Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust Division Civil Enforcement Director Delivers Speech Highlighting International Cooperation , (Apr 22, 2013)

By Tobias J. Gillett, J.D., LL.M.

Patricia Brink, Director of Civil Enforcement in the Antitrust Division of the Department of Justice, on April 19 delivered a speech before the Institute for Consumer Antitrust Studies at Loyola University Chicago in which she stressed the importance of international cooperation to the work of competition agencies.

Brink opened her speech by emphasizing the need for cooperation, noting the growth in the number of competition agencies internationally from approximately 20 in 1990 to around 130 today. She observed that cooperation increases the consistency, predictability, and efficiency of investigations and remedies, reduces their uncertainty and expense to firms doing business globally, increases the effectiveness of competition enforcement, and increases agencies’ understanding of the competitive process.

Having established the need for international cooperation, Brink proceeded to discuss the forms such cooperation took in practice. She noted that the Department of Justice and the FTC participate in a variety of multilateral organizations, such as the Competition Committee of the OECD, the International Competition Network (ICN), the United Nations’ Conference on Trade and Development (UNCTAD), and the Asia Pacific Economic Cooperation (APEC).

The agencies also have formal bilateral relationships, including mutual legal assistance treaties, cooperation agreements, memoranda of understanding, and best practices and guidance documents such as the Department of Justice’s Best Practices on Cooperation in Merger Investigations, Brink observed. Further, they engage in workshops, seminars, technical assistance missions, informal staff exchanges, discussions, and consultations.

In addition to these forms of cooperation, Brink pointed out that the Antitrust Division cooperates with its foreign counterparts on individual cases. She noted that this cooperation depends in part on the parties’ willingness to exchange information, since the Hart-Scott-Rodino Act prohibits the U.S. competition agencies from disclosing information obtained under the Act, including the fact that a company has filed a notification.

Therefore, many cooperation efforts depend on the parties waiving the disclosure restrictions, according to Brink, although the Antitrust Division can still share certain information such as the status of their investigations. They can also coordinate on the timing of reviews, decisions, interviews, and document demands, as well as on remedies sought.

Brink then provided examples of cases in which the Antitrust Division engaged in international cooperation. She pointed to the Division’s lawsuit against Apple and five of the largest book publishers in the United States, charging that they had conspired to increase the price of e-books to consumers, in which the agency cooperated with the European Commission and obtained settlements with all five publishers.

Another example cited by Brinks was the merger between Google and Motorola Mobility, in which Google acquired patents that Motorola had committed to license through participation in standard-setting organizations. She noted the Antitrust Division’s close cooperation with the EC on the case, and that the agencies released decisions on the same day deciding not to challenge the acquisition of the patent rights, but reserving the right to challenge the acquisition in the future. The agency also discussed the case with the Australian Competition and Consumer Commission, the Canadian Competition Bureau, the Israel Antitrust Authority, and the Korean Fair Trade Commission.

Brink also referred to the Antitrust Division’s collaboration with the EC in reviewing Cisco Systems Inc.’s acquisition of Tandberg ASA and its videoconferencing business. She noted that the Antitrust Division "took into account the commitments the parties gave the EC," and that the agencies closed their investigations on the same day.

Finally, Brink discussed the Antitrust Division’s cooperation with the EC, the Canadian Competition Bureau, the Mexican Federal Competition Commission, the Brazilian Administrative Council for Economic Defense, and other authorities on the merger between United Technologies Corporation (UTC) and Goodrich Corporation, which the U.S. alleged "would have led to competitive harm in several critical aircraft components." The cooperation permitted a resolution of the case involving divestiture of assets located in the U.S., Canada, and the United Kingdom, Brink observed.

Brink then reviewed the course of the agencies’ cooperation in the matter. In the investigation phase, they obtained confidentiality waivers from the parties, and engaged regular telephone meetings, videoconferences, and briefings between the agencies and with the parties. The agencies’ cooperation in the decision phase permitted review of the commitments made by UTC to the EC and the Division to ensure they were not inconsistent and did not impose conflicting obligations. The agencies also "required the parties to coordinate all of the divestiture packages and optional supply/transition services agreements to ensure consistency." Brink noted that the agencies have continued to work closely to implement the remedies. Moreover, the joint resolution sufficiently mitigated the potential anticompetitive effects in Canada to permit the Canadian Competition Bureau to close the case without seeking separate relief.

Brink closed by emphasizing the importance of international cooperation to competition agencies. "Cooperation builds on relationships and communication to help agencies get to the right answer, together, and to ensure consistency for parties to our investigations," Brink stated.

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