Parallel Proceedings

• Pages: 99-129

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PARALLEL PROCEEDINGS

Worldwide anti-cartel enforcement activity has surged to remarkable

levels in the past two decades. Perhaps the single most significant factor

in this growth has been the adoption of amnesty programs by the most

active enforcers in anti-cartel efforts globally, including the United States.

The expansion of these programs has led not only to a rise in criminal and

civil prosecutions worldwide, but also to an increase in private civil

lawsuits whose scope reflects the international nature of cartel activities

and government enforcement against such activities. This chapter

addresses parallel public enforcement and private litigation proceedings

and investigates how these parallel streams impact leniency agreements,

information sharing and disclosures, collateral estoppel, the role of

enforcement agencies in private litigation, and constitutional

considerations.

A.Coordinated Investigations and Leniency Agreements

1.

U.S. Department of Justice Policies on Parallel Proceedings

With simultaneous cartel investigations across multiple jurisdictions

now commonplace, the U.S. Department of Justice (DOJ) Antitrust

Division has made cooperation among international enforcement

authorities a “top priority.”1The DOJ seeks to collaborate with foreign

governments investigating the same conduct.2Recognizing that the

“greatest challenge in investigating and prosecuting cross-border cartels is

1. U.S. Dep’t of Justice, Division’s International Program Enhances

Enforcement and Cooperation, Division Update Spring2016(Apr. 11,

2016), available at https://www.justice.gov/atr/division-

operations/division-update-2016/division-international-program-

enhances-enforcement-cooperation.

2. U.S. DEP’T OF JUSTIC E &FED.TRADECOMM’N, ANTITRUST

ENFORCEMENT GUIDELINES FOR INTERNATIONAL OPERATIONS § 4.2(Apr.

1995) [hereinafter ANTITRUST ENFORCEMENT GUIDELINES], available at

https://www.justice.gov/atr/antitrust-enforcement-guidelines-

international-operations.

100International Antitrust Cartel Handbook

obtaining evidence and information located in other jurisdictions,” the

DOJ has said that cooperation with other competition authorities is an

“effective” means to overcome this challenge.3Such enhanced

coordination is one reason the DOJ has been increasingly able to

successfully detect and prosecute international cartels. Thus, the DOJ

leadership encourages its staff “to be mindful of the international

implications of [their] actions from the start of an investigation right

through the remedial phase.”4

The DOJ has developed close relationships with the competition

authorities of many countries and collaborates both formally and

informally in cartel investigations.5The DOJ has reached agreement with

many foreign authorities on notifications, information sharing, and mutual

support. Even in the absence of a formal agreement, general rules

implemented by multilateral organizations, such as the Organization for

Economic Co-operation and Development (OECD) and the International

Competition Network (ICN), provide the basis for the DOJ’s cooperation

policies. 6Regardless, the DOJ’s default policy is to seek to work

collaboratively with its foreign counterparts in investigations, including

establishing ground rules for doing so on a “case-by-case basis.”7

The DOJ takes into account issues of international comity when

deciding whether to engage in proceedings parallel to those of foreign

competition agencies.8Specifically, the DOJ considers whether any

3. U.S. Dep’t of Justice, Contribution from the United States to Global Forum

on Competition, Improving International Co-operation in Cartel

Investigationsat 4 (Jan. 31, 2012) [hereinafter Improving International Co-

operation], available athttps://www.justice.gov/sites/default/files/atr/

legacy/2012/08/24/286282.pdf.

4. U.S. Dep’t of Justice, Division Update Spring 2011, International

Cooperation at an All-Time High (July 13, 2015), available at

https://www.justice.gov/atr/public-documents/division-update-spring-

2011/international-program-update-2011.

5. ANTITRUST ENFORCEMENT GUIDELINES, supranote 2, §2.9; Improving

International Co-operation,supranote 3, at 3.

6. ANTITRUST ENFORCEMENT GUIDELINES, supra note 2, §2.9.

7. Id.; Christine A. Varney, International Cooperation: Preparing for the

Future, Remarks as Prepared for the Fourth Annual Georgetown Law

Global Antitrust Enforcement Symposium (Sept. 21, 2010), available at

https://www.justice.gov/atr/speech/international-cooperation-preparing-

future (“On a case-by-case basis too, cartel cooperation among competition

enforcers also has increased significantly.”).

8. ANTITRUST ENFORCEMENT GUIDELINES, supranote 2, §3.2.