As seen in InsideCounsel’s “Doling Out Justice: The DOJ Has Moved Its Focus Toward International Cartel Activity”
InsideCounsel reports that the US Department of Justice (DOJ) continues to shift its focus to international business—and the international cartels that come with it—as our economy and society become increasingly more globalized. The publication turned to Kaye Scholer Antitrust Counsel Philip Giordano, a former prosecutor in the DOJ’s Antitrust Division, to explain how the DOJ enforces the antitrust laws with respect to foreign cartels, and how foreign companies can seek to avoid prosecution for antitrust violations.
According to Giordano, “Over the course of the last 15 years, on the criminal enforcement side of things, a major expansion of the enforcement program has occurred, from largely domestic cartel activity to a focus on international cartels that affected US consumers.” He added, “As the economy globalized, the cartel conduct tended to globalize as well, and what the Antitrust Division found was that the cartels affecting the US affected greater and greater amounts of commerce in the country, not just with domestic manufacturers but increasingly with the foreign manufacturers in the global economy.”
Giordano noted that many foreign companies think of antitrust violations as misdemeanors, rather than the felonies that they are under US law. In order to drive home the message that such activities are treated as criminal conduct by US prosecutors, prosecutors have increased international enforcement and fines over the past decade. Prosecutors have also tried to educate foreign companies on the importance of implementing training programs to educate employees on what constitutes lawful versus criminal conduct.
Giordano cited training as being of “utmost importance” when it comes to maintaining an effective compliance program. He noted, “Agencies in the US and overseas have structured these programs around leniency programs, whistleblower programs,” adding, “If you are the whistleblower, you can benefit tremendously from non-prosecution agreements that might be unavailable to you if you are not taking that posture with the investigating agency.”
When a company comes under investigation, leniency programs provide incentives for a company to determine whether employees engaged in problematic conduct beyond the scope of the investigation. However, as Giordano pointed out, “You want to avoid these problems in the first place, so if there are conduct issues, locate them internally and deal with them as soon as you can.”
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