Workshop topics

Lessons from the International Cartel Workshop – Cartels, Monopolies

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The ABA and IBA hosted the 2022 International Cartel Workshop in Lisbon, Portugal for three days at the end of June. The biennial workshop is considered the premier international cartel conference and brought together senior members of the private bar and government authorities from around the world, including several members of Winston’s antitrust/competition group.

The workshop provided a unique opportunity for close interaction between private attorneys, in-house counsel and government authorities, centered around a detailed hypothetical multi-jurisdictional investigation involving global companies engaged in conduct raising a variety of nuanced antitrust considerations. Demonstration programs investigated every step of the way, from responding to an initial government raid, to conducting an internal investigation and developing a defense strategy, and negotiating a resolution with law enforcement agencies in the United States and Europe. Speakers performed their usual real-life role – defending or investigating the conduct of a company – all within the context of the hypothetical. For example, Winston Antitrust/Competition Practice Co-Chair Eva Cole, along with litigation attorneys from the U.S. DOJ’s Antitrust Division, presented a mock negotiation aimed at resolving the DOJ’s investigation to determine if a company had entered into anti-competitive agreements with its competitors to restrict hiring. and the poaching of employees between companies.

In addition to demonstrations highlighting best practices around common issues in investigating antitrust practices, the workshop also involved a discussion of the latest law enforcement policies and priorities.

A recurring topic was the current state – and arguably declining effectiveness – of antitrust leniency programs offered by government authorities. Leniency programs aim to disrupt and detect cartels by encouraging participants to report themselves to law enforcement, providing substantial benefits to those who report themselves and cooperate with the government investigation. These benefits vary by jurisdiction and may include immunity from criminal prosecution for the company and individual employees, the elimination or reduction of government fines, and reduced exposure to damages in class and other lawsuits. private civil suits. The US DOJ’s Antitrust Division was the first to adopt a formal leniency program in 1993 and has come to regard it as “the DOJ’s most important investigative tool for detecting cartel activity”. Enforcers in other jurisdictions soon followed with their own leniency programs with varying conditions. These programs have been highly successful from a law enforcement perspective, resulting in decades of global cartel investigations and record fines from the 1990s through the mid-2010s. leniency seem to have decreased both in their frequency and in the magnitude of the behaviors reported. Criminal fines and penalties won by the U.S. DOJ’s Antitrust Division have fallen from their 2015 peak.

While some hope the drop in enforcement reflects companies’ increased compliance with antitrust laws, other panelists expressed concern that antitrust violations still happen, but are now less likely to be reported through a leniency application. Many discussions, formal in panels and informal during breaks and meals, focused on why leniency applications might be down and what could be done to make leniency programs more effective. The discussions highlighted the uncertainties surrounding changes in government policies, including the US DOJ’s recent adoption of the “promptness” requirement for self-reporting after wrongdoing is discovered. ; significant exposure to private damages persists even when government leniency is obtained; the US Department of Justice’s increased focus on prosecuting individual leaders; and the tensions between the desire to punish wrongdoers and the need to provide incentives for those wrongdoers to report themselves. Other comments questioned whether agencies’ efforts to expand the scope of their enforcement — such as emphasizing “poaching-free” labor cases or focusing on the practices of a few tech giants — have hijacked the attention to efforts to continue more traditional practices of price-fixing and bid-rigging. behaviour.

Overall, the workshop reflected how Winston’s antitrust attorneys continuously monitor the changing law enforcement landscape and adapt the advice we give our clients accordingly. In a multi-jurisdictional investigation, clients must play three-dimensional chess, evaluating how an enforcer’s decisions in one jurisdiction may affect outcomes in another jurisdiction or in private litigation years later. Amid changing legislation, government policies and political priorities, the need for expert antitrust advice is greater than ever.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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