Although some major US Department of Justice (DOJ) investigations are ending, increased international cooperation and new probes confirm expanding cartel enforcement.
As in recent years, competition authorities worldwide continued to aggressively investigate and prosecute cartel activity in 2015. The United States led the way with a total of $3.8 billion in cartel fines. The European Union countries and Japan also garnered significant fines this year, although down from last year. Taiwan imposed its largest criminal antitrust fine ever in 2015: $177 million for a cartel of capacitor manufacturers. Although the longstanding DOJ auto parts investigation is winding down in 2016, the DOJ continues its aggressive cartel enforcement in other industries. The DOJ has already opened new investigations and accelerated other investigations, including in the capacitors, resistors, other electronic components, e-commerce, financial services, and generic pharmaceuticals industries. Other countries continue to investigate and pursue various auto parts companies.
Increasingly more countries are considering whether to criminalize cartel conduct, such as Chile, which is currently debating the ramifications of making cartel violations a crime. Indonesia and New Zealand also considered but ultimately rejected legislation to criminalize cartel conduct in 2015. This trend not only increases the stakes for companies and individuals in the countries that make cartel violations a crime, but also potentially makes extradition a more powerful tool in the DOJ’s cartel-fighting arsenal. Most extradition treaties have a “dual criminality requirement” (i.e., the conduct at issue must constitute a crime both in the extraditing and receiving country). This requirement has posed a challenge to past efforts by the DOJ to prosecute executives located outside the United States. It is probably no coincidence that the DOJ has increasingly stressed the importance of extradition in its cartel enforcement agenda. It is likewise no coincidence that the DOJ is seeking to push the boundaries of its jurisdiction, arguing for the extension of US antitrust laws to cartel conduct outside the United States.
Finally, the United States, Canada, and other countries have underscored in 2015 the importance of effective corporate compliance programs to mitigate criminal cartel liability or, in the case of ineffective compliance programs, to create cartel liability. The United States provided the first fine reductions in cartel cases in 2015 for “effective compliance programs.” Canada and the UK have also recently announced incentives for compliance programs, and others (such as France and Colombia) are also seriously considering them.