Department of Justice

Global business operations are commonplace in today's economy. So too are competition enforcers' efforts to enforce laws in multiple jurisdictions. An important priority at the United States Department of Justice's Antitrust Division is efficiently coordinating our enforcement with other competition enforcers in matters spanning multiple jurisdictions. That coordination helps us better protect consumers and, simultaneously, reduce unnecessary costs and burdens on businesses.

Different jurisdictions have different procedural frameworks that need to be considered to enable effective coordination of merger investigations across jurisdictions. In the United States, for instance, mergers that raise significant competition concerns typically lead the US enforcement agencies to issue comprehensive requests for documents and data, colloquially known as second requests. By statute and with essentially no timing flexibility, US enforcers are by and large required to decide whether to issue a second request within 30 days of the parties' formal notification of the transaction.

Once a second request is issued, the timing of the transaction's review in the United States becomes more flexible. Formally, the timing is largely in the parties' control because the underlying statute places no limitations on the amount of time the parties may take to comply with the request. As a practical matter, however, the US enforcement agencies and merging parties often negotiate timing agreements governing the sequencing of an investigation. Those timing agreements are subject to alteration at any time by agreement between the parties and the enforcer, allowing each investigation to proceed at a pace tailored to its particular facts and circumstances.

Other jurisdictions operate differently. For instance, a variable that significantly affects the timing of the European Commission's investigation of a merger is the filing of the notification or Form?CO, which triggers an investigation with largely fixed and inflexible deadlines. Merging parties do, however, largely control the timing of the filing of the Form?CO, and may engage in extensive pre-filing discussions with the European Commission. Thus, comparatively speaking, the timing flexibility of a European Commission merger investigation largely occurs on the front end, while it comes later in the United States.

Enforcers need to be mindful of these kinds of procedural differences and how they impact the timing of a transaction's review in other jurisdictions. For instance, the effectiveness of or even the need for a remedy in one jurisdiction may depend on whether other remedies are imposed in other jurisdictions. Canada's commissioner of competition recently noted Canada's 'commitment, in appropriate transaction reviews, to require minimal memorialization where we have confidence that a resolution designed in another jurisdiction in which we have faith will resolve our Canadian concerns.' ¹

An example of effective coordination between the Department and the European Commission occurred earlier this year with the transaction between Cisco and Tandberg. In that matter, the Department took into account the parties' commitments made to the European Commission, along with various market factors, in reaching our decision to close our investigation without seeking a remedy in US court. The Department and the European Commission announced the results of their respective investigations on the same day, timing that did not occur by happenstance but rather through commitment by both agencies to coordinated enforcement. ²

Coordination in merger matters is not only important with regard to remedies. With appropriate waivers permitting the sharing of otherwise confidential information, enforcement agencies are able to engage with one another on evidence and issues. That dialogue helps agencies arrive at better-informed decisions more quickly and benefits all involved. Enforcers can use limited resources most efficiently and obtain a fuller view of a transaction's likely competitive effects than would otherwise be possible. Parties can minimise duplicative efforts in multiple jurisdictions and obtain coordinated and synchronised resolutions. Because parties recognise these benefits, waivers permitting the exchange of otherwise confidential information among enforcers are common in merger matters spanning jurisdictions. Equally, merging parties should understand that enforcers' commitment to coordination means that parties' efforts to seek to exploit differences among jurisdictions may well backfire and ultimately delay consummation of a merger.

At the Department, we are placing an increased emphasis on considering and being attentive to merger reviews occurring in other jurisdictions. For instance, a new part of our internal training program for our lawyers reviewing mergers is a detailed review of non-US merger-review investigations. We are also making it a point of emphasis in our merger investigations to identify quickly all jurisdictions with an interest in the matter and reach out to them early in our own reviews. Effective coordination where appropriate in civil non-merger matters is also something that we are considering how to best effectuate.

Turning to criminal matters, international cartel work remains a top Department priority. Two prominent, ongoing investigations concern the liquid crystal display (or LCD) and air transportation industries. Both investigations in large part concern non-US firms that inflicted significant harm on US consumers. Cumulative fines in our air transportation matters exceed US$1.6?billion, and cumulative fines in our LCD matters exceed US$890?million. As those figures help demonstrate, the Department is zealously committed to rooting out and punishing hard-core cartel activity.

Just as in the merger realm, effective interaction among enforcers is key to cracking international cartels. For instance, the simultaneous execution of search warrants and other investigative steps has become an extremely effective tool to combat cartels in order to ensure evidence is not destroyed and subjects are not prematurely alerted to a covert investigation. In the LCD investigation, the Department and competition enforcers on three continents conducted simultaneous searches and other investigative steps. In the air transportation investigation, the Department and competition authorities in Europe and Asia conducted simultaneous searches. Conducting simultaneous raids and other investigative steps requires extensive interaction among competition enforcers despite differences in our processes. Despite these differences, our simultaneous enforcement activities lead to better results than any could have achieved working alone.

Looking ahead, business operations appear poised to continue the globalization trend. Antitrust enforcers need to respond with a commitment to coordinated enforcement efforts to best promote competition and the interests of consumers. The US Department of Justice is dedicated to that effort.

Notes

1

. Melaine L Aitken, commissioner of competition, Canada, 2010 Competition Law and Policy Keynote Dinner Address (3 February?2010), available at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03205.html.

2. See US Department of Justice, Justice Department Will Not Challenge Cisco's Acquisition of Tandberg (29 March?2010), available at www.justice.gov/atr/public/press_releases/2010/257173.htm; European Commission, Mergers: Commission clears Cisco's proposed acquisition of Tandberg subject to conditions (29 March 2010), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/377&format=HTML&aged=0&language=EN&guiLanguage=en.

About the author

Christine A Varney was confirmed as assistant attorney general for the Antitrust Division on April 20, 2009.

Prior to her appointment as assistant attorney general, Ms Varney held leadership positions in both the public and private sectors. From 1998 to 2008, Ms Varney was a partner at Hogan & Hartson LLP, in Washington DC, where she served in a dual capacity as member of the firm's antitrust practice group and head of the internet practice group. From 1994 to 1997, she served as a federal trade commissioner at the Federal Trade Commission, and was a leading official on a wide variety of Internet and competition issues. She also pioneered the application of innovation market theory analysis to transactions in both electronic high-technology and biotechnology. Prior to becoming a federal trade commissioner, Ms Varney served as assistant to the president and secretary to the Cabinet during the Clinton administration.

Ms Varney received her JD from Georgetown University in 1986, an MPA from Syracuse University in 1978, and a BA from the State University of New York at Albany in 1977.