“I’m going to describe a few areas where international cooperation has made important strides, and a few areas where we believe enforcers should focus their efforts to improve cooperation. I will also identify some areas where antitrust enforcement in the United States is continuing down the familiar path, and a few examples of new initiatives and priorities.
One of the great successes of international antitrust enforcement in the past several decades has been the expanding recognition of the harm that price-fixing cartels do to consumers and to our economies.
As we continue to work with our foreign counterparts to coordinate timing of searches, gather evidence abroad through mutual legal assistance treaties, and extradite individuals who have violated antitrust laws, the ability of cartels to harm consumers shrinks even further.
In today’s global economy, international cooperation is not just helpful, but necessary, to effective antitrust enforcement. The growth of the global supply chain and the rise of virtual transactions mean that cartels are increasingly operating in multiple jurisdictions. Take, for example, our recent international shipping and foreign currency exchange cases. These cartels involved conduct and commerce that crossed geographic borders, and they spurred investigations in multiple jurisdictions worldwide.
But as we look back at the successes of the Division and of our international colleagues in uncovering and punishing global cartels, we can also see opportunities for us to foster even better international cooperation.
Leniency programs are an example of this.
The Antitrust Division’s corporate leniency policy has been an important part of its criminal antitrust enforcement program for 25 years. For it to continue to play this role in the next 25 years, we will have to work internationally to ensure that reporting regimes in various jurisdictions are not so complex that it becomes impossible for a company seeking leniency in multiple jurisdictions to navigate.
When a firm or individual applies for leniency simultaneously across multiple jurisdictions, our international cooperation efforts must consciously try to preserve the applicant’s incentives to cooperate. That includes taking steps to ensure that jurisdictions can effectively proceed with their investigations and prosecutions in a way that does not undermine the common goal of our leniency programs.
We value the dialogue on criminal process with our counterparts abroad and have taken steps to expand that discussion.
Just last month, enforcers from three different continents joined us at the Division as part of a public roundtable on corporate antitrust compliance, representing a range of views and experiences in encouraging effective corporate compliance programs.
In light of the discussions and feedback from the roundtable, we are re-evaluating our policy regarding corporate compliance efforts. That includes carefully examining our policy regarding pre-existing corporate compliance efforts, and what role they should have in our decision making.
I’ll now say a few words about another criminal enforcement priority for the Division. Under AAG Delrahim’s leadership, the Division has been actively pursuing criminal investigations into naked agreements between employers not to recruit or hire each other’s employees.
These agreements, which we often refer to as “no poach” agreements, are simply another form of the per se illegal agreements the Division routinely prosecutes criminally. They eliminate competition in the same irredeemable way as agreements to fix prices or allocate customers. Just like consumers, workers are entitled to a competitive market.
Of course, that does not mean that the Division will bring criminal charges against agreements between competitors that are ancillary to joint ventures or other legitimate collaborations. Those have been, and will continue to be, analyzed under the rule of reason, consistent with the civil doctrine of ancillary restraints. That is also true for a vertical agreement between an employee and an employer that seeks to protect the employer’s trade secrets by prohibiting the employee from taking a job with a competitor. But none of that should be new or surprising to antitrust lawyers familiar with U.S. antitrust law.”
The full speech can be found here.
Thanks for reading.