R&C: Could you provide an overview of the most significant developments seen in global cartel enforcement over the past 12 months or so? In your opinion, has enforcement activity been particularly pronounced during this period?

Everett: Cartel enforcement continues to be a high priority for antitrust enforcement authorities throughout the world. Cartel fines last year topped $7bn globally. One significant development is the continued spread of cartel enforcement across the globe. More and more countries are passing laws outlawing cartels or enforcing existing laws that make such behaviour illegal. This increases the complexity of international cartel investigations and enforcement actions, and creates an imperative for coordination of responses to investigative demands. Another significant development is the criminalisation of cartel conduct. The US has a long history of prosecuting individuals for cartel violations and seeking prison sentences in connection with such prosecutions. Criminal penalties were, however, generally not available in most other jurisdictions. That has started to change, with other major jurisdictions such as the UK, Japan, Korea, Australia and Brazil prosecuting individuals, and others, such as South Africa, recently passing laws that will allow individual criminal penalties to be imposed in the future.

Seebald: The most significant development is the Justice Department’s focus on individual accountability and the application of the Yates memorandum to cartel cases. Over the last few years, the DoJ, in general, has placed a heightened scrutiny on individuals, and the Yates Memo includes six steps to combat individual corporate wrongdoing, which apply in antitrust division investigations. While some of the Yates Memo provisions relate to internal DoJ information sharing and policy regarding prioritisation of the focus on individuals, other provisions set forth requirements for companies vis-à-vis individual wrongdoers that companies must comply with, for example, to obtain cooperation credit. As the Memo specifies, in order for a company to be eligible to receive any cooperation credit, it must provide the DoJ all relevant facts about individuals involved in misconduct. Whereas in the past companies could provide information about culpable individuals after entering into a plea agreement, the new policy, which the antitrust division has adopted, mandates that all such facts be disclosed as a prerequisite to obtaining any cooperation credit. This policy raises a number of considerations for companies that are cooperating with the DoJ in terms of how to interact with potentially culpable individuals.

Jul-Sep 2016 Issue

Davies Ward Phillips & Vineberg LLP

Morgan Lewis

Skadden, Arps, Slate, Meagher & Flom LLP

Vinson & Elkins LLP