US: Department of Justice

The Antitrust Division of the Department of Justice has long valued its relationships with the antitrust enforcement agencies north and south of its borders. In recent years, these relationships have grown stronger as the competition enforcement community has confronted an increasing number of cross-border deals, shared policy challenges and the globalisation of cartel investigations.

Case cooperation in the Americas

The Antitrust Division’s ability to accomplish its mission and protect consumers is enabled by close engagement with enforcers throughout the Americas. Canada and Mexico are the first and second-largest export markets for US goods and services, and are its largest energy trade partners.¹ Given the value of trade in goods and services in the region, it should come as no surprise that a large number of transactions and conduct are reviewed by the competition agencies in all three countries. Last year, the Antitrust Division cooperated closely with the Canadian Competition Bureau (CCB), Brazil’s Administrative Council for Economic Defence (CADE) and Mexico’s Federal Competition Commission (COFECE) in its review of the proposed merger between Continental/Veyance, and it cooperated with the CCB in its review of Louisiana-Pacific/Ainsworth.

In Continental/Veyance,² the proposed acquisition would have eliminated one of only three significant suppliers of commercial vehicle air springs, used to provide stability to the suspension systems in trucks, trailers and buses. The merger would have created a virtual duopoly, facilitating anti-competitive coordination between the two remaining suppliers, risking higher prices and decreased service for customers in North America. Aided by waivers from the parties, the Antitrust Division communicated regularly with the CCB, CADE and COFECE to coordinate the agencies’ analyses and discuss the formulation of each agency’s respective remedies.

Through the course of these discussions, the agencies determined that they shared similar competitive concerns about consolidation in the market for commercial vehicle air springs. The Antitrust Division, CADE and COFECE each determined that the appropriate remedy for resolving these competitive concerns was the divestiture of a plant in Mexico and of research and development, engineering, administrative and other assets located in the United States. The parties entered into a similar agreement with each jurisdiction and committed to divesting these assets, subject to the terms of the agreements. Mexico and the Antitrust Division also shared concerns about a barrier hose product, which the parties alleviated by waiving exclusivity requirements that would have otherwise resulted in a loss of competition. Canada closed its investigation, stating that its concerns regarding air springs were adequately resolved by the Antitrust Division’s settlement. The transaction also raised competitive concerns in the market for heavy duty steel cord conveyor belts in Brazil, and CADE required the parties to divest a steel belt factory in Brazil.

The Antitrust Division also closely cooperated with the CCB in the 2014 investigation of Louisiana-Pacific Corp’s proposed acquisition of Ainsworth Lumber Co Ltd, producers and sellers of a manufactured wood product used in the construction and remodeling of homes.³ This investigation involved significant cooperation, aided by early waivers granted by the parties. The Antitrust Division and CCB conducted joint witness interviews, and the CCB attended party depositions taken by the Antitrust Division. Antitrust Division and CCB economists shared data and analysis, and the agencies’ attorneys held frequent, almost daily calls on theories of harm and analytical approaches. In addition, senior managers of the Antitrust Division and CCB worked closely together, holding frequent calls on higher-level policy issues during the course of the agencies’ close cooperation.

The Antitrust Division and CCB worked closely to coordinate the timing and messaging of the agencies’ respective concerns to the parties. The parties abandoned the proposed acquisition after the Antitrust Division and CCB expressed competitive concerns. The high level of cooperation between the agencies allowed each agency to reach its own independent determination of how to proceed, but in a more efficient manner.

Technical cooperation and support of new agencies in the Americas

In the past three years, the Antitrust Division has increased its engagement with and support for newer competition agencies in the Americas. There has been explosive growth in the number of new competition agencies in the past decade, and a number of more established agencies in the region have implemented or are considering significant reforms to existing competition laws. Almost every country in Latin America now has a competition law, and many of these new agencies are making remarkable strides to implement effective enforcement programmes.

El Salvador⁴ and Honduras⁵ each passed competition laws that entered into force in 2006, the Dominican Republic passed a competition law in 2008,⁶ and Guatemala is widely expected to pass a competition law by 2016.⁷ Mexico recently modernised its competition policy and created two new autonomous competition authorities: COFECE and the Federal Institute of Telecommunications. Some in the private bar and international business community have expressed concerns about this rapid growth of new enforcement authorities, stating that when transactions or conduct are reviewed by multiple agencies, there is not only a greater risk of substantive and procedural conflict, but also the costs and uncertainties of multi-jurisdictional review can pose serious financial burdens.

The Antitrust Division continues to embrace the view that more regular engagement among enforcers throughout the Americas can help minimise those concerns. The Antitrust Division invests in international multilateral organisations such as the Organisation for Economic Cooperation and Development (OECD) and the International Competition Network (ICN). The ICN’s various working groups have helped strengthen relationships amongst enforcers, regardless of agency size and experience, and it is a particularly effective forum for leading discussions of convergence around internationally accepted norms and best practices for merger, unilateral conduct and cartel investigations. Over the past decade, the ICN has created a trove of training materials and done much to help ensure that agencies, especially newer agencies, have access to the technical support they need to develop and hone the skills to be effective partners.

In addition to its involvement in multilateral organisations, since 2012 the Antitrust Division has also worked closely with partners at the Federal Trade Commission (FTC), the United States Agency for International Development, the Federal Bureau of Investigation, the World Bank and the OECD, and has helped organise nearly 20 workshops and training programmes in Latin America. These programmes have focused on a wide range of enforcement issues, including information technology forensics, cartel enforcement, leniency, investigative planning and techniques, and merger remedies. The Antitrust Division and FTC continue to seek the inclusion of experienced enforcers from throughout Latin America in these programmes. The Antitrust Division expects its involvement in these types of programmes to increase further in the coming years as it looks to find new partners and opportunities for engagement.

Conclusion

The strength of the relationships between the Antitrust Division and its enforcement counterparts throughout the Americas is vital to the success of its enforcement mission. Enforcement cooperation helps to increase the efficiency of the investigative process and prevent conflicting remedies. With the rapid growth of new enforcement agencies in the region, the number of agencies involved in these discussions will likely increase in the coming years. The Antitrust Division will continue to support ICN and OECD efforts to provide support to newer agencies, and will look for additional opportunities for bilateral engagement.

Notes

1. US Dept of State, ‘US Relations with Canada (2014),’ available at www.state.gov/r/pa/ei/bgn/2089.htm; US Dept. of State, ‘US Relations with Mexico (2014),’ available at www.state.gov/r/pa/ei/bgn/35749.htm.
2. DOJ Press Release, ‘Justice Department Requires Divestiture of Commercial Air Springs Business in connection with Continental AG Acquisition of Veyance Technologies, Inc’, available at www.justice.gov/atr/public/press_releases/2014/310440.htm.
3. DOJ Press release, ‘Louisiana-Pacific Corp Abandons Its Proposed Acquisition of Ainsworth Lumber Co Ltd’, available at www.justice.gov/opa/pr/louisiana-pacific-corp-abandons-its-proposed-acquisition-ainsworth-lumber-co-ltd.
4. OECD Peer Review of Competition Law and Policy in El Salvador (2008), available at www.oecd.org/daf/competition/41597078.pdf.
5. OECD Peer Review, Competition Law and Policy in Honduras (2011), available at www.oecd.org/daf/competition/49733270.pdf.
6. For a copy of the Dominican Republic’s General Law in Defence of Competition, see www.consultoria.gov.do/leyes/Ley%20General%20de%20Defensa%20de%20la%20Competencia,%20No.pdf
7. ‘Antitrust Law in Guatemala: Current Regulation and Future Perspectives’, available at www.terralex.org/publication/pdae48bc022/antitrust-law-in-guatemala-current-regulation-and-future-perspectives.