Information Exchanges By Competition Agencies: United States, Japan, and Canada

Pages21-79
21
CHAPTER II
INFORMATION EXCHANGES BY COMPETITION
AGENCIES:
UNITED STATES, JAPAN, AND CANADA
An enforcement authority will be guided during the course of a
multi-national investigation or merger review not only by its established
internal procedures and substantive policies, but also by protocols and
understandings with other authorities on coordination and exchange of
information. This chapter will look at the policies and practices of
authorities from three representative countries—the U.S. Department of
Justice and Federal Trade Commission, the Japan Fair Trade
Commission, and the Canadian Competition Bureau—on coordination
and exchange of information in multinational investigations and merger
reviews.
A. United States
1.
Background
The U.S. competition agencies engage in international case
cooperation because doing so serves their enforcement interests and the
interests of those who appear before them. As of the writing of this
chapter in 2020, roughly one half of Department of Justice (DOJ) cartel
investigations are international in scope, and roughly one quarter of its
merger challenges have involved some degree of international case
cooperation.1 The numbers at the Federal Trade Commission (FTC) are
roughly comparable.2 The DOJ’s Antitrust Division and the FTC invest
heavily, in both time and other resources, to strengthen relationships with
1. On international cooperation, see generally Makan Delrahim, Assistant
Att’y Gen., Remarks before N.Y.U. School of Law (Oct. 27, 2017),
available at https://www.justice.gov/opa/speech/assistant-attorney-
general-makan-delrahim-delivers-remarks-new-york-university-school-
law.
2. See FED. TRADE COMMN, CASES AND PROCEEDINGS (2020), available at
https://www.ftc.gov/enforcement/cases-proceedings; see also F
ED.
TRADE COMMN, ANNUAL HIGHLIGHTS 2019: ENFORCEMENT, available
at https://www.ftc.gov/reports/annual-highlights-2019/enforcement.
22 International Investigations and Merger Reviews
other enforcers, and these investments are widely regarded as sound
because of the numerous benefits of international case cooperation.3 The
Antitrust Division and FTC will be referred to as the “U.S. agencies.”
International case cooperation aids agencies and parties alike.4 In
civil investigations, case cooperation can result in exchanges of
information and evidence, creating opportunities for enforcers to learn
about facts not previously considered, get quickly up to speed on
developments, and test potential theories. Agencies share their industry
expertise with one another, including any unique barriers to entry, and
they help one another to understand their respective laws and procedures.
Not infrequently, investigations are impacted by unexpected factors, such
as legislation in other countries, and enforcers frequently assist one
another to quickly obtain needed information.5 When agencies decide
that requiring remedies would be appropriate during the course of a
merger review, case cooperation helps to encourage “consistent, or at
least non-conflicting, outcomes.”6 The extended engagement that can
3. See Leslie C. Overton, Deputy Assistant Att’y Gen., Antitrust Div.,
Remarks Delivered at Fifth Annual Chicago Forum on Int’l Antitrust
Issues: Int’l Antitrust Engagement: Benefits and Opportunities (June 12,
2014), available at https://www.justice.gov/atr/file/517786/download.
4. See, e.g., id.; see also Patricia Brink, Director of Civil Enforcement,
Antitrust Div., Remarks Before the Inst. for Consumer Antitrust Studies,
Int’l Cooperation at the Antitrust Div.: A View from the Trenches (Apr.
19, 2013), available at https://www.justice.gov/atr/file/518366/download;
INTL COMPETITION NETWORK, ICN MERGER WORKING GROUP,
MERGER REMEDIES GUIDE 29 (2016),
www.internationalcompetitionnetwork.org/uploads/library/doc1082.pdf;
INTL COMPETITION NETWORK, ICN MERGER WORKING GROUP,
PRACTICAL GUIDE TO INTERNATIONAL ENFORCEMENT COOPERATION IN
MERGERS 2 (2015), available at
http://www.internationalcompetitionnetwork.org/working-
groups/current/merger.aspx.
5. Patty Brink & Melanie Krebs-Pilotti, United States Department of
Justice, Antitrust Division, Antitrust Review of the Americas 2017, at 3,
GLOBAL COMPETITION REVIEW (Aug. 30, 2016), available at
https://globalcompetitionreview.com/insight/the-antitrust-review-of-the-
americas-2017/1068681/united-states-department-of-justice-antitrust-
division.
6. FED. TRADE COMMN, US-EU MERGER WORKING GROUP, BEST
PRACTICES ON COOPERATION IN MERGER INVESTIGATIONS 2 (2011)
[hereinafter BEST PRACTICES], available at
https://www.ftc.gov/system/files/111014eumerger.pdf.
Information Exchanges by Competition Agencies 23
occur during case cooperation also makes it more likely that case
outcomes will be substantially sound and predictable.7
In criminal investigations, law enforcement’s ability to gather
information located across the globe often hinges on international
cooperation. U.S. law enforcement is restricted in its ability to engage in
investigative conduct overseas, as almost all jurisdictions guard against
perceived investigative activity within their borders. Before U.S. law
enforcement can undertake investigative activities within another
jurisdiction, it will often need to cooperate with international enforcers
and secure approvals.8 Case cooperation can also add valuable and
needed momentum to a criminal investigation. When enforcers are
coordinating, companies and individuals are more likely to cooperate
with other enforcers’ investigations. Cooperation can facilitate
prosecutors’ abilities to obtain evidence and interview witnesses located
overseas and, when appropriate, extradite fugitives. It also reinforces the
important psychological message that enforcers will deploy the resources
available to them, and targets may be potentially prosecuted wherever
they are located.9
The extent and intensity of case cooperation between the U.S.
agencies and international enforcers will vary widely based on a number
of factors that will be explored in depth below. This chapter will provide
a practical overview of how the U.S. agencies coordinate and cooperate
with international enforcers in both civil and criminal antitrust
investigations. It will first describe the bases for international case
cooperation, including antitrust cooperation agreements, mutual legal
assistance treaties, and letters rogatory. Second, it will describe the
opportunities and challenges for international case cooperation arising
from the global proliferation of leniency programs. Third, it will discuss
case cooperation in practice in the criminal context. Fourth, it will
discuss case cooperation in practice in the civil context. Lastly, it will
provide an explanation of the confidentiality protections afforded
materials provided to the U.S. agencies by parties and third parties and
the implications for international case cooperation.
7. Brink, supra note 4, at 3.
8. See generally T. Markus Funk, Mutual Legal Assistance Treaties and
Letters Rogatory: A Guide for Judges, FED. JUD. CTR. (2014), available
at https://www.fjc.gov/sites/default/files/2017/MLAT-LR-Guide-Funk-
FJC-2014.pdf.
9. Joseph Wayland, Acting Assistant Att’y Gen., Antitrust Div., Remarks to
the Int’l Bar Assn’s 16th Annual Competition Conference 4-6 (Sept. 14,
2012), available at https://www.justice.gov/atr/file/518911/download.

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