Quarterly Cartel Catch-Up: Recent Developments in Criminal Antitrust for Busy Corporate Counsel – Fall 2018

To provide a quick overview of developments in criminal antitrust investigations and prosecutions, in the U.S. and globally, we summarize below some of the most significant Department of Justice (“DOJ”) announcements, policy shifts, investigations, statistics, case filings, and court rulings. Our fall report discusses trends and developments in criminal antitrust enforcement, including: a recent arrest of a Honduran executive in Florida on sealed antitrust charges; recent plea agreements by companies in the capacitors and packaged seafood investigations; the DOJ’s recent loss in its prosecution against individual foreign exchange currency rate traders; and the implications of the Tenth Circuit’s opinion in the DOJ’s heir locator appeal.

Honduran Pro Soccer Team President Arrested and Charged in New Cargo/Price Fixing Investigation

Key Points: (1) DOJ focus on shipping and transport continues; and (2) DOJ can seal criminal charges until an executive travels to the U.S. and have the FBI waiting at the border.

A new criminal price fixing investigation by the DOJ’s Antitrust Division (“the Division”) surfaced this summer when Roberto Dip, the owner of a freight shipping company and president of a Honduran professional soccer team, and his colleague Jason Handal were arrested in Miami when visiting the U.S. The DOJ charges Dip and Handal with agreeing with other heads of freight-forwarding companies to raise prices to U.S.-based customers who used their firms to ship cargo to Honduras and elsewhere. Dip, his colleague Jason Handal, and others are alleged to have sent follow-up emails to coordinate implementation of the agreement, to end “unjustified price wars.”

• News of this investigation demonstrates the Division’s continued focus on shipping and transport services. Previously, the DOJ has prosecuted major industry participants involved in ocean shipping of new cars and trucks around the world, consumer goods between mainland U.S. and Puerto Rico, and air cargo shipments worldwide.
• The arrest also demonstrates the increasingly aggressive efforts of the Division to obtain jurisdiction over foreign executives to face Sherman Act charges in the United States. Court documents indicate that Dip and Handal had been charged at an earlier point in time, but the charges were sealed from the public record. Both men would have been unaware of their status as indicted fugitives when they entered the country for business, only to be greeted by FBI agents with handcuffs.

Nippon Chemi-Con Fined $60 Million for Role in Capacitor Price Fixing Scheme, Receives Discount for Government Attorney Conflict, but Record Corporate Probation

Key Point: If accused by the DOJ of bad conduct, consider whether DOJ has its house in order.

Nippon Chemi-Con (NCC), a Japanese manufacturer of electrolytic capacitors, agreed to pay a $60 million fine in early October for its participation in a price fixing conspiracy that ran from 1997 through 2014, along with a five-year term of probation requiring annual reports on its compliance efforts. NCC is the last of eight companies sentenced after pleading guilty to participation in the long-running conspiracy. Corporate fines have totaled over $150 million in this investigation. The DOJ also charged ten individual executives as defendants, two of whom have pleaded guilty while the other eight remain under indictment.

• Electrolytic capacitors store and regulate electrical current in a wide variety of products, from computers to car engine and airbag systems. The defendants periodically agreed on prices throughout the conspiracy and concealed their agreement by false statements to customers and the use of code names. The Division specifically alleged that NCC was the leader of the conspiracy. Because NCC’s role in the conspiracy had a $530 million effect on the market for capacitors, under the U.S. Sentencing Guidelines, NCC faced a potential fine of $100 million, the statutory maximum.
• According to the plea agreement, the DOJ only recommended the $60 million fine, rather than the statutory maximum, because an alleged conflict of interest by one of the DOJ’s Criminal Division attorneys posed a risk to the DOJ’s case. The attorney in question had worked for NCC’s defense team before leaving private practice for the DOJ, where he provided assistance in the government’s investigation. The district court expressed concern that NCC was getting off too easy, given its purported leadership role, but ultimately agreed to the significantly lower fine. The reduced fine is still the largest among the eight corporate defendants. The five-year corporate probation term was unusually long, and may reflect concerns that the company has not entirely “cleaned house” with regard to individuals implicated in the conduct.

StarKist Co. (“StarKist”) Reaches Resolution with DOJ, Admitting Role in Canned Tuna Fish Price Fixing Conspiracy Uncovered During Merger Review

Key Point: Before submitting documents to a competition agency for merger approval, be sure the materials have been properly reviewed for possible collusive competitor contacts. Antitrust counsel should also carefully consider market dynamics when advising companies of potential regulatory risk associated with transactions.

In October, the DOJ announced that StarKist agreed to plead guilty and pay up to $100 million in criminal fines for fixing the prices of packaged seafood from as early as November 2011 through at least as late as December 2013. The fine amount will be determined at a sentencing hearing. The Information, filed in the US District Court for the Northern District of California, charged StarKist with agreeing to fix, maintain, and raise prices of canned tuna fish during in-person meetings and other conversations with other major packaged-seafood firms.

• This is the sixth set of criminal charges to arise out of the ongoing investigation. Bumble Bee Foods, LLC pleaded guilty to a similar set of charges in 2017 and was sentenced to pay a $25 million criminal fine, with the possibility of a higher fine of $81.5 million under certain circumstances. Two Bumble Bee executives, Walter Scott Cameron and Kenneth Worsham, and a former StarKist executive, Stephen Hodge, have pled guilty for their roles in the conspiracy. On May 16, 2018, a federal grand jury returned an indictment against the president and CEO of Bumble Bee, Christopher Lischewski. Lischewski is fighting the charges and is currently scheduled to go to trial in November 2019. According to company filings, Chicken of the Sea, a subsidiary of global seafood giant Thai Union Group PCL, obtained leniency from criminal prosecution in exchange for its full cooperation with the Division’s investigation.
• The criminal investigation arose out of the Division’s review of the proposed 2014 merger between StarKist and Chicken of the Sea. The Division’s civil attorneys reviewing the proposed merger uncovered information that raised concerns of price fixing and transferred the investigation to Division criminal attorneys. The parties ultimately abandoned their merger.

U.S. Jury Finds Three UK-Based Traders Not Guilty of Foreign Currency Exchange Rate (“FX”) Price Fixing Conspiracy

Key Point: Jurors may be reluctant to find that antitrust prosecutors have met the “beyond a reasonable doubt” standard when individual executives are on trial.

On October 26, 2018, the U.S. District Court for the Southern District of New York acquitted three FX traders on charges of conspiracy to fix benchmark currency rates. Chris Ashton, Rohan Ramchandani, and Richard Usher, former traders at three prominent financial institutions, were indicted in January 2017, and the three came to the United States to face trial.

• The DOJ had charged the traders with conspiring to influence daily benchmark euro-dollar rates, known as “fixes,” in order to benefit their trading positions from as early as 2007 until 2013. The traders purportedly used a chatroom that they called “the cartel” to share information about their positions. DOJ had introduced messages at trial from the traders in the chat room stating, “I prefer we join forces,” and “one team one dream mate,” among other similar messages.
• Matthew Gardiner, a former Barclays PLC and UBS Group AG trader, testified at the trial pursuant to a non-prosecution agreement with the DOJ. He stated that he had participated in the chat room discussions and that the traders had an agreement not to take positions that would disadvantage the others. But Gardiner also testified that he did not think he was cheating or colluding to fix prices at the time. This weakness in Gardiner’s testimony underscores the challenge in convincing a jury to convict individuals on antitrust charges. According to reports, the jury foreman spoke with media after the trial and stated that “It is a tough case, it’s a thin line…it’s not that we didn’t believe these gentlemen did what they did, but in the end there was not enough evidence to warrant it.”
• The cases against these individual traders followed the 2015 corporate plea agreements between the DOJ and multiple banks, resulting in over $2.5 billion in criminal fines. To date, the DOJ has not successfully prosecuted any individual for fixing the Euro/U.S. Dollar foreign exchange spot market. Two FX traders have pleaded guilty to antitrust charges in a related investigation involving the Central and Eastern European, Middle Eastern and African (CEEMEA) currencies. Worldwide investigations into the fixing of FX rates have resulted in approximately $10 billion in fines.

Recent Statements by DOJ Signal Greater Willingness to Credit Corporate Antitrust Offenders That Have Comprehensive Compliance Programs

Key Point: In light of seemingly greater willingness by competition agencies to credit companies for having robust compliance programs, companies should consider reviewing and refreshing their current compliance programs and efforts.

While the U.S. Sentencing Guidelines have long acknowledged that companies with effective compliance programs in place at the time of an offense should be given a reduction in fines, the Division has historically not agreed to credit companies for having such a program if the company violated antitrust laws. But, in recent years, the Division has agreed in limited instances to give credit to companies in their sentences for the existence or adoption of a strong, well-tailored compliance program. More significantly, recent remarks by DOJ officials suggest that the DOJ is considering a broader policy shift that would factor the existence of a compliance program into both charging and sentencing decisions.

• On November 6, 2018, Principal Deputy Assistant Attorney General Andrew Finch stated that the DOJ is “carefully examining” how to take into consideration the existence of compliance programs, “whether at the charging stage or at sentencing.” Finch made similar remarks earlier this year after a public roundtable on antitrust compliance. Richard Powers, the new acting Deputy Assistant Attorney General for Criminal Enforcement, also indicated in September that the DOJ is evaluating how to incentivize well-tailored compliance programs. These statements follow on Canada’s recent announcement that it will grant significant fine reductions to companies that maintain a comprehensive antitrust compliance program.
• Further, corporate offenders that do not demonstrate a commitment to antitrust compliance, by, for example, not having a well-tailored or effective compliance program, risk the additional consequence of probation and the imposition of a monitor. As noted above, the DOJ recently required capacitors manufacturer NCC to agree to a five-year period of probation during which the company would develop a corporate compliance program and submit annual compliance reports. Last year, the DOJ required a shipping company to a three-year probation period that included the installation of an independent corporate monitor.

DOJ Wins on Principle in Heir Locator Appeal, but Rule of Reason Ruling Stands

Key Point: The Tenth Circuit hands the DOJ a win in principle strongly suggesting that the per se standard should apply in criminal cases, but the DOJ is left in a tricky spot in this particular case. We will be watching the DOJ’s next move.

On October 31, 2018, the U.S. Court of Appeals for the Tenth Circuit reinstated the criminal indictment in U.S. v. Kemp & Associates, a case stemming from an alleged customer allocation agreement among competing heir location services, finding that the statute of limitations period had not run, contrary to defendants’ argument.

• More notably, the court refused to rule on the district court’s decision to apply the “rule of reason” standard to the allegedly criminal conduct, finding that the issue was not yet ripe for appeal as the order did not constitute a dismissal. While it disagreed with the district court’s decision, the court declined to overturn the decision stating that it does not have jurisdiction to decide the issue because the ruling did not technically end the case. Under federal law, the DOJ is limited to appealing issues that are actually dismissed. “The only effect of the order is to foreclose the government’s preferred avenue for trying the case, instead requiring the government to prove its case under the rule of reason,” Circuit Judge David M. Ebel said. Nevertheless, the court went on to urge the district court to reconsider its decision to apply the rule of reason standard and stated that it “might very well reach a different conclusion” on the merits of the rule of reason order.
• The DOJ has few options now in this case. First, the DOJ could do nothing, interpreting the decision as a dismissal of this case. The Tenth Circuit acknowledged that this order could have the practical effect of dismissing the case because of DOJ guidance instructing the Division to pursue criminal antitrust matters under the per se standard. Second, the DOJ could urge the district court to reconsider its ruling. Third, the DOJ could continue to try to pursue its appeal, either through petitioning for an en banc hearing of the Tenth Circuit or to the Supreme Court. Given the stature of the case, appealing the decision is not likely to be successful.

DOJ Celebrates 25th Anniversary of the Corporate Leniency Program

Key Point: As it hits the quarter-century mark, the Division’s Corporate Leniency Program remains a valuable option to be considered by companies that uncover possible cartel conduct by employees. The possibility of taking advantage of the Program if needed remains a compelling reason for companies to maintain a strong internal antitrust compliance program.

On September 26, 2018, the DOJ hosted a ceremony celebrating the Division’s Corporate Leniency Program. Speakers lauded the value of the program in incentivizing companies to “come clean” about cartel conduct in exchange for corporate leniency and protection for executives involved in such conduct. Some cautioned the Division to scrupulously abide by the long-standing features of the Leniency Program that make it attractive to companies—certainty, consistency, and transparency—lest it lose its attractiveness as an option for corporations to consider.

• In 1993, the DOJ launched the leniency program, making clear that complete corporate amnesty would be automatic, and non-discretionary, so long as applying companies met clearly articulated criteria, which include:
  
  • admitting conduct that constitutes a criminal offense
  • stopping the conduct
  • not having been the leader or organizer of the conduct
  • committing to fully cooperate with prosecutors going forward
  • committing to compensate victims of the conduct for damages suffered
• The Leniency Program has since been a major tool in the Division’s arsenal to detect, investigate, and prosecute criminal antitrust cartels, and has led to hundreds of convictions for antitrust offenses, and billions of dollars in criminal corporate fines. Companies have come forward to the Division to self-report participation in price fixing, bid‑rigging, and market allocation schemes, and have received leniency and had their identities protected from the public as the source of evidence. As has been reported and disclosed by leniency applicants, the program was the leading tool used to crack large and long-standing conspiracies in the Airline, Freight-Forwarding, Auto Parts, Electronic Components, and Banking industries.

“No-Poach” Agreements a “No Go” with Enforcers

Key Point: In-house counsel must understand what, if any, employee non-solicitation clauses their companies have in place, given the emerging three-pronged attack on their use, and minimize risk accordingly.

With the October 2016 announcement by the DOJ and FTC that the DOJ would criminally prosecute naked wage-fixing and no-poach agreements, the DOJ ratcheted up potential tools to investigate, and penalties to be faced for, collusion in the hiring and HR space. Though it has yet to file a single criminal action, in April 2018, the DOJ announced its first resolution on a no-poach investigation since the guidance was issued: a civil settlement with Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp. The DOJ pursued this civilly, rather than criminally, because the agreement at issue occurred prior to the time when DOJ issued the 2016 guidance.

• Companies should be careful not to mistake “no news” of criminal enforcement actions for good news because, far from fading from the limelight, no-poach agreements are becoming a more frequent target of both public and private enforcement. The below highlights recent developments:
• DOJ Investigations: Despite the lack of headlines on specific cases, Assistant Attorney General Makan Delrahim has reiterated that the DOJ has open criminal investigations into alleged no-poach agreements, including in statements delivered to Congress just last month. Delrahim assured Congress and the public that the Division was “looking out” for employees’ salaries, which suggests investigations are ongoing.
• State Enforcement Actions: State antitrust enforcers have also ramped up efforts to crack down on no-poach agreements. Washington state Attorney General Bob Ferguson has been particularly aggressive toward rooting out no-poach clauses in franchise agreements, having targeted more than 30 national chains, ranging from restaurants to electronic repair services. A coalition of attorneys general from 10 states has followed suit, and in July sent a letter to 8 national fast food chains seeking information about their franchise agreements. In response, many companies have agreed to no longer enforce “no-poach” provisions in their franchise agreements and to remove them from future agreements, either as part of a settlement or in order to prevent enforcement.
• Private Litigation: While state enforcers have largely sought non-monetary remedies, the plaintiffs’ bar has filed several class actions for damages, including recent suits filed against Burger King in the Southern District of Florida and Dunkin’ Donuts in the Southern District of New York, both of which challenge the companies’ use of no-poach clauses in franchise agreements.
• As the FTC and DOJ’s guidance highlights, not all non-solicitation provisions are illegal, such as provisions that are used in the context of a broader business relationship or commercial agreement. Instead, the question for these provisions is whether they are reasonably necessary to the larger agreement, and no broader than required. This fact-specific inquiry creates a gray area that can make promoting compliance difficult.

Assistant Attorney General Delrahim Appears Before Congress at Oversight Hearing

Key Point: Expect international coordination on antitrust matters to increase.

On October 3, 2018, Makan Delrahim appeared before the Senate Judiciary Committee to report on the Division’s recent accomplishments and initiatives. AAG Delrahim noted that the Division prosecuted criminal antitrust violations across many important sectors of the economy in the period 2016-2017, imposing over $3.2 billion in criminal fines. He emphasized Division results in holding individual executives accountable for cartel crimes, with more than 30 executives sentenced to prison terms in 2017 alone. AAG Delrahim noted that a record number of cartel cases went to trial in 2017 — the highest of any year in the last two decades—demonstrating the Division’s willingness to litigate if companies or executives contest the Division’s allegations.

• In addition to the Division’s initiative to prioritize so-called no poach agreement prosecutions, AAG Delrahim highlighted his efforts to increase international engagement and coordination on investigations of overlapping interest. Delrahim described a core set of procedural norms that he is seeking to advance globally, through the Division’s proposed “Multilateral Framework on Procedures in Competition Law Investigation and Enforcement.”