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Litigation News and Analysis • Legislation • Regulation • Expert Commentary
Antitrust
Westlaw Journal
VOLUME 22, iSSUE 2 / june 2014
A Roundup of Recent Global Antitrust
Enforcement Conferences
By James R. Nelson, Esq., Eli Burriss, Esq., and Allissa Pollard, Esq.
DLA Piper
The world of antitrust/competition enforce-ment is changing more rapidly than ever. This evolving
environment presents new challenges for companies with multinational operations, their executives
and their advisers.
A company that discovers a potential antitrust violation must consider an array of issues and make
decisions under varied and changing laws in multiple jurisdictions.
Items to consider include the following: where the conduct occurred; whether the conduct is prohibited
in all the relevant jurisdictions; whether executives may be implicated in their personal capacity;
whether applying for leniency is the appropriate course of action; alternatives to applying for leniency;
the risk of not disclosing the conduct in some jurisdictions; and, if applying for leniency, where to apply
and in what sequence.
Three recent conferences discussed developments in these areas.
The American Bar Association and the International Bar Association recently co-sponsored the
10th International Cartel Workshop in Rome from Feb. 19 to 21. Among this year’s attendees were
enforcers from more than 25 countries, including Australia, Brazil, Brussels, Ireland, Japan, South
Korea, Mongolia, Namibia and the United States.
A few days later, the competition committee of the Organization for Economic Cooperation and
Development gathered at OECD headquarters in Paris for its 13th Global Forum on Competition.
Representatives of more than 100 nations attended the event Feb. 27 and 28. Frédéric Jenny,
economics professor at ESSEC Business School, chaired the forum.
The global forum focused on the link between promoting competition and fighting corruption.
It also looked at competition issues in the distribution of pharmaceuticals.
Most recently, the ABA hosted the 62nd Annual Antitrust Law Spring Meeting in Washington from
March 25 to 28. This meeting is one of the preeminent antitrust conferences in the world, and
leading practitioners, enforcers and scholars from around the globe gathered to discuss recent
developments and hot topics in the fields of antitrust, competition and consumer protection.
Although the conferences are designed to analyze competition issues from starkly different
perspectives, common themes emerged: Competition enforcement is becoming a priority even in
emerging economies, existing competition laws are being strengthened, new penalties and causes
of action are being added, and enforcers are becoming more aggressive.
Many of these changes are happening seemingly overnight as companies are expanding into new
markets around the world. This combination presents unique challenges for multinational firms.

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International Cartel Workshop
The International Cartel Workshop uses a unique format to provide attendees with information on
developments in the world of international cartel investigations. Rather than the standard lecture
or panel format, the workshop provides practical advice on how to handle a cartel investigation
and related litigation by creating a hypothetical cartel and, using that scenario, putting on a
number of demonstrations with in-house and outside lawyers, executives, enforcers and judges.
The watchword of the Department of Justice Antitrust Division representatives who attended
the cartel workshop was “leniency.” The DOJ leniency program has been an effective tool for
the division and has been the primary source of information leading to DOJ investigations for
many years.
Perhaps more significant are the developments relating to enforcement efforts by agencies
outside the United States.
A number of enforcement agencies around the world have had leniency programs in place for
several years, but to little or no effect. Many of those agencies are now implementing criminal
penalties,strengtheningcivilpenaltiesandprovidingforprivaterightsofactioninordertoincrease
the efficacy of their competition laws. Anticipating the changes will lead to more applications
for leniency. Enforcers from emerging economies that do not have leniency programs are now
enacting their own, often modeled after the DOJ’s program.
In addition to leniency programs, other trends came to light during the workshop, including:
• An increasing focus on international cartel investigations by enforcers.
• Continuing cooperation among multiple enforcement agencies, such as:
- working together on investigative strategy.
- coordinating the execution of search warrants and dawn raids.
- coordinating witness interviews in some cases.
- information sharing.
• New legislation that includes a private right of action for antitrust violations — although few
jurisdictions are considering class actions or treble damages.
• Some enforcers are expanding their focus to vertical agreements such as resale price
maintenance.
One of the most active and aggressive jurisdictions is Brazil. Brazil passed a new law intended to
rationalize and improve its previous enforcement system in 2011.
The new law provides for both criminal and administrative penalties, and it makes structural
changes to the country’s enforcers, merging its three former authorities into a single and
independent enforcer that kept the name of the former tribunal, the Administrative Council for
Economic Defense, or CADE.
After its restructuring, CADE implemented new regulations intended to bring more predictability
to settlement negotiations.
While changes are afoot, leniency remains a part of Brazil’s enforcement framework and is available
in both criminal and administrative investigations in exchange for full admission and cooperation.
If a company is unable or unwilling to seek leniency, protracted investigations and the ability of
a court to overturn CADE settlements means parties frequently litigate rather than settle. As of
January, only one settlement has occurred under the new CADE procedures.
A company that discovers a
potential antitrust violation
must consider an array of
issues and make decisions
under varied and changing
laws in multiple jurisdictions.

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Emerging economies are not the only ones changing their tactics and strengthening their
arsenals. Later this year, the United Kingdom Competition and Markets Authority, which gained
its full authority under U.K. law April 1, will implement new laws that lower the burden for
establishing criminal liability for individuals involved in anti-competitive agreements.
The changes are designed to amplify the law’s deterrent effect by facilitating an increase in the
number of cartel prosecutions. Dishonesty will no longer be an element of the offense. Instead,
the burden will be on the defendant to establish one of a number of defenses.
Several criticisms have been leveled against the new law, primarily because of the view that the
law is so broadly worded that enforcement will depend on the appropriate use of prosecutorial
discretion.
As with the previous version of the statute, the new law criminalizes activity that does not infringe
on civil competition law. Little has been done to allay concerns that the Competition and Markets
Authority will not prosecute such activity.
The broad new law may also go too far in its effort to make cartel cases easier to prosecute and
may have a significant chilling effect on legitimate contracts.
The actions by Brazil and the U.K. are examples of the types of legislative and enforcement
changes being considered and implemented in markets around the world. Those changes, the
increased activity of enforcers in emerging markets, the increased availability and use of leniency
in a variety of jurisdictions, the distinctions between the standards for and the effect of leniency in
the various jurisdictions, and the variations in standards for violation of the antitrust statutes all
have the potential to create significant complications for a company with multinational operations.
Theexistenceoftheseandothervariablesforcesacompanyconsideringanapplicationforleniency
to make very difficult decisions early in the process that may have far-reaching ramifications.
Global Forum on Competition
A number of the trends discussed at the International Cartel Workshop were also evident at the
Global Forum on Competition, although from a somewhat different perspective.
The forum focused on the interrelationship between competition and corruption. In that regard,
the question was not whether competition should be promoted and protected, but how regulation
of competition affects corruption.
For example, fostering compliance and encouraging voluntary self-disclosure are two key
incentives that, when coupled with an effective competition framework, should both increase
competition and reduce corruption.
Although many countries have enacted or strengthened competition laws over the past several
years, some competition regulation is more effective than others. Efficacy depends on a country’s
level of democracy as well as its independence, efficiency and predictability and the fairness of
the country’s judicial system.
Inevaluatingwhethercompetitionlawsinplaceareeffective,severalfactorsshouldbeconsidered,
including the following:
• To what extent is the competition authority independent?
• To what extent are the decisions of the competition authority transparent?
• To what extent is the competition law decision maker accountable and to whom?
• Are any guidelines or bulletins available to explain to the public how the competition law
system works in that country?
The question at the global
forum was not whether
competition should be
promoted and protected,
but how regulation of
competition affects corruption.

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• To what extent has competition policy been applied to improve the environment in terms of
corruption?
• To what extent has an ineffective competition policy or corrupt agency exacerbated the
corruption problems?
Some competition authorities are generally regarded as effective, but they become impotent
when political power enters the picture. All these factors must be taken into account in deciding
how to proceed in the face of illegal conduct or in defending a multinational investigation.
Once again, there was significant discussion of voluntary self-disclosure and the belief that
leniency for companies that self-report is a powerful instrument for enforcement of antitrust laws
in many jurisdictions.
However, in connection with the discussion of the relationship between competition enforcement
and anti-corruption efforts, it was noted that leniency has not been adopted by authorities to
assist with anti-corruption enforcement and that companies should be rewarded for detecting
and reporting violations of the law, regardless of whether the violations concern antitrust laws.
In this environment, counsel advising or defending a company with multinational operations
needs to know not only the law in the relevant jurisdictions, but also the agencies, the enforcers
and how the agencies and enforcers operate. Such knowledge requires that persons in those
jurisdictions work with the enforcers on a regular basis.
ABA Spring Meeting
Like the other conferences, the ABA Antitrust Law Spring Meeting featured considerable
discussion regarding competition developments in emerging jurisdictions. In particular, enforcers
from emerging markets noted that they expect the trend of increasing global enforcement of
competition laws to continue.
A hot topic at the meeting involved recent changes to competition regulation in Brazil. Brazilian
enforcers discussed the substantial revisions to the country’s competition law and enforcement
structure and stated that 2014 would probably bring many more settlement agreements
under the new CADE procedures — though the details of those pending agreements are still
confidential.
The Competition Commission for the Common Market for Eastern and Southern Africa, which
was established in 2008 and finally became operational in 2013, was also discussed as yet
another emerging regulator focusing on antitrust enforcement.
Leniency programs were also a topic of major discussion. Consistent with the discussions in
the aforementioned conferences, panelists concluded that leniency programs are increasingly
widespread, but they vary greatly in their terms and effectiveness. It was noted, however, that
leniency programs have been effective and continue to become more so; this is contributing to
the global increase in private antitrust actions.
The proliferation of private rights of action, particularly in Europe, was another prevailing
topic. There was considerable discussion regarding the European Commission’s draft directive
reflecting a proposal for legislation to facilitate damages claims by antitrust victims.
The draft directive, which was released June 11, 2013, says, “Member states shall ensure that any
natural or legal person who has suffered harm caused by a formation of competition law is able
to claim and to obtain full compensation for that harm.”
The directive reflected the EC’s view that victims of collusive agreements or abuses of dominant
market position are entitled to compensation for the harm they suffered as a result of such conduct.
Antitrust and competition
compliance is growing
in importance just as it is
becoming increasingly complex.

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In addition, because of shortcomings of the widely varying legal frameworks in member states,
there arose a need for “private enforcement of EU competition rules [that] consists in legal
actions brought before a national court to enforce the rights derived from those rules.”
It is significant that the European Parliament adopted the directiveApril 17 shortly after the Spring
Meeting concluded. The directive has been sent to the EU Council of Ministers for final approval.
In addition, a consumer rights bill that is pending before the U.K. Parliament expands the types of
cases that the U.K. Competition Appeal Tribunal could hear and would allow for collective actions
for competition claims; this would permit potential claimants to “opt out” of a collective action.
Inarelatedvein,therewasconsiderablediscussionregardingtheexponentialgrowthintheamounts
that claimants have recovered worldwide in competition actions, and it was noted that global
recoverieshavebeeninthebillionsofdollarsannuallyforseveralyearsandareprojectedtoexceed
$10 billion globally in the near future.
Together, the cartel workshop, global forum and spring meeting demonstrate that the world of
antitrust and competition enforcement is changing at a rate not seen before. More jurisdictions
are passing antitrust and competition laws, and the potential consequences for companies or
individuals violating those laws are becoming more severe.
Antitrust and competition compliance is growing in importance just as it is becoming increasingly
complex. Enforcers are working together more than ever before while also gaining new and
stronger enforcement tools.
In this multi-faceted and rapidly changing environment, counseling and representing clients with
multinational operations requires not only current knowledge of the laws in multiple jurisdictions
but also, and perhaps more importantly, knowledge of and “on the ground” experience with the
agencies and enforcers in every jurisdiction touched or affected by the client’s operations.
James R. Nelson (L), a partner in the Dallas and Washington offices of DLA Piper, is chairman of the
firm’sTexas litigation practice group. His practice focuses on high-stakes commercial and class-action
litigation, international arbitration, defense against civil and criminal government investigations
and enforcement actions, and internal investigations in the areas of antitrust, securities, trade
secrets and other complex commercial disputes. He can be reached at jr.nelson@dlapiper.com.
Eli Burriss (C) is a partner in the firm’s antitrust and litigation practices. He has represented clients in
an array of critical litigation matters, including complex criminal and civil antitrust cases, government
and internal investigations, Federal Trade Commission and Justice Department enforcement actions,
health care and Employee Retirement Income Security Act litigation, and international arbitrations.
He can be reached at eli.burriss@dlapiper.com. Allissa Pollard (R) is a litigation associate in the
firm’s Houston office. She focuses on complex commercial litigation, including antitrust, contractual
disputes, business torts, product liability and other civil litigation matters. She can be reached at
allissa.pollard@dlapiper.com.
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