Cartels 2018

The Cartels guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.

Last Updated November 08, 2017

Paul Victor is an internationally known practitioner in antitrust, competition law, and international cartel enforcement matters. Paul has represented clients in some of the largest antitrust cases of the past 50 years. Paul has represented major corporations or individual executives in matters involving such products as lysine, nucleotides, carbon fibre, vitamins, graphite electrodes, MCAA, impact modifiers, chloroprene rubber, cathode ray tubes, marine hose, air cargo, refrigeration compressors, power cables, and multiple automobile parts, including instrument panel clusters, HID ballasts, switches and sensors, bearings, brake hoses, body seals, and others. These matters have generally included US criminal investigations and related federal treble-damages class actions and opt-out actions, as well as cases brought under various state antitrust and related laws. Often, they have involved the co-ordination of related proceedings in multiple jurisdictions. Paul has also handled a variety of other antitrust-related matters, including merger enforcement matters and other government investigations, and has counselled clients in numerous situations involving domestic and international competition issues. He was also lead counsel to Matsushita (today Panasonic) in the landmark Matsushita case (in re Japanese Electronic Products Antitrust Litigation), which resulted in a favourable summary judgment for his client, affirmed by the US Supreme Court, and in the Go-Video case, which resulted in a favourable jury verdict for his client after a nine-week trial. Paul currently teaches a course in International Cartel Enforcement at the University of Michigan Law School, and previously taught a course on International Antitrust and Trade Law at the Fordham University School of Law.

Winston & Strawn LLP is an international law firm with more than 875 lawyers across 17 offices in Brussels, Charlotte, Chicago, Dallas, Dubai, Hong Kong, Houston, London, Los Angeles, Moscow, New York, Newark, Paris, San Francisco, Shanghai, Silicon Valley, and Washington, D.C. The exceptional depth and geographic reach of our resources enable Winston to manage virtually every type of business-related legal issue, serving the needs of enterprises of all types and sizes, in both the private and the public sector. We understand that clients are looking for value beyond just legal expertise and work hard to understand the level of involvement our clients want from us. We take time to learn about our clients’ organisations and their business objectives, and place significant emphasis on technology and teamwork in an effort to respond quickly and effectively to their needs. The firm’s global antitrust/competition team, composed of lawyers with decades of experience in antitrust law, private litigation, and white-collar and regulatory defence, offers clients a pre-eminent global cartel defence practice. As a result of our extensive experience with leniency programmes in the United States, the European Union and other jurisdictions worldwide, large multi-national corporations, closely held companies, and key executives trust our group with their most pressing cartel matters. We are currently handling some of the largest cartel investigations and related private litigation in the world today, at any given time typically handling the defence of no fewer than a dozen major international cartel matters, often involving the threat of significant criminal fines and incarcerations. Many of these cases also involve direct and indirect purchaser multi-district litigation class actions with billions of dollars in alleged damages, opt-out cases, and State Attorney General actions. Our clients in cartel defence matters include both corporations and individuals from the United States, Asia, and Europe. Cartel enforcement has become increasingly globalised as worldwide antitrust authorities continue to increase the resources devoted to price-fixing and international cartel investigations. Intergovernmental co-operation has also grown in the form of information-sharing, co-ordinated investigations, and even extradition. Winston has extensive experience handling these matters on a multi-jurisdictional basis, working with both our own lawyers and a network of professionals that enables us to defend and resolve the most sophisticated and extensive global cartel investigations and collateral private actions.

International cartel enforcement continues to thrive throughout the world. It is a growth industry. Fines are growing tremendously; jail time, where individual violators can go to jail, is increasing significantly; and civil settlements are getting more and more expensive. The cost of being caught co-operating with competitors on prices, bids, customers or markets just keeps increasing and increasing; and in this environment, businesses operating in today’s global market face increasingly complex regulatory schemes. Regardless of their size, small companies and large multinationals who talk with their competitors about sensitive subjects are confronted by a tangled web of local, national, and supranational laws and regulations. In few areas is this web more complicated than in the area of cartel enforcement, especially when multiple jurisdictions are investigating the same cartel conduct. New regulations and laws, emerging enforcement regimes, changing leadership and shifting priorities often conspire to make navigating this web a daunting task. Given the growth and successful effect of leniency programmes around the world, it is more and more imperative that companies and their employees know and understand the applicable cartel rules wherever they do business.

It is our expectation that the Guide will facilitate the ability of competition law practitioners and inside company counsel throughout the world quickly to grasp the essence of the cartel law picture in a host of jurisdictions where their clients do business. The laws of 20 countries, both mature in and new to the world of cartel enforcement, are covered. The Guide will provide the most up-to-date information relating to key topics of relevance to how to advise clients and to help them avoid getting into serious cartel trouble. But if it is the case that their clients are already in trouble, the Guide should facilitate the ability of practitioners to help their clients quickly and efficiently, whether working on the investigation/matter from inside the company, or with other, expert outside counsel.

The first section of the Guide is focused on the legislative framework in each jurisdiction. It will cover the legal basis for condemning cartel behaviour as well as the scope of the law, covered conduct, limitation periods, exemptions (if any), geographical reach and comity issues.

The second section of the Guide covers the important subject of how evidence is collected in each jurisdiction, including the standard of proof needed, investigative powers, surprise raids, seizure of evidence, legal privilege issues, interviews of company employees, requests for information, self-incrimination issues and obtaining evidence from companies outside of the jurisdiction. It will also cover leniency programmes, including such subjects as eligibility, immunity from fines, markers, reduction of fines and amnesty plus. It will further focus on process, and on corporate oral statements; and it will speak to the disclosure of evidence in private damages' actions, investigative powers, leniency and international co-operation between enforcement agencies in multiple jurisdictions.

The ensuing sections of the Guide delve into the critically important subjects of enforcement and defence options regarding settlements or plea bargaining, available sanctions/fines and the criteria for these, parent-company joint and several liability, and fines and sanctions against company employees. On the private action side, they also deal with who can be a claimant, and the subjects of collective redress, indirect purchasers and what damages are available. Finally, they deal with the subject of judicial review, including the appeal process and extent of review.

For anyone interested in the subject of cartel enforcement, the Guide’s value is immeasurable.