International Program Update
Over the past year, the Antitrust Division continued to pursue its many international initiatives, including enforcement and policy cooperation, bilateral and multilateral activities, and technical assistance. These efforts help protect U.S. consumers by strengthening enforcement and promoting international convergence around sound antitrust principles.
International Enforcement Cooperation
International enforcement cooperation is a longtime Division priority. For example, the Division coordinated with several international counterparts, particularly the Japanese Fair Trade Commission (JFTC), in the Division’s ongoing auto parts investigations and prosecutions. To date, those cases have resulted in charges against 28 individuals and 26 companies and more than $2 billion in criminal fines for participation in conspiracies to fix prices of and rig bids on a range of automobile parts, including seat belts, air bags, steering wheels, and antilock brake systems.
The Division also cooperated on merger reviews and civil nonmerger matters—often under waivers from parties and third parties—with non-U.S. antitrust agencies, particularly those in the European Union and Canada. An example is the Division’s recently closed investigation into Samsung Electronics Co. Ltd’s alleged anticompetitive use of its portfolio of standards-essential patents (SEPs)—which Samsung had committed to license to industry participants on fair, reasonable, and nondiscriminatory (F/RAND) terms. The Division’s investigation focused on Samsung’s alleged attempts to harm competition by using its F/RAND-encumbered SEPs to obtain exclusion orders from the U.S. International Trade Commission (ITC) against certain iPhone and iPad models. An exclusion order the ITC issued against Apple to remedy infringement of a Samsung patent was disapproved by the U.S. Trade Representative (USTR) on policy grounds due to its impact on competitive conditions in the U.S. economy and on U.S. consumers. In light of USTR’s action, the Division announced that it was closing its investigation into Samsung’s conduct, but would continue to monitor developments in this area. The European Commission is similarly investigating whether Samsung’s seeking of injunctions against Apple in various member states on the basis of its wireless cellular F/RAND-encumbered SEPs amounts to an abuse of a dominant position prohibited by EU antitrust rules. The Division worked closely and consulted frequently with its colleagues in the European Commission throughout this investigation and noted in its closing statement that “this cooperation underscores the agencies’ common concerns over the potential harm to competition that can result from the anticompetitive use of SEPs.”
In furtherance of international cooperation, in September 2013, the Division and the Federal Trade Commission (FTC) issued a joint model confidentiality waiver for party and third-party companies to use in merger and civil nonmerger matters involving concurrent review by the Division or FTC and non-U.S. competition authorities. The model waiver is designed to streamline the waiver process to significantly lessen the burden on individuals and companies, while reducing the time and resources the agencies spend negotiating waivers.
September 25, 2013
Justice Department and Federal Trade Commission Issue Updated Model Waiver of Confidentiality for International Civil Matters and Accompanying FAQ
Strengthening Bilateral Relationships
In addition to enforcement cooperation, the Antitrust Division continues to foster close bilateral relationships with fellow competition enforcers to facilitate discussions on policy issues, including transparency and procedural fairness concerns.
In September 2013, the Division and the FTC participated in a bilateral meeting with the JFTC in Washington, D.C. Topics included enforcement developments and priorities, competition issues involving regulated industries and SEPs, and international cooperation.
In November 2013, the Division, along with the FTC, participated in the first official bilateral consultation with the Indian Ministry of Corporate Affairs and the Competition Commission of India since the signing of our Memorandum of Understanding (MOU) on Antitrust Cooperation in September 2012. The meeting focused on enforcement priorities and updates, case cooperation, and capacity building.
Similarly, in January 2014, the Division and the FTC participated in a bilateral consultation in Beijing with China’s three antimonopoly agencies—the People’s Republic of China National Development and Reform Commission (NDRC), Ministry of Commerce (MOFCOM), and State Administration for Industry and Commerce (SAIC). This was the second annual high-level joint dialogue held pursuant to the MOU among the U.S. and Chinese agencies. The officials discussed ways to promote competition in a global economy and various aspects of antitrust enforcement.
L-R Chinese National Development and Reform Commission Vice Minister Hu Zucai, Assistant Attorney General for the Department of Justice Antitrust Division Bill Baer, Ministry of Commerce Vice Minister Jiang Zengwei, Federal Trade Commission Chairwoman Edith Ramirez, and State Administration for Industry and Commerce Vice Minister Sun Hongzhi
Engagement with newer competition authorities in China, India, and elsewhere allows the Division to discuss with those authorities the importance of transparency, procedural fairness, and economics-based analysis, to the ultimate benefit of their consumers and ours.
Most recently, in February, Assistant Attorney General Bill Baer and FTC Chairwoman Edith Ramirez participated in a trilateral meeting with the heads of the Canadian Competition Bureau and the Mexican Federal Economic Competition Commission to discuss mutual efforts to ensure continued effective antitrust enforcement cooperation in the three countries’ increasingly interconnected markets. The discussions covered a wide range of topics, including recent enforcement developments, cooperation, and priority setting and efficiency in our resource-constrained environment.
L-R U.S. Federal Trade Commission Chairwoman Edith Ramirez, U.S. Department of Justice Antitrust Division Deputy Assistant Attorney General for Civil Enforcement Leslie Overton, Canadian Competition Bureau Commissioner of Competition John Pecman, and Mexican Federal Competition Commission President Alejandra Palacios Prieto
February 13, 2014
U.S., Canada and Mexico Antitrust Officials Participate in Trilateral Meeting in Washington to Discuss Antitrust Enforcement
The Division also participated this year in conferences and workshops with many other antitrust agencies, including those in Brazil, India, South Korea, and South Africa, and participated in technical assistance programs with a wide range of countries around the world, including Chile, Croatia, the Dominican Republic, the Philippines, Romania, Turkey, and Vietnam. Over the years, our technical assistance programs have allowed us to provide practical advice on a variety of subjects, including drafting antitrust laws, cartel enforcement, merger enforcement, and advocacy.
On the multilateral front, the Antitrust Division is actively engaged in the competition work of the Organisation for Economic Co-operation and Development (OECD), International Competition Network (ICN), and other organizations.
Involvement with the OECD’s Competition Committee has long been a Division priority, and Assistant Attorney General Baer currently is chair of Working Party 3 on enforcement and cooperation. During the past year, OECD Competition Committee meetings covered a variety of projects, including vertical restraints and online sales, the role and measurement of quality in antitrust analysis, the definition of “transaction” for purposes of merger review, the use of screens in detecting cartels, the food-chain industry, remedies in cross-border merger cases, and how to define confidentiality for antitrust purposes. The Antitrust Division has focused particularly on the follow-up to the OECD/ICN survey of current practices and future thinking on international enforcement cooperation, and is working with the OECD to revise the OECD Council’s 1995 Recommendation on this subject.
The Antitrust Division is a founding member of the ICN, a member of the ICN Steering Group, and co-chair of the ICN’s Cartel Working Group (together with the German and Japanese competition agencies). During the past year, the Division has been significantly involved (along with the FTC on noncriminal matters) in numerous ICN projects on a wide range of subjects, including competition assessment, advocacy, predatory pricing, investigative process, digital evidence gathering in cartel cases, and merger cooperation.
Division participation in the meetings of these multilateral organizations enables Division personnel to build and maintain the personal relationships and trust critical for cooperation and for promoting sound antitrust policy, including procedural fairness and transparency.