DOJ and FTC Issue Updated Antitrust Guidelines for International Enforcement and Cooperation

The Department of Justice (DOJ) and Federal Trade Commission (FTC) issued an updated guide to international antitrust enforcement, last issued in 1995. The guidelines discuss the agencies' international enforcement policy, investigative tools, and cooperation with global antitrust authorities.

Practical Law Antitrust

On January 13, 2017, the DOJ and FTC issued revised Antitrust Guidelines for International Enforcement and Cooperation. The guidelines are an update to those issued in 1995. The guidelines aim to educate businesses operating on an international level on the agencies':

  • International enforcement policy.

  • Foreign investigative tools.

  • Cooperation with foreign authorities.

The updated guidelines now include:

  • A chapter on international cooperation.

  • Examples of the most common issues.

  • An updated discussion of how US antitrust laws apply to conduct involving foreign commerce, including:

    • the Foreign Trade Antitrust Improvements Act (FTAIA);

    • foreign sovereign immunity;

    • foreign sovereign compulsion;

    • the act of state doctrine; and

    • petitioning sovereigns.

 

Application of US Antitrust Law to Conduct Involving Foreign Commerce

The guidelines state that when making investigative and enforcement decisions for foreign anticompetitive conduct, the DOJ and FTC assess whether:

  • The conduct has a substantial and intended effect in the US.

  • US enforcement would provide an adequate remedy to actual or threatened harm to US commerce and consumers.

Conduct Involving Import Commerce

The guidelines clarify that though the Sherman Act and FTC Act regulate commerce with foreign nations, the FTAIA states that trade or commerce with foreign nations, other than import trade or commerce, is beyond the reach of US antitrust statutes, with some effects-based exceptions. The guidelines state that US antitrust laws may regulate import commerce even if:

  • The acting parties do not act as importers.

  • The conduct is not directed specifically or exclusively at import commerce.

  • The import commerce is a relatively small portion of the global commerce involved in the conduct.

Conduct Involving Non-Import Commerce

The guidelines state that, under the FTAIA, non-import foreign commerce, such as export commerce or wholly foreign commerce, is outside the reach of US antitrust laws unless it meets an effects-based exception. Under that exception, non-import foreign commerce may be subject to US antitrust laws if:

  • The conduct has a direct, substantial, and reasonably foreseeable effect on:

    • US commerce;

    • US import commerce; or

    • export commerce of a US exporter.

  • The effect of the conduct gives rise to an antitrust claim.

For more on the FTAIA, including how import and non-import commerce is analyzed under US antitrust laws, see Practice Note, Foreign Trade Antitrust Improvements Act (FTAIA) ( www.practicallaw.com/5-523-8867) .

Conduct Involving US Government Financing or Purchasing

The DOJ and FTC may bring an international enforcement action when the US government purchases or largely funds the purchase of goods or services to be consumed or used abroad, if any related anticompetitive conduct affects US taxpayers.

 

The FTC, DOJ, and Foreign Jurisdictions

When enforcing US antitrust laws, the FTC and DOJ will consider:

  • International comity, including considering:

    • whether anticompetitive conduct had an intended or actual effect on US commerce;

    • the significance and foreseeability of the effect on US commerce:

    • the degree of conflict between US and foreign antitrust laws;

    • how a US enforcement action would affect the foreign jurisdiction; and

    • how effective US enforcement would be compared to foreign enforcement.

  • Foreign government involvement. If a foreign government is involved in anticompetitive conduct, the agencies will consider:

    • foreign sovereign immunity;

    • foreign sovereign compulsion;

    • the act of state doctrine; and

    • petitioning of sovereigns.

For more on foreign government affirmative defenses, see Practice Note, Antitrust Affirmative Defenses: Overview, Cases Involving International Commerce ( www.practicallaw.com/5-616-6893) .

 

International Cooperation

The guidelines state that the DOJ and FTC are committed to cooperating with foreign authorities on:

  • Policy decisions.

  • Investigative matters.

By aligning substantive enforcement standards, international antitrust authorities can:

  • More easily investigate and enforce international anticompetitive conduct.

  • Ensure that remedies are more consistent and predictable.

The DOJ and FTC cooperate with foreign jurisdictions at their own discretion, sometimes facilitated by bilateral or multilateral agreements. The agencies have also developed best practices for specific types of investigations.

When bringing international enforcement actions, the DOJ and FTC will:

  • Use their own investigative tools to request voluntary production of evidence.

  • Work with foreign antitrust authorities to obtain evidence through compulsory measures.

  • Protect confidential information, only disclosing confidential or non-public information for specific purposes. A person may also waive confidentiality protections to enable better international cooperation.

  • Seek appropriate remedies while avoiding conflicts with potential foreign remedies.

International Criminal Investigations

The DOJ is focused on bringing enforcement actions against international price-fixing cartels, which often involves prosecuting foreign defendants and locating foreign evidence. To that end, the DOJ has entered into mutual legal assistance treaties (MLATs) to assist in international cooperation for criminal antitrust enforcement. MLATs help the agencies obtain evidence and serve documents in jurisdictions at the request of other jurisdictions. The DOJ may also:

  • Share information with foreign authorities.

  • Gather information under its Corporate and Individual Leniency Policies for antitrust crimes.

  • Seek the help of foreign jurisdictions to capture indicted fugitives, including by issuing INTERPOL notices.

 
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