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Cartels & Leniency 2019 ICLG The International Comparative Legal Guide to: Cartels & Leniency 2019 12th Edition A practical cross-border insight into cartels and leniency Published by Global Legal Group, with contributions from: AGON PARTNERS King & Wood Mallesons AKD Mamo TCV Advocates Aramis MinterEllisonRuddWatts Arnold & Porter Kaye Scholer LLP ML Abogados Bán, S. Szabó & Partners Morais Leitão, Galvão Teles, Soares da Silva & Borenius Attorneys Ltd Associados, R. L. Cassels Brock & Blackwell LLP Nagashima Ohno & Tsunematsu Crowell & Moring Paul, Weiss, Rifkind, Wharton & Garrison LLP Cyril Amarchand Mangaldas Preslmayr Rechtsanwälte OG Debarliev Dameski & Kelesoska, Attorneys at Law Rahmat Lim & Partners Drew & Napier LLC Shearman & Sterling LLP ELIG Gürkaynak Attorneys-at-Law Skadden, Arps, Slate, Meagher & Flom LLP Hannes Snellman Wilmer Cutler Pickering Hale and Dorr LLP The International Comparative Legal Guide to: Cartels & Leniency 2019 General Chapters: 1 Cartel Updates: Recent Trends in Fine Calculations and Cartel Liability – Elvira Aliende Rodriguez & Geert Goeteyn, Shearman & Sterling LLP 1 2 The Proposed Whistleblowers Directive – Ingrid Vandenborre & Thorsten Goetz, Skadden, Arps, Slate, Meagher & Flom LLP 6 Contributing Editors 3 Navigating the Tensions Between Leniency Cooperation and the Risk of Private Follow-On Geert Goeteyn, Matthew Damage Claims in Cartel Cases – Niels Ersbøll & Jane Wessel, Arnold & Porter Kaye Scholer LLP 12 Readings & Elvira Aliende Rodriguez, Shearman & 4 Disincentives to Leniency: Expect Fewer Golden Eggs if You Harass the Goose – Frédéric Louis, Sterling LLP Wilmer Cutler Pickering Hale and Dorr LLP 18 Sales Director Florjan Osmani Country Question and Answer Chapters: Account Director 5 Australia King & Wood Mallesons: Sharon Henrick & Wayne Leach 23 Oliver Smith Sales Support Manager 6 Austria Preslmayr Rechtsanwälte OG: Dieter Hauck 33 Toni Hayward 7 Belgium Crowell & Moring: Thomas De Meese 40 Sub Editor Oliver Chang 8 Canada Cassels Brock & Blackwell LLP: W. Michael G. Osborne & Chris Hersh 46 Senior Editors Suzie Levy 9 China King & Wood Mallesons: Susan Ning & Kate Peng 53 Caroline Collingwood 10 Ecuador ML Abogados: María Teresa Lara & Ricardo Montalvo 62 CEO Dror Levy 11 European Union Shearman & Sterling LLP: Elvira Aliende Rodriguez & Geert Goeteyn 70 Group Consulting Editor 12 Finland Borenius Attorneys Ltd: Ilkka Aalto-Setälä & Henrik Koivuniemi 80 Alan Falach Publisher 13 France Aramis: Aurélien Condomines & Pierre Galmiche 87 Rory Smith 14 Germany Shearman & Sterling LLP: Mathias Stöcker 94 Published by Global Legal Group Ltd. 15 Hungary Bán, S. Szabó & Partners: Chrysta Bán & Álmos Papp 102 59 Tanner Street London SE1 3PL, UK 16 India Cyril Amarchand Mangaldas: Avaantika Kakkar & Bharat Budholia 109 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 17 Italy Shearman & Sterling LLP: Paolisa Nebbia 116 Email: [email protected] URL: www.glgroup.co.uk 18 Japan Nagashima Ohno & Tsunematsu: Yusuke Kaeriyama & Takayuki Nakata 123 GLG Cover Design 19 Macedonia Debarliev Dameski & Kelesoska, Attorneys at Law: Dragan Dameski & F&F Studio Design Jasmina Ilieva Jovanovik 128 GLG Cover Image Source iStockphoto 20 Malaysia Rahmat Lim & Partners: Raymond Yong & Penny Wong 136 Printed by 21 Malta Mamo TCV Advocates: Annalies Muscat & Laura Spiteri 142 Ashford Colour Press Ltd October 2018 22 Netherlands AKD: Joost Houdijk & Robbert Jaspers 150 Copyright © 2018 23 New Zealand MinterEllisonRuddWatts: Jennifer Hambleton & Alisaundre van Ammers 157 Global Legal Group Ltd. All rights reserved 24 Portugal Morais Leitão, Galvão Teles, Soares da Silva & Associados, R. L.: No photocopying Luís do Nascimento Ferreira & Inês Gouveia 164 ISBN 978-1-912509-39-3 ISSN 1756-1027 25 Singapore Drew & Napier LLC: Chong Kin Lim & Dr. Corinne Chew 176 Strategic Partners 26 Spain King & Wood Mallesons: Ramón García-Gallardo 183 27 Sweden Hannes Snellman: Peter Forsberg & Haris Catovic 199 28 Switzerland AGON PARTNERS: Patrick L. Krauskopf & Fabio Babey 206 29 Turkey ELIG Gürkaynak Attorneys-at-Law: Gönenç Gürkaynak & Öznur İnanılır 212 30 United Kingdom Shearman & Sterling LLP: Matthew Readings & Ruba Noorali 221 31 USA Paul, Weiss, Rifkind, Wharton & Garrison LLP: Charles F. (Rick) Rule & Joseph J. Bial 229 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM Chapter 31 USA Charles F. (Rick) Rule Paul, Weiss, Rifkind, Wharton & Garrison LLP Joseph J. Bial found certain types of agreements to be illegal per se because 1 The Legislative Framework of the Cartel of the harmful effect these arrangements have on competition. Prohibition These agreements include, but are not limited to, price fixing, bid-rigging, and market division. The government has recently shown a willingness to criminalise conduct that 1.1 What is the legal basis and general nature of the previously was pursued civilly. For example, the government cartel prohibition, e.g. is it civil and/or criminal? has stated that it intends to pursue “no-poach” agreements criminally, although it is unclear if the government’s public Corporations and individuals may face both civil and criminal statements adequately put companies and their employees penalties under the United States federal antitrust laws, which on notice of the change. If an agreement is per se illegal, prohibit economic agreements that unreasonably restrain free the defendant is foreclosed from arguing either against trade. Section 1 of the Sherman Act prohibits “[e]very contract, the agreement’s alleged adverse effects on competition or for the agreement’s procompetitive justifications. With combination, in the form of trust or otherwise, or conspiracy, in very few exceptions, per se violations are the subject of restraint of trade of commerce among the several states, or with criminal investigations and prosecutions. Other agreements, foreign nations”. Section 4 of the Clayton Act enables private such as joint ventures or participation in standard-setting parties (including state and local governments) to bring civil actions organisations, that are not per se illegal, are subject to the for damages because of Sherman Act violations. rule of reason. Because of difficulty in proving beyond a reasonable doubt that conduct is unreasonable compared to its procompetitive effects, the Department of Justice (“DOJ”) 1.2 What are the specific substantive provisions for the typically only prosecutes per se violations criminally. cartel prohibition? Effect on Interstate and/or Foreign Commerce. Only agreements that take place in or affect interstate or foreign To convict a defendant for a criminal violation under Section 1, the commerce are subject to federal antitrust laws. The interstate government must prove four elements beyond a reasonable doubt: commerce test is met if products or services related to the (1) an agreement or concerted action; (2) between two or more agreement move across the borders of any state within potential competitors; (3) in an unreasonable restraint of trade; and the United States. The foreign commerce requirement is (4) in or affecting interstate commerce or commerce with foreign described in question 1.6. nations. As stated, the government must prove all four of the above Agreement or Concerted Action. An agreement, defined elements in a criminal prosecution beyond a reasonable doubt. The as an understanding or meeting of the minds between government also must prove that either the agreement itself or an act competitors, is the “essence” of a Sherman Act violation. in furtherance of the agreement occurred within the federal district The agreement does not need to be express or involve overt where the criminal indictment is returned for trial. In a civil case, actions; tacit understandings are sufficient (although still each element must be proven by a preponderance of the evidence. subject to the reasonable doubt standard identified above). Evidence used to prove this element of the offence may include direct evidence such as testimony from participants 1.3 Who enforces the cartel prohibition? or other witnesses and communications with competitors, or circumstantial evidence such as identical bidding behaviour. The Antitrust Division of the DOJ (the “Division”) is the sole Between Competitors. The parties must do business in the enforcer of the antitrust laws with respect to criminal violations same product and geographic market in order to qualify of the cartel prohibition. The Federal Trade Commission (“FTC”) as competitors. Products do not have to be identical to be can challenge certain coordinating conduct pursuant to Section considered part of the same market; a product market consists of all goods or services that buyers view as close substitutes. 1, but if it uncovers evidence of a criminal cartel violation in its To qualify as a competitor, companies do not have to actively investigations, it ordinarily will refer the matter to the Division. In participate in the market, but they must be capable of addition,
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