Yesterday I had the good fortune to attend the 8^th Annual Georgetown University Law Center Global Antitrust Enforcement Symposium. I was invited to attend by Bates White, a leading economic consulting firm. Bates White is a sponsor of the program. The agenda covered all areas of antitrust enforcement including merger enforcement, abuse of dominance and IP and high-tech issues. But in keeping with the theme of this blog, I’d like to comment on the star of the program—Cartel Enforcement—”the supreme evil of antitrust.”

Bill Baer, Assistant Attorney General for the Antitrust Division was the keynote speaker. Baer focused his remarks completely on cartel enforcement. A copy of his speech is available here.

Compliance was in the air. Both Baer, and another Antitrust Division leader, Brent Snyder, Deputy Assistant Attorney General for Criminal Enforcement, emphasized the need for corporations to have strong and effective compliance programs. Baer pointed out that the average jail term for an individual convicted of price fixing or bid rigging is now at 25 months.   And, courts have fined corporations as much as $1.4 billion in a single year. Baer emphasized, “effective compliance programs minimize the chance that companies will conspire to fix prices. And they maximize the chance for a company guilty of price fixing to find out about the conspiracy early enough to qualify for corporate leniency or otherwise cooperate with our investigation.”   [Read more…]

I’m pleased to announce my role as an Antitrust Ambassador for Emtrain — a leading provider of modern ethics & compliance training. I will be partnering with my friend Jared Bona, The Antitrust Attorney, to create an engaging antitrust compliance program for Emtrain.

Jarod and I are joining a distinguished team of experienced practitioners, including Mike Koehler (FCPA), Sally March (Corporate Compliance & Ethics), Chris MacDonald (Business Ethics), and Timothy Crudo (Governance and Insider Trading).

Here’s a recent thought leadership clip I created with the Emtrain team in San Francisco. Click here to watch the video and please let me know what you think.

Speaking to a camera was much different than speaking to a jury, and in some ways more difficult.  Fortunately, with the benefit of multiple takes, I was able to avoid reversible error.

Also, by happy coincidence, I am a speaking at the SCCE Compliance Conference in Chicago on September 15, 2015 on a panel titled “Global Antitrust Compliance and Risk—Creating an Effective Program.”

Emtrain has an information booth at the conference and I’ll be there hoping to talk some competition law (or football) to any willing partners. If you are at the conference, please stop by and say hello at booth #96.  I’m looking forward to meeting you.

The 2014 Compliance & Ethics Institute conference is at the Hyatt Regency Chicago, September 14-17, 2014.

 

In Dahl v. Bain Capital Partners, LLC., former shareholders of companies purchased through leveraged buyouts alleged a per se violation on the part of Carlyle Group, Goldman Sachs, Blackstone and others by conspiring to fix the prices paid in leveraged buyouts. The defendants were accused of conspiring to suppress takeover prices by establishing “club rules” which kept the firms from outbidding each other once buyouts were made public. 937 F. Supp. 2d 119, 124 (D. Mass. 2013)(“Plaintiffs contend that defendants understood that, by working together, they could suppress competition and avoid another price escalation.”).  The Carlyle Group was the last defendant to settle this class action–for a reported $115 million.   In August, Blackstone Group LP, KKR & Co LP and TPG Capital LP disclosed in a court filing they agreed to pay $325 million to settle the lawsuit. Prior to that, Silver Lake Partners LP settled with the plaintiffs for $29.5 million. Goldman Sachs and Bain Capital Partners LLC settled for $67 million and $54 million, respectively (here).  The firms faced up to $36 billion in liabilities if potential damages were trebled under the Sherman Act.

The case helps re-learn some lessons about cooperation among buyers: it can be a per se violation; legitimate joint ventures can easily slide into buyer collusion, experienced antitrust counseling pays, and private plaintiffs negotiate much like the DOJ.   [Read more…]

Last week, China’s National Development and Reform Commission (NDRC) imposed its first fines in the worldwide auto parts investigation. Eight Japanese auto parts companies and four Japanese bearing makers were fined a cumulative total of just over $200 million. In a related development, Batman and Robin announced that they have directed Alfred to determine whether the Batmobile contains any of the price-rigged parts.

OK, maybe that is a little far-fetched, but the point is that cartel enforcement has clearly become a worldwide event. With China pulling up a seat at the table, the risks have never been higher for would be cartelists. “This sends a warning to companies engaging in global price-fixing that they should beware of China,” said Chen Danzhou, a lecturer specializing in anti-monopoly law at the University of International Business and Economics in Beijing. “The government is getting more aggressive as it tries to make a structural adjustment to the market.” (Bloomberg)   China had also recently fined 6 companies from South Korea and Taiwan $56 million for participation in the LCD panel cartel.

The Antitrust Division coordinated the auto parts investigation with the Japanese Fair Trade Commission, the European Commission, Canadian Competition Bureau, Korean Fair Trade Commission, Mexican Federal Economic Competition Commission and Australian Competition and Consumer Commission. What this usually means, at a minimum, is that the agencies coordinate timing of search warrants, dawn raids, inspections or wherever term is used to pay an unscheduled visit on businesses (and in some cases executives’ homes) to seize paper and electronic documents. The coordination minimizes the ability of subjects to clean house before the guests arrive. China did not participate it the auto parts coordination kickoff, but followed on as other nations brought cases.   But, China is thought to have cooperated with the DOJ, European Union Japanese, Korean and Taiwan Fair Trade Commission, (JFTC, KFTC, TFTC, respectively) in launching the recent investigation of the global capacitors industry. [Read more…]

In its first Munibonds trial in 2012, the Antitrust Division convicted three former General Electric executives for rigging bids to suppress interest rates paid to municipalities on funds they raised through bonds and then invested in guaranteed investment contracts until such time as the funds were needed.  The indictment charged that the interest rates were rigged on investment agreements ranging “from as short as one month to as long as thirty years.” The three defendants were in jail when the Second Circuit reversed their conviction in a split vote (2-1) on November 26 on statute of limitations grounds. An opinion followed: United States v. Grimm, 738 F.3d 498 (2d Cir 2013).  The Antitrust Division sought an en banc hearing, which was denied last Friday in an 8-4 vote.

The case raised the statute of limitations issue because the Antitrust Division was relying on what is often called the “payments theory.” In a road construction case, for example, the bid may be rigged on Day 1 but the indictment returned outside the Sherman Act statute of limitations of five years.  The payments on the rigged contract, however, are considered overt acts in furtherance of the conspiracy because the object of the conspiracy is to be paid at the rigged, inflated price. Therefore the statute does not begin to run until the winning conspirator has received its last payment on the rigged contract.  Six circuits have endorsed the payments theory and held that conspiracies did not end when the rigged contract was obtained but continued as long as a conspirator made or received a contractual payment. United States v. Anderson, 326 F.3d 1319, 1328 (11th Cir. 2003); United States v. Evans & Assocs. Constr. Co., 839 F.2d 656, 661 (10th Cir. 1988); United States v. N. Improvement Co., 814 F.2d 540, 542 (8th Cir. 1987); United States v. A-A-A Elec. Co., Inc., 788 F.2d 242, 245 (4th Cir. 1986); United States v. Girard, 744 F.2d 1170, 1172-74 (5th Cir. 1984); United States v. Walker, 653 F.2d 1343, 1346-49 (9th Cir. 1981).

The government relied on the payments theory in Grimm. The applicable statutes of limitations were: five years for general fraud, and six years for conspiracy to defraud the United States by violating the internal revenue laws. The overt acts in question were the payments made by GE to the municipalities at suppressed interest rates. Each time such a payment was made the statute of limitations restarted. The government argued that this case fell within the payment theory as set forth in the Second Circuit in United States v. Salmonese, 352 F. 3d 608 (2d Cir. 2003). In Salmonese the Court held that a conspirator’s receipt of anticipated profits from the sale of stripped warrants constituted an “overt act in furtherance of an economically-motivated conspiracy.” 352 F.3d at 616. The Court, in accord with other circuits stated, “where a conspiracy’s purpose is economic enrichment, the jointly undertaken scheme continues through the conspirators’ receipt of ‘their anticipated economic benefits.’” Id. at 615. [Read more…]

Last Friday Judge Lucy H. Koh issued an unusual ruling in a somewhat unusual case.  The ruling was unusual in that the court rejected a proposed settlement in the hi-tech wage collusion class action case.  Judge Koh denied a request to preliminarily approve a $324.5 million deal to end the antitrust class action against Google Inc., Apple Inc., Intel Corp. and Adobe Systems Inc.  The suit alleged the companies agreed to not compete for each others’ high-tech employees such as software engineers and computer scientists. The court found the proposed settlement too low and indicated it should be at least $55 million more.  The civil case followed a similar suit by the Antitrust Division charging a per se violation for agreeing not to compete, but the Division’s case was brought as a civil action.

Judge Koh was troubled by the fact that the settlement called for disproportionately less from the defendants than settlements reached earlier with Intuit Inc., Lucasfilm Ltd. and Pixar Animation Studios Inc. This didn’t seem right to the court because the $324.5 agreement was reached after the court had granted class certification, which should have upped the ante for the hold out defendants.  The court explained: “Counsel’s sole explanation for this reduced figure is that there are weaknesses in plaintiffs’ case such that the class faces a substantial risk of non-recovery.  However, that risk existed and was even greater when plaintiffs settled with the settled defendants a year ago, when class certification had been denied.”  More details about the case and settlement rejection can be found here:  (NY Times); here (WSJ); and here (Reuters).

The Class Action Followed USDOJ Antitrust Division’s Earlier Civil Suits

The plaintiffs’ case followed a civil lawsuit filed by the Antitrust Division in 2011 that was settled by consent decree   The defendants were perhaps fortunate that the Division chose to proceed civilly for collusion that in other contexts might have resulted in criminal prosecutions. The complaint charged a per se violation of the Sherman Act stating: “These no cold call agreements are facially anticompetitive because they eliminated a significant form of competition to attract high-tech employees, and, overall, substantially diminished competition to the detriment of the affected employees who were likely deprived of competitively important information and access to better job opportunities.” One example from the complaint of the agreements reached is the Apple-Google agreement:

 17. Beginning no later than 2006, Apple and Google agreed not to cold call each other’s employees. Senior executives at Apple and Google reached an express no cold call agreement through direct and explicit communications. The executives actively managed and enforced the agreement through direct communications.

18. The Apple-Google agreement covered all Google and all Apple employees and was not limited by geography, job function, product group, or time period. Moreover, employees were not informed of and did not agree to this restriction.

[Read more…]

I’ve posted recently on my concerns with the Antitrust Sentencing Guidelines (2R1.1) as they relate to individual defendants (here).  Other submissions have been made to the Commission by people/institutions with great insight and influence in the cartel arena.  I’ve summarized a few of these below.

A. Department of Justice 

The Department of Justice, Criminal Division, in its annual report to the Sentencing Commission included a section on the Antitrust Offenses guideline (2R1.1)(here see pps. 24-25).  The DOJ believes the current guidelines are sufficient and provide the transparency and the flexibility to properly deter cartel behavior and other criminal antitrust offenses. David Baumann, who reports on cartel matters for PaRR, (Policy and Regulatory Report)(http://www.parr-global.com) wrote the following summary which he kindly allowed me to reprint:   [Read more…]

The United States Sentencing Commission posted a notice soliciting comments for possible revisions to USSG 2R1.1 (Antitrust Offenses) to be submitted by July 29th.  I have posted about this previously. (here)(here).  This week I submitted my comments to the Commission.  I limited my comments to my concerns over the guidelines as they apply to individual defendants.  My basic concern is that the volume of commerce is a poor measure of an individual defendant’s culpability, yet it is the primary driver of the offense level.  More specifically, my comments set forth my three primary concerns with the antitrust guidelines as applied to individuals: 1) that the maximum prison sentence of 10 years under the Sherman Act should be reserved for the most egregious cases such as recidivism or explicit economic coercion; 2) that the volume of commerce be de-emphasized as the primary determinant of an individuals’ culpability and be applied only for defendants who had the authority to commit their company to the cartel; and 3) that other factors that more accurately reflect culpability (such as motive) play a role in guidelines calculation.

I also discuss how the Antitrust Division has changed its investigative strategy from “Big Fish/Little Fish” to a “Race to the Courthouse.” This strategy, while successful on one level, has highlighted the inequity of the guidelines of relying principally on volume of commerce to determine an individuals’ recommended guideline sentence. The letter also explains how the failure of the guidelines to reflect an individual’s culpability has led Courts to nearly uniformly depart from imposing a  guidelines sentence, even when recommended by the prosecutors.

Finally, the letter asks the Commission to consider my suggested antitrust guideline reforms that I believe will better reflect an individual’s personal culpability.  While I have opinions based on my many years of prosecuting antitrust crimes, I certainly don’t have all the answers. My hope is to contribute to an informed discussion of how the antitrust sentencing guidelines can be amended to punish based on relative individual culpability and also best serve the purpose of general deterrence of price-fixing and bid rigging.

A complete copy of my letter to the Sentencing Commission can be found here.  Or, email me and I would be happy to send you a copy.

Thanks for reading!

 

Earlier this year, the Division had its first trial in its ongoing real estate foreclosure auction bid rigging investigation. Three defendants, two real estate investors and an auctioneer, were indicted for bid rigging and mail fraud. The trial lasted four weeks. The auctioneer was acquitted. The other two defendants were acquitted of the fraud charges, but convicted of the Sherman Act violation. The jury also convicted one defendant, Andrew Katakis, of obstruction of justice.   Katakis was charged with destroying electronic records (emails) related to the conspiracy. The trial judge, however, overturned the obstruction conviction for lack of evidence. [Read more…]

Mark Whitacre was the former Archer Daniels Midland (ADM) executive who blew the whistle on the international lysine price-fixing conspiracy of the early 1990’s. He is the highest ranking Fortune 500 executive to become an FBI whistleblower.  Whitacre’s actions launched the age of international price-fixing prosecutions that dominate cartel enforcement to this day. Mr. Whitacre has written an essay, “When Good Leaders Lose Their Way,” 45 Loy. U. Chi. L.J. 525 (2014), that recounts how he became involved in the conspiracy; why he decided to confess to the FBI; his two year saga as an FBI uncover operative across the globe; his decision to embezzle $9.5 million from ADM (his “self-help” severance pay); his resulting ten-year prison sentence; and how he landed on his feet today as the COO of a biotech company with his family intact.  Whitacre’s journey illustrates how a serious antitrust and ethics compliance program may have prevented a journey of  misery for him and his company.   [Read more…]