Last year, the Department of Justice Antitrust Division announced that it was creating a Procurement Collusion Strike Force  (Strike Force) to focus on bid-rigging in public procurement noting that this area was “particularly vulnerable to collusion.”  The creation of the Strike Force followed the Antitrust Division’s recent focus on anticompetitive conduct in government contracting.

Continue Reading DOJ Touts the Success of its Procurement Collusion Strike Force and Seeks a Global Effort on This Front

The US Department of Justice (DOJ) Antitrust Division recently issued a deferred prosecution agreement (DPA) to Florida Cancer Specialists & Research Institute (FCS), an oncology center in Florida. FCS admitted to allocating medical and radiation oncology treatments provided to cancer patients in Southwest Florida. In addition, FCS had to pay a $100 million monetary penalty,

interIn this briefing, we describe how certain employment practices, such as no-poach or wage-fixing agreements, may infringe competition law, a topic that has recently taken centre stage in the US and is also firmly, although more discretely, on the radar of antitrust authorities in Europe, but perhaps not yet on that of companies. Here is why it should be.

Continue Reading New Year’s resolution for EU antitrust compliance teams: “Putting HR practices on my radar screen”

In an unanimous decision, the Supreme Court has gutted the Second Circuit’s rule on deference to a foreign government’s interpretations of its law, holding that a federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord “respectful consideration” to a foreign government’s submission, but a court “is not bound to accord conclusive effect” to these statements.

The case is Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., which began as a multi-district class action alleging price fixing claims vitamin C exports sold to U.S. companies. Initially, plaintiffs won at a jury trial after the district court refused to credit the Chinese government’s statements that it compelled the defendants to fix the price and limit the supply of vitamin C. Then, the Second Circuit reversed, holding that the district court was  “bound to defer” to the Chinese government’s interpretation of its laws when the latter “directly participates” in U.S. proceedings through a “sworn evidentiary proffer regarding the construction and the effect of its laws and regulations,” as long as it is reasonable under the circumstances presented.

As previewed in our earlier analysis, this case has important repercussions for any business involved in cross-border transactions. We explore these further below in light of the Supreme Court opinion.


Continue Reading Vitamin C Antitrust Litigation – How It Matters for Businesses

In an increasingly interconnected world, businesses that conduct cross-border transactions will continue to navigate complicated and thorny legal regimes. As long as full compatibility between these regimes is unrealized, the doctrine of international comity will remain alive and well in U.S. litigation. Comity is a choice-of-law principle that concerns the extent “to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation.”[1] Comity is different from other closely-related doctrines like the act of state doctrine (a defense designed to avoid judicial inquiry into state officials’ conduct as opposed to private actors[2]) and the foreign sovereign compulsion doctrine (a defense where “corporate conduct which is compelled by a foreign sovereign” is also protected from liability “as if it were an act of the state itself”[3]).

This article discusses one flashpoint area in comity analysis—the question of what deference to give to a foreign sovereign’s interpretation of its own law, a pending question now before the Supreme Court. Adherence to one set of laws may or may not affect a court’s decision to abstain from jurisdiction. In the United States, circuit courts disagree about the degree of deference that should be given to foreign sovereigns who offer their own interpretations of their laws in litigation. For instance, the Ninth and Second Circuits have given a strong degree of deference to such interpretations, with the Second Circuit recently stating that it is “bound to defer” to such statements.[4] In contrast, the Sixth and D.C. Circuit past approaches show that they do not always compel strong deference to a foreign government’s interpretation of its laws.[5]


Continue Reading Will the Real Conflict Please Stand Up: International Comity on the Supreme Court Stage

Please join Steptoe’s Antitrust Team on Wednesday, November 1, for an in depth discussion of criminal antitrust enforcement against employee no-poaching agreements. As detailed in our earlier blog post, on September 12, two high-level officials of the US Department of Justice (DOJ), Antitrust Division confirmed the Trump Administration’s continued enforcement efforts against agreements

On September 12, Andrew Finch, the Acting Assistant Attorney General for Antitrust in the U.S. Department of Justice, confirmed the Trump Administration’s commitment to the criminalization of agreements among companies not to “poach” each other’s employees and agreements on employees’ wages, policies advanced significantly during the Obama Administration.

Continue Reading Trump DOJ Confirms Criminal Enforcement against Employee No-Poaching and Wage-Fixing Agreements