Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust Division's International Antitrust Cooperation Efforts Discussed at AmCham Program, (Dec 6, 2012)
Organizations Mentioned:Blue Cross Blue Shield of Michigan
By Jeffrey May, J.D.
In a speech, entitled “International Cooperation: Taking a Broader View,” delivered today at the 29th American Chamber of Commerce Annual EU Competition Policy Conference in Brussels, Rachel Brandenburger, Special Advisor on International Antitrust Matters at the Department of Justice Antitrust Division, discussed recent trends in international antitrust enforcement cooperation.
Brandenburger began her remarks with a mention of recent successes for the Antitrust Division. She noted 3M Company's decision in September to abandon its planned acquisition of Avery-Dennison Corporation’s Office and Consumer Products Group—3M’s closest competitor in the sale of adhesive-backed labels and sticky notes—in response to the Antitrust Division competitive concerns and threat to file suit to block the deal.
She also pointed to three significant, ongoing civil non-merger suits: (1) a challenge to Blue Cross Blue Shield of Michigan’s use of most favored nation (MFN) and MFN-Plus agreements that allegedly forced hospitals to charge higher prices to Blue Cross’s competitors; (2) litigation against American Express over rules that purportedly limited merchants’ abilities to promote competition among credit card networks; and (3) a challenge to allegedly anticompetitive conduct by Apple Inc. and major book publishers with respect to sales of e-books. In addition, she discussed some recent criminal efforts in the municipal bond, liquid crystal display (LCD) panel, and auto parts industries.
On the topic of recent Antitrust Division policy initiatives, Brandenburger touted the July 2011 U.S./China antitrust memorandum of understanding (MOU) and the September 2012 U.S./India MOU. She also noted that in September two days of meetings were held between U.S. and Chinese antitrust officials to discuss promoting competition in a global economy, as well as various aspects of civil and criminal antitrust enforcement.
“Taken together, these recent cooperative events involving the U.S. antitrust agencies and the Chinese and Indian competition agencies, respectively, augur well for enhancing the quality of international cooperation among agencies that are likely to work more closely together on case cooperation in the future, as China and India play their very significant new roles in the world economy,” Brandenburger said.
Brandenburger devoted the remainder of her remarks to the Antitrust Division's cooperation ethos and the agency's cooperation experience. She provided a single recent case example that she said epitomized successful, sustained cooperation—the Antitrust Division's civil lawsuit against Apple and five of the largest book publishers in the United States, which are also based in Europe, alleging that they conspired to increase the prices that consumers pay for e-books.
According to Brandenburger, the Antitrust Division practices seven guiding principles in all international case cooperation matters. The seven guiding principles for effective, long-term international cooperation are: increased transparency and accountability of government actions; expanded and deeper cooperation between U.S. and non-U.S. competition enforcement agencies; greater convergence of competition regimes; mindfulness of other jurisdictions’ interests; respect for other jurisdictions’ legal, political and economic cultures; trust in each other’s actions; and ongoing dialogue on all aspects of international competition and enforcement.
She also pointed out the three principal purposes of international cooperation: to increase our understanding of the competitive process, both in particular cases and more generally; to increase the effectiveness of all aspects of the Antitrust Division’s enforcement activities; and to increase the efficiency of the overall global enforcement effort by competition agencies around the globe, in order to facilitate and promote economic activity to the benefit of consumers.
Brandenburger mentioned the Antitrust Division’s decision to devote significant resources to two new, coordinated projects on international enforcement cooperation, one at the Organization for Economic Cooperation and Development and the other at the International Competition Network. According to Brandenburger, these projects “will provide important venues for competition agencies to discuss and improve the ways in which they cooperate, with each other and with the parties to their investigations.”
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