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US: DOJ and FTC update antitrust guidelines for international enforcement

By  |  January 22, 2017

The Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (the “Agencies”) issued updated Antitrust Guidelines for International Enforcement and Cooperation (“International Guidelines” or “Guidelines”). Among other changes to the prior version, issued in 1995, these Guidelines espouse a fairly aggressive, pro-enforcement view of the case law addressing limitations on the reach of US antitrust law under the Foreign Trade Antitrust Improvements Act (FTAIA) aimed in particular at supporting DOJ’s international cartel enforcement agenda.

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    These International Guidelines supplant the 1995 “Antitrust Enforcement Guidelines for International Operations,” and depart from that version in two key areas. First, as implied by the new title, they contain a lengthy new section describing how the Agencies will undertake international investigations and interact with antitrust agencies in foreign jurisdictions. This addition is motivated by the dramatic expansion in enforcement by competition authorities around the world as well as the dramatic increase in US cross-border antitrust enforcement. Second, the Guidelines contain an extensively revised discussion of the FTAIA, which defines the reach of the US antitrust laws when foreign commerce is at issue. This discussion summarizes the Agencies’ pro-enforcement perspective on the extensive jurisprudence developed in the lower courts applying the FTAIA following the Supreme Court’s seminal 2004 decision in Empagran.

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    Many of the provisions of the International Guidelines cover the same ground as the 1995 version. The Guidelines review the relevant US statutory provisions, describe the Agencies’ views on the reach of US law, and summarize the circumstances when the Agencies may forbear from enforcement due to considerations of comity or the involvement of foreign sovereigns in immunizing, compelling or carrying out the conduct in question. This part of the Guidelines is broadly consistent with the content of the 1995 version, incorporating mostly editorial changes, with two exceptions.

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