Monthly Archives: March 2015

3C’s: Recommended Article on the Auto Parts Cartel

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Recommended Article on the Auto Parts Cartel

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I am passing on this feature article by Dan Gearino of the Columbus Dispatch published on Sunday, March 22, 2015: Massive Price-Fixing Among Auto-Parts Manufacturers Hurt U.S. Car Buyers.  The article goes beyond the numbers of the record-breaking prosecutions and looks at some of the reasons the cartel flourished for so long and what the executives were (or weren’t) thinking.  First some familiar stats cited in the article:

  • So far, 33 companies have pleaded guilty and agreed to pay $2.4 billion in fines, and the investigation is ongoing.
  • In addition to company sanctions, 28 executives pleaded guilty to individual charges and most of them went to federal prison.  An additional 26 executives have been indicted but have not surrendered to authorities.

The following quotes are all excerpts from the article:

  • The prison sentences were a surprise, he said, because many executives considered this conduct to be merely an “administrative offense.”
  • “Some of the people who (received leniency) were some of the evil, evil people in this thing,” said a midlevel manager for one of the companies that pleaded guilty, a U.S. citizen, speaking on condition of anonymity because he was not authorized to comment.
  • He described a culture in which decisions were made by Japanese executives, often working with Japanese executives at other companies, and in which competitors were used to working together.
  • Meanwhile, the many American employees of the companies, even high-level employees, felt shut out from big decisions. In the price-fixing cases, this turned out to be a good thing. All but one of the 54 people charged are Japanese.
  • “Certainly one of the options we will consider will be extraditing them [indicted foreign defendants] from the country where they are located,” said [Marvin] Price, criminal director of the department’s antitrust division.

There are many lessons to be learned from the auto parts cartel capers.  I’ll be writing on some of my thoughts in the future, as I’m sure many others will.

Thanks for reading.

3C’s: Do Not Remove—Under Penalty of Law!

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When I was a boy, I was always puzzled but fearful of labels that I saw on pillows that read in bold print “Do Not Remove—Under Penalty of Law.” I was pretty sure that the cops wouldn’t know if I removed a label, but what if my parents ratted me out? And, as a Catholic School lad, I had to worry about the sin implications. If it was against the law, was it also a sin? A venial sin? (six to twelve months in purgatory). Or, a mortal sin? (eternal damnation—which seemed a little harsh just for removing a label). In any event, being fairly cautious, I never did remove a pillow label, though I may have committed a few more serious offenses in my youth.

These thoughts crossed my mind the other day I when I read about an ongoing case in the Second Circuit, In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corp., Case number 14-2985. Microsoft is challenging a district court order that it produce documents located overseas that were sought by a validly executed search warrant. Microsoft claims the documents are out of the reach of the government while settled law seems to be that, at least as it relates to subpoenas, the documents are producible. The magistrate and district court judge ordered that the documents be produced and Microsoft is currently pressing its appeal in the Second Circuit.

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3C’s: Invitations to Collude Invite Big Trouble

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On Thursday February 26th I enjoyed a day long Symposium on Section 5 of the Federal Trade Commission Act hosted by BakerHostetler and organized and moderated by my friend and former colleague Carl Hittinger. The conference focused on the history of Section 5, its current scope and where it may be headed. There was particular discussion about whether the FTC should have guidelines to explain and limit the application of Section 5.

While I found the entire conference interesting, of particular interest to me was the discussion of “invitation to collude” cases, which is a way of saying to a competitor “Would you like to form a cartel with me?” Section 5 broadly prohibits “[un]fair methods of competition” and “unfair or deceptive acts or practices.” One way Section 5 has been used by the FTC has been to charge invitations to collude cases.

An invitation to collude case can arise when one competitor (or a group of competitors) reaches out to another competitor to invite the competitor to agree to fix prices.  An invitation to collude investigation/case arises usually when there is some specificity in the offer—much like contract analysis. General grousing about prices in an industry, while extremely foolish and may draw an investigation, is not likely to result in a formal charge. And, in US v. Foley, 598 F. 2d 1343 (4th Cir. 1979)  a realtor hosted a dinner for seven other realtors and announced he didn’t care what others did, he was raising his commission. Some discussion ensued from which a jury concluded that an agreement has been reached.  The realtors were indicted and convicted.

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Third Ocean Shipping Executive Pleads Guilty to Price Fixing on Ocean Shipping Services for Cars and Trucks

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An employee of Japan-based Nippon Yusen Kabushiki Kaisha (NYK) pleaded guilty today and was sentenced to 15 months in a U.S. prison for his involvement in a conspiracy to fix prices, allocate customers and rig bids of international ocean shipping services for roll-on, roll-off cargo, such as cars and trucks, to and from the United States and elsewhere, the Department of Justice announced today.

According to the one-count felony charge filed in U.S. District Court for the District of Maryland in Baltimore on Jan. 16, 2015, Susumu Tanaka, who was a manager, deputy general manager and general manager in NYK’s car carrier division, conspired to allocate customers and routes, rig bids and fix prices for the sale of international ocean shipments of roll-on, roll-off cargo to and from the United States and elsewhere, including the Port of Baltimore.  Tanaka participated in the conspiracy from at least as early as April 2004 until at least September 2012.

Roll-on, roll-off cargo is non-containerized cargo that can be both rolled onto and off of an ocean-going vessel.  Examples of this cargo include new and used cars and trucks and construction and agricultural equipment.

“Today’s sentence is another step toward bringing to justice the perpetrators of this long-running cartel and restoring competition to the ocean shipping industry,” said Bill Baer, Assistant Attorney General for the Antitrust Division.  “But this investigation is far from over.  We are continuing our efforts to hold accountable the companies and executives who seek to maximize profits through illegal, anticompetitive means.”

Pursuant to the plea agreement, which the court accepted today, Tanaka was sentenced to serve a 15-month prison term and pay a $20,000 criminal fine for his participation in the conspiracy.  In addition, Tanaka has agreed to assist the department in its ongoing investigation into the ocean shipping industry.

Tanaka was charged with a violation of the Sherman Act, which carries a maximum sentence of 10 years in prison and a $1 million criminal fine for an individual.  The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by the victims of the crime, if either of those amounts is greater than the statutory maximum fine.

Today’s sentence is the third against an individual in the division’s ocean shipping investigation, and the first against an individual from NYK.  Three corporations have agreed to plead guilty and to pay criminal fines totaling more than $136 million, including NYK, which has agreed to pay a criminal fine of $59.4 million, pending court approval.

This plea agreement is the result of an ongoing federal antitrust investigation into price fixing, bid rigging and other anticompetitive conduct in the international roll-on, roll-off ocean shipping industry, which is being conducted by the Antitrust Division’s Washington Criminal I Section and the FBI’s Baltimore Field Office, along with assistance from the U.S. Customs and Border Protection Office of Internal Affairs, Washington Field Office/Special Investigations Unit.  Anyone with information in connection with this investigation is urged to call the Antitrust Division’s Washington Criminal I Section at 202-307-6694, visit www.justice.gov/atr/contact/newcase.html or call the FBI’s Baltimore Field Office at 410-265-8080.

Florida Home Health Care Company Agrees to Pay $1.1 Million to Resolve False Claims Act Allegations

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Recovery Home Care Inc., Recovery Home Care Services Inc. (collectively Recovery Home Care) and National Home Care Holdings LLC have agreed to pay $1.1 million to resolve allegations that the Recovery Home Care entities violated the False Claims Act by improperly paying doctors for referrals of home health care services provided to Medicare patients, the Department of Justice announced today.  The Recovery Home Care entities provide home health care services to Medicare beneficiaries and were purchased by National Home Care Holdings LLC in 2012, after the conduct addressed by the settlement occurred.

“Health care providers that attempt to profit by providing illegal inducements will be held accountable,” said Acting Assistant Attorney General Benjamin C. Mizer of the Justice Department’s Civil Division.  “We will continue to advocate for the appropriate use of Medicare funds and the proper care of our senior citizens.”

From 2009 through 2012, Recovery Home Care, headquartered in West Palm Beach, Florida, allegedly paid dozens of physicians thousands of dollars per month to perform patient chart reviews.  According to the government’s lawsuit, the physicians were over-compensated for any actual work they performed and, in reality, payments to the physicians were used to induce them to refer their patients to Recovery Home Care, in violation of the Anti-Kickback Statute and the Stark Law.

“Inducements of this kind are designed to improperly influence a physician’s independent medical judgment,” said U.S. Attorney A. Lee Bentley III of the Middle District of Florida.  “This lawsuit and today’s settlement attests to our office’s on-going commitment to safeguard federal health care program beneficiaries from the effects of such illegal conduct.”

The Anti-Kickback Statute and the Stark Law are intended to ensure that a physician’s medical judgment is not compromised by improper financial incentives.  The Anti-Kickback Statute prohibits offering, paying, soliciting or receiving remuneration to induce referrals of items or services covered by federal health care programs, including Medicare.  The Stark Law forbids a home health care provider from billing Medicare for certain services referred by physicians who have a financial relationship with the entity.

The settlement partially resolves allegations made in a lawsuit filed in federal court in Tampa, Florida, by Gregory Simony, a former employee of Recovery Home Care.  The lawsuit was filed under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery.  The act also allows the government to intervene and take over the action, as it did in part in this case.  Simony will receive $198,000 of the recovered funds.  The government continues to litigate this case against Recovery Home Care’s previous owner, Mark Conklin.

This settlement illustrates the government’s emphasis on combating health care fraud and marks another achievement for the Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced in May 2009 by the Attorney General and the Secretary of Health and Human Services.  The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation.  One of the most powerful tools in this effort is the False Claims Act.  Since January 2009, the Justice Department has recovered a total of more than $23.8 billion through False Claims Act cases, with more than $15.2 billion of that amount recovered in cases involving fraud against federal health care programs.

The settlement was the result of a coordinated effort by the Civil Division’s Commercial Litigation Branch, the U.S. Attorney’s Office for the Middle District of Florida and HHS-OIG.

The case is captioned United States ex rel. Simony v. Recovery Home Care, et al., Case No. 8-12-cv-2495-T-36TBM (M.D. Fla.).  The claims resolved by the settlement are allegations only and there has been no determination of liability.

3C’s: India–CCI Imposes Maximum Penalty on Trade Association

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In this India Update 2015 Volume 4, Avinash Amarnath reports on a recent decision of the CCI and the thin evidence that still led to imposition of a maximum fine.

CCI fines All India Motor Transport Congress for calling for price hike

The Competition Commission of India (CCI) imposed the maximum penalty of 10% of the average turnover on the All India Motor Transport Congress (AIMTC) the apex trade association for road transport service providers (both cargo and passenger) in India.

The CCI found that AIMTC had called for a hike of 15% in freight charges following an announcement of increase in diesel prices by state run oil marketing companies. AIMTC tried to argue that there was no evidence such as written circulars, directions or minutes of such a decision except for news reports which could not be considered as credible evidence without other corroborative evidence. Further, AIMTC argued that in any event, the members had, in fact not acted upon such a call.

The CCI, while observing that evidence was generally bound to be sparse in cartel investigations and an agreement could be inferred even in the absence of written circulars or directions found that:

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3C’s: Concurrences Antitrust Writing Awards–Please Vote

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[Robert Connolly writes:] [s]everal months ago wrote a Cartel Capers blog entry (here) discussing a suggested approach for the Seventh Circuit to follow in deciding Motorola Mobility when the Court reheard the case.  I also wrote a longer article (here) published in the Competition Policy International’s FTAIA issue. To my surprise and delight, Judge Posner in Motorola Mobility v. AU Optronics, 775 F. 3d 816 (7th Cir. 2015), cited both Cartel Capers and the CPI article. The article was quoted at length in the opinion.  This article has now been nominated for a Concurrences writing award.

The aim of the Concurrences Antitrust Writing Awards is to promote competition scholarship and to contribute to competition advocacy. The 2015 Antitrust Writing Awards Jury contributes to this achievement by selecting the best writings published in 2014. The articles are selected by the Jury and by Readers. The Jury consists of a Board, an Academic and a Business Steering Committees composed of the leading academics and counsels. Readers of Concurrences Journal and its sister publication e-Competitions contribute to the selection process by voting for articles. Click here to see the Jury.  You can check out all of the nominated articles on various subjects here.

Unlike many elections where one reluctantly votes for the lesser of two evils, every article nominated is terrific. I am honored to be included in this group. I would appreciate it if you would click on this link and vote for my article.

Thanks for reading…. and voting.

3C’s: Bid Rigging Prosecution In Canada Hits Another Setback

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Here’s a quick post from Robert Connolly’s Cartel Capers by James Musgrove and Joshua Chad about an interesting case in Canada.

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Bid Rigging Prosecution Hits Another Setback

The trial judge in a high profile bid rigging case with respect to federal government procurement has directed that a verdict of not guilty be entered for one of the individual accused, ruling that there was no reasonable possibility of a conviction. The trial continues against a number of other accused. This is not the first setback for the Crown in the case. In a pre-trial motion the same judge, Judge Warkentin, ruled that the Competition Act’s provisions allowing the admission of documentary evidence to prove the truth of the matters set out in the documents was unconstitutional in a criminal case. Please see the full news report here.

3C’s: News From Taiwan—Guest Post by Professor Andy C.M. Chen

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News From Taiwan—Guest Post by Professor Andy C.M. Chen

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I am pleased to post this update by Dr. Andy C.M. Chen, a professor at Chung Yuan Christian University in Taiwan. Professor Chen is a graduate of Northwestern School of Law and was formerly a member of the Taiwan Fair Trade Commission. As you will see from Professor Chen’s post, cartels are defined quite differently in Taiwan than they are in the United States.  Professor Chen’s personal web page can be found here.

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Amendments to Taiwan Fair Trade Act

The recent amendments of the Taiwan Fair Trade Act were published by the Office of the President and officially took effect on February 4, 2015. The amendments cover nearly 70% of the provisions in the TFTA and are the most extensive revision ever since the Act was enacted in 1992. The main changes include the followings:

  1. Pre-merger notification

1.1. Shares held by or business turnover of the companies affiliated with the merging parties shall be included in the determination of whether the threshold for filing pre-merger notification has been crossed.

1.2. Individuals or groups who are not legal persons but enjoy de facto control of the merging companies could also be subject to the duty of filing pre-merger notification.

1.3. The Taiwan Fair Trade Commission is authorized to promulgate and apply individual business-turnover thresholds for selected industries.

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