Cartels are a surprisingly persistent feature of economic life. The temptation to rig the game in one’s favour is constant, particularly when demand conditions are weak and the product in question is an undifferentiated commodity. Corporate compliance programmes are useful but inherently limited, as managers may come to see their personal interests as divergent from those of the corporation. Detection of cartel arrangements can present a substantial challenge for both internal legal departments and law enforcement. Some notable cartels managed to remain intact for as long as a decade before they were uncovered. Some may never see the light of day. However, for those cartels that are detected, this compendium offers a resource for practitioners around the world.
This book brings together leading competition law experts from more than two dozen jurisdictions to address an issue of growing importance to large corporations, their managers and their lawyers: the potential liability, both civil and criminal, that may arise from unlawful agreements with competitors as to price, markets or output. The broad message of the book is that this risk is growing steadily. In part because of US leadership, stubborn cultural attitudes regarding cartel activity are gradually shifting. Many jurisdictions have moved to give their competition authorities additional investigative tools, including wiretap authority and broad subpoena powers. There is also a burgeoning movement to criminalise cartel activity in jurisdictions where it has previously been regarded as wholly or principally a civil matter. The growing use of leniency programmes has worked to radically destabilise global cartels, creating powerful incentives to report cartel activity when discovered.
Christine A Varney is a partner at Cravath, Swaine & Moore and chairs the firm’s antitrust practice. Widely recognised as one of the leading antitrust lawyers in the United States in both private practice and in government service, she is the only person to have served as both the US Assistant Attorney General for Antitrust (2009–2011) and as Commissioner of the Federal Trade Commission (1994–1997). She formulates global antitrust strategy for clients in connection with joint ventures, mergers, acquisitions, dispositions and other business transactions, including advising on business conduct or potential investments to ensure compliance with antitrust laws, securing antitrust regulatory approvals, and handling internal or governmental investigations into anticompetitive behaviour. Her clients span diverse industries, including transportation, telecommunications, technology, pharmaceuticals, manufacturing and financial services.
As Assistant Attorney General, Ms Varney oversaw all operations of the Department of Justice’s Antitrust Division, including merger review, criminal and civil litigation, and investigations and coordination with competition regulators outside the United States. From 1997 to 2009, Ms Varney was in private practice, representing major corporations before the DOJ and the FTC. Prior to becoming FTC Commissioner, she served as Assistant to the President and Secretary to the Cabinet in the Clinton Administration.
John is the co-head of Allen & Overy’s global competition practice and the head of the firm’s DC investigations and litigation practice. He advises US and international clients involved in domestic and cross-border antitrust and other regulatory investigations and litigation. His practice spans government enforcement and private litigation of cartel and other antitrust infringements, market sector investigations, and general antitrust compliance, across all industry sectors.
Previously, John was Director of Criminal Enforcement of the DOJ, Antitrust Division, where he had management responsibility for the Antitrust Division’s criminal investigations and litigation nationwide. In his tenure with the Antitrust Division, John investigated, litigated, and presided over some of the largest global cartel investigations undertaken by the DOJ. He also served as the Antitrust Division’s primary liaison with state, federal, and foreign law enforcement authorities, as well as the Antitrust Division’s Financial Fraud Coordinator for inter-agency prosecutions, investigations, and information sharing. John’s DOJ service earned him awards of distinction from the Attorney General of the United States and Assistant Attorney General for the Antitrust Division.
The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book: