We are all familiar with the doctrine of “consciousness of guilt” wherein the prosecutor may introduce evidence such as flight or cover-up that permits an inference that the defendant believed he was guilty. But, there is also a less well-known and less widely accepted doctrine of “consciousness of innocence.” [Read more…]
One of the hottest topics in cartel enforcement today is the question of how the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”) limits the extraterritorial reach of the Sherman Act. The FTAIA applies to both governmental and private actions. On June 4, 2014 the Second Circuit offered its views on the subject in Lotes Co., v. Hon Hai Precision Industry, No. 13-2280, slip op. (2d Cir. June 4, 2014).
The Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”), 15 U.S.C. Section 6a, limits the extraterritorial reach of the Sherman Act. The Supreme Court has explained that the FTAIA initially lays down a general rule placing all (nonimport) activity involving foreign commerce outside the Sherman Act’s reach. The FTAIA then brings such conduct back within the Sherman Act’s reach provided that the conduct both (1) sufficiently affects American commerce, i.e., has a “direct, substantial, and reasonably foreseeable effect” on American domestic, import, or (certain) export commerce, and (2) has an effect of a kind that antitrust law considers harmful, i.e., the “effect” must “giv[e] rise to a [Sherman Act] claim.” F. Hoffmann‐La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 162 (2004) (quoting 15 U.S.C. § 6a(1), (2)). [Read more…]
In the last several months, the Antitrust Division has obtained indictments of a number of Japanese executives in the auto parts investigation. This is the hallmark of an investigation that is shifting gears. For the most part, but not entirely, the Division has picked the low hanging fruit with amnesty and non-prosecution agreements. It has shaken a few trees and obtained plea agreements with individuals who received substantially reduced 5K sentences in return for their plea and cooperation. Now begins the phase where individuals are indicted, either because the Division believed they were too senior to offer 5K discounts, the Division no longer needed cooperation, or because the individual declined the invitation to come to the United States and submit to US jurisdiction. Now the investigation enters what could be likened to the “100 Years War,” depending upon the longevity of the fugitive defendant. The hostile parties keep their distance, with an occasional battle fought if there is an extradition or voluntary surrender. [Read more…]
The Antitrust Division recently indicted a Japanese executive in the auto parts industry for agreeing to rig bids and fix prices for heater control panels. Hitoshi Hirano, an executive with Tokai Rika CO. was also charged in a second count with obstruction of justice for attempting to have subordinates destroy documents and delete electronic data when he learned that the company’s US office was being searched. In a press release, Brent Synder, Deputy Assistant Attorney in charge of the Division’s criminal enforcement program said: “Attempts to obstruct justice and destroy evidence will give rise to additional charges.” http://www.justice.gov/atr/public/press_releases/2014/306153.pdf.
It is a good time to review the consequences of destroying documents, an action that almost always makes a bad situation worse. [Read more…]
The Philadelphia Field Office (PFO) of the Antitrust Division, U.S. Department of Justice, was established in 1948 and until its demise in 2013 was one of the premiere and most innovative criminal prosecution offices in the Antitrust Division. The history of the office in many ways tells the history of the development of criminal antitrust enforcement. I was proud to serve with the men and women of that office who took enforcement of the antitrust laws seriously, and had a heck of a good time doing it. [Read more…]
FCPA and Antitrust Compliance Training: Perfect Together
Antitrust compliance programs are the granddaddy of the compliance world. They burst on to the scene in the early 1960’s after the Philadelphia Field Office of the Antitrust Division broke the Great Electrical Equipment Conspiracy. The conspiracy and investigation were featured on the front pages of Time and Fortune magazines, among other major media outlets. Guilty pleas were netted against corporate giants such as General Electric and Westinghouse and executives in the c-suite even served jail terms. At the same time, a plaintiffs’ lawyer, Harold E. Kohn, was developing the class action antitrust suit and sought millions of dollars in damages. Before long, antitrust compliance programs were rolled out to every major company in America. [Read more…]