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If Past is Prologue, Ramped up Antitrust Compliance is Critical

The COVID-19 pandemic has brought not only a healthcare crisis, but also one of the worst economic downturns in history. As businesses emerge from this crisis, there may be increased risk that employees may cross the line and engage in anticompetitive conduct. Therefore, it is critical that companies and individuals prepare now to ensure that antitrust compliance and, if necessary, reporting of conduct through internal hotlines are strongly encouraged. In this article, published on Bloomberg Law, our authors explore the risks associated with antitrust cartel conduct, review enforcement by government authorities following past economic crises, and outline compliance steps companies and individuals should take to minimize enforcement risks. Access the Full Article.

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2019 in Review: Overview of Cartel Investigations

The Department of Justice Antitrust Division (DOJ) was active in 2019. At the beginning of 2019, the DOJ was preparing for trial in six matters and had 91 pending grand jury investigations. Throughout 2019, the DOJ made public several new investigations, including in the commercial flooring industry, online auctions for surplus government equipment, the insulation installation industry and suspension assemblies used in hard disk drives. The DOJ also announced developments in other ongoing investigations. Meanwhile, the European Commission (Commission) entered into settlements with parties in three cartel cases: Occupant Safety Equipment, FOREX and Canned Vegetables. The Commission imposed total fines of €1,469 million in 2019. In March 2019, the Commission launched an online tool to submit documents and information in the context of leniency and settlement proceedings. Read the full report.

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Procurement Collusion Strike Force’s Focus on Detection Yielding New Investigations

On March 3, 2020, the American Bar Association (ABA) hosted a Q&A with two members of the Procurement Collusion Strike Force (PCSF)—Mark Grundvig, the Assistant Chief of the DOJ Antitrust Division’s Criminal II section, and Marcus Mills, Special Agent, Major Fraud Investigations Division, USPS Office of Inspector General. During the course of the Q&A, Mr. Grundvig and Mr. Mills provided their perspective on the goals and progress of the PCSF. WHAT HAPPENED: The PCSF representatives explained that the PCSF is heavily focused on improving detection of per se antitrust violations such as bid-rigging, price-fixing and market-allocation. To improve detection, the PCSF is: Training agents on per se antitrust violations and other anticompetitive conduct to improve agents’ ability to spot antitrust violations; Training industry participants via tradeshows and industry conferences on per se antitrust violations and other anticompetitive conduct to increase...

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Cartel Snapshot: Mid-Year Update

2019 MID-YEAR UPDATE The Department of Justice (DOJ) Antitrust Division announced three new investigations and several developments in its other investigations, including new investigations in the commercial flooring industry, online auctions for surplus government equipment and insulation installation contracts. The Antitrust Division also released its Spring 2019 Division Update, which notes that the Division “is preparing for trial in six matters and had 91 pending grand jury investigations at the close of FY 2018.” In April 2019, the Division held a public roundtable discussion on the Antitrust Criminal Penalty Enhancement & Reform Act (ACPERA), which is due to sunset next year. ACPERA reduces the criminal liability and civil damages exposure of companies and individuals who are granted leniency under the Division’s Leniency Program for cooperating in investigations into cartel and other anticompetitive conduct. The roundtable consisted of a series of...

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Recent Indictments Demonstrate Increased Focus on Bid-Rigging in Government Procurements

Companies involved in the government contracting industry should take note that the government is honing in on anticompetitive conduct affecting government procurements. The federal government has demonstrated an increased interest in this area, and companies should refresh and audit their compliance programs to avoid hefty civil and criminal penalties and potential prison terms for implicated employees. Access the full article.

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Joint FTC / DOJ Guidance: Hurricanes Harvey and Irma

Businesses and individuals in Texas, Florida, the Southeast, Puerto Rico and the Virgin Islands are preparing for a massive recovery and reconstruction effort in the wake of Hurricanes Harvey and Irma. The Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have issued antitrust guidance that reiterates key principles of permissible and impermissible competitor collaboration and provides useful examples related to disaster recovery. As before, the DOJ will criminally prosecute businesses involved in naked price-fixing, bid-rigging, or market-allocation agreements. The FTC and DOJ will investigate and take action against civil violations of the antitrust laws. At the same time, the federal antitrust laws are sufficiently flexible to allow pro-competitive collaborations that benefit consumers as set forth in the FTC/DOJ Antitrust Guidelines for Collaborations Among Competitors. Joint ventures and other collaborations can...

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THE LATEST: Acting AAG Clarifies Scope of Amnesty for Executives

The US Department of Justice (DOJ) Antitrust Division (the Division) offers leniency to the first company to contact the Division and acknowledge participation in an antitrust conspiracy such as price-fixing, bid-rigging or market allocation. The Division’s leniency program requires the applicant to fully cooperate with the government’s investigation and to candidly acknowledge its wrongdoing, among other requirements. In return, the successful applicant receives a pass from corporate criminal exposure and also receives immunity for its officers, directors and executives. The leniency program is the crown jewel of the Division’s enforcement regime because of its demonstrated success generating new cases. The program’s ability to attract applicants is based on its transparency and predictability. The level of trust required for companies to air their criminal wrongdoing to prosecuting authorities is not automatic. It has been earned over the years by a program...

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DOJ and SDNY US Attorney’s Office Indict Three Dealers in Foreign Currency Exchange Spot Market Conspiracy Case

A grand jury has indicted three foreign currency exchange spot market dealers for alleged violations of the Sherman Act, 15 U.S.C. § 1, in a case brought jointly by the DOJ’s Antitrust Division and the US Attorney’s Office for the Southern District of New York (SDNY). The allegations in the case, United States v. Usher, et al., are that the three named defendants conspired to suppress and eliminate competition for the purchase and sale of Euro/US dollar (EUR/USD) currency pairs via price fixing and bid rigging. The foreign currency exchange spot market (the “FX Spot Market”) enables participants to buy and sell currencies at set exchange rates. The FX Spot Market is an “over-the-counter” market conducted via direct customer-to-dealer trades, i.e., without an exchange.  In the market, currencies are traded and priced in pairs, whereby one currency is exchanged for the other.  When filling customer orders, dealers in the FX Spot Market do not serve in a broker...

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THE LATEST: DOJ Trial Machine is Staffed Up, Fired Up

WHAT HAPPENED: The DOJ Antitrust Division scored another trial win -- this time in a real estate foreclosure bid rigging case. Yesterday’s win follows on the heels of Division wins in a Puerto Rico bus transportation bid rigging/fraud case (DC Office, Criminal I), enjoining of a significant merger (DC Office, Lit I), corruption prosecution of an environmental remediator (New York Office), and another real estate auction case (San Francisco Office). WHAT THIS MEANS: The Division is growing a crop of trial-ready and eager attorneys in multiple offices. They can be expected not to shy away from a courtroom challenge.

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Former Toyoda Gosei Executive Pleads Guilty to Price-Fixing, Bid-Rigging

On January 6, 2015, Makoto Horie of Toyoda Gosei North America pled guilty to the United States Department of Justice (DOJ) for conspiring to fix the prices of automotive hoses sold to U.S. companies.  Mr. Horie was sales general manager for Toyoda Gosei in Japan.  He will serve one year and one day in a U.S. prison and pay a $20,000 criminal fine for participating in the conspiracy between March 2007 and September 2010. Toyoda Gosei pled guilty in September 2014 to price-fixing and bid-rigging for automotive hoses, airbags and steering wheels.  Unlike Toyoda Gosei’s plea agreement, Mr. Horie’s Information did not allege any wrongdoing related to automotive airbags or steering wheels.  Including Mr. Horie and his former employer, 29 individuals and 32 companies have now admitted guilt to the DOJ.  These individuals and entities have agreed to pay over $2.4 billion in fines. Mr. Horie’s plea agreement is subject to approval by the United States District Court...

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