2012 Antitrust Enforcement – A Big Year
The Justice Department’s criminal antitrust enforcement program has had some major successes. In many respects, the Justice Department’s criminal antitrust program provides an example of what the FCPA criminal program may look like in the future. Antitrust and anti-corruption investigations are closely linked and regularly cross-pollinate each other. In many cases, compliance breakdowns may lead to foreign bribery and cartel behaviors. Cooperating witnesses in an antitrust case frequently have relevant information about foreign bribery.
At the heart of this year’s accomplishments has been the Justice Department’s investigation of global auto parts markets. This investigation has focused on a large number of companies and has targeted a record number of individual officers and managers. The Antitrust Division has ongoing criminal antitrust investigations in the thin-film transistor – liquid crystal displays, real estate, concrete, and air compressor and refrigeration industries.
For FY 2012, Yazaki, a Japanese corporation, paid a criminal fine of $470 million, the second largest in the Justice Department’s criminal antitrust history. Five other major companies in 2012 agreed to criminal fines in the same investigation: Furukawa Electric $200 million; Denso $78 million; Maxzone Vehicle Lighting $43 million; Fujikura Ltd. $20 million; and Autoliv, Inc. $14.5 million.
Overall, for fiscal year 2012 (October to October), the Justice Department has secured fines of around $937 million. It is possible for the Antitrust Division to reach $1 billion, if they can secure a settlement in September 2012. If two significant civil settlements arising from the municipal bond market investigation are added, the settlements include an additional $218 million, putting total fines and penalties well over $1 billion.
The Justice Department has aggressively prosecuted individual officers for criminal antitrust violations. No one has ever criticized the Justice Department for failing to prosecute individuals for criminal antitrust violations. During FY 2011, the Justice Department convicted 21 individuals. So far, in FY 2012, they have convicted 16 individuals. Some individuals are still awaiting sentencing. In contrast to the FCPA criminal sentences, the Justice Department has successfully sought and obtained longer criminal sentences for defendants convicted in FY 2012.
Antitrust prosecutors had some major trial successes this year. After a lengthy two month trial in California, the government convicted AU Optronics and two executives. In addition, federal prosecutors convicted three former General Electric executives for bid-rigging in the municipal bond market, and four individuals from a New York hospital for participating in a kickback scheme.
While the United States has had a banner year, the European Union which, in recent years, has exceeded the United States in yearly fine amounts, has had a much slower year, with fine amounts around 300 Euro. EU officials have predicted that there will be significant growth in fine amounts later in the year, and they will ultimately exceed last year’s 2 bill Euro total.
Antitrust compliance needs a fresh look. The risks can be significant and the consequences devastating. For companies implicated in a criminal violation, civil litigation is a certainty as “victims” of the cartel line up for compensation in class actions which recover treble damages.