Companies, including those in the pharmaceutical and medical device industries, with multinational operations should expect increasing collaboration between U.S. and foreign competition agencies to investigate and prosecute alleged antitrust violations. In light of recent and ongoing investigations by U.S. and UK competition agencies into generic and sole-source drug pricing, the revised guidelines are expected to encourage further information sharing across jurisdictions.
The Federal Trade Commission (“FTC”) and Department of Justice (“DOJ”) have published a revised edition of their Antitrust Guidelines for International Enforcement and Cooperation. These guidelines, first published in 1995, shed light on the agencies’ enforcement policy on international business activity, including the extraterritorial application of U.S. antitrust laws, cooperation with foreign authorities, and investigative tools applied to international investigations.
Effective January 13, 2017, the revised guidelines acknowledge a more globalized economy and the need for coordination and cooperation among the various competition agencies across the world. FTC Chairwoman Edith Ramirez stated, “With the continued expansion of cross-border commerce around the world, the agencies’ international antitrust enforcement policies and practices are becoming more and more important in protecting U.S. consumers and businesses.”
Specifically, the revised guidelines feature the following additions and updates:
- A new chapter on international cooperation, including information on confidentiality, information exchanges and criminal investigations
- Revised guidance on the extraterritorial effect or application of U.S. antitrust law to conduct involving foreign commerce, the Foreign Trade Antitrust Improvements Act, foreign sovereign immunity, foreign sovereign compulsion, the act of state doctrine and petitioning of sovereigns
- Updated examples that illustrate common issues faced by the agencies
The updates in these guidelines come as no surprise in light of the current enforcement landscape. Global cartel fines in foreign jurisdictions set new records in 2016, and coordinated dawn raids between the DOJ and European or Asian competition authorities are now commonplace in high-profile investigations. Now more than ever, it is critical for companies to work with experts at law firms with both global capabilities and local experience to coordinate among various jurisdictional authorities.