U.S. DOJ And FTC Publish Updated Antitrust Guidelines For International Enforcement With Goal To Maintain Agency Flexibility

Following a review of public comments, the Department of Justice and Federal Trade Commission have issued the final version of the updated Antitrust Guidelines for International Enforcement and Cooperation. The final version of the International Guidelines tracks very closely the draft version published for public comment in November 2016. Public comments submitted to the Agencies raised several issues related to the enforcement and the cooperation aspects of the new Guidelines, but the Agencies made few changes in response to the comments.

The revised International Guidelines provide greater Agency flexibility on certain issues, and are consistent with somewhat more aggressive application of U.S. antitrust laws to cross-border and foreign conduct. Of course, the real test is how the new administration will choose to enforce the antitrust laws.

Overview

The revised International Guidelines are the first update to the Agencies' international enforcement guidelines since 1995. The revised International Guidelines consist of three main sections: (1) circumstances in which U.S. antitrust laws will reach conduct occurring outside the United States; (2) circumstances in which, as a matter of law or prosecutorial discretion, the U.S. agencies might refrain from applying U.S. antitrust law to conduct in international trade; and (3) how the U.S. agencies might cooperate with foreign competition authorities when conducting an investigation involving conduct outside the United States. Each of the examples from the 1995 International Guidelines either has been revised substantially or has been replaced altogether. The agencies assert that they amended the examples to "focus[] on the types of issues most commonly encountered." For a more detailed discussion of the content of these three sections, see our Commentary on the proposed International Guidelines published for public comment in November 2016.

Although the revised International Guidelines do not indicate a major change in direction, certain of the specific statements will affect companies with international operations. Whether intended or not, the general tone suggests a more aggressive enforcement stance.

Public comments

In response to the proposed version, the Agencies received eight comments, including from the International Bar Association, the U.S. Chamber of Commerce, the Antitrust Law and International Law sections of the American Bar Association, and the American Antitrust Institute. The...