Antitrust Law | Cartels

Competition authorities worldwide are dialing up their anti-cartel efforts and heightening cross-border collaboration, with synchronized "dawn raids" mounted across jurisdictions. The evidence suggests that companies can expect more of the same—perhaps much more—and that a faster response to indications of concern can mean the difference between amnesty and catastrophic sanctions. The choice of cartel counsel is thus a crucial decision in managing exposure.

Why MoFo?

We combine strong cartel experience in the United States, Europe, and Asia with an integrated global network to provide clients with what they need: anticipation and avoidance before problems arise and—when they do—a rapid, globally coordinated response. Our cartel representation is informed by more than 30 years of experience, including the resolution of cartel proceedings before the U.S. Department of Justice, the European Commission, and authorities in EU member states, Japan, Brazil, Australia, Canada, Korea, and other jurisdictions. The matters we handle include:

Large multinational, domestic, and closely held firms, as well as domestic and foreign individuals, have entrusted their defense to our lawyers.

Cartel Investigations: A High-Risk Landscape

Whether local or international, cartel investigations present a plethora of problems to navigate. Consider these facts: fines in the United States are expected to hit more than $1 billion in the next fiscal year, and the European Commission has already levied fines of more than €2.8 billion in a single year. Foreigners and U.S. residents regularly go to jail in the United States, and prison terms are harsh—the average sentence for cartel-related convictions in the United States peaked at more than two years.

Companies facing international cartel investigations must anticipate enforcement actions not only by the U.S. Department of Justice and/or the European Commission, but also by other antitrust authorities around the world. Jurisdictions such as Canada, Australia, Brazil, Japan, Ireland, Israel, and the UK also have criminal sanctions.

Of course, that's just part of the cost. Companies subject to enforcement efforts face reputational harm, the erosion of shareholder value, and the practical costs of ongoing distraction or loss of senior executives. The inevitable follow-on—complex federal and state litigation—can prolong a company's reputational agony and also have severe economic ramifications. Collateral consequences of a felony indictment can range from financing effects to preclusion from government bidding, from False Claims Act allegations to shareholder derivative suits.

Our Approach

We excel at global coordination. We are familiar with the nuances of the current maze of leniency policies and the unwritten practices of the enforcers. Our lawyers know the private claimants' lawyers and how they approach their claims. Only with this expertise and history can clients understand the strategic options that can minimize overall cost and disruption. Our approach tips the scales in favor of successful outcomes for our clients through strategies that take into account the full complexity of an investigation and its future ramifications.

We always keep our clients' business objectives at the fore as we develop an action plan. We approach cartel investigations holistically and avoid piecemeal solutions. We see little point in stamping out one brush fire if that causes another to flare, potentially sparking a major conflagration.

We believe in a collaborative approach, and work closely and effectively with our clients, our co-counsel, and the relevant individuals to decide on a strategy. When a soft approach makes sense, we are ready to cooperate with enforcers or with claimants. When circumstances call for us to push back, we are ready to push—hard, if necessary—to ensure our clients' best interests are served.

We do not fall back on the path of least resistance. That discipline has allowed us to overcome enforcement actions against our clients even when other defendants in the same case chose to plead guilty or apply for leniency. Our lawyers won one of the most recent corporate antitrust “not guilty” verdicts; obtained exclusion of our clients from EU statements of objections against other industry participants; and succeeded in dismissals of civil actions and denials of class certification.

Preparation/Compliance

We provide services that enable our clients to proactively avoid cartel allegations, including:

• Practical compliance programs that minimize exposure, comply with fiduciary mandates, and maximize peace of mind
   
• Preparation for handling surprise raids and other activities undertaken by competition authorities
   
• Antitrust audits
   
• Early risk/reward analysis of areas of potential concern