In this issue:
If there’s one topic that never gets stale in antitrust, it’s cartels. With the help of guest editor Rein Wesseling, we’re taking a look at the current state of cartel enforcement, in particular leniency programs. Is their early success threatened by new roadblocks, including conflicts with enforcing individual criminal charges, different global approaches, hybrid cartel cases, more sophisticated risk analyses? We look at these questions and more. And, in an of special interest article, James Rill has some thoughts on the authorities’ SEP enforcement activities.
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Leniency Programs in Cartel Enforcement
Confession Consequences in a Crowded Investigative Environment: Complexities in Cooperation with Multiple Authorities in Cartel Investigations
The accumulation of multiple authorities’ discretion in leniency-based settlement procedures itself raises further questions about due process, transparency, and accountability. Rein Wesseling (Stibbe N.V.)
Criminalization of Cartels and Leniency: An Exercise in Complexity
If more enforcement and stiffer penalties from multiple agencies may act as a stimulus for companies and individuals to cooperate, excessive complexity, lack of coordination, and risk of cross-exposure can disincetivize potential applicants. Marcelo Calliari (TozziniFreire Advogados)
The Rise of ROW Anti-Cartel Enforcement
Although the recent growth of cartel fines in the ROW is impressive, there are at least three important differences between these authorities and the more established antitrust agencies. John Connor (Purdue Univ.)
To Settle or Not To Settle After Timab
All in all, the interdependence between the different forms of cooperation unavoidably raises the stakes for the parties and ultimately locks them in an “all or nothing” logic. Marc Abenhaïm, Kristina Nordlander, & Stephen Spinks (Sidley Austin LLP)
Is the Continued Success of Leniency in Cartel Cases in Danger? Some Comments from a Private Practitioner’s Perspective
Companies are already weighing more carefully than ever the pros and cons of applying for leniency—a trend that will likely continue in the future as the risks and frustrations of cooperation with the authorities increase. Romina Polley (Cleary Gottlieb)
Japanese Leniency Program—Issues to be Considered
There are some aspects in which the applicant’s interests may not be sufficiently protected, given the unique aspects of cartel investigations and leniency procedures in Japan. Madoka Shimada & Sumito Nakano (Nishimura & Asahi)
Leniency—What Exactly are the Implications for the Applying Undertaking in the European Union?
On the basis of the above-mentioned general SWOT analysis of leniency policy it seems that the weaknesses and threats of participating in a leniency program still score high. Marcin Trepka (K&L Gates)
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Of Special Interest
The Evolution of U.S. Antitrust Agencies’ Approach to Standards and Standard Essential Patents: From Enforcement to Advocacy
Advocacy must be based on sound factual and economic analysis and correct legal principles—there is a serious question whether agency advocacy concerning SSOs and essential patents satisfies these criteria. James F. Rill (Baker Botts)
