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Division Update Spring 2011

International Program

International Cooperation at an All-Time High

Since taking office in 2009, Assistant Attorney General Christine Varney has made international issues a top priority. Together with Rachel Brandenburger, her Special Advisor for International Matters, Assistant Attorney General Varney has strived to more fully integrate the consideration of international issues into the Antitrust Division’s day-to-day case and policy work. This has meant intensifying the Division’s cooperative relationships with other competition agencies and encouraging our staffs to be mindful of the international implications of our actions from the start of an investigation right through the remedial phase. The Division continues to devote more energy and focus to this effort, and at the same time doing so in a way that is respectful and mindful of the concerns and sensitivities of other jurisdictions.

It is safe to say that cooperation with our international counterparts is at an all-time high on enforcement matters. Not a day goes by that the Division is not in close contact with its counterparts all around the world on a variety of matters, including both investigations and policy matters. One of our more notable cooperation successes in 2010 on the civil enforcement side included extensive work with the European Commission (EC) throughout the course of our respective Cisco/Tandberg merger investigations. The Division was in close communication with the EC throughout the course of its investigation. Importantly, the parties as well as third parties facilitated the extensive cooperation that took place between the Division and the EC, which included joint interviews. Ultimately, the Division took into account the commitments that the parties gave to the EC regarding interoperability in concluding the proposed merger was not likely to be anticompetitive. The Cisco/Tandberg experience offers an excellent model for how international cooperation currently is working at the Division and how it should work in today’s world of multiple enforcers.

European Commission/Department of Justice Bilateral Meeting, July 2010. (L-R) Federal Trade Commission Chairman Jon Leibowitz, Assistant Attorney General for Antitrust Christine Varney, and Special International Advisor for Antitrust Rachel Brandenburger.

European Commission/Department of Justice Bilateral Meeting, July 2010. (L-R) Federal Trade Commission Chairman Jon Leibowitz, Assistant Attorney General for Antitrust Christine Varney, and Special International Advisor for Antitrust Rachel Brandenburger.

On the cartel side, cooperation has also never been better. The Division continues to cooperate with our counterparts in Europe, North America, Asia, Australia, and New Zealand, and cooperation is burgeoning with enforcers in South America and Africa. Extensive international cooperation has taken place, for example, in our ongoing auto parts, air transportation, marine hose, and liquid crystal display (LCD) global cartel investigations.

Strengthening Bilateral Relationships

More generally, the Division has also made enhancing its bilateral relationships a high priority. Division officials are in frequent contact with their counterparts exchanging “know how” on particular issues in specific sectors both where the Division has expertise to offer and where the Division can learn from the valuable experiences of others. This occurs both on a day-to-day basis and more formally. By way of the latter example, the Antitrust Division, together with the Federal Trade Commission (FTC), welcomed European Commission Vice President Joaquín Almunia, Director-General Alexander Italianer, and other EC officials to Washington, D.C. during the summer of 2010 for a bilateral discussion on a wide range of issues. Also in 2010, the Antitrust Division was honored to host agency counterparts from Brazil, Canada, China, India, Japan, Mexico, the United Kingdom, and elsewhere for interesting and useful discussions.

Not only has the Division strengthened existing ties with competition agencies, it has also worked hard to establish effective cooperative relationships with new competition agencies across the globe—a necessity in today’s multipolar world of many competition agencies. As such, China and India are important focal points for the Division’s work. It was a great privilege to host a delegation of officials from the Competition Commission of India for training on a wide range of practical enforcement issues last October and for Deputy Assistant Attorney General Scott Hammond to visit India late last year to share his extensive cartel enforcement expertise. These activities followed the merger training that the Division and the FTC jointly conducted in New Delhi in August.

The Antitrust Division’s engagement with China also has been very active. In 2010, the Division, jointly with the FTC, hosted senior officials from all three Chinese antimonopoly agencies, as well as judges from the Supreme People’s Court. The Division also provided comments on proposed regulations and guidelines and participated as instructors in workshops on topics such as merger remedies and the application of antitrust law to intellectual property-related conduct. The Antitrust Division remains active in the Obama Administration’s bilateral initiatives, including the U.S.-China Strategic Economic Dialogue and the Investment Forum. We look forward to another year of fruitful exchanges with our Chinese counterparts.

Multilateral Organizations

The Organisation for Economic Co-operation and Development (OECD) and the International Competition Network (ICN) continue to play an important role in increasing understanding and achieving consensus on important competition policy and enforcement issues around the world.

The Division is closely involved with all aspects of OECD’s competition work. In the fall of 2009, Assistant Attorney General Varney called for a global dialogue on procedural fairness and transparency issues. The OECD Competition Committee’s working party on enforcement and cooperation, which Assistant Attorney General Varney chairs, held two roundtable discussions on those topics in 2010, including a session on agency decision-making and confidentiality issues last June. More generally, the OECD’s Competition Committee addressed a wide range of important issues over the past year, including the use of economic evidence in merger analysis, quantification of harm in antitrust cases, the “regulated conduct” defense, “crisis” cartels, cooperation in cross-border merger review, “creeping” acquisitions, information exchanges, horizontal agreements in the environmental sector, emissions permit trading, arbitration of competition matters, competition and sports leagues, standard setting, and bid rigging. The Division either filed papers or commented actively in each of these discussions.

In October 2011, ICN will mark its 10th anniversary. Created in 2001 following the U.S. International Competition Policy Advisory Committee’s recommendation for a global competition initiative, ICN is a working collaboration of competition enforcement officials from around the world. The Division is very active in the ICN as a member of its Steering Group, co-chair of the Merger Working Group and as an active contributor to all ICN working groups.

The Merger Working Group’s year has been very active, headlined by ICN’s adoption of new recommended practices for merger analysis on market definition and failing firm analysis. The group also organized a workshop on merger policy and procedure in Rome and facilitated substantive dialogue, such as a recent merger teleseminar featuring Deputy Assistant Attorney General Carl Shapiro that highlighted the recently revised U.S. Horizontal Merger Guidelines. The Merger Working Group also carried out a comprehensive assessment of the use of its existing work product and ideas for the group’s future direction as part of the ICN’s strategy review for the path for ICN’s second decade. The Division looks forward to presenting this work at the upcoming annual meeting in May in the Netherlands.

The Division and the FTC also co-hosted a one-day workshop addressing cooperation in merger, unilateral conduct, and cartel matters to deepen the discussion of enforcement cooperation within the ICN.

International Cooperation—Preparing for the Future

Over the past year, both Assistant Attorney General Varney and Special Advisor Rachel Brandenburger have spoken about the importance of charting a course for the future of international competition policy and practice. Recognizing that we now live in a multipolar competition world with roughly 120 agencies enforcing competition laws, Assistant Attorney General Varney has said, “This multitude of agencies and investigations creates both great opportunities and great challenges for us in the future. International cooperation for the next decade and beyond must both take account of, and adapt to, these developments.” Special Advisor Brandenburger has similarly addressed the need for “the expanding antitrust family” to “think carefully and creatively about how to manage the multiplicity of voices and approaches” in today’s multipolar world of many enforcers.

The Division looks forward to advancing its vision in the coming year in the countless, everyday efforts of its staff and in conjunction with the OECD and ICN to turn mindful, respectful, effective, and efficient international competition policy and enforcement into a vibrant reality. To that end, the Division anticipates another year of fruitful multilateral discussions on competition issues, significant opportunities for bilateral cooperation, and frequent coordination on investigations with its ever growing number of counterparts across the globe.

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