Chinese Company’s Use of Foreign Sovereign Immunity Defense Linked to FTAIA Standard for “Direct” Impact on U.S. Commerce
Competition authorities worldwide are dialing up their anti-cartel efforts and heightening cross-border collaboration, with synchronized "dawn raids" mounted across jurisdictions. Companies can expect more of the same going forward – perhaps much more. Critical to risk management is an aggressive response that proactively addresses compliance alerts and other indications of anti-competitive conduct. Speed and agility can also mean the difference between amnesty or leniency and catastrophic sanctions. The choice of cartel counsel is thus a crucial decision point in protecting the company and its personnel.
Our cartel team includes several former U.S. federal prosecutors with extensive experience in antitrust criminal enforcement in the United States, and who have represented both U.S. and non-U.S. companies and their executives and employees. Our team members have also worked in international cartel enforcement working groups at the Organization for Economic Co-operation and Development in Paris and for the International Competition Network in Seoul and Bonn, as well as on missions to assist India’s development of its growing antitrust regime. The government experience of our lawyers allows us to leverage invaluable insights and perspectives to effectively defend clients in cartel investigations.
We are highly regarded for our ability to represent clients in multijurisdictional government investigations. Our lawyers work seamlessly across the globe to craft a coordinated defense solution for criminal cartel investigations and prosecutions of companies and individuals, as well as in anticipation of follow-on civil litigation and follow-on damages actions. Our lawyers have defended companies or senior corporate officials in governmental probes in the United States, Europe and Asia of alleged price fixing in the DRAM, SRAM, LCD, CRT and automobile parts industries, among others. Each of these matters required close coordination and teamwork; we not only counseled our clients on the internal investigations but also directly participated in sensitive negotiations with the European Commission and other regulatory agencies.
Consider these facts: fines in the United States hit about $3.9 billion last year, and the European Commission has already levied fines of more than €2.8 billion in a single year. Foreigners and U.S. residents regularly go to jail in the United States, and prison terms are harsh – the average sentence for cartel-related convictions in the United States peaked at more than two years.
Companies facing international cartel investigations must anticipate enforcement actions not only by the U.S. Department of Justice and/or the European Commission, but also by other antitrust authorities around the world. Jurisdictions such as Canada, Australia, Brazil, Japan, Ireland, Israel and the U.K. also have criminal sanctions.
Of course, that's just part of the cost. Companies subject to enforcement efforts face reputational harm, the erosion of shareholder value, and the practical costs of ongoing distraction or loss of senior executives. The inevitable follow-on – complex federal and state litigation – can prolong a company’s reputational agony and also have severe economic ramifications. Collateral consequences of a felony indictment can range from financing effects to preclusion from government bidding, from False Claims Act allegations to shareholder derivative suits.
We excel at global coordination. We are familiar with the nuances of the current maze of leniency policies and the unwritten practices of the enforcers. Our lawyers know the private claimants’ lawyers and how they approach their claims. Only with this knowledge and history can clients understand the strategic options that can minimize overall cost and disruption. Our approach tips the scales in favor of successful outcomes for our clients through strategies that take into account the full complexity of an investigation and its future ramifications.
We always keep our clients’ business objectives at the fore as we develop an action plan. We approach cartel investigations holistically and avoid piecemeal solutions.
We believe in a collaborative approach, and work closely and effectively with our clients, our co-counsel and the relevant individuals to decide on a strategy. When a soft approach makes sense, we are ready to cooperate with enforcers or with claimants. When circumstances call for us to push back, we are ready to push – hard, if necessary – to ensure our clients’ best interests are served.
We provide the full range of counseling and compliance services needed to navigate the various antitrust and competition laws and regulations in the United States, Europe and Asia. We have guided a diverse range of businesses, organizations and trade associations through the complexities of antitrust compliance and helped them manage antitrust risk and avoid antitrust liability. We do so by understanding the business strategies of our clients and becoming strategic partners with them and our colleagues in related fields, such as intellectual property, regulatory matters, and mergers and acquisitions. We also have extensive expertise in, and routinely provide guidance concerning, state antitrust, unfair practices and unfair competition law issues.
We provide services that enable our clients to proactively avoid cartel allegations, including: