Department of Justice
Over the past year, the Antitrust Division of the US Department of Justice has maintained its commitment to active enforcement of the antitrust laws. The Division’s enforcement efforts include litigated challenges to mergers and to conduct, both civil and criminal. In addition, it remains committed to international cooperation, in its investigations as well as through multilateral organisations.
The Division’s civil enforcement efforts have remained vigorous over the past year. The Division’s actions in this area have safeguarded competition in a number of industries that affect consumers’ day-to-day lives, including health care, office supplies, telecommunications and technology, transportation and other consumer products.
The Division and the state of Michigan began the year in litigation, initiated in October 2010, against Blue Cross Blue Shield of Michigan, alleging that the most favoured nation (MFN) provisions of the company’s agreements with hospitals have the effect of raising hospital prices, preventing other insurers from entering the marketplace, and discouraging discounts. On 18 March 2013, the governor of Michigan signed a bill outlawing MFN provisions in contracts between insurers and hospitals in Michigan, barring the conduct that was the subject of the Division’s lawsuit. Because this new Michigan law will protect consumers from the anti-competitive MFNs at issue in this case, on 25 March 2013, the Division moved the court to dismiss its lawsuit without prejudice.1 The court dismissed the case without prejudice on 28 March 2013. In November 2012, the Division announced that its concerns with WellPoint’s proposed acquisition of Amerigroup were resolved by the sale of Amerigroup Virginia to Inova Health System Foundation. This divestiture ensured that Medicaid beneficiaries in Northern Virginia will continue to have a choice of at least two Medicaid managed care entities, which will compete on the breadth and quality of their provider networks of physicians, hospitals and pharmacies, as well as in other dimensions.2
In September 2012, after the Division informed the parties it was prepared to file an antitrust lawsuit to block their proposed transaction, 3M abandoned its plan to acquire Avery Dennison’s Office and Consumer Products Group. The merger would have given 3M more than an 80 per cent share of both the adhesive-backed labels and sticky notes markets in the United States, where the parties had become one another’s closest rival. The parties’ abandonment of the merger means that consumers will continue to benefit from the competition between these two companies.3
In August 2012, the Division obtained a settlement that required Verizon and four of the nation’s largest cable companies – Comcast, Time Warner, Bright House Networks and Cox Communications – to make changes to a set of agreements that, if unaltered, would have diminished the companies’ incentives to compete, resulting in higher prices and lower quality for consumers. The Division allowed the cable companies to transfer unused spectrum to Verizon, but prohibited an agreement that would have required Verizon to sell the cable companies’ products on equivalent terms as its own FiOS product, among other restrictions on other collaborations between these competitors. This settlement preserves Verizon’s incentives to compete aggressively with the cable companies.4
In July 2012, the Division obtained a settlement with United Technologies Corporation (UTC), requiring it to divest certain assets in order to proceed with its $18.4 billion acquisition of Goodrich Corporation, the largest merger in the history of the aircraft industry. Without the divestitures, the transaction likely would have resulted in higher prices, less favourable contract terms and less innovation for a number of components of large aircraft, including turbine engines, large main engine generators and engine control systems.5
Building on the litigation successes the Division had last year challenging the H&R Block/Tax Act and AT&T/T-Mobile transactions and in the jury verdict against AU Optronics, the Division filed three new merger litigation matters in the past year, and continues its other ongoing civil and criminal litigation.
In January 2013, the Division filed a lawsuit to block Anheuser-Busch InBev’s (ABI) proposed acquisition of total ownership and control of Grupo Modelo, alleging that the $20.1 billion acquisition, as originally proposed, would substantially lessen competition, increase prices and lower innovation in the market for beer in the United States as a whole and in at least 26 metropolitan areas across the United States. In April 2013, the Division reached a settlement with the parties that required the divestiture of Modelo’s entire US business – including licences of Modelo brand beers, its most advanced brewery, its interest in Crown Imports LLC and other assets – to Constellation Brands Inc. This settlement will maintain competition in the beer industry by creating an independent, fully integrated and economically viable competitor to ABI.6
Also in the past year, the Division brought two enforcement actions against consummated mergers. The first, filed in December 2012, is a challenge by the Division and the New York State Attorney General to the formation of Twin America, a joint venture through which Coach and City Sights merged their New York City hop-on, hop-off bus tour businesses, eliminating the head-to-head competition that had existed between those two companies.7 The second, filed in January 2013, is a lawsuit challenging Bazaarvoice’s acquisition of PowerReviews, a transaction the Division alleges substantially lessens competition in the market for product ratings and reviews platforms in the United States. Litigation is pending in both of these matters.8
Over the past year, the Division continued litigation in several other matters. In the Division’s e-books litigation, filed in April 2012, the Division took action to remedy the harm caused by a conspiracy to raise prices for e-books among Apple and five of the six largest US publishers.9The five publishers have agreed to settlements that restore competition,10and after three weeks of trial, the court recently ruled that Apple violated the antitrust laws by conspiring to raise e-book prices. The Division also continues its litigation against American Express,11 challenging certain of its merchant rules, and against eBay, challenging its agreement not to recruit or hire from Intuit.12
The Division’s criminal litigation efforts have met with great success as well. Within the past year, the Division’s municipal bonds investigation obtained additional federal jury convictions. In the first case, three former executives from General Electric Co who had been convicted for participation in conspiracies related to bidding for contracts for the investment of municipal bond proceeds and other municipal finance contracts were sentenced to prison – two executives were sentenced to serve three years, and the third to serve four years.13 In the second case, three former executives from UBS AG were convicted at trial of conspiracy and fraud charges for corrupting the bidding process for more than a dozen investment agreements to increase the number and profitability of the agreements awarded to UBS.14 Those three former executives are currently awaiting sentencing. The Division also continued its successes in its liquid crystal display panel investigation. In September 2012, AU Optronics (AUO) was sentenced to pay a $500 million fine and the convicted executives were each sentenced to serve three years in prison.15 The Division also successfully retried a third AUO executive, who was found guilty after a three-week trial, on 18 December 2012.16 Further, in January 2013, following a two-week trial, a jury in Puerto Rico convicted the former president of a coastal water freight transportation company for his participation in a conspiracy to fix rates and surcharges for water transportation of freight between the continental US and Puerto Rico, a conspiracy that affected the price of nearly every product that was shipped to or from Puerto Rico during the charged period.17
In addition to the convictions and sentences described above, the Division has continued to pursue significant ongoing criminal investigations. In the investigation into price fixing and bid rigging in the automotive parts industry, to date, nine companies and 14 executives have pleaded guilty or agreed to plead guilty. Together, the companies were sentenced to pay more than $809 million in criminal fines and 12 individuals have been sentenced to pay criminal fines and to serve jail sentences ranging from a year and a day to two years each. In addition, the Division’s efforts to investigate and prosecute bid rigging and fraud at real estate auctions across the country thus far have resulted in charges against 59 individuals and two companies. The Division also has had success, including most recently obtaining the guilty plea of RBS Securities Japan, in its investigation of schemes to manipulate the Japanese Yen London Interbank Rate (LIBOR), a leading benchmark used in financial products and transactions around the world.18
In addition to its role in enforcing the antitrust laws, the Division has continued its important competition policy endeavours over the past year. The Division joined with the US Patent and Trademark Office (PTO) to issue a Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments19 and participated in the PTO’s roundtable on its proposed regulations regarding periodic and timely recordation of a patent’s real-party-in-interest. Following that roundtable, the Division submitted, along with the Federal Trade Commission (FTC), comments supporting the PTO’s proposed regulations.20 The Division and the FTC also hosted public workshops on patent-assertion entity (PAE) activities21 and on most favoured nation clauses, which included a specific discussion of the use of these clauses in the health care system.22 These workshops brought together leading lawyers, economists, and business people to discuss the complex competition issues raised by PAE activities and MFNs.
In the face of ever-globalising business and the reality that many transactions and conduct reviewed by the Division are also subject to review by other competition agencies around the world, the Division has focused over the past few years on intensifying its international cooperation efforts. International cooperation remains a priority for Assistant Attorney General Bill Baer, who assumed leadership of the Division in January 2013. Deputy Assistant Attorney General Leslie C Overton supervises the Division’s international programme; Patty Brink, Director of Civil Operations, handles civil case coordination; and the Foreign Commerce Section handles other aspects of cooperation with the Division’s international antitrust colleagues around the world.
The Division’s international cooperation efforts range from daily interactions with its international counterparts on ongoing investigations, to building bilateral relationships, to participating in multilateral organisations. The Division has been active in each of these areas over the past year. Two good examples of recent day-to-day case cooperation include the e-books matter and last year’s UTC/Goodrich merger.
On e-books, throughout the investigation, Division staff and management cooperated with their counterparts from the European Commission (EC). As former Acting Assistant Attorney General Sharis Pozen put it, this was ‘truly’ a ‘global enforcement’ effort, and ‘[n]ever before have we seen this kind of cooperation in a civil antitrust enforcement matter.’23 Attorney General Eric Holder also recognised the Division’s work with the EC, thanking ‘our partners at the European Commission... for their hard work and close cooperation.’24 European Commission Vice President Joaquin Almunia praised the ‘positive spirit of collaboration which, in spite of our different systems and traditions, allows us to work together.’25
The Division also cooperated closely with its international counterparts in connection with its review of the UTC/Goodrich transaction. The Division determined that, as proposed, this merger would have resulted in higher prices, less favourable contract terms, and reduced innovation for several critical aircraft components. The Division worked with the EC and the Canadian Competition Bureau throughout the course of the investigation, and had discussions with other competition agencies, including the Federal Competition Commission in Mexico and the Administrative Council for Economic Defense in Brazil. The same day the United States announced its resolution and consent decree, the European Commission and the Canadian Competition Bureau issued statements regarding their investigations.26 The EC approved the merger, subject to certain conditions, and the Canadian Competition Bureau stated that it would take no action regarding the deal because the US and EC remedies ‘appear to sufficiently mitigate the potential anti-competitive effects in Canada.’27 Cooperation among the agencies enabled them to achieve the non-conflicting remedy of divestitures located in the United States, Canada and the United Kingdom.28 As the Division observed in its press statement at the time, ‘the [D]ivision’s close cooperation with the European Commission and the Canadian Competition Bureau resulted in a coordinated remedy that will preserve competition in the United States and internationally.’29
The Division also recently cooperated with the EC on the investigation of Delta Air Lines’ acquisition of an equity interest in Virgin Atlantic Airways. Upon closing the investigation, the Division noted, ‘the division and the European Commission cooperated closely throughout the course of their respective investigations, with frequent contact between the agencies. This cooperation, facilitated by the parties, made for a more efficient review process.’30
International cooperation remains important to the Division’s criminal enforcement programme as well. In particular, in connection with the Division’s auto parts investigation, it has worked with counterparts in Japan, the EU and Canada, and in its air cargo cases, the Division has worked with the Australian Competition and Consumer Commission, the EC, the New Zealand Commerce Commission, the UK Office of Fair Trading and other agencies.
The Division continues to engage with its international counterparts, both by cultivating long-standing relationships, such as those we have with the EC, Canada, Mexico and Japan, but also by building new relationships. In September 2012, the Division and the FTC entered into a memorandum of understanding (MOU) with the Indian government and antitrust authorities that establishes a framework for ongoing cooperation and communication between the agencies, including technical cooperation and periodic meetings among officials to exchange information on policy and enforcement priorities.31 Similarly, over the past few years, the Division and the FTC have strengthened their ties with China’s three antitrust agencies, including entering into an MOU in 2011. In September 2012, the Division and the FTC met with the heads of all three Chinese agencies in Washington, DC, for the first ‘joint dialogue’ to discuss issues of mutual interest. The meetings covered a range of policy and technical subjects, including promoting competition in a global economy and various aspects of civil and criminal enforcement. In addition to the joint dialogue, the Division and the FTC engaged with the Chinese antimonopoly agencies in two workshops in China and used both formal and informal exchanges to develop mutual understandings and cooperative relationships.
The Division has also been active in informal bilateral relations, including exchanges between staff of various competition agencies. In 2012, Director of Civil Enforcement Patty Brink spent two weeks working in the EC’s Directorate-General for Competition (DG Comp) in Brussels. In addition, the Division hosted a DG Comp official and an official of the Japanese Fair Trade Commission. These exchanges have been effective in providing in-depth exposure to the day-to-day workings of another agency. These exchanges also make later cooperation easier because they allow the Division to gain familiarity with another jurisdiction’s procedures and legal standards, and develop personal relationships with its counterparts.
The Division maintained its leadership role in several multilateral competition organisations over the past year, and remains committed to the important projects these organisations have embarked upon.
In the Organisation for Economic Co-operation and Development (OECD), the Antitrust Division continued to serve as chair of Working Party 3. The Division has taken a major role in two of the OECD’s ongoing projects: the OECD Competition Committee’s report on procedural fairness, which has been a feature of the Committee’s Working Party 3, and a survey of current practices and future thinking on international enforcement cooperation (which was also a focus of International Competition Network (ICN)). The Division is also a founding member of ICN, a member of its Steering Group Committee and co-chair of the ICN’s Cartels Working Group (together with the German and Japanese competition agencies).
The Division took a leadership role in an ICN-OECD joint project on international enforcement cooperation, an unprecedented collaborative effort by those organisations to gauge the successes and weaknesses of current cooperation frameworks. The ICN project team leaders, including the Division and the Turkish Competition Authority, worked very closely with the OECD Secretariat to draft a joint survey that was sent to all ICN and OECD members. This comprehensive survey sought members’ views on the value of and limitations to effective cooperation, including the day-to-day challenges that sometimes prevent agencies from cooperating effectively and efficiently. The survey also asked members about the value and usefulness of past ICN and OECD work on enforcement cooperation, as well as what members want to see in terms of future work.
The result of this survey, to which 57 competition agencies responded, is two complementary reports: the OECD report32 discusses survey results on a broad range of topics, including the experiences and limitations of competition agencies with international cooperation in case-related activities, and the ICN report,33 which focuses specifically on ICN members’ views on the usefulness of existing ICN cooperation-related work, and on members’ priorities for future ICN cooperation-related work. The survey and resulting reports gave insights into member organisations’ priorities and processes for international cooperation, and will serve as a launching point for future work by the two organisations.
The Division also continued its work with the World Intellectual Property Organization, the United Nations Conference on Trade and Development, and the Competition Policy and Law Group of the Asian Pacific Economic Cooperation forum.
- Press Release, US Department of Justice, Justice Department Files Motion to Dismiss Antitrust Lawsuit Against Blue Cross Blue Shield of Michigan After Michigan Passes Law to Prohibit Health Insurers from Using Most Favored Nation Clauses in Provider Contracts (25 March 2013), available at www.justice.gov/atr/public/press_releases/2013/295114.htm.
- Press Release, US Department of Justice, Amerigroup Corp.’s Divestiture of its Virginia Operations Addresses Department of Justice’s Concerns with WellPoint Inc.’s Proposed Acquisition of Amerigroup (28 November 2012), available at www.justice.gov/atr/public/press_releases/2012/289428.htm.
- Press Release, US Department of Justice, 3M Company Abandons its Proposed Acquisition of Avery Dennison’s Office and Consumer Products Group After Justice Department Threatens Lawsuit (4 September 2012), available at www.justice.gov/atr/public/press_releases/2012/286647.htm.
- Press Release, US Department of Justice, Justice Department Requires Changes to Verizon-Cable Company Transactions to Protect Consumers, Allows Procompetitive Spectrum Acquisitions to go Forward (16 August 2012), available at www.justice.gov/atr/public/press_releases/2012/286098.htm.
- Press Release, US Department of Justice, Justice Department Requires Divestitures in Order for United Technologies Corporation to Proceed with its Acquisition of Goodrich Corporation (26 July 2012), available at www.justice.gov/atr/public/press_releases/2012/285420.htm.
- Press Release, US Department of Justice, Justice Department Reaches Settlement with Anheuser-Busch InBev and Grupo Modelo in Beer Case (19 April 2013), available at www.justice.gov/atr/public/press_releases/2013/296018.htm.
- Press Release, US Department of Justice, Justice Department and New York Attorney General File Antitrust Lawsuit Against New York City Tour Bus Joint Venture of Coach USA and City Sights (11 December 2012), available at www.justice.gov/atr/public/press_releases/2012/290136.htm.
- Press Release, US Department of Justice, Justice Department Files Antitrust Lawsuit Against Bazaarvoice Inc. Regarding the Company’s Acquisition of PowerReviews, Inc. (10 January 2013), available at www.justice.gov/atr/public/press_releases/2013/291185.htm.
- Press Release, US Department of Justice, Justice Department Reaches Settlement with Three of the Largest Book Publishers and Continues to Litigate Against Apple Inc. and Two Other Publishers to Restore Price Competition and Reduce E-Book Prices (11 April 2012), available at www.justice.gov/atr/public/press_releases/2012/282133.htm.
- Id; Press Release, US Department of Justice, Justice Department Reaches Settlement with Macmillan in E-Books Case (8 February 2013), available at www.justice.gov/atr/public/press_releases/2013/292578.htm; Press Release, US Department of Justice, Justice Department Reaches Settlement with Penguin Group (USA) Inc. in E-Books Case (18 December 2012), available at www.justice.gov/atr/public/press_releases/2012/290409.htm.
- Press Release, US Department of Justice, Justice Department Sues American Express, MasterCard and Visa to Eliminate Rules Restricting Price Competition; Reaches Settlement with Visa and MasterCard (4 October 2010), available at www.justice.gov/opa/pr/2010/October/10-at-1115.html.
- Press Release, US Department of Justice, Justice Department Files Lawsuit Against EBay Inc. Over Agreement not to Hire Intuit Inc. Employees (16 November 2012), available at www.justice.gov/atr/public/press_releases/2012/288865.htm.
- Press Release, US Department of Justice, Three Former Financial Services Executives Sentenced to Serve Time in Prison for Roles in Conspiracies Involving Investment Contracts for the Proceeds of Municipal Bonds (18 October 2012), available at www.justice.gov/atr/public/press_releases/2012/288099.htm.
- Press Release, US Department of Justice, Three Former UBS Executives Convicted for Frauds Involving Contracts Related to the Investment of Municipal Bond Proceeds (31 August 2012), available at www.justice.gov/atr/public/press_releases/2012/286598.htm.
- Press Release, US Department of Justice, Taiwan-Based AU Optronics Corporation Sentenced to Pay $500 Million Criminal Fine for Role in LCD Price-Fixing Conspiracy (20 September 2012), available at www.justice.gov/atr/public/press_releases/2012/287189.htm.
- Press Release, US Department of Justice, AU Optronics Corporation Executive Convicted for Role in LCD Price-Fixing Conspiracy (18 December 2012), available at www.justice.gov/atr/public/press_releases/2012/290399.htm.
- Press Release, US Department. of Justice, Former Executive Convicted for Role in Price-Fixing Conspiracy Involving Coastal Freight Services Between the Continental United States and Puerto Rico (29 January 2013), available at www.justice.gov/atr/public/press_releases/2013/291962.htm.
- Press Release, US Department of Justice, RBS Securities Japan Limited Agrees to Plead Guilty in Connection with Long-Running Manipulation of LIBOR Benchmark Interest Rates (6 February 2013), available at www.justice.gov/atr/public/press_releases/2013/292421.htm; Press Release, US Department of Justice, UBS Securities Japan Co. Ltd. to Plead Guilty to Felony Wire Fraud for Long-Running Manipulation of LIBOR Benchmark Interest Rates (19 December 2012), available at www.justice.gov/atr/public/press_releases/2012/290478.htm.
- Available at www.justice.gov/atr/public/guidelines/290994.pdf.
- Available at www.justice.gov/atr/public/comments/292147.pdf.
- Press Release, US Department of Justice, Department of Justice, Federal Trade Commission to Hold Workshop on Patent Assertion Entity Activities (7 December 2012), available at www.justice.gov/atr/public/press_releases/2012/289873.htm.
- Press Release, US Department of Justice, Department of Justice, Federal Trade Commission to Hold Workshop on ‘Most-Favored-Nation’ Clauses (17 August 2012), available at www.justice.gov/atr/public/press_releases/2012/286144.htm.
- Remarks as Prepared for Delivery by Acting Assistant Att’y Gen. Sharis A. Pozen at the E-books Press Conference (11 April 2012), available at www.justice.gov/atr/public/speeches/282147.htm.
- Remarks as Prepared for Delivery by Attorney General Eric Holder at the E-books Press Conference (11 April 2012), available at www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1204111.html.
- Speech, Joaquin Almunia, Vice President responsible for Competition Policy, International Cooperation to Fight Protectionism (18 April 2012), available at http://europa.eu/rapid/press-release_SPEECH-12-280_en.htm.
- Press Release, US Department of Justice, supra note 4; Press Release, European Commission, Mergers: Commission approves acquisition of aviation equipment company Goodrich by rival United Technologies, subject to conditions (26 July 2012), available at http://europa.eu/rapid/press-release_IP-12-858_en.htm.; Press Release, Canadian Competition Bureau, Competition Bureau Statement Regarding United Technology Corporation’s Acquisition of Goodrich Corporation (26 July 2012), available at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03483.html.
- Press Release, Canadian Competition Bureau, supra note 26.
- Competitive Impact Statement, United States v United Technologies Corp, No. 1:12-cv-1230 (DDC filed 26 July 2012), available at www.justice.gov/atr/cases/f285400/285430.pdf.
- Press Release, US Department of Justice, supra note 5.
- Press Release, US Department of Justice, Statement of the Department of Justice Antitrust Division on its Decision to Close its Investigation of Delta Air Lines’ Acquisition of an Equity Interest in Virgin Atlantic Airways (20 June 2013), available at www.justice.gov/atr/public/press_releases/2013/298788.htm. See also Press Release, European Commission, Mergers: Commission clears proposed joint acquisition of Virgin Atlantic by Delta and Virgin Group (20 June 2013), available at http://europa.eu/rapid/press-release_IP-13-587_en.htm.
- Press Release, US Department of Justice, Department of Justice and Federal Trade Commission Sign Memorandum of Understanding with Indian Competition Authorities (27 September 2012), available at www.justice.gov/atr/public/press_releases/2012/287457.htm.
- OECD Report on the OECD/ICN Survey on International Enforcement Cooperation, available at http://icnwarsaw2013.org/docs/icn_oecd_icn_report.pdf.
- ICN Report on OECD/ICN Questionnaire on International Enforcement Cooperation, available at http://icnwarsaw2013.org/docs/icn_04-05-13_icn_report.pdf.