/2014/310778.htm; Press Release, U.S. Dep’t of Justice, Northern California Real Estate Investor Agrees to Plead Guilty to Bid Rigging and Fraud at Public Foreclosure Auctions (Oct. 3, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309077.htm.
 Press Release, U.S. Dep’t of Justice, Two Northern California Real Estate Investors Agree to Plead Guilty to Bid Rigging and Fraud at Public Foreclosure Auctions (Nov. 24, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/310016.htm.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.3.c.
 Mike Swift & Leah Nylen, California Judge Denies DOJ Request to Lift Stay in Real Estate Foreclosure Bid-Rigging Case, MLex Insight (July 21, 2014), available at http://www.mlex.com/US/Content.aspx?ID=563857.
 See id.
 See Press Release, Two Real Estate Investors Convicted for Roles in Bid-Rigging Conspiracy in San Joaquin County, Calif. Real Estate Foreclosure Auctions (Mar. 11, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/304304.htm.
 Press Release, U.S. Dep’t of Justice, Alabama Real Estate Investor Pleads Guilty to Conspiracy to Commit Mail Fraud (Oct. 31, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309638.htm.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.3.c.; see also Press Release, U.S. Dep’t of Justice, Georgia Real Estate Investor Pleads Guilty to Bid Rigging and Fraud at Public Foreclosure Auctions (Apr. 17, 2014), available at http://www.justice.gov/opa/pr/georgia-real-estate-investor-pleads-guilty-bid-rigging-and-fraud-public-foreclosure-auctions; Judgment and Commitment, United States v. Omar, No. 14-cr-00099 (N.D. Ga. Oct. 21, 2014), ECF No. 22.
 Id.; Plea Agreement at 11, Omar, No. 14-cr-00099 (N.D. Ga. Apr. 17, 2014), ECF No. 9-1.
 Government’s Sentencing Memorandum at 1, 6, United States v. Omar, No. 14-cr-00099 (N.D. Ga. Oct. 10, 2014), ECF No. 11.
 See Leah Nylen, Comment: DOJ’s Real Estate Foreclosure Cases Highlight Disparities in Antitrust, Fraud Sentences, MLex Commentary & Analysis (July 18, 2014), available at http://www.mlex.com/US/Content.aspx?ID=563232.
 See Press Release, U.S. Dep’t of Justice, Former Project Manager Sentenced to Serve Time in Prison for Role in Bid Rigging and Other Fraudulent Schemes Involving Two EPA Superfund Sites in New Jersey (March 4, 2014), available at http://www.justice.gov/opa/pr/former-project-manager-sentenced-serve-time-prison-role-bid-rigging-and-other-fraudulent.
 USA v. Gordon McDonald, No. 14-1587 (3d Cir. Mar. 12, 2014).
 See Press Release, U.S. Dep’t of Justice, Canadian Executive Extradited on Major Fraud Charges Involving a New Jersey Environmental Protection Agency Superfund Site (November 17, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309928.htm.
 Press Release, Dep’t of Justice, Washington Gas Energy Systems Agrees to Pay $2.5 Million in Fines and Penalties for Conspiring to Obtain Federal Contracts (Nov. 19, 2014), available at http://www.justice.gov/atr/public/press_releases/2014/309963.htm.
 Brent Snyder, Deputy Asst Att’y Gen., U.S. Dept. of Justice Antirust Div., Compliance is a Culture, Not Just a Policy, Remarks as Prepared for the International Chamber of Commerce/ United States Council of International Business Joint Antitrust Compliance Workshop (Sept. 9, 2014), available at http://www.justice.gov/atr/public/speeches/308494.pdf.
 Sentencing Memorandum, United States v. AU Optronics Corp., No. CR 09-0110-SI (N.D.
Cal. Sept. 20, 2012).
 Bill Baer, Asst Att’y Gen., U.S. Dept. of Justice Antirust Div., Prosecuting Antitrust Crimes, Remarks as Prepared for the Georgetown University Law Center Global Antitrust Enforcement Symposium (Sept. 10, 2014), available at http://www.justice.gov/atr/public/speeches/308499.pdf.
 Harry Phillips, US Extradites First Ever Antitrust Defendant, Global Competition Review (Apr. 4, 2014), available at http://globalcompetitionreview.com/news/article/35699/us-extradites-first-ever-antitrust-defendant.
 Harry Phillips, Italian marine hose exec pleads guilty but will still appeal extradition for “discrimination”, Global Competition Review (Apr. 25, 2014), available at http://globalcompetitionreview.com/usa/article/35839/italian-marine-hose-exec-pleads-guilty-will-appeal-extradition-discrimination.
 W. Michael G. Osborne, Canada: US Obtains First Ever Extradition from Canada on Antitrust Charges, Mondaq (May 14, 2014), available at http://www.mondaq.com/canada/x/313430/Antitrust%20Competition/US%20Obtains%20First%20Ever.
 See 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.mlex.com/US/Content.aspx?ID=611529.
 Motorola Mobility LLC v. AU Optronics Corp., 746 F.3d 842, 844 (7th Cir. 2014) (Posner, J) (internal quotation marks omitted), reh’g granted and opinion vacated (July 1, 2014).
 Id. at 845.
 Motorola Mobility LLC v. AU Optronics Corp., No. 14-8003, 2014 WL 6678622 (7th Cir. Nov. 26, 2014) (Posner, J.).
 Id. at *6.]
 Id. at *10 (internal quotation marks omitted).
 Id. at *4.
 Id. at *8 (internal quotation marks omitted).
 Id. at *9.
 Id. at *8-9.
 Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 398 (2d Cir. 2014).
 Id. at 398-99.
 Id. at 398-99, 404-09.
 Id. at 398.
 Id. (quoting 15 U.S.C. § 6a(2)).
 Brian Grow, Encana Settles Michigan Antitrust Case, Chesapeake Fights on, Reuters (May 5, 2014), available at http://www.reuters.com/article/2014/05/05/us-michigan-antitrust-encana-idUSBREA440IZ20140505.
 Brian Grow, Justice Department Ends Antitrust Probe of Chesapeake, Encana, Reuters (Apr. 30, 2014), available at http://www.reuters.com/article/2014/04/30/chesapeake-doj-idUSL3N0NM7FI20140430.
 Press Release, Mich. Attorney General’s Office, Schuette Announces $5 Million Civil Settlement, Criminal No Contest Plea by Encana Oil & Gas USA to Resolve Bid-Rigging Allegations (May 5, 2014), available at http://www.michigan.gov/ag/0,4534,7-164-46849_47203-327764–,00.html.
 Chesapeake Faces Trial on Bid-Rigging in Michigan Lease Sale, Reuters (July 10, 2014), available at http://www.reuters.com/article/2014/07/10/us-antitrust-chesapeake-enrgy-idUSKBN0FF1Z020140710.
 Press Release, Mich. Attorney General’s Office, Cheboygan District Court Orders Chesapeake Energy Corp. to Proceed to Trial on Racketeering Charges (Sept. 9, 2014), available at http://www.michigan.gov/ag/0,4534,7-164-46849_47203-336899–,00.html.
Press Release, Canadian Competition Bureau, Sixth Guilty Plea in Competition Bureau’s Investigation Involving Motor Vehicle Components (Aug. 20, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03792.html.
 Press Release, Canadian Competition Bureau, Seventh guilty plea in Competition Bureau’s investigation involving motor vehicle components (Dec. 11, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03860.html.
See Harry Phillips, GCR, Momentum Is Towards Individual Criminal Sentences, Canada Enforcers Say, Global Competition Review (Sept. 22, 2014), available at http://globalcompetitionreview.com/news/article/36884/momentum-towards-individual-criminal-sentences-canada-enforcers-say/.
 Press Release, Canadian Competition Bureau, Competition Bureau Lays Additional Criminal Charges Related to Infrastructure Projects in Quebec (Dec. 2, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03857.html.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.B.
 See Gibson Dunn, 2012 Year-End Criminal Antitrust and Competition Law Update at 8.d.
 Leah Nylen, Canada’s Supreme Court Declines Bennett Appeal, Opening Way for US Extradition, MLex (Oct. 30, 2014), available at http://www.mlex.com/US/Content.aspx?ID=605738.
 See Matthew Estabrooks et al., Applications for Leave to Appeal Dismissed – 30 October 2014, Lexology (Oct. 30, 2014), available at http://www.lexology.com/library/detail.aspx?g=35ff1330-46d8-4bef-a6de-9276aa8efb01.
 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.mlex.com/US/Content.aspx?ID=611529.
 See T. Bev, Diversified Royalty Corp. Provides Update on Advancement of Legal Fees for John Bennett, Stockhouse (Dec. 5, 2014), available at http://www.stockhouse.com/news/press-releases/2014/12/05/diversified-royalty-corp-provides-update-on-advancement-of-legal-fees-for-john.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.3.e, I.A.4.e.
 See, e.g., Wiretaps Allowed in Gas Price Fixing Lawsuit, CBCNews (Oct. 18, 2014), available at http://www.cbc.ca/news/canada/montreal/wiretaps-allowed-in-gas-price-fixing-lawsuit-1.2804527.
 Press Release, Canadian Competition Bureau, Competition Bureau and Competition Commission of India Sign Agreement to Enhance Cooperation in Cross-Border Enforcement (Dec. 1, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03855.html.
 Press Release, Canadian Competition Bureau, Ontario Securities Commission and the Competition Bureau Sign Memorandum of Understanding (Nov. 25, 2014), available at http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03847.html.
 See Argentinian Commission for the Defense of Competition, available at https://www.argentina.gob.ar/defensadelacompetencia
 María Eugenia Cerutti, Reclaman que se forme el Tribunal de la Competencia (July 5, 2014), available at http://www.clarin.com/politica/Reclaman-forme-Tribunal-Competencia_0_1169283220.html.
 Press Release, Comisión Nacional de Defensa de la Competencia, Convenio de Colaboración entre la Comisión Nacional de los Mercados y la Competencia de España y la Comisión Nacional de Defensa de la Competencia Argentina, available at http://www.cndc.gov.ar/.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.C.
 Alex Lawson, Brazil Hits 6 Cement Cos. With $1.4B In Cartel Fines, Law 360 (May 29, 2014), available at http://www.law360.com/articles/542551/brazil-hits-6-cement-cos-with-1-4b-in-cartel-fines.
 Bruno De Luca Drago and Fabianna Vieria Barbosa Morselli, The Antitrust Review of the Americas 2015, Section 5 Brazil: Cartels, (2014), available at http://globalcompetitionreview.com/reviews/63/sections/216/chapters/2550/brazil-cartels/.
 Henry Vane, Huge Fine and First Structural Remedy for Brazil Cement Cartel, Global Competition Review (May 29, 2014), available at http://globalcompetitionreview.com/news/article/36077/huge-fine-first-structural-remedy-brazil-cement-cartel/.
 Fausto Macedo and Mateus Coutinho, Former Manager of VarigLog Is Sentenced Because of Cartel, O Estado de São Paulo (Feb.19, 2014), available at http://economia.estadao.com.br/noticias/geral,ex-gerente-da-variglog-e-condenado-por-cartel-imp-,1131826.
 Press Release, CADE, General Superintendence Investigates Power Consumption Measurement Systems Cartel (Oct. 10, 2014) available at http://www.cade.gov.br/cade_english/press-releases/general-superintendence-investigates-power-consumption-measurement-systems-cartel.
 Press Release, CADE, General Superintendence Investigates Cartel Formation in Gas Station Market in Maranhão (Oct. 12, 2014) available at http://en.cade.gov.br/press-releases/general-superintendence-investigates-cartel-formation-in-gas-station-market-in-maranhao.
 Press Release, CADE, General Superintendence Recommends Condemnation of Port Service Companies (Oct. 10, 2014) available at http://en.cade.gov.br/press-releases/general-superintendence-recommends-condemnation-of-port-service-companies.
 Press Release, CADE, CADE’s General Superintendence Investigates Cartel in Antifriction Bearings Market (Oct. 10, 2014) available at http://en.cade.gov.br/press-releases/cade2019s-general-superintendence-investigates-cartel-in-antifriction-bearings-market.
 Press Release, CADE, Superintendent Opens Process to Determine International Cartel in the Capacitor Market (Dec. 2, 2014), available at http://www.cade.gov.br/cade_english/press-releases/superintendent-opens-process-to-determine-international-cartel-in-the-capacitor-market.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.A.5. See also infra Section III.F.1 below.
 Press Release, CADE, General Superintendence Recommends Condemnation in International Electrodes Market (Oct. 10, 2014) available at http://www.cade.gov.br/cade_english/press-releases/general-superintendence-recommends-condemnation-in-international-electrodes-market.
 Leo Szolnoki, Brazil Fines Pharma Company for Tacit Collusion, Global Competition Review (Aug. 8, 2014) available at http://globalcompetitionreview.com/news/article/36592/corrected-brazil-fines-pharma-company-tacit-collusion/.
 Proceso Administrativo Nr. 08012.005928/2003-12, CADE (April 17, 2013), at para. 66, available here.
 Leo Szolnoki, CADE Hits Medical Organizations with Fines, Global Competition Review (Oct. 30, 2014) available at http://globalcompetitionreview.com/news/article/37163/cade-hits-medical-organisations-fines/.
 Press Release, CADE, Manufactures of Orthopedic Orthotics and Prosthesis Are Fined for Bid Rigging Cartel (Dec. 12, 2014), available at http://www.cade.gov.br/cade_english/press-releases/manufactures-of-orthopedic-orthotics-and-prosthesis-are-fined-for-bid-rigging-cartel.
 Vinicius Marques de Carvalho, Brazil: Administrative Council for Economic Defence, (2015) available here.
 Press Release, CADE, CADE Signs Seven Agreements in Cartel Investigations (Dec. 12, 2014) available at http://www.cade.gov.br/cade_english/press-releases/cade-signs-seven-agreements-in-cartel-investigations.
 Press Release, CADE, CADE Settles in Cartel Investigation in the Salt Market (Nov. 26, 2014) available at http://www.cade.gov.br/cade_english/press-releases/cade-settles-in-cartel-investigation-in-the-salt-market.
 Press Release, CADE, CADE Signs Seven Agreements in Cartel Investigations (Dec. 12, 2014) available at http://www.cade.gov.br/cade_english/press-releases/cade-signs-seven-agreements-in-cartel-investigations.
 Isto é Dinheiro, CADE Signs Seven Settlement Agreements in Cartel Investigations, Isto é Dinheiro (Dec.10, 2014), available at https://www.istoedinheiro.com.br/noticias/economia/20141210/cade-firma-sete-acordos-investigacoes-carteis/215894.
 Pallavi Guniganti, Judge’s Decision Seen as a Blow to Leniency Secrecy in Brazil, Global Competition Review (Aug. 14, 2013), available at http://globalcompetitionreview.com/news/article/34003/judges-decision-seen-blow-leniency-secrecy-brazil/.
 Harry Phillips, CADE Advocating for Better Leniency Secrecy, Official Says, Global Competition Review (Oct. 30, 2014) available at http://globalcompetitionreview.com/news/article/37165/cade-advocating-better-leniency-secrecy-official-says/.
 Ron Knox, Brazil Strikes Cooperation Deals with Asian Enforcers, Global Competition Review (Apr. 28, 2014) available at http://globalcompetitionreview.com/news/article/35845.
 ICC Antitrust Compliance Advocacy Initiative Extends to Brazil, International Chamber of Commerce (Sept. 29, 2014) available at http://www.iccwbo.org/News/Articles/2014/ICC-antitrust-compliance-advocacy-initiative-extends-to-Brazil/.
 La FNE Se Cambia de Casa, Capital (February 21, 2014), available at https://www.capital.cl/la-fne-se-cambia-de-casa/.
 Tomás Menchaca Olivares, Del Tribunal de Defensa de la Libre Competencia (May 12, 2014), available at http://www.tdlc.cl/UserFiles/P0001/File/CUENTAS%20PUBLICAS%20TDLC/Cuenta%20Pblica%202014.pdf.
 Press Release, Fiscalía Nacional Económica, Competition Tribunal Condemns Agrosuper, Ariztía and Don Pollo, (September 26, 2014), available at http://www.fne.gob.cl/tdlc-condeno-a-agrosuper-ariztia-y-don-pollo-por-colusion-y-ordeno-disolver-el-gremio-que-las-reune/.
 Ariztía y Agrosuper Recurren a la Corte Suprema Tras Multas por Colusión, Cooperativa (Oct. 8, 2014), available at http://www.cooperativa.cl/noticias/economia/competitividad/libre-competencia/ariztia-y-agrosuper-recurren-a-la-corte-suprema-tras-multas-por-colusion/2014-10-08/102858.html.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.D.
 Press Release, Fiscalía Nacional Económica, TDLC Acoge Requerimiento de FNE y Condena a Tres Empresas de Buses por Colusión en la Ruta Copiapó – Caldera (June 20, 2014), available at http://www.fne.gob.cl/tdlc-acoge-requerimiento-de-fne-y-condena-a-tres-empresas-de-buses-por-colusion-en-la-ruta-copiapo-caldera/.
 Press Release, Fiscalía Nacional Económica, TDLC Condena a Pullman Bus y Bahía Azul por Colusión en Pasajes Santiago – Cartagena (September 11, 2014), available at http://www.fne.gob.cl/tdlc-condena-a-pullman-bus-y-bahia-azul-por-colusion-en-pasajes-santiago-cartagena/.
 Press Release, Fiscalía Nacional Económica, TDLC Multa en $ 60 Millones a Empresas de Transporte Urbano de Valdivia por Colusión (May 11, 2014), available at http://www.fne.gob.cl/tdlc-multa-en-60-millones-a-empresas-de-transporte-urbano-de-valdivia-por-colusion/.
 Press Release, Fiscalía Nacional Económica, FNE Requiere por Colusión a Empresas Proveedoras de Asfalto (October 7, 2014), available at http://www.fne.gob.cl/fne-requiere-por-colusion-a-empresas-proveedoras-de-asfalto-2/.
 Fiscalía Nacional Económica, Guía Interna sobre Delación Compensada en Casos de Colusión (November 11, 2014) available at http://www.fne.gob.cl/wp-content/uploads/2014/11/Guia-Interna-sobre-Delaci%C3%B3n-Compensada.pdf.
 See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at I.E.
 Víctor Cofré, Fiscal Felipe Irarrázabal: “La Delación Compensada es el Mecanisco que Empíricamente ha Logrado Desbaratar los Carteles”, La Tercera (Nov.9, 2014), available at https://www.latercera.com/noticia/fiscal-felipe-irarrazabal-la-delacion-compensada-es-el-mecanismo-que-empiricamente-ha-logrado-desbaratar-los-carteles/.
 Fiscal Felipe Irarrázabal, La Delación Compensada es el Mecanismo que Empíricamente ha Logrado Desbaratar los carteles, La Tercera (September 11, 2014), available at https://www.latercera.com/noticia/fiscal-felipe-irarrazabal-la-delacion-compensada-es-el-mecanismo-que-empiricamente-ha-logrado-desbaratar-los-carteles/.
 Radoslav Depolo, Sistema contra la Colusión, La Tercera (Nov. 28, 2014), available at https://www.latercera.com/noticia/sistema-contra-la-colusion/.
Sandra Trafilaf, Corte de Apelaciones Condena a Farmacias Ahumada con Millonaria Multa, Diario UChile (November 19, 2014), available at http://radio.uchile.cl/2014/11/19/corte-de-apelaciones-condena-a-farmacias-ahumada-con-millonaria-multa.
 Leo Szolnoki, Colombia Uses Leniency to Target Nappy Cartel, Global Competition Review (Aug. 5, 2014), available at http://globalcompetitionreview.com/news/article/36574/colombia-uses-leniency-target-nappy-cartel/.
 Press Release, Superintendencia de Industria y Comercio, FCEPCEPAPPDPB (Aug. 5, 2014), available at http://www.sic.gov.co/drupal/noticias/superindustria-formula-pliego-de-cargos-contra-5-empresas-por-cartelizacion-empresarial-para-aumentar-los-precios-de-los-panales-desechables-para-bebe.
 Press Release, Superintendencia de Industria y Comercio, Por Cartelización Empresarial Para Fijar los Precios del Papel Higiénico y Otros Papeles Suaves, la Superindustria Formula Pliego de Cargos Contra 5 Empresas (Nov. 24, 2014), available at http://www.sic.gov.co/drupal/noticias/pliegos-de-cargos-contra-5-empresas-por-cartelizaci%C3%B3n-empresarial-en-papel-higienico-y-otros-papeles-suaves.
 Coronel y Pérez, Ecuador, in Antitrust Review of the Americas, Global Competition Review (2014), available at http://www.coronelyperez.com/pdf/The_Antitrust_Review_2014.pdf
 Superintendencia de Control del Poder de Mercado, Resolución No. SCPM-DS-052-2014 Instructivo para el tratamiento de la información restringida (Nov.12, 2014) available at http://www.scpm.gob.ec/wp-content/uploads/2014/12/RESOLUCION-SCPM-DS-052-2014.pdf.
 Press Release, Superintendencia de Control del Poder de Mercado, Instructivo Para la Gestión y Ejecución de los Compromisos de Cese (Sept. 29, 2014), available at http://www.scpm.gob.ec/instructivo-para-la-gestion-y-ejecucion-de-los-compromisos-de-cese-en-la-scpm/.
 Superintendencia de Control del Poder de Mercado, Resolución No. SCPM-DS-032-2014 Instructivo especial para la realización de allanamientos e inspecciones dentro de la facultad de investigación; y para regular la cadena de custodia (Aug. 19, 2014) available at
 Superintendencia de Control del Poder de Mercado, Resolución No. SCPM-DS-063-2014 Instructivo de Gestión Procesal Administrativa de la SCPM (Oct. 17, 2014), available at http://www.scpm.gob.ec/wp-content/uploads/2014/12/RESOLUCION-SCPM-DS-063-2014.pdf.
 Superintendencia de Control del Poder de Mercado, Resolución No. SCPM-DS-034-2014 Instructivo especial para la aplicación de medidas preventivas (Aug. 19, 2014) available at http://www.derechoecuador.com/productos/producto/catalogo/registros-oficiales/2014/agosto/code/RegistroOficialNo314-Martes19deAgosto2014/registro-oficial-no-314—martes-19-de-agosto-de-2014#NoSCPMDS0342014.
 Superintendencia de Control del Poder de Mercado, Resolución No. SCPM-DS-036-2014 Instructivo para la gestión procesal de expedientes y su reposición en caso de pérdida o destrucción (Aug. 19, 2014) available at http://www.derechoecuador.com/productos/producto/catalogo/registros-oficiales/2014/agosto/code/RegistroOficialNo314-Martes19deAgosto2014/registro-oficial-no-314—martes-19-de-agosto-de-2014#NoSCPMDS00362014.
 Andrade Veloz Abogados, Noticias de Competencia (June-Jul. 2014), available here.
 Press Release, Superintendencia de la Competencia, SC Suscribe Convenio Con la SCPM de Ecuador (Jul. 23, 2014), available at http://www.sc.gob.sv/pages.php?Id=1500.
 Press Release, Superintendencia de la Competencia, Sala de lo Contencioso Administrativo Reafirma Facultad de la SC Para Solicitar Información (July 8, 2014), available at http://www.sc.gob.sv/pages.php?Id=1499.
 Daniel Trujillo, Sala Constitucional Afirma que Pruebas Contra MOLSA Por Prácticas Anticompetitivas Son Válidas, Economía y Éxito (Nov. 11, 2014), available at http://economiayexito.com/2014/11/12/sala-constitucional-afirma-que-pruebas-contra-molsa-por-practicas-anticompetitivas-son-validas/.
 Saúl Monge, Investigan Posible Acuerdo de Precio Entre Empresas Distribuidoras de Frijol, Verdad Digital (Sept. 24, 2014), available http://www.verdaddigital.com/index.php/nacionales/12879-investigan-posible-acuerdo-deprecio-entre-empresas-distribuidoras-de-frijol.
 SC Declara Libre de Práctica Anticompetitiva a Hoteles, Diario Digital (Oct. 24, 2014), available at http://www.contrapunto.com.sv/economia/finanzas/sc-declara-libre-de-practica-anticompetitiva-en-caso-hoteles.
 Se Gesta Normativa a Favor de Competencia, Prensa Libre (Oct. 29, 2014), available here.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.G..
 Alejandra Palacios Preito, Mexico: Federal Economic Competition Commission, Global Competition Review (2014), available here; Paloma Alcántara & Fernando Carreño, Mexico: Overview, Global Competition Review (2014), available here.
 Comisión Federal de Competencia Económica, Plan Estratégico 2014-2017, available at http://www.cofece.mx/attachments/article/37/PE_COFECE_2014-2017_0.pdf.
 Alejandra Palacios Preito, Mexico: Federal Economic Competition Commission, Global Competition Review (2014), available here; Comisión Federal de Competencia Económica, Ley Federal de Competencia Económica (Sept. 2014), available here; Paloma Alcántara & Fernando Carreño, Mexico: Overview, Global Competition Review (2014), available here.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at I.G.
 Harry Phillips, Whirlpool and Panasonic hit with fines in Mexico, Global Competition Review (Mar. 12, 2014).
 Press Release, Federal Competition Commission, COFECE fines global network of refrigeration compressor manufacturers (Mar. 11, 2014), available at https://www.cofece.mx/images/comunicados/Cofece_005_2014.pdf. The public version of the resolution is available at https://www.cofece.mx/CFCResoluciones/docs/Asuntos%20Juridicos/V85/19/1797812.pdf. See also Harry Phillips, Whirlpool and Panasonic hit with fines in Mexico, Global Competition Review (Mar. 12, 2014), available at http://globalcompetitionreview.com/news/article/35474/whirlpool-panasonic-hit-fines-mexico/; Invette Tejeda, Programa de inmumidad, freno antimonopolios, El Economista (Mar. 13, 2014), available at http://eleconomista.com.mx/industrias/2014/03/13/programa-inmunidad-freno-antimonopolios.
 Paloma Alcántara & Fernando Carreño, Mexico: Overview, Antitrust Review of the Americas 2015, Global Competition Review, available at http://globalcompetitionreview.com/reviews/63/sections/220/chapters/2558/mexico-overview.
 Ministerio de Industria y Comercio de Paraguay, http://www.mic.gov.py/mic/site/comercio/conacom.php
 Henry Vane, Leniency will help Peru cartel crackdown, Global Competition Review (July 18, 2014), available at http://globalcompetitionreview.com/news/article/36436/leniency-will-help-peru-cartel-crackdown.
 Carlos Fernando de Trazegnies, Perú: Colusión en concursos públicos para servicios de hemodiálisis de Essalud, Compemedia (Nov. 5, 2014), available at http://compemedia.org/peru-colusion-en-concursos-publicos-para-servicios-de-hemodialisis-de-essalud.html.
 ABA Antitrust Section, Navigating the Globe: Cartel Enforcement Around the World, Colombia & Peru, at 21, available here.
 Press Release, Fiscalía Nacional Económica (Sept. 1, 2014), available at http://www.fne.gob.cl/fiscal-nacional-economico-expuso-en-el-dia-de-la-competencia-de-peru/.
 El Pais, Multan a un súper y distribuidora por limitar competencia en congelados (Aug. 21, 2014), available at http://www.elpais.com.uy/economia/noticias/multan-super-distribuidora-limitar-competencia.html.
 Tardáguila Agromercados, No se pudieron demostrar prácticas anticompetitivas en la industria frigorífica (Nov. 14, 2014), available at http://www.tardaguila.com.uy/site/index.php/es/informes-diarios/ganaderia/item/1272-no-se-pudieron-demostrar-practicas-anticompetitivas-en-la-industria-frigorifica/1272-no-se-pudieron-demostrar-practicas-anticompetitivas-en-la-industria-frigorifica.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at II (A).
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at II (A).
 Commission Press Release IP/14/1189 dated 21 October 2014.
 Commission Press Release IP/14/1190 dated 21 October 2014.
 Commission Press Release IP/14/960 dated 3 September 2014.
 Reuters, Philips to appeal against European Commission price fixing fine, 3 September 2014 and https://www.infineon.com/cms/en/about-infineon/press/press-releases/2014/INFXX201409-057.html .
 See Press Release, European Comm’n, Antitrust: Commission confirms unannounced inspections in oil and biofuels sectors (May 14, 2013), available at http://europa.eu/rapid/press-release_MEMO-13-435_en.htm; Press Release, European Comm’n, Antitrust: Commission confirms unannounced inspections in biofuel sector (Oct. 9, 2014), available at http://europa.eu/rapid/press-release_MEMO-14-581_en.htm; EU seeks data from 30 companies in oil benchmarking probe, MLex (Apr. 7, 2014).
 Press Release, European Comm’n, Antitrust: Commission sends Statement of Objections to ICAP for suspected participation in yen interest rate derivatives cartels (June 10, 2014), available at http://europa.eu/rapid/press-release_IP-14-656_en.htm.
 ICAP counters EU Charges over role in Libor abuse, MLex (Aug. 20, 2014).
 Victor Golovtchenko, ICAP plc Files a Complaint With EU Ombudsman About Regulatory Prejudice, Forex Magnates (Oct. 17, 2014), available at http://forexmagnates.com/icap-plc-files-complaint-eu-ombudsman-regulatory-prejudice/
 Foo Yun Chee, EU ombudsman: EU regulators must reply to C. Agricole complaint by Oct. 31, Reuters (Sept. 25, 2014).
 Press Release, European Comm’n, Antitrust: Commission sends statement of objections to suspected participants in trucks cartel (Nov. 20, 2014), available at http://europa.eu/rapid/press-release_IP-14-2002_en.htm. This case commenced in January 2011, when the Commission conducted dawn raids in the truck sector. Press Release, European Comm’n, Antitrust: Commission confirms unannounced inspections in the truck sector (Jan. 18, 2011), available at http://europa.eu/rapid/press-release_MEMO-11-29_en.htm.
 Lisa Ryan, Volvo Braces For Possible $500M Fine In EU Cartel Probe, Law360 (Nov. 25, 2014), available at http://www.law360.com/articles/599297/volvo-braces-for-possible-500m-fine-in-eu-cartel-probe.
 Press Release, European Comm’n, Antitrust: Commission fines producers of steel abrasives € 30.7 million in cartel settlement (Apr. 2, 2014), available at http://europa.eu/rapid/press-release_IP-14-359_en.htm.
 Press Release, European Comm’n, Antitrust: Commission sends Statement of Objections to Pometon for suspected participation in a steel abrasives cartel (Dec. 4, 2014), available at http://europa.eu/rapid/press-release_IP-14-2361_en.htm.
 Press Release, European Comm’n, EU proposes responsible trading strategy for minerals
from conflict zones (Mar. 25, 2014), available at europa.eu/rapid/press-release_IP-14-218_en.pdf.
 See Saint-Gobain Glass France SA and Others v Commission, Case T-56/09 (Mar. 27, 2014) [Not Yet Reported] available at http://curia.europa.eu/juris/documents.jsf?num=T-56/09.
 See Commission Decision, Case COMP/39.125 (Nov. 12, 2008), available here.
 See Guardian Industries and Guardian Europe v Commission, Case T-82/08 (Nov. 12, 2014) [Not Yet Reported], available at http://curia.europa.eu/juris/liste.jsf?num=T-82/08.
 See Pilkington Group and Others v Commission, Case T-72/09 (Dec. 17, 2014) [Not Yet Reported] available at http://curia.europa.eu/juris/liste.jsf?num=T-72/09.
 Id. at para. 80.
 Id. at para. 298.
 Id. at para. 448.
 See Case C-238/12 P FLSmidth v Commission, Ruling of April 30, 2014 [Not Yet Reported], available: on their site.
 See Raw Tobacco Italy, Case COMP/C.38.281/B.2 (Oct. 20, 2005), available here.
 See Deltafina v Commission, Case C-578/11 P (June 12, 2014) [Not Yet Reported], available at http://curia.europa.eu/juris/liste.jsf?language=en&num=C-578/11.
 See Deltafina v Commission, Case T-12/06 ECR II-05639 (Sept. 9, 2011), available at http://curia.europa.eu/juris/liste.jsf?num=T-12/06&language=en.
 Sasol v European Comm’n, Case T-541/08 (July 11, 2014), available here.
 See Nexans, Case C-37/13P (June 25, 2014) [Not yet reported] available at http://curia.europa.eu/juris/liste.jsf?language=en&num=C-37/13
 See CB v Commission, Case C-67/13 P (Sept. 11, 2014) [Not Yet Reported], available at http://curia.europa.eu/juris/liste.jsf?num=C-67/13&language=en.
 This follows the approval of the Directive by the European Parliament, in April 2014, and of the EU Council of Ministers, on November 10, 2014.
 European Comm’n, Directive on Antitrust Damages Actions (April 17, 2014), available here.
 European Comm’n, Frequently Asked Questions: Commission proposes legislation to facilitate damage claims by victims of antitrust violations (June 11, 2013), available at http://europa.eu/rapid/press-release_MEMO-13-531_en.htm.
 European Comm’n, Guidance to national courts: Quantification of harm caused by infringements of the EU antitrust rules (June 11, 2013), available at http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_en.html.
 Press Release (Dutch Language), Belgian Competition Authority, Executive Committee Belgian Competition Authority introduces new guidelines on calculation of fines (Aug. 29, 2014), available at https://www.bma-abc.be/sites/default/files/content/download/files/20140829_persbericht_10_bma.pdf.
 Press Release (Dutch Language), Belgian Competition Authority, Decision of the Competition Council of the Belgian Competition Authority regarding interim measures in a case regarding the distribution, repair and maintenance of BMW and MINI vehicles (July 15, 2014), available at https://www.bma-abc.be/sites/default/files/content/download/files/20140715_persbericht_8_bma.pdf.
 Press Release (Dutch Language), Belgian Competition Authority, The Prosecutor of the Belgian Competition Authority confirms dawn raids of several companies active in the sector of industrial batteries (April 3, 2014), available at https://www.bma-abc.be/sites/default/files/content/download/files/20140403_persbericht_bma_5.pdf
 Press Release (Dutch Language), Belgian Competition Authority, The Prosecutor of the Belgian Competition Authority confirms dawn raids at several companies active in the sector of animal feed for chickens (April 3, 2014), available at https://www.bma-abc.be/sites/default/files/content/download/files/20140403_persbericht_4_bma.pdf
 Hof van Beroep [HvB] [Court of Appeal] Brussels, Mar. 12, 2014, AR 2013/MR/6, available here
 Europese Commissie grijpt naast schadeclaim tegen liftenkartel, De Standaard, (Nov. 26, 2014) available at http://www.standaard.be/cnt/dmf20141126_01397557; the official court documents are not available to the public.
 Press Release, Danish Competition and Consumer Authority, Denmark: “Immunity in a cartel case granted for the first time” (Mar. 7, 2014), available at https://www.en.kfst.dk/nyheder/kfst/english/news/2014/20140307-denmark-immunity-in-a-cartel-case-granted-for-the-first-time/
 Henry Vane, Denmark grants first ever leniency application, Global Competition Review (Mar. 7, 2014), available at http://globalcompetitionreview.com/news/article/35410/denmark-grants-first-ever-leniency-application/.
 See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.B.c, available at https://www.gibsondunn.comhttps://www.gibsondunn.com/2013-year-end-criminal-antitrust-and-competition-law-update/.
 Press Release, Danish Competition and Consumer Authority, Denmark: “Largest fine ever imposed in a competition case – Construction company pays fine in settlement for bid rigging” (Nov. 5, 2014), available at https://www.en.kfst.dk/nyheder/kfst/english/decisions/20141105-largest-fine-ever-imposed-in-a-competition-case/
 Katy Oglethorpe, Denmark Builds on Record Cartel Fine, Global Competition Review (Nov. 12, 2014), available at http://globalcompetitionreview.com/news/article/37253/denmark-builds-record-cartel-fine/.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at II.C, available at https://www.gibsondunn.comhttps://www.gibsondunn.com/2014-mid-year-criminal-antitrust-and-competition-law-update/.
 See Décret du 28 février 2014 portant nomination du président de l’Autorité de la concurrence – M. Laserre (Bruno) (Feb. 28, 2014), available at http://www.autoritedelaconcurrence.fr/doc/joe_20140301_0043.pdf.
 More information about Mr. Lasserre (in French only) is available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=33&id_article=1033. More information about other recently appointed members of the AdC (in French only) is available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=33.
 Press Release, Autorite de la concurrence, Home and personal care products sold in supermarkets (Dec. 18, 2014), available at http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=592&id_article=2473.
 See Decision no 14-D-20 du 22 decembre 2014 relative a des pratiques mises en oeuvre dans le secteur de papier peint en France (Dec. 22, 2014), available at http://www.autoritedelaconcurrence.fr/user/avisdec.php?numero=14-D-20.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at II.D.2.c, available at https://www.gibsondunn.comhttps://www.gibsondunn.com/2014-mid-year-criminal-antitrust-and-competition-law-update/.
 See Arrêt n 2996 (13-81.471), Cour de cassation, Chambre criminelle (June 25, 2014), available here.
 Henry Vane, France to change settlement negotiation procedure, Global Competition Review (Dec. 15, 2014), available at http://globalcompetitionreview.com/news/article/37648/france-change-settlement-negotiation-procedure/
 See Federal Cartel Office, Activities Report 2013, for information on the FCO’s activities in the first half of 2014 (Jul. 8, 2014). available here.
 See Federal Cartel Office, Leniency Programme – Number of Leniency Applications Filed – 2001 to 2013, available here.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update, at II.D.2.
 See Press Release, Federal Cartel Office, Bundeskartellamt Imposes Fines on Sausage Manufacturers (Jul. 15, 2014), available here.
 See Press Release, Federal Cartel Office, Providers of Specialist Mining Services Fined for Price Fixing and Bid-Rigging (Aug. 28, 2014), available here.
 See Press Release, Federal Cartel Office, Bundeskartellamt Imposes Further Fines on Manufacturers of Concrete Paving Stones on Account of Price-fixing Agreements (Sep. 11, 2014), available here.
 See Deutsche Bahn, website Aircargo cartel claims, available at http://www.aircargocartelclaims.com/.
 See Press Release IP/09/137, European Commission , Antitrust: Commission Fines Marine Hose Producers € 131 Million for Market Sharing and Price-Fixing Cartel (Jan. 28, 2009), available at http://europa.eu/rapid/press-release_IP-09-137_en.pdf; European Commission, EC Competition Policy Newsletter, Number 2 – 2009, page 53 et seq., available at http://ec.europa.eu/competition/publications/cpn/cpn_2009_2.html.
 See Court of Appeals Frankfurt, order of Jan. 22, 2014, File No. 2 Ausl A 104/13; Press Release, U.S. Department of Justice First ever extradition on antitrust charge (Apr. 4, 2014), available at http://www.justice.gov/opa/pr/2014/April/14-at-340.html.
 See Press Release, Authority for Consumers & Markets, Report your cartel and escape the fine(Sept. 11, 2014), available at https://www.acm.nl/en/publications/publication/13314/Report-your-cartel-and-escape-the-fine/.
 See Press Release, NL Auth. for Consumers & Mkts., ACM imposes fines on investment firms in cartel case (Dec. 30, 2014), available at https://www.acm.nl/en/publications/publication/13716/ACM-imposes-fines-on-investment-firms-in-cartel-case/.
 Cases ROT 12/4807, 12/4808, 12/4810 & 12/4844, District Court of Rotterdam (Mar. 20, 2014), available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2014:2045.
 Case ROT 13/867 & ROT 13/868, District Court of Rotterdam (Apr. 3, 2014), available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2014:2273&keyword=ACM.
 See judgment of Gerechtshof Arnhem-Leeuwarden of September 2, 2014 in case 200.126.185, available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHARL:2014:6766&keyword=mededinging.
 See judgment of Rechtbank Gelderland of September 24 2014 in case C/05/208814, available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBGEL:2014:6118.
 For example, on July 8, 2014, the CNMC imposed fines worth EUR 2 million ($2.38 million) on several fire extinguishing equipment manufacturers for operating a cartel, and on November 19, 2014 the CNMC imposed fines worth EUR 3.8 million ($4.52 million) on paper waste recovery companies for allocation of customers and activities, as well as for fixing prices.
 See S.A.N., Apr. 21, 2014 (R.J., No. 1757) (Spain), available at http://audiencia-nacional.vlex.es/vid/-510313158; see also M.Á. Montero, La asociación de agencias de viajes se libra de la multa de 440.000 euros, ABC (May 12, 2014), available at http://www.abc.es/local-canarias/20140512/abci-audiencia-agencias-viajes-201405112356.html. The fine had been calculated on the basis of the relevant revenues generated by the companies who were party to the trade association.
 See S.C.N.M.C., July 31, 2010, (No. 0120/08) (Spain), available at https://www.cnmc.es/expedientes/s012008.
 See S.A.N., Apr. 15, 2014 (R.J., No. 1798) (Spain), available at http://audiencia-nacional.vlex.es/vid/-510313322.
 See S.T.S., Jun. 2, 2014 (R.J. No 2641) (Spain), available here.
 Id. at para. 7.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at II.I.1.
 Guidance: Cartel offence prosecution guidance, Competition and Markets Authority (Mar. 12, 2014), available at https://www.gov.uk/government/publications/cartel-offence-prosecution-guidance.
 See Guidance: Advice for company directors on avoiding cartel infringements (Sept. 25, 2014), available at https://www.gov.uk/government/publications/advice-for-company-directors-on-avoiding-cartel-infringements; Guidance: Limiting risk in relation to competitors’ information (Sept. 25, 2014), available at https://www.gov.uk/government/publications/limiting-risk-in-relation-to-competitors-information; Guidance: Competition law: dos and don’ts for trade associations (Sept. 25, 2014), available at https://www.gov.uk/government/publications/competition-law-dos-and-donts-for-trade-associations.
 Competition and Markets Authority case: Criminal investigation into the supply of galvanised steel tanks for water storage, Competition and Markets Authority (Jan. 27, 2014), available at https://www.gov.uk/cma-cases/criminal-investigation-into-the-supply-of-galvanised-steel-tanks-for-water-storage.
 Competition and Markets Authority case: Supply of galvanised steel tanks for water storage: criminal investigation (July 23, 2014), available at https://www.gov.uk/cma-cases/criminal-investigation-into-the-supply-of-galvanised-steel-tanks-for-water-storage.
 Competition and Markets Authority case: Investigation into the supply of galvanised steel tanks for water storage, Competition and Markets Authority (Jan. 27, 2014), available at https://www.gov.uk/cma-cases/investigation-into-the-supply-of-galvanised-steel-tanks-for-water-storage.
 Competition and Markets Authority cases, Competition and Markets Authority (Oct. 30, 2014), available at https://www.gov.uk/cma-cases/investigation-into-agreements-in-the-pharmaceutical-sector.
 Sonya Branch, Speech: Competition, the revised cartel offence and the CMA – a new landscape (Nov. 5, 2014), available at https://www.gov.uk/government/speeches/sonya-branch-speaks-about-the-cartel-offence-and-the-cma.
 Competition and Markets Authority case: Energy Market Investigation (June 26, 2014), available at https://www.gov.uk/cma-cases/energy-market-investigation.
 Competition and Markets Authority case: Retail banking market investigation (Jan. 6, 2015), available at https://www.gov.uk/cma-cases/review-of-banking-for-small-and-medium-sized-businesses-smes-in-the-uk.
 Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at II.B.1.i.
 Press Release, U.K. Dep’t for Business Innovation & Skills, Private Actions in Competition Law: A Consultation On Options For Reform (Apr. 2012), available here.
 See Response of the Competition Appeal Tribunal to Streamlining Regulatory and Competition Appeals (Aug. 23, 2013), available at https://www.catribunal.org.uk/sites/default/files/2017-12/Streamlining_Regulatory_and_Competition_Appeals_Response_220813.pdf.
 See U.K. Parliament, Progress: Consumer Rights Bill 2013-14 to 2014-15 (last visited Jan. 6, 2015), http://services.parliament.uk/bills/2013-14/consumerrights.html.
 See Guidance: Implementing the Consumer Rights Bill (Oct. 9, 2014), available at https://www.gov.uk/government/publications/consumer-rights-bill-implementing-the-measures.
 Press Release, Australian Competition and Consumer Commission, ACCC Takes Action Against Coles and Woolworths for Allegedly Breaching Fuel Shopper Docket Undertakings (Feb. 25, 2014), available at http://www.accc.gov.au/media-release/accc-takes-action-against-coles-and-woolworths-for-allegedly-breaching-fuel-shopper-docket-undertakings.
 See Amy Bainbridge, Woolworths found to have breached ACCC fuel dockets deal, Austl. Broad. Corp. (Apr. 13, 2014), available at http://www.abc.net.au/news/2014-04-14/woolworths-found-to-have-breached-accc-fuel-dockets-agreement/5388068.
 Press Release, Australian Competition and Consumer Commission, Court Finds Woolworths Breached Fuel Shopper Docket Undertaking But Later Offers by Coles and Woolworths Did Not (Apr. 14, 2014), available at https://www.accc.gov.au/media-release/court-finds-woolworths-breached-fuel-shopper-docket-undertaking-but-later-offers-by-coles-and-woolworths-did-not.
 Press Release, Australian Competition and Consumer Commission, ACCC Takes Action Against Informed Sources and Petrol Retailers for Price Information Sharing (Aug. 20, 2014), available at http://accc.gov.au/media-release/accc-takes-action-against-informed-sources-and-petrol-retailers-for-price-information-sharing.
 Australian Associated Press, Petrol retailers reject ACCC’s assertion of price-fixing at bowser, The Guardian (Sept. 26, 2014), available at http://www.theguardian.com/world/2014/sep/26/petrol-retailers-reject-acccs-assertion-of-price-fixing-at-bowser.
 Press Release, Australian Competition and Consumer Commission, Court Orders Penalties of 83 Million for Sydney Forklift Gas Cartel (Oct. 24, 2014), available at http://www.accc.gov.au/media-release/court-orders-penalties-of-83-million-for-sydney-forklift-gas-cartel.
 Press Release, Australian Competition and Consumer Commission, ACCC Institutes Proceedings Against OmniBlend Australia (Aug. 14, 2014), available at http://www.accc.gov.au/media-release/accc-institutes-proceedings-against-omniblend-australia.
 Faaez Samadi, ACCC takes on OmniBlend, Global Competition Review (Aug. 14, 2014), available at http://globalcompetitionreview.com/news/article/36639/accc-takes-omniblend/.
 Sue Lannin & Simon Frazer, ACCC takes Coles to court for allegedly bullying suppliers to boost earnings, Austl. Broad. Corp. (Oct. 16, 2014), available at http://www.abc.net.au/news/2014-10-16/coles-court-accc-alleged-bullying-suppliers/5818656.
 Press Release, Australian Competition and Consumer Commission, ACCC Takes Further Action Against Coles for Alleged Unconscionable Conduct Toward Its Suppliers (Oct. 16, 2014) (quoting ACCC Chairman), available at http://www.accc.gov.au/media-release/accc-takes-further-action-against-coles-for-alleged-unconscionable-conduct-towards-its-suppliers.
 AAP, Coles fined $10m for ‘serious’ misconduct against suppliers, The Australian (Dec. 22, 2014), available at http://www.theaustralian.com.au/business/companies/coles-fined-10m-for-serious-misconduct-against-suppliers/story-fn91v9q3-1227164168471.
 Press Release, Australian Competition and Consumer Commission, ACCC Takes Court Action Against the CFMEU Alleging Secondary Boycott and Undue Harassment or Coercion (Nov. 20, 2014), available at https://www.accc.gov.au/media-release/accc-takes-court-action-against-the-cfmeu-alleging-secondary-boycott.
 Press Release, Australian Competition and Consumer Commission, ACCC Takes Action Against Electrical Cable Suppliers for Alleged Cartel (Dec. 4, 2014), available at http://www.accc.gov.au/media-release/accc-takes-action-against-electrical-cable-suppliers-for-alleged-cartel.
 Pallavi Guniganti, ACCC sparks civil action against power cables cartel, Global Competition Review (Dec. 5, 2014), available at http://globalcompetitionreview.com/news/article/37577/accc-sparks-civil-action-against-power-cables-cartel/.
 Press Release, Australian Competition and Consumer Commission, Court Dismisses Air Cargo Cartel Proceedings Against Air New Zealand and Garuda Indonesia (Oct. 31, 2014), available at http://www.accc.gov.au/media-release/court-dismisses-air-cargo-cartel-proceedings-against-air-new-zealand-and-garuda-indonesia; see also Faaez Samadi, ACCC loses air cargo trial against Air NZ & Garuda, Global Competition Review (Oct. 31, 2014), available at http://globalcompetitionreview.com/news/article/37169/accc-loses-air-cargo-trial-against-air-nz-garuda/.
 Gibson Dunn, 2012 Year-End Criminal Antitrust and Competition Law Update at 8.b.
 See Misa Han, Air NZ cartel case flags flaws, Stuff (Nov. 16, 2014) (internal quotation marks omitted), available at http://www.stuff.co.nz/business/industries/63225211/air-nz-cartel-case-flags-flaws.
 Faaez Samadi, ACCC challenges air cargo trial dismissal, Global Competition Review (Dec. 17, 2014), available at http://globalcompetitionreview.com/news/article/37672/accc-challenges-air-cargo-trial-dismissal/.
 Richard Chirgwin, Harper review says ACCC telco functions need new regulator, The Register (Sept. 23, 2014), available here.
 See Faaez Samadi, New agency proposed in Australian antitrust review, Global Competition Review (Sept. 22, 2014), available at http://globalcompetitionreview.com/news/article/36882/new-agency-proposed-australian-antitrust-review/.
 See Richard Chirgwin, Harper review says ACCC telco functions need new regulator, The Register (Sept. 23, 2014), available here.
 See Faaez Samadi, ACCC outlines “significant reservations” with Harper review, Global Competition Review (Nov. 26, 2014), available here.
 Richard Chirgwin, Harper review says ACCC telco functions need new regulator, The Register (Sept. 23, 2014) (internal quotation marks omitted), available here.
 Tom Mitchell, China antitrust ruling blunts foreign criticism, Financial Times (Aug. 21, 2014), available at http://www.ft.com/cms/s/0/61d3f8aa-28ff-11e4-9d5d-00144feabdc0.html.
 See Standard-Essential Patents and Licensing: An Antitrust Enforcement Perspective, Address by FTC Chairwoman Edith Ramirez (Sept. 10, 2014), available here; Antitrust Enforcement in China – What Next?, Remarks of FTC Commissioner Maureen K. Ohlausen (Sept. 16, 2014), available here.
 Competition Policy and Enforcement in China, The US-China Business Council (Sep. 2014), available at https://www.uschina.org/sites/default/files/AML%202014%20Report%20FINAL_0.pdf.
 See Laurie Burkitt and Bob Davis, U.S. Treasury Warns China Over Antimonopoly Efforts, Wall Street Journal (Sep. 14, 2014), available at https://www.wsj.com/articles/u-s-treasury-warns-china-over-antimonopoly-efforts-1410687635; Competing Interests in China’s Competition Law Enforcement: China’s Anti-Monopoly Law Application and the Role of Industrial Policy, U.S. Chamber of Commerce (Sep. 8, 2014), available at https://www.uschamber.com/sites/default/files/aml_final_090814_final_locked.pdf; Tom Mitchell, European companies slam Chinese antitrust probes (Aug. 13, 2014), available at http://www.ft.com/intl/cms/s/0/fb6f0b4e-2305-11e4-8dae-00144feabdc0.html#axzz3NjUfmz6u.
 Hailey Lee, Did China just grant one-of-a-kind trade status? (Nov. 19, 2014), available at http://www.cnbc.com/id/102177552#.
 Press Release, U.S. Department of Commerce, U.S. And Chinese Delegations Conclude 25th Session of the U.S.-China Joint Commission on Commerce and Trade (Dec. 18, 2014), available at https://ustr.gov/about-us/policy-offices/press-office/press-releases/2014/December/US-Chinese-Delegations-Conclude-25th-Session-US-China-JCCT.
 China Levies Record Antitrust Fine on Japanese Firms, Bloomberg News (Aug. 20, 2014), available at http://www.bloomberg.com/news/2014-08-20/china-levies-record-antitrust-fine-on-japanese-firms.html.
 Keith Bradsher and Chris Buckley, China Fines Volkswagen and Chrysler for Antitrust Violations, New York Times (Sep. 11, 2014), available at http://www.nytimes.com/2014/09/12/business/chinese-regulators-fine-volkswagen-and-chrysler-on-antitrust-charges.html?_r=0.
 Administrative Decisions, China State Administration for Industry and Commerce (May 27, 2014), available at http://www.saic.gov.cn/zwgk/gggs/jzzf/cfjd/201407/t20140725_147046.html.
 Administrative Decisions, China State Administration for Industry and Commerce (Aug. 18, 2014), available at http://www.saic.gov.cn/zwgk/gggs/jzzf/cfjd/201411/t20141104_149669.html.
 Press Release, China State Administration for Industry and Commerce (Dec. 1, 2014), available at http://www.saic.gov.cn/zwgk/gggs/jzzf/201412/t20141201_150200.html.
 Faaez Samadi, China allows abuse cases against government, Global Competition Review (Nov. 5, 2014), available at http://globalcompetitionreview.com/news/article/37196/china-allows-abuse-cases-against-government.
 Press Release, Hong Kong Competition Commission, Competition Commission Announces Appointment of Chief Executive Officer (Jul. 21, 2014), available here.
 Press Release, Hong Kong Competition Commission, The Competition Commission Responds to the Government’s Appointment of Member to the Commission (Nov. 21, 2014), available at https://www.compcomm.hk/en/media/press/files/20141121_press_release_ProfSuen.pdf.
 Press Release, Hong Kong Competition Commission, Competition Commission and Communications Authority Publish Draft Guidelines under the Competition Ordinance (Oct. 9, 2014), available at https://www.coms-auth.hk/en/media_focus/press_releases/index_id_804.html.
 Hong Kong Competition Commission, Overview of Draft Guidelines under the Competition Ordinance – 2014, available at https://www.compcomm.hk/en/enforcement/consultations/past_consultations/files/Overview_e.pdf.
 Avantika Chilkoti, India competition watchdog fines carmakers over spare parts, Financial Times (Aug. 26, 2014), available at http://www.ft.com/cms/s/0/6f63584c-2ce4-11e4-911b-00144feabdc0.html#axzz3NWSAKCqD.
 The Competition (Amendment) Bill 2012, Bill No. 136 of 2012 (Nov. 16, 2012), available at http://www.prsindia.org/uploads/media/Competition%20(A)%20Bill,%202012/The%20Competition%20(A)%20Bill,%202012.pdf
 Faaez Samadi, KPPU cracks down on hospital bid riggers, Global Competition Review (Jul. 2, 2014), available at http://globalcompetitionreview.com/news/article/36316/kppu-cracks-down-hospital-bid-riggers.
 Arya Dipa, KPPU Investigates Alleged Cartelization in Tire Industry, Jakarta Post (Oct. 14, 2014), available at http://www.thejakartapost.com/news/2014/10/14/kppu-investigates-alleged-cartelization-tire-industry.html.
 Faaez Samadi, KPPU comes down on bid-rigging road builders, Global Competition Review (Oct. 8, 2014), available at http://globalcompetitionreview.com/news/article/37015/kppu-comes-down-bid-rigging-road-builders.
 See Press Release, Japan Fair Trade Commission, The JFTC Issued Cease and Desist Order and Surcharge Payment Order to Steel Ball Manufacturer (Sept. 9, 2014), available at http://www.jftc.go.jp/en/pressreleases/yearly-2014/September/140909.html.
 See Faaez Samadi, GCR, “JFTC raids radio makers” (Sept. 9, 2014), available at http://globalcompetitionreview.com/news/article/37294/jftc-raids-radio-makers/.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at III.F.
 See http://www.sankei.com/affairs/news/141104/afr1411040025-n1.html (in Japanese).
 See Japan Times, “Bearing maker, execs guilty of cartel” (Dec. 29, 2012), available at http://www.japantimes.co.jp/news/2012/12/29/national/bearing-maker-execs-guilty-of-cartel/#.VKoXuyetG2w.
 See Press Release, NSK Ltd., Notification of Judgment for Violation of the Antimonopoly Act (Feb. 26, 2013), available at http://www.nsk.com/company/news/2013/press0225a.html.
 See Press Release, Japan Fair Trade Commission, JFTC issued Cease and Desist Orders and Surcharge Payment Orders Against Bearing Manufacturers (Mar. 29, 2013), available at http://www.jftc.go.jp/en/pressreleases/yearly-2013/march/130329_2.html.
 See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at III.F.
 See Press Release, Japan Fair Trade Commission, The Japan Fair Trade Commission Concluded Memorandum on Cooperation with the Korea Fair Trade Commission of Republic of Korea (July 25, 2014), available at http://www.jftc.go.jp/en/pressreleases/yearly-2014/July/140725.html.
 See Memorandum on Cooperation Between the Fair Trade Commission of Japan and the Fair Trade Commission of the Republic of Korea, available at https://www.jftc.go.jp/en/int_relations/agreements_files/140725MOU.pdf.
 See Report Issued by the Advisory Panel on Administrative Investigation Procedures under the Anti-Monopoly Act, English Summary (Dec. 24, 2014), available at http://www8.cao.go.jp/chosei/dokkin/finalreport/brief-english.pdf;see also Japanese version, available at http://www8.cao.go.jp/chosei/dokkin/finalreport.html.
 See Press Release, Malaysia Competition Commission, MyCC Imposes Financial Penalty on Confection and Bakery Products Producers for Price Fixing (Sept 30, 2014), available at http://www.mycc.gov.my/sites/default/files/media-releases/News-Release-MyCC-issues-Proposed-Decision-to-Sibu-Confectionery-and-Bakery-Association_30092014_.pdf.
 Faaez Samadi, MyCC breaks up bakery cartel, Global Competition Review (Oct. 2, 2014), available at http://globalcompetitionreview.com/news/article/36965/mycc-breaks-bakery-cartel/.
 See Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at III.G.
 Press Release, Malaysia Competition Commission, MyCC Reiterates Warning Against Price Fixing (Oct. 13, 2014), available at http://www.mycc.gov.my/sites/default/files/media-releases/News-Release-MyCC-reiterates-warning-against-price-fixing.pdf.
 Kota Kinabalu, MyCC probing 47 cases under Competition Act, Daily Express Independent National Newspaper of East Malaysia (Sept. 26, 2014), available at http://www.dailyexpress.com.my/news.cfm?NewsID=91374.
 Kota Kinabalu, MyCC probing 47 cases under Competition Act, Daily Express Independent National Newspaper of East Malaysia (Sept. 26, 2014), available at http://www.dailyexpress.com.my/news.cfm?NewsID=91374.
 Andre Gan, Malaysia: New Guidelines on Penalties and Leniency: some clarity, some concerns…, Global Compliance News (Nov. 27, 2014), available at https://globalcompliancenews.com/malaysia-new-guidelines-on-penalties-and-leniency-some-clarity-some-concerns/.
 Press Release, MyCC Publishes Leniency Regime and Financial Penalties Guidelines (Oct. 16, 2014), available at http://www.mycc.gov.my/sites/default/files/media-releases/News-Release-MyCC-publishes-Guidelines-on-Financial-Penalty-and-Leniency-Regime.pdf.
 Faaez Samadi, NZ enforcer closes supermarket abuse probe, Global Competition Review (Nov. 20, 2014), available at http://globalcompetitionreview.com/news/article/37314/nz-enforcer-closes-supermarket-abuse-probe/.
 Press Release, Commerce Commission New Zealand, Commission completes Countdown investigation (Nov. 20, 2014), available at https://comcom.govt.nz/news-and-media/media-releases/2014/commission-completes-countdown-investigation.
 Press Release, Commerce Commission New Zealand, Commission concludes plasterboard investigation (Dec. 22, 2014), available at https://comcom.govt.nz/news-and-media/media-releases/2014/commission-concludes-plasterboard-investigation.
 Competitor Collaboration Guidelines, Commerce Commission New Zealand, http://dbm.thewebconsole.com/S3DB443/images/Revised-Draft-Competitor-Collaboration-Guidelines-August-2014.pdf.
 Cartel Criminalization, Ministry of Business, Innovation & Employment, http://www.med.govt.nz/business/competition-policy/cartel-criminalisation.
 Commerce Commission New Zealand, Competitor Collaboration Guidelines Revised Draft (Aug. 2014), available at http://dbm.thewebconsole.com/S3DB443/images/Revised-Draft-Competitor-Collaboration-Guidelines-August-2014.pdf.
 Competitor Collaboration Guidelines, Commerce Commission New Zealand, http://dbm.thewebconsole.com/S3DB443/images/Revised-Draft-Competitor-Collaboration-Guidelines-August-2014.pdf.
 Press Release, Competition Commission of Pakistan, CCP Issues Show Cause Notice to PAMADA, Its 44 Members, for Cartelization Among Automobile Dealers (Oct. 20, 2014), available at http://www.cc.gov.pk/index.php?option=com_content&view=article&id=373&Itemid=151.
 Media Houses Body: CCP Initiates Investigation, Business Recorder (Nov. 27, 2014), available at http://www.brecorder.com/business-and-economy/189:pakistan/1246034:media-houses-body-ccp-initiates-investigation/?date=2014-11-27.
 Supreme Court Should Hear Appeals Against Decisions: CCP Proposes MoF to Close Competition Appellate Tribunal, Business Recorder (Nov. 27, 2014), available at http://www.brecorder.com/business-and-economy/189:pakistan/1246027:supreme-court-should-hear-appeals-against-decisions-ccp-proposes-mof-to-close-competition-appellate-tribunal/.
 Pamela Joy L. Alquisada et al., Philippines Overview, The Asia-Pacific Antitrust Review 2014, available here.
 Imee Charelee C. Delavin, Antitrust measure enacted within the year, Business World Online (Sept. 30, 2014), available at http://www.investphilippines.info/arangkada/antitrust-measure-enacted-within-the-year/.
 Marvin Sy, Senate OKs proposed Fair Competition Act, The Philippine Star (Dec. 16, 2014), available at http://www.philstar.com/congress/articles/2014/12/16/1403199/senate-oks-proposed-fair-competition-act.
 Faaez Samadi, Philippines competition law clears key hurdle, Global Competition Review (Oct. 30, 2014), available at http://globalcompetitionreview.com/news/article/37162/philippines-competition-law-clears-key-hurdle/.
 Press Release, Competition Commission of Singapore, CCS Fines 10 Freight Forwarders for Price Fixing (Dec. 11, 2014), available at https://www.cccs.gov.sg/media-and-consultation/newsroom/media-releases/ccs-fines-10-freight-forwarders-for-price-fixing.
 See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at III.J.
 Press Release, Competition Commission of Singapore, CCS Imposes Penalties on Ball Bearings Manufacturers Involved in International Cartel (May 27, 2014), available at https://www.cccs.gov.sg/media-and-consultation/newsroom/media-releases/ccs-imposes-penalties-on-ball-bearings-manufacturers-involved-in-international-cartel.
 Inaugural Address, KFTC Chairman Jeong Jae chan (Dec. 8, 2014), available at HTTP://ENG.FTC.GO.KR/BBS.DO.
 Katy Oglethorpe, KFTC veteran steps in as chairman, Global Competition Review (Dec. 5, 2014), available at http://globalcompetitionreview.com/news/article/37576/kftc-veteran-steps-chairman/.
 Press Release, Korea Fair Trade Commission, Korea Fair Trade Commission Establishes Cooperative Relationship with Japanese Competition Authority (July 24, 2014), available at http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=24.KFTC%20establishes%20cooperative%20relationships%20with%20the%20japanese%20authority_rvsd.PDF.
 China-Korea trade agreement causes stir over alleged antitrust provisions, Global Competition Review (Nov. 21, 2014), available at http://globalcompetitionreview.com/news/article/37325/china-korea-trade-agreement-causes-stir-alleged-antitrust-provisions/.
 See Press Release, Korea Fair Trade Commission (Aug. 20, 2014), available here.
 Press Release, Korea Fair Trade Commission, Prior Administrative Notice of Amendment to Public Notification on Leniency for Voluntary Reporting (Nov. 19, 2014), available at HTTP://ENG.FTC.GO.KR/BBS.DO.
 Press Release, Korea Fair Trade Commission, Sanctions against Paper Manufacturers That Engaged in Price-Fixing of Base Paper Used for Various Cups and Containers (Oct. 15, 2014), available at their site..
 Press Release, Korea Fair Trade Commission, Korea Fair Trade Commission Imposes Sanctions against Detected Cases of Collusion in Chemical Additives Essential for Plastic Products (Nov. 21, 2014), available at their site.
 Press Release, Korea Fair Trade Commission, Strict Sanctions against International Cartel Activities by Global Bearing Suppliers that Continued for the Longest Period of Time in History (Nov. 17, 2014), available at http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=Sanctions%20against%20Global%20Bearing%20suppliers.PDF.
 See Gibson Dunn, 2014 Mid-End Criminal Antitrust and Competition Law Update at III.K.
 See Faaez Samadi, Korean courts put bid riggers in jail, Global Competition Review (Feb. 7, 2014), available at http://globalcompetitionreview.com/news/article/35195/korean-courts-put-bid-riggers-jail/.
 Faaez Samadi, Record fines for Korean railway bid riggers, Global Competition Review (July 30, 2014), available at http://globalcompetitionreview.com/news/article/36516/record-fines-korean-railway-bid-riggers/.
 Press Release, Korea Fair Trade Commission, Bid-Rigging Cartel Detected and Punished in Connection with the Project for Extension of Sluice Gates at Estuary Embankments along Nakdong River (Sept. 29, 2014), available at http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=Bid-rigging%20cartel%20detected%20(Sluice%20gates%20at%20Nakdong%20River)1.PDF.
 Press Release, Korea Fair Trade Commission, Bid-rigging Cartel Detected and Sanctioned in Connection with Section 919 of the Seoul Metro Line 9 Construction Project (Oct. 6, 2014), available at http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=Bid-rigging%20cartel%20(Section919%20of%20the%20Seoul%20Metro%20Line%209%20Construction)1.PDF.
 Press Release, Korea Fair Trade Commission, Exposure of and Sanctions against Bid Rigging in Construction of Pohang Yeongilman Port Counter Facilities (Step 2-1) (Oct. 31, 2014), available at http://eng.ftc.go.kr/bbsadm/download.jsp?file_name1=/files/bbs/2014/&file_name2=Bid%20rigging%20in%20construction%20of%20Pohang%20Yeongilman%20port%20facilities(step%202-1)1.PDF.
 Global Briefing: KFTC loses at Supreme Court over insurance cartel, Global Competition Review (Aug. 15, 2014), available at http://globalcompetitionreview.com/news/article/36648/global-briefing-kftc-loses-supreme-court-insurance-cartel.
 See Gibson Dunn, 2013 Year-End Criminal Antitrust and Competition Law Update at III.P.
 See Seoul High Court (re Allianz), 2013NU45124, Oct. 31, 2014 (S. Kor.); Seoul High Court (re ING), 2013NU45135, Oct. 31, 2014 (S. Kor.).
 Faaez Samadi, Power Companies Win Fine Reduction in Taiwan Energy Cartel, Global Competition Review (July 21, 2014), available at http://globalcompetitionreview.com/news/article/36444/power-companies-win-fine-reduction-taiwan-energy-cartel/.
 Faaez Samadi, Taiwan Court Dismisses Enforcer’s Landmark Energy Case, Global Competition Review (Nov. 4, 2014), available at http://globalcompetitionreview.com/news/article/37188/taiwan-court-dismisses-enforcers-landmark-energy-case/.
 Taiwan FTC Newsletter No.59, Fair Trade Commission (Nov. 11, 2014), available at http://www.ftc.gov.tw/upload/6ab50b4c-8a57-47f9-9ec5-4038268c1997.pdf.
 August, 2014 Decisions, Fair Trade Commission (Aug. 2014), available at http://www.ftc.gov.tw/internet/english/doc/docDetail.aspx?uid=179&docid=13705.
 Joy Chang, Fair Trade Commission Now Officially Investigating Suspected iPhone Cartel, China Post (Oct. 7, 2014), available at https://chinapost.nownews.com/20141007-48329l.
 Capacitor Maker Toshin Confirms Contact from Taiwan, MLex (May 30, 2014), available at http://www.mlex.com/US/Content.aspx?ID=543131.
 Press Release, 294 supermarkets are located in concentrated areas; 83 percent of them belong to the two largest food retail chains, Israel Antitrust Authority (Nov. 26, 2014), available at http://www.antitrust.gov.il/eng/subject/182/item/33413.aspx.
 Airlines involved include price-fixing arrangements between El Al, British Airways, Lufthansa, and Swissair. Tomer Ganon, Consumers will be able to sue cartel caused by price fixing, YNet News (Sept. 9, 2014), available at http://www.ynetnews.com/articles/0,7340,L-4569302,00.html.
 Tomer Ganon, Consumers will be able to sue cartel caused by price fixing, YNet News (Sept. 9, 2014), available at http://www.ynetnews.com/articles/0,7340,L-4569302,00.html.
 Bureau of Economic and Business Affairs, 2014 Investment Climate Statement-Jordan, U.S. Dept. of State (June 2014), available at http://www.state.gov/e/eb/rls/othr/ics/2014/228877.htm.
 Mario Umana, Communication Strategies of Competition Authorities as a Tool for Agency Effectiveness, OECD 15 (Sept. 16, 2014), available at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/LACF%282014%2923&docLanguage=En.
 Fahad al Mukrashi, Oman’s Public Authority for Consumer Protection warns of legal action for tampering with prices of goods, Times of Oman (June 30, 2014), available at http://www.timesofoman.com/News/35965/Article-Omans-Public-Authority-for-Consumer-Protection-warns-of-legal-action-for-tampering-with-prices-of-goods.
 Fahad al Ghadani, Consumer Protection Law to be effective from March 2015 in Oman, Times of Oman (Dec. 2, 2014), available at https://timesofoman.com/article/44075.
 Fahad al Mukrashi, Oman’s Public Authority for Consumer Protection warns of legal action for tampering with prices of goods, Times of Oman (June 30, 2014), available at http://www.timesofoman.com/News/35965/Article-Omans-Public-Authority-for-Consumer-Protection-warns-of-legal-action-for-tampering-with-prices-of-goods.
 Fahad al Ghadani, Companies violating Oman consumer protection laws might be named and shamed under proposed law, Times of Oman (Nov. 19, 2014), available at http://www.timesofoman.com/News/42995/Article-Companies-violating-Oman-consumer-protection-laws-might-be-named-and-shamed-under-proposed-law
 Birturk Aydin, Recent Compliance Updates and Important Investigations in Turkey, Global Compliance News (Sept. 15, 2014), available at https://globalcompliancenews.com/recent-compliance-updates-and-important-investigations-in-turkey/.
 Examples of property that can be confiscated include business property, real property, and negotiable instruments, which are defined under Article 128.
 Examples of surveillance techniques that are covered include, wiretapping, vehicle tracking, and computer monitoring, which are defined under Articles 135 and 140.
 Decision Statistics for the Year 2014, Turkish Competition Authority, available at http://www.rekabet.gov.tr/File/?path=ROOT%2f1%2fDocuments%2fDecision+Stat%2f2014-ilk+3+ay-web.pdf .
 Reasoned Board Decisions, Turkish Competition Authority, available at http://www.rekabet.gov.tr/en-US/Reasoned-Council-Decision-List.
 Competition Authority, CA Suspends Multi-Million Pula Tender on Suspicion of Bid-Rigging, 2 Botswana Competition Bulletin, no. 3, at 1, available at http://www.competitionauthority.co.bw/botswana-competition-bulletin-issue-3-volume-2.
 Competition Authority, Companies Charged with Bid-Rigging Ordered to File their Defence, 2 Botswana Competition Bulletin, no. 6, 2014, at 1, available at http://www.competitionauthority.co.bw/sites/default/files/Botswana%20Competition%20Bulletin%20Issue%206%20Volume%202.pdf.
 Competition Authority, Councils Trained to Detect and prevent Bid-rigging, 2 Botswana Competition Bulletin, no. 5, 2014, at 3, available at http://www.competitionauthority.co.bw/botswana-competition-bulletin-issue-5-volume-2; Competition Authority, Parastatals Trained to Detect and Prevent Bid-Rigging, 2 Botswana Competition Bulletin, no. 4, 2014, available at http://www.competitionauthority.co.bw/botswana-competition-bulletin-issue-4-volume-2; Portia Nkani, 11 Bid Rigging Cases Before CA Since Inception, The Bostwana Gazette (July 17, 2014), available at http://www.gazettebw.com/?p=8370.
 About Us, Competition Authority, http://www.competitionauthority.co.bw/node/1 (last visited January 3, 2014).
 Portia Nkani, Competition Commission, Competition Authority to Separate, The Botswana Gazette (July 10, 2014), available at http://www.gazettebw.com/?p=8331.
 Adam Ihucha, EAC Law to Regulate Trade Coming in Dec, E. Afr., Oct. 25, 2014, available at http://www.theeastafrican.co.ke/business/EAC-law-to-regulate-trade-coming-in-Dec/-/2560/2498844/-/1e2jocz/-/index.html.
 East African Community Competition Act, 2006 §§ 2, 5(2), 37, 42, available at http://www.trade.eac.int/index.php?option=com_docman&task=doc_download&gid=32&Itemid=124.
 Mugambi Mutegi, Cartel Firms Get Amnesty in New CAK Regulation, Bus. Daily Afr., Aug. 25, 2014, available at http://www.businessdailyafrica.com/Corporate-News/Cartel-firms-get-amnesty-in-new-CAK-regulation/-/539550/2429612/-/10y3f08/-/index.html.
 Gibson Dunn, 2014 Mid-Year Criminal Antitrust and Competition Law Update at V.B.
 Eunice Machuhi, Tuskys Files Appeal Against CAK Ruling on Ukwala Buyout, Bus. Daily Afr., Sept. 4, 2014, available at http://www.businessdailyafrica.com/Corporate-News/Tuskys-files-appeal-against-CAK-ruling-on-Ukwala-buyout/-/539550/2441546/-/item/0/-/uoyk9j/-/index.html.
 The Competition Act, (2011) Cap. 504 §§ 71-77 (Kenya), available at https://www.cak.go.ke/images/Competition_Act_No._12_of_2010.pdf.
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 Mugambi Mutegi, Regulator Defends Veto of Tuskys Buyout Bid, Bus. Daily Afr., Nov. 24, 2014, available at http://www.businessdailyafrica.com/Corporate-News/Regulator-defends-veto-of-Tuskys-buyout-bid/-/539550/2532812/-/item/0/-/r6u2on/-/index.html.
 Brian Wasuna, IATA Sues Watchdog on Anti-Competition Claim, Bus. Daily Afr., Oct. 23, 2014, available at http://www.businessdailyafrica.com/IATA-sues-watchdog-on-anti-competition-claim/-/539546/2497358/-/qke0h3/-/index.html; Kamau Muthoni, Global Airlines Regulator Sues Henry Rotich over Ticket Sales Dispute, Standard Digital (Oct. 24, 2014), http://www.standardmedia.co.ke/m/?articleID=2000139255&story_title=Global-airlines-regulator-sues-Rotich-over-ticket-sales-dispute.
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 Malawi to Host Africa Consumer Protection Dialogue Conference, Competition & Fair Trading Commission, http://www.cftc.mw/index.php/2013-12-16-09-56-37/news/77-malawi-to-host-africa-consumer-protection-dialogue (last visited Jan. 7, 2015).
 Press Release, Competition Comm’n of Mauritius, Commissioners Endorse the Recommendations of the Executive Director and Direct Phoenix Beverages Ltd and Stag Beverages Ltd to Pay Financial Penalties of MUR 27 Million for Collusive Behaviour (Aug. 22, 2014), available at http://www.ccm.mu/English/Documents/Investigations/INV027-Media%20Release-Decision.pdf.
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 Orton Kiishweko, Oil Marketers, FCC in Trade Tussle, Daily News, Nov. 11, 2014, available at http://www.dailynews.co.tz/index.php/local-news/38129-oil-marketers-fcc-in-trade-tussle.
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 Press Release, S. Afr. Competition Comm’n, Competition Commission Probes Collusive Conduct in Automotive Industry (Oct. 13, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Competition-Commission-probes-collusive-conduct-in-automotive-industry.pdf.
 Press Release, S. Afr. Competition Comm’n, Competition Commission Raids Precision and Eldan Offices (July 4, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Competition-Commission-raids-Precision-and-Eldan-offices.pdf.
 Press Release, S. Afr. Competition Comm’n, Competition Commission Raids Investchem and Akulu Marchon Offices (Dec. 4, 2014), available at https://www.marketscreener.com/news/South-Africa-Competition-Commission-Competition-Commission-raids-Investchem-and-Akulu-Marchon-offi–19494948/.
 Press Release ,S. Afr. Competition Comm’n, Statement on Competition Commission Meeting of 11 November 2014 (Nov. 12, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Commission-statement-12-Nov-2014.pdf.
 Id.; see also Press Release, S. Afr. Competition Comm’n, 2010 FIFA World Cup Stadia Referral (Nov. 13, 2014), available at http://www.compcom.co.za/media-advisory-13-november-2014-2010-fifa-world-cup-stadia-referral/.
 Press Release, S. Afr. Competition Comm’n, Statement on Competition Commission Meeting of 25 November 2014 (Nov. 27, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Commission-statement-27-Nov-2014.pdf.
 Press Release, S. Afr. Competition Comm’n, Commission Settles with Two Furniture Removal Service Providers (Oct. 9, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Commission-settles-with-two-furniture-removal-service-providers.pdf.
 Press Release, S. Afr. Competition Tribunal, Competition Tribunal Imposes R534 Million Penalty on Sasol for Over Charging (June 5, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Competition-Tribunal-imposes-R534-million-penalty-on-Sasol-for-over-charging.pdf.
 Competition Commission Appoints Spokesperson and Cartels Executive (Aug. 19, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Commission-appoints-Spokesperson-and-Cartels-executive.pdf.
 Minister Patel Appoints Two Deputy Commissioners for the Competition Commission (Oct. 6, 2014), available at http://www.compcom.co.za/wp-content/uploads/2014/09/Minister-Patel-appoints-two-Deputy-Commissioners.pdf.
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