On April 27, 2016 Hitachi Chemical was charged by the Antitrust Division in a one count Information alleging that the company (through predecessor companies) engaged in a conspiracy to fix prices and rig bids of certain electrolytic capacitors in the United States and elsewhere. On May 13, 2016, the government filed a “Sentencing Memorandum, Motion for Departure and Request for Expedited Sentencing.” The plea agreement was attached to the filing. There are several interesting features of the Information and the plea agreement. The plea agreement calls for a fine of $3.8 million, which was based on a downward departure for substantial assistance. Hitachi’s guidelines range was between $3.96 million and $7.92 based on a volume of commerce $16.5 million. My first post on this plea agreement (here) discussed the most noteworthy provision of the agreement; the agreement that Hitachi Chemical and the government will jointly recommend that the Court sentence Hitachi Chemical to a three-year term of probation. There are a couple of other provisions of the plea agreement that are worth noting and discussed below. [Read more…]
There were two items of interest in the auction collusion world last week. First, the Antitrust Division concluded its long running (it’s really not necessary to modify “antitrust investigation” with “long running”–just habit) tax lien auction collusion investigation last week with the sentencing of Robert E. Rothman. Mr. Rothman was an early cooperator in the investigation. He entered into a plea agreement in March 2012. Rothman was sentenced to probation and a $20,000 fine by U.S. District Judge Susan D. Wigenton of the District of New Jersey.
On March 29, 2016 James Jeffers Jr., a former bidder for a Pennsylvania tax liens investment company was sentenced by Judge Wigenton to serve a prison term of 12 months and one day and pay a $25,000 criminal fine. Jeffers was convicted by a jury on Oct. 2, 2015 on auction collusion charges after a multi-week criminal trial. I believe, but am not sure, that Jeffers was the only individual in the tax lien auction collusion case to be sentenced to jail. In its press release regarding Jeffers sentencing, the Division said: “Including Jeffers, a total of thirteen individuals and three companies have been convicted or have pleaded guilty as part of the investigation.” The press release doesn’t mention any previous sentences that included incarceration, but if anyone knows that there was, please comment. [Read more…]
On April 27, 2016 Hitachi Chemical Co., Ltd. was charged by the Antitrust Division in a one-count Information alleging that the company (through predecessor companies) engaged in a conspiracy to fix prices and rig bids of certain electrolytic capacitors in the United States and elsewhere beginning at least as early as August 2002 and continuing until at least as late as March 2010. On May 13, 2016, the government filed a “Sentencing Memorandum, Motion for Departure and Request for Expedited Sentencing.” The plea agreement with Hitachi Chemical was filed as an attachment. There are several interesting features of the Information and the plea agreement. The plea agreement calls for a fine of $3.8 million, which was based on a downward departure for substantial assistance. Hitachi’s guidelines range fine was between $3.96 million and $7.92 based on a volume of commerce $16.5 million. Without the downward departure for substantial assistance, the parties agreed that Hitachi’s fine should have been $5.1 million. [Read more…]
I wanted to pass on some information about another great ABA Antitrust Section program “Antitrust In Asia.” The program is in Hong Kong, China on June 2-3, 2016, but early registration savings end on May 12. The faculty includes enforcers from China, Competition Commission of Hong Kong, Competition Commission of India, Japan Fair Trade Commission, Korea Fair Trade Commission, Competition Commission of Singapore, and the U.S. DOJ & FTC. [Read more…]
On April 5, 2016 the Department of Justice held a press conference to announce a “new” program involving enforcement of the Foreign Corrupt Practices Act (FCPA)(press release here). The program, generally referred to as the Pilot Program, is outlined in a document released by the Fraud Section of the Criminal Division of DOJ entitled: “The Fraud Section’s Foreign Corrupt Practices Act Enforcement Plan and Guidance. The Guidance memo more fully lays out the specifics of this Pilot Program and provides more background and information for the defense/compliance community. The Pilot Program follows on the heels of the requirements detailed in the Deputy Attorney General’s Individual Accountability memorandum issued last September, popularly known as the Yates memo. [Read more…]
A few weeks ago, Professor Joseph Harrington of the University of Pennsylvania, whose work on cartel economics I first mentioned in another Cartel Capers post, kindly reached out and invited me to make a presentation on cartel issues (discussed here) at the 2016 CRESSE conference on “Advances in the Analysis of Competition Policy and Regulation (here).” I unfortunately cannot participate for both personal and work-related reasons. But it occurred to me that the readers of Cartel Capers may be interested in learning about this and other exciting events at CRESSE this summer. In addition to the 3-day conference, CRESSE also offers 2-week 7-module summer school on competition policy and regulation (here). These modules cover a wide range of antitrust economics, including discussions of industry economics and game theory, market dominance, cartels, mergers, IP, and competition policy and regulation. The detailed schedule can be found here. [Read more…]
Below is a guest post by my friend, Osayomwanbor Bob Enofe, Sutherland School of Law Doctoral Scholar, UCD.
The Federal Republic of Nigeria is currently in the process of enacting a competition law, including to criminalise cartel activity amongst competitors. While such is in line with moves made by various other jurisdictions and theories of ‘rational actor’, sanction and deterrence, on ground realities suggest that criminalisation where transplanted might be seriously flawed.
Last week I attended at the ABA Antitrust Spring meeting, which is the highlight of the year for many in the antitrust bar. Excellent panels, renewing old friendships and making new ones, and open bars at the many receptions– what’s not to like. One program that is always my favorite is the Chair’s Showcase. This year the topic was the Per Se rule. Roxann Henry was the Chair and the stellar panelists were Seth Waxman, Stephen Calkins, Carl Shapiro, and Hillary Greene. The program was a high-level discussion of the history of the per se rule, the contours of the per se rule, and suggestions for possible changes to the rule. I won’t try to recount the whole session. But one part of the discussion focused on how to define hard-core per se behavior—you know, the kind that can land you in jail in the United States, even if you’re price fixing meeting was in Fiji. There was some discussion of whether an agreement can be hard-core if there are pro-competitive effects such as efficiencies and innovation. Is it hard-core per se if there are any vertical aspect to the agreement? There was no easy satisfactory answer, which raised the question, if it is difficult to define hard-core, how do you counsel clients? [Read more…]
The Antitrust Division published its annual Spring Newsletter in connection with the ABA Antitrust Spring Meeting. The newsletter can be found here. The newsletter covers highlights of all the Division’s major activities including criminal enforcement. One highlight of the newsletter is the Division’s charts on criminal enforcement, including number of cases files, fines and average jail sentences. These charts (here) often find their way into compliance or other presentations.
Also in the newsletter is a short YouTube video of Bill Baer speaking about the highlights of the past year. Mr. Baer was recently elevated from his position as head of the Antitrust Division to Acting Associate Attorney General, the number three post in the Department of Justice. Not much is expected to change at the Division, however, as Mr. Baer will still supervise the Antitrust Division in his new role. Additionally, Renata Hesse, a current deputy at the Division, will assume the role of Acting Assistant Attorney General for the Antitrust Division. Ms. Hesse has held many senior positions in the Antitrust Division, including a previous stint as Acting Assistant Attorney General.
Thanks for reading.
If you are going to be in DC for the ABA Antitrust Spring Meeting, or just in the DC area, I am reposting information about a program on April 5, 2016 that I will be participating in.
I will be moderating a panel at a GCR Live Cartels conference sponsored by Global Competition Review on Tuesday, 5 April at One CityCenter, Washington D.C. My panel is titled: The U.S. Antitrust Sentencing Guidelines: Too Harsh, Too Lenient, or Just About Right? The panel is part of a one-day event, co-chaired by Phillip Warren, Covington & Burling, and Dennis Carlton, Compass Lexecon will bring together leading private practitioners, corporate counsel and governmental representatives to discuss a variety of topics at the forefront of antitrust law.
Three of my co-panelists are people I know well and who have a great deal of experience with antitrust sentencing and the sentencing guidelines. They are John Connor [Expert Economist at OnPoint Analytics, Inc.]; Megan Dixon [Partner, Hogan Lovells] and Jeffrey Martino, Chief of the Antitrust Division’s New York Field Office. And, we are fortunate that Alan Dorhoffer, Deputy Director, Office of Education for the United States Sentencing Commission will be joining us.
Antitrust sentencing guideline reform has been a major interest of mine. I’ve written about it several times (here) (here) and have submitted comments to the Sentencing Commission (here). Some of the issues I expect we will be discussing/debating are: [Read more…]