Competition Law: Recent Developments in International Antitrust Enforcement

Staying on top of global competition laws is crucial to the success of any company doing business in multiple jurisdictions. But it’s a challenging task, made all the more difficult as countries continue to refine and strengthen their regulatory regimes.

For reference, a roundup by region of recent legal commentary and analysis on developments in global antitrust law:


China’s Anti-Monopoly Law: What To Expect In 2012 (Sheppard Mullin Richter & Hampton LLP)

“Unlike other jurisdictions where antitrust enforcement is centralized, in China three agencies enforce the Chinese Anti-Monopoly Law. The Ministry of Commerce handles mergers, while cases related to anti-competitive conduct are split between the National Development and Reform Commission (‘NDRC’) and the State Administration for Industry and Commerce (‘SAIC’). The NDRC handles price-related violations and SAIC the nonprice-related violations.” Read the full update»

China Conditionally Clears Western Digital’s Acquisition of Hitachi’s Hard Disk Drive Business (McDermott Will & Emery)

“Recently China’s Ministry of Commerce (MOFCOM) approved Western Digital’s proposed acquisition of Hitachi’s hard disk drive business on a conditional basis.  Containing the most comprehensive clearance conditions ever imposed by MOFCOM, this decision mirrors previous guidance issued by the European Commission and illustrates that at least two authorities in two of the world’s major economies are working toward imposing similar clearance conditions in their respective jurisdictions.” Read the full update»

Practical Aspects of the New Provisional Rules Governing MOFCOM Investigations of Unreported Mergers (K&L Gates LLP)

“The PRC Anti-Monopoly Law requires companies to file pre-merger notifications with MOFCOM. An obligation to file a pre-merger notification arises where a business concentration occurs (namely through (i) a merger, or (ii) the acquisition of control over other companies by acquiring their shares or assets, or (iii) the acquisition of control or the ability to exert decisive influence over other companies by contract or any other means) and the relevant turnover/revenue thresholds are fulfilled.” Read the full update»

China Summarizes 2011 AML Enforcement, Promises Action on Failures to Notify a Concentration in 2012 (McDermott Will & Emery)

“Companies should take particular note of MOFCOM’s clear statement that in 2012 one of its priorities will be to investigate and sanction parties who, contrary to the AML, fail to submit notification of a concentration and have it cleared by MOFCOM. As part of this priority action, MOFCOM introduced in January 2012 new Preliminary Regulations on Investigation and Treatment of Failure to Notify Business Operator Concentration.” Read the full update»

New Taiwan Fair Trade Act Amendments Pack Hefty 40-Fold Antitrust Fine Punch (White & Case LLP)

“In December 2011, Taiwan dramatically increased the stakes for companies doing business in Taiwan. Cartel fines were increased more than 40-fold in Taiwan, and Taiwan became the most recent nation to adopt a full-fledged cartel leniency program. The new fines bring Taiwan into the range of hundreds of millions of US dollars or euros for future cases.” Read the full update»

North America

DOJ Wins AUO Convictions in LCD Price-Fixing Trial, Successfully Defending Its Cartel Program (Sheppard Mullin Richter & Hampton LLP)

“In a widely followed eight-week trial before the Honorable Susan Illston in the Northern District of California, the Antitrust Division of the United States Department of Justice succeeded in obtaining price-fixing convictions against AU Optronics, a Taiwanese company; AUOA, its US subsidiary; and two senior executives… DOJ has trumpeted the convictions and finding of guilt as vindicating its cartel enforcement program.” Read the full update»

Jury Convicts AUO and Former Executives for Role in TFTLCD Price Fixing Conspiracy, Determines Harm Caused by the Conspiracy was More than $500 Million (King & Spalding)

“The two former AUO senior executives convicted were former AUO president Hsuan Bin Chen and former executive vice president Hui Hsiung. The jury found two AUO employees not guilty — Lai-Juh Chen, former director of the Desktop Display Business Group, and Tsannrong Lee, former senior manager of the Notebooks Business Group. The jury could not reach a decision and a mistrial was declared as to Steven Leung, former AUO senior manager of the Desktop Display Business Group.” Read the full update»

Supreme Court Denies Review of Case Involving Foreign Antitrust Claims (Howard Ullman)

“In Animal Science Products Inc. v. China Minmetals Co., the Third Circuit held that the Foreign Trade Antitrust Improvements Act does not impose a subject matter jurisdiction bar on antitrust claims in federal court, but rather specifies elements of a Sherman Act claim. Why does this matter?  It matters because Congress and the courts care whether U.S. courts are open to foreign entities’ foreign antitrust claims.” Read the full update»

Antitrust Class Actions: The Supreme Court of Canada Grants Leave to Consider the Application of Illinois Brick in Canada (Osler, Hoskin & Harcourt LLP)

“In a ruling over twenty years ago in response to a federal constitutional challenge, the Supreme Court [of Canada] upheld the private right of action for damages that are contained in the Competition Act. Since that time, private actions have become a permanent feature of the antitrust enforcement landscape in Canada. Indeed, following the gradual adoption of class proceedings legislation across the provinces in the 1990s, antitrust class actions have become commonplace in Canada.” Read the full update»

Sony’s Indirect LCD Purchaser Claims Survive Motion to Dismiss on Foreign Trade Antitrust Improvements Act and Other Grounds (Howard Ullman)

“Judge Illston also rejected LG’s Foreign Trade Antitrust Improvements Act (“FTAIA”) argument, noting that Sony contended that its purchases fell within the domestic injury exception to the FTAIA because its claims were based solely on purchases made in the U.S. LG countered that Sony’s purchases were foreign – and therefore beyond the Sherman Act’s reach – because Sony took possession outside the U.S. of LCD panels and products it purchased.” Read the full update»

Class Certification Granted in International Cartel Antitrust Litigation in Which China Itself Has Intervened To Support the Claimed Price-Fixing (Cadwalader, Wickersham & Taft LLP)

“Earlier in the litigation, the Court rejected a defense by the defendants that ‘that they were compelled by the Chinese government to fix prices’. Indeed, the defendants’ motion was supported by an amicus brief filed by the Chinese government explaining the Chinese government’s regulation of vitamin C. The District Court found: ‘According to the Ministry, defendants’ actions were compelled by the Chinese government’. It did not matter according to the District Court.” Read the full update»

Court of Appeal Rules Cartwright Act Does Not Reach Premerger Conduct (Howard Ullman)

“Asahi sued CoTherix and Actelion under the Cartwright Act, alleging that the premerger activity constituted a “combination” by which the defendants conspired together to mislead Asahi about Actelion’s intentions. Asahi alleged that had it known about Actelion’s true intentions, under its licensing agreement with CoTherix, Asahi could have terminated the agreement and sought injunctive relief. However, Asahi did not challenge the merger itself as unlawful, nor did it allege a premerger meeting of the minds; instead, it alleged that Actelion acted with anticompetitive intent.” Read the full update»


Streamlining the UK Competition Regime – A Unified Competition Authority and a Lower Standard for Establishing Criminal Liability (White & Case LLP)

“… the UK Government published its response to the consultation on competition reform. As widely expected, the Government has confirmed it will introduce a legislative proposal to merge the existing Competition Commission and Office of Fair Trading into a single Competition and Markets Authority. It is intended that the changes will be fully implemented by April 2014. In an equally significant development, the Government has also proposed to amend the existing criminal ‘cartel offence’ to abolish the requirement that an individual must act ‘dishonestly’ to be guilty of the offence.” Read the full update»

Reform of UK Competition Regime – One Step Closer (King & Spalding)

“The UK has traditionally had a dual-authority approach to competition law enforcement, with the [Office of Fair Trading] responsible for the first phase of review and the [Competition Commission] responsible for the second phase. This was largely supported on the basis that the bifurcation of review brings procedural safeguards in terms of a ‘second pair of eyes’ that can scrutinise potentially problematic cases after the initial screen by the first stage authority.” Read the full update»

European General Court Confirms Parental Liability For Competition Law Infringements by 50:50 Joint Ventures (McDermott Will & Emery)

“According to EU competition law, the anti-competitive behaviour of a subsidiary may be imputed to the parent company where the subsidiary does not decide independently on its own market conduct but carries out, in all material respects, instructions given to it by its parent company.  Thus, a subsidiary that is a legal entity separate from its parent company could be considered as part of the parent company’s group, if the parent company exercises a decisive influence on it.” Read the full update»

ICC Tribunal Decides Claim on Commitments Attached to European Commission’s Merger Approval (King & Spalding)

“On February 20, 2012, an ICC tribunal decided a claim in relation to commitments attached to a European Commission merger decision clearing News Corporation’s acquisition of two satellite broadcasters. While the raising of competition claims in arbitration is not a new development, this case appears to be the first time that an ICC tribunal has decided on issues of Commission-approved merger commitments. The case exemplifies the evolving nature of private enforcement, be that through litigation or arbitration, of competition law claims in the EU.” Read the full update»


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