Can International Comity Considerations Stop a US Antitrust Prosecution?

Posted by The New York Law Journal

Can International Comity Considerations Stop a US Antitrust Prosecution?

By Philip C. Patterson and Vera M. Kachnowski

As with other types of cross-border investigations, antitrust issues attract the interest of regulators around the globe, and US authorities are active in matters involving foreign players. Last January, the Federal Trade Commission and the Department of Justice jointly issued revised guidelines discussing their tools for collaborating with foreign authorities and the application of US antitrust law to conduct involving foreign commerce. See Antitrust Guidelines for International Enforcement and Cooperation (Jan. 13, 2017) (guidelines). Among other factors, the guidelines note that these agencies consider international comity when enforcing federal antitrust laws. But how far does that comity consideration actually go for an individual subject to global antitrust scrutiny?

In United States v. Usher, 17-CR-00019 (RMB) (Usher), three criminal antitrust defendants recently broached this question in connection with their prosecution in the Southern District of New York for allegedly coordinating trading in the Euro/US Dollar currency exchange market. The defendants, all former foreign currency traders, were citizens and residents of the United Kingdom, who worked at London banks, with customers in Europe. Before being charged in the United States, the Serious Fraud Office (SFO) in the UK conducted an 18-month investigation of the