International Issues in Cartel Investigations
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CHAPTER 12
INTERNATIONAL ISSUES IN CARTEL
INVESTIGATIONS
Defense counsel now frequently encounter cartel conduct that
crosses borders. As cartel conduct has become increasingly globalized,
there has been a surge of international anticartel enforcement spurred by
a combination of factors including: (1) an increase in the number of
jurisdictions that have, and actively enforce, antitrust and competition
laws, (2) the development of a clear international consensus that cartel
activity should be prosecuted and that jurisdictions should cooperate to
that end,1 (3) the implementation of leniency programs to encourage self-
reporting, and (4) an increase in international cooperation to gather
evidence of suspected cartel activity.
The U.S. Department of Justice’s Antitrust Division (Division) can
and does obtain access to foreign-located evidence and persons via both
formal and informal methods of cooperation with foreign authorities.
This Chapter provides an overview of the means available to U.S.
prosecutors to secure assistance outside of the United States and ex plores
the practical and legal issues that may arise in international cartel cases
involving foreign-located evidence. This Chapter also explores the
Division’s use of extradition treaties to impose cartel sanctions on
foreign nationals living outside the United States.
A. Obtaining Evidence Located Abroad
U.S. prosecutors cannot obtain foreign-located evidence by the
ordinary means of evidence gathering available in the United States (i.e.,
grand jury subpoenas and search warrants). First, for the most part, U.S.
prosecutors lack the legal authority to serve criminal subpoenas or
conduct searches outside of the United States. 2 Second, even where U.S.
1. ORGANIZATION FOR ECONOMIC COOP. AND DEVELOPMENT,
RECOMMENDATION OF THE COUNCIL CONCERNING EFFECTIVE ACTION
AGAINST HARD CORE CARTELS (Jan. 7, 2019), available at
https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0452.
2. 28 U.S.C. § 1783 authorizes federal courts to issue subpoenas to U.S.
citizens located in foreign countries. However, approval is required from
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prosecutors can serve subpoenas for foreign-located evidence, efforts to
compel the production of such evidence often encounter deep-rooted
national sensitivities in the countries where the evidence or potential
defendants are located.3 As a result, antitrust grand jury subpoenas
normally note that the production of responsive foreign-located
documents should be considered voluntary, albeit strongly encouraged.
This section outlines the various methods available to U.S. prosecutors to
obtain evidence through both formal and informal cooperation with
foreign authorities, as well as through cooperating parties in an
investigation.
1. Formal Cooperation with Foreign Authorities
Cooperation between the Division and its foreign counterparts can
affect the course of a grand jury investigation in several ways.
Information from foreign antitrust agencies may trigger or assist the
Division’s investigation, and conversely, leads or information the
Division passes to a foreign agency may lead to, or reinforce, a foreign
the U.S. Department of Justice (Department) Criminal Division, Office of
International Affairs (OIA) before prosecutors can issue such a subpoena,
and often prosecutors are required to use a Mutual Legal Assistance
Treaty (MLAT) request instead of a subpoena. See U.S. DEP’T OF
JUSTICE, JUSTICE MANUAL, at § 9-13.525 (2018). Note that the Hague
Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 does not apply
in criminal investigations.
3. See INT’L COMPETITION POLICY ADVISORY COMMITTEE, FINAL REPORT
TO THE ATTORNEY GENERAL AND ASSISTANT ATTORNEY GENERAL FOR
ANTITRUST, INT’L ANTICARTEL ENFORCEMENT AND INTERAGENCY
ENFORCEMENT COOP. (Jun. 25, 2015), available at
https://www.justice.gov/atr/chapter-4. While devices like “blocking
statutes” (prohibiting suspects from cooperating with U.S. investigations)
and “clawback statutes” (permitting recovery in national courts of
multiple damages paid in the United States) are now rarely invoked, such
laws remain in the statute books. Foreign governments have filed amicus
curiae briefs in U.S. antitrust litigation contesting the exercise of U.S.
jurisdiction against conduct occurring wholly within their borders. See,
e.g., Brief of Amicus Curiae of the Government of Japan, United States v.
Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997) (No. 96-2001); see
also In re U ranium Antitrust Litig., 480F. Supp. 1138, 1149 (N.D. Ill.
1979) (considering whether communication from foreign governments to
the U.S. State Department should receive additional protections).
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