Morgan Lewis Mid-Year Global Cartel Report: Fines Down in US; Soar in EU and Asia

September 12, 2016

Cartel enforcement activity promises to remain busy in the coming months and into 2017, according to our 2016 Mid-Year Global Cartel Report. Fines in the United States were lower for the first part of the year than during the same period in 2015, while very large fines were imposed in the European Union, India, and Korea. For example, during the first six months of 2016, the European Commission imposed its largest ever fine—nearly €3 billion ($3.3 billion)—on truck manufacturers. Meanwhile, India imposed fines totaling Rs 6700 crores ($1 billion) on cement manufacturers, and Korea imposed fines of 352 billion won ($321 million) on 13 companies involved in bidding for contracts to build liquefied natural gas tanks.

Mid-Year 2016 Cartel Fines

Active enforcement in Asia, a focus on domestic cartels, and further criminalization of cartel conduct are among the trends highlighted in the 2016 Mid-Year Global Cartel Report, with the US Department of Justice (DOJ) promising to bring more antitrust trials domestically, forge closer ties with international enforcement authorities, and pursue extraditions aggressively.

The report also offers an analysis of recent DOJ antitrust compliance guidance on having criminal fines reduced in consideration of effective compliance programs, including a discussion of the Individual Accountability Policy (often referred to as the “Yates memo”) outlining the six key steps implemented to strengthen the DOJ’s pursuit of individual wrongdoing and give credit for corporate cooperation.

Individual Accountability Policy (Yates Memo)

Six Key Steps

1. To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.

2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation.

3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another.

4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.

5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires, and declinations as to individuals in such cases must be memorialized.

6. Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.

Read the in-depth analysis in our 2016 Mid-Year Global Cartel Enforcement Report, produced by partners on our antitrust team.

Morgan Lewis has acted as US, European, and global coordinating counsel for multinational corporations in virtually every major global cartel investigation of the last 20 years, guiding clients through every stage of the US cartel litigation process, from initial investigation through final resolution. Our antitrust lawyers have coordinated multijurisdictional cartel investigations and civil litigation, and have defended some of the world’s largest corporations in high-stakes treble damages class actions involving alleged price-fixing and other misconduct.

We assist clients in establishing compliance programs to prevent or detect potential cartel conduct that may result in substantial criminal liability. We also help design compliance programs consistent with recent DOJ compliance standards.

Our team includes a number of former senior enforcement officials, including an assistant chief, senior trial attorney, and chief of staff with the DOJ’s Antitrust Division, a US attorney for the District of Delaware, and a White House counsel. Also among our colleagues are lawyers who previously served as prosecutors with the DOJ, including partners who have direct experience prosecuting cartel matters.