Category Archives: Latest Firm News

CCC’s: An Update On the Airlines Price Fixing Civil Suits

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A while back I posted “They Said What?:  Some Compliance Thoughts on the Airline Price Fixing Investigation.”  The post examined how some loose talk by airline executives had led to a federal price-fixing investigation–followed immediately by an avalanche of civil treble damage price-fixing suits.  At a recent trade association meeting, multiple airline executives spoke publicly about their plans to be “disciplined” in their approach to pricing and adding extra flights on popular routes.  Cue up an Antitrust Division investigation, followed in nano seconds by a torrent of private class action treble damage price-fixing cases.  The airline executives may have gotten by unnoticed with their ill-advised comments, except they spoke at a time when the flying public was less than enchanted with the flying experience, including ticket prices that seemed sky-high while the price of fuel was nose diving.  My sense was that it was this environment–a disgruntled public and therefore unhappy Congress folks rather than any hard evidence of price-fixing–that caused the Antitrust Division to decide it was a good idea to at least open an investigation.

I’ve been reading the public news about this investigation and the civil cases and a couple of things caught my eye.  First, a recent report stated that 75 civil suits have now been filed against American, Delta, Southwest and United since July.  The suits tend to be copy cat suits filed by different law firms seeking a good seat (with extra leg room for a fee) at the litigation table when the suits are consolidated.  In the first suit “Plaintiffs allege that defendants illegally signaled to each other how quickly they would add new flights, routes, and extra seats. To keep prices high on fares, it was undesirable for the defendants to increase capacity.”  Other suits are similar.

This avalanche of civil suits doesn’t speak highly of our current class action system.  The airlines have not been convicted of anything, nor have they even been charged by the Antitrust Division.  It is not illegal for a company to try to boost profits by restricting capacity.  Or raising prices.  The key question is whether the action was taken unilaterally (legal) or in collusion with competitors (illegal).  Parallel prices alone are not enough to prove an agreement.  There has to be more.  See  “Getting the Judge to Budge from Conceivable to Plausible Under Twombly.”  But, even if a company is exonerated, the litigation is very expensive; much more so than a good antitrust education/compliance program.

Another interesting fact just out is that airline ticket prices last month saw the largest monthly decline on 20 years.   “Airline fares recorded their steepest monthly decline in 20 years, falling 5.6 percent last month, according to the Bureau of Labor Statistics.”  Does this mean the airlines can can get out from under all the civil suits?  Not likely.  The plaintiffs may spin this as the inevitable collapse of a cartel that couldn’t prop up prices forever in the face of sharply decreased costs.  The airlines will point out that capacity increases that led to the lower prices were in the works for months–at the very time the plaintiffs allege there was collusion.  Both sides will have experts armed with other arguments, analysis and data to support their side.  Whatever the experts say, it won’t come cheaply.  But, right now airfares may, so time to book a flight.

Thanks for reading.

CCC’s: DOJ to Hire Compliance Expert

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Here’s a link to a Reuters story by Karen Freifeld reporting that United States Department of Justice is hiring a Compliance Expert. The compliance expert will help evaluate whether to charge corporations that fail to detect and prevent wrongdoing by employees. The DOJ compliance expert will advise whether he believes the company had a robust compliance program or one that was window dressing–or something in between.

A candidate has been reportedly offered the position and is undergoing the background check process. The position is in the Criminal Division of DOJ, which has responsibility for health care, securities and FCPA violations, among others. This development will not directly affect the Antitrust Division, which sometimes has policies different from the Criminal Division. But, the Antitrust Division recently, for the fist time ever, gave credit to a company in a plea agreement for a compliance program. I wrote about this in a previous Cartel Capers post: Senior Antitrust Division Official Comments on Credit for Compliance Programs.  This new compliance position within the DOJ is another important step forward in the recognition by the DOJ of the valuable role played by compliance programs.

Thanks for reading.

CCC’s: Some Thoughts On Compliance and Other Issues Raised by the Forex Guilty Pleas

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It’s been almost two weeks since the Department of Justice announced its plea agreements in the Forex investigation. To recap the highlights, in his remarks announcing the case filings, Bill Baer Assistant Attorney General for the Antitrust Division said (here):

Today’s guilty pleas to criminal charges represent major developments in our investigation into collusion affecting foreign exchange markets, particularly the spot market for trading U.S. dollars and euros. The antitrust guilty pleas announced today involving four major international financial institutions – Citicorp, JPMorgan Chase, The Royal Bank of Scotland and Barclays – are without precedent. In light of the seriousness of the crimes and the unjustified benefit to the bottom lines of these banks, we demanded parent-level guilty pleas, secured record fines of more than $2.5 billion and insisted upon three years of court-supervised probation.

In addition, UBS agreed to plead guilty to a violation in the Libor market. UBS had previously received non-prosecution protection in the Libor investigation, but that protection was withdrawn in light of UBS’s participation in the Forex cartel.

Since the news of the case filings first broke, I’ve had some additional thoughts on the matter.  First, I want to give a big pat on the back to my former colleague, Joe Muoio, who signed the pleadings on behalf of the Antitrust Division. Joe and I worked together for many years in the now closed Philadelphia Field office. Joe was the Assistant Chief and transferred to the New York Field office when the Philadelphia office was closed in 2013. The Forex investigation was a team effort (a large international team, no doubt) and there could not have a better team leader than Joe.   Congratulations to Joe and the rest of the team.

The Forex plea agreements have two noteworthy departures from previous pleas in the financial sector. For the first time, the Antitrust Division acknowledged giving credit to a company for implementing an effective compliance program after the start of the investigation. Little has been revealed about what made Barclay’s compliance program effective, why the Division chose to give credit in this case, and what the value of the credit given to Barclays was?  The plea agreements states only: “The parties further agree that Recommended Sentence is sufficient, but not greater than necessary to comply with the purposes set forth in 18 U.S.C. §§ 3553(a), 3572(a), in considering, among other factors, the substantial improvements to the defendant’s compliance and remediation program to prevent recurrence of the charged offense.”  This language, while limited, is still an important first step for the Antitrust Division to acknowledge (and thereby encourage) implementation of effective antitrust compliance programs. The Antitrust Division does not make changes in policy lightly and it is likely they will have more to say about this development in future speeches.

Another noteworthy fact about the Forex plea agreements is that the Antitrust Division required pleas from the parent company. Previously, in most situations where financial institutions have been charged in Forex and Libor, the plea has come from a foreign subsidiary to avoid the collateral consequences that would flow from a conviction of a publicly traded company. Requiring the parent to plead was a relatively small step, however, as the pleas were only entered after waivers were secured from the SEC.  The banks wanted assurances from U.S. regulators that they would not be barred from certain businesses before agreeing to plead guilty to criminal charges. (here). The defendants received the desired waivers.

Public Reaction

The historic pleas have not been without some public criticism. An example is an editorial in the New York Times titled: “Banks as Felons, Or Criminality Lite”

Besides the criminal label, however, nothing much has changed for the banks. And that means nothing much has changed for the public. There is no meaningful accountability in the plea deals and, by extension, no meaningful deterrence from future wrongdoing.”

SEC Commission, Kara M. Stein, was harsh in her dissent from the grant of waivers to the recidivist banks.

Allowing these institutions to continue business as usual, after multiple and serious regulatory and criminal violations, poses risks to investors and the American public that are being ignored. It is not sufficient to look at each waiver request in a vacuum.

And, in an article in USA Today (here), four leading antitrust commentators who are not usually found to be in agreement (Judge Douglas Ginsburg, FTC Commission Josh Wright and Albert Foer and Professor Robert H. Lande of the American Antitrust Institute) called for harsher penalties against individuals convicted of antitrust offenses.

Some thoughts on Compliance

As already noted, the Antitrust Division took a big step forward in encouraging the implementation of effective compliance programs. Hopefully, more details will be forthcoming about why now? What was it about Barclays’ program that was considered effective? And what was the monetary benefit for the compliance program.

The Division’s encouragement of an effective compliance program should be bolstered by the sheer magnitude of the fines and other consequences of these guilty pleas. In the compliance world, FCPA is “Top Dog” in terms of compliance resources and attention. No doubt issues like vetting third-party vendors worldwide rightfully account for this attention. But the consequences of an antitrust offense call out for an equally keen focus on antitrust compliance. I’ve written about this before (here), but the combination of huge fines, jails sentences for individuals, investigation by multiple U.S. agencies, and competition agencies around the world, and the significant damages paid out in civil class action lawsuits make a compelling case for robust antitrust compliance efforts.

Indeed, the Antitrust Division’s plea agreements with the other banks besides Barclays call for devoting resources to compliance programs:

“The defendant shall implement and shall continue to implement a compliance program designed to prevent and detect the conduct set forth in Paragraph 4 (g)-(i) above and, absent appropriate disclosure, the conduct in Paragraph 13 below throughout its operations including those of its affiliates and subsidiaries and provide an annual report to the probation officer and the United States on its progress in implementing the program, commencing on a schedule agreed to by the parties.”

The plea agreements, however, do not call for external compliance monitors. Given that the cartel involved billions of dollars, the brazen nature of the crime (the conspirators referred to themselves in private chat rooms as the “Cartel Club” and “The Mafia,” and finally, the degree of recidivism, one wonders (OK, I wonder) why no external compliance monitors? The Division sought (and received from the court) external compliance monitors in the Apple case, (a civil violation) and in AU Optronics (a first offense).  Unless the Antitrust Division provides further guidance, it appears that the only criteria for seeking an external monitor is if a company goes to trial against the Division and loses.

The Investigation Is Ongoing

There is some validity to the charge that the corporate fines are just a cost of doing business and don’t provide sufficient deterrent. Perhaps requiring a parent to plead was one step closer towards requiring a plea and no regulatory waivers. But fears of collateral damage to innocent employees (who would lose jobs), stockholders (who could be wiped out) and the economy in general make this a hard trigger to pull.  The real deterrent comes with prosecution of individuals—i.e., the guys in The Cartel or The Mafia, as they put it.   It is extremely likely that the Antitrust Division will seek charges against individuals in this case. The hard part is not so much prosecuting the traders who operated in the chat rooms and left a trail of evidence, but in determining if knowledge of the cartel went higher up in the banks. Holding the highest-level person in an organization responsible for the crime is the highest deterrence. But, this is challenging as superiors are often shielded from direct involvement in the crime and can only be convicted on the basis of the testimony of subordinates whose credibility may be compromised by their own plea. The public often cries for higher level executives to be held accountable, but juries take seriously their obligation to convict only where the proof establishes guilt “beyond a reasonable doubt.”

There will be much more to this story so stay tuned. Thanks for reading.

3C’s: Thomas Farmer Acquitted in Puerto Rico Shipping Price Fixing Trial

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After a three-week trial, Thomas Farmer, a former Crowley Liner Services Vice-President was acquitted of price-fixing and bid rigging charges by a jury in Puerto Rico. The trial was before Federal District Court Judge Daniel Dominguez. The jury was composed of six men and six women. They deliberated for three hours before returning their verdict. Framer had been indicted on March 21, 2013 on a charge of conspiracy to fix and rig Puerto Rico freight surcharges with counterparts from Horizon Lines and Sea Star Line in the U.S. mainland-Puerto Rico trade.

The acquittal marks the end of the Antitrust Division’s otherwise successful investigation into price-fixing on ocean shipping route between Puerto Rico and the United States. Farmer was the second executive to go to trial. Frank Peake, the former President of Sea Star, was convicted in 2013 on a similar charge (here). Peake’s case was noteworthy in that he was sentenced to five years in prison, a record sentence for a Sherman Act conviction (here). The Peake trial came after subordinates of his and co-conspirators from other companies had pled guilty and cooperated with the government. Peak’s direct subordinate at Sea Star, Peter Baci, was sentenced to 48 months in prison and fined $20,000. Peake’s counterpart at Horizon, Gabriel Serra, was sentenced to 34 months in prison. Other executives at Sea Star and Horizon had pled guilty, and received prison terms ranging from seven months to 29 months. Three companies have paid more than $46 million in fines for their involvement in a conspiracy that included setting rates, bid rigging and other practices.

Farmer faced a maximum sentence of ten years in prison. Farmer was represented by Joseph C. Laws, Melanie Matos Gilroy Cardona and Terrance Reed.  Farmer was facing a maximum of ten years in prison if convicted and his legal team deserves great credit for the best outcome Farmer could have hoped for.  But, there are great difficulties that the Antitrust Division faces in a “last man standing trial.”  I am not familiar with the specifics of the Farmer trial but some of these inherent difficulties are:

  • Staleness:  Farmer was indicted in March 2013.  The indictment charged a conspiracy: “From at least as early as mid-2005, to in or about April 2008.”  So, Farmer was indicted just before the five-year statute of limitations expired.  His trial did not begin until more than two years after indictment.  Farmer was tried in 2015 for conduct that ended in early 2008.  Antitrust violations do not “shock the conscience” the way a crime of violence might, and the long delay between conduct and trial can diminish whatever “jury appeal” a price-fixing case might have had.
  • Witness Fatigue:  When a witness signs a cooperation agreement with the Antitrust Division, he usually doesn’t realize that his cooperation may last longer than many marriages.  It can be difficult to work with a witness who has long since (hoped) he had put this chapter of his life behind him.  Witness prep so many years after the alleged conduct occured can involve an increasing frequency of “I’m not sure.  That was a really long time ago.”  And, in this case it was.
  • Prior Statements:  As I said, I have not read the record in the Farmer case so I do not know who the witnesses were.  But, there is a good chance some of the witnesses previously testified in the Peake trial.  So besides witness fatigue and faded recollections, defense attorneys have prior statements to work with on cross-examination.
  • The Weak Cases Are The Ones That Go To Trial:  It used to be fair to say that the Antitrust Division got plea agreements from those who they had the strongest cases against, but often found itself trying weaker cases, sometimes against senior managers that had insulated themselves from most of the illegal conduct.  But, my opinion is that today cases go to trial because the sentencing guidelines are so severe (based on volume of commerce) that the “last man standing,” who can’t get a 5K cooperation agreement/downward departure, has little to lose by going to trial.  Mr. Farmer went to trial because he declared he was innocent and a jury did in fact acquit him.  But, even a guilty party might go to trial because: (a) he has at least a chance at acquittal; (b) even if convicted at trial, he will likely be sentenced to less time than he could have negotiated with the Antitrust Division pursuant to a recommended guidelines plea agreement; and (c) in any event he can appeal and hope to get a conviction reversed on appeal.  In essence, the trial is an extended sentencing hearing, with a chance of acquittal, and even if convicted, a hope the conviction can be overturned.  I co-authored an article “A Peek Behind the Record Peake Sentence” (here) that explored some of these ideas.

Congratulations to Farmer’s defense team and also to the Antitrust Division for an otherwise very successful investigation.

Thanks for reading.

Thomas Farmer Acquitted Puerto Rico Shipping Price Fixing Trial

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After a three-week trial, Thomas Farmer, a former Crowley Liner Services Vice-President was acquitted of price-fixing and bid rigging charges by a jury in Puerto Rico. The trial was before Federal District Court Judge Daniel Dominguez. The jury was composed of six men and six women. They deliberated for three hours before returning their verdict. Framer had been indicted on March 21, 2013 on a charge of conspiracy to fix and rig Puerto Rico freight surcharges with counterparts from Horizon Lines and Sea Star Line in the U.S. mainland-Puerto Rico trade.

The acquittal marks the end of the Antitrust Division’s otherwise successful investigation into price-fixing on ocean shipping route between Puerto Rico and the United States. Farmer was the second executive to go to trial. Frank Peake, the former President of Sea Star, was convicted in 2013 on a similar charge (here). Peake’s case was noteworthy in that he was sentenced to five years in prison, a record sentence for a Sherman Act conviction (here). The Peake trial came after subordinates of his and co-conspirators from other companies had pled guilty and cooperated with the government. Peak’s direct subordinate at Sea Star, Peter Baci, was sentenced to 48 months in prison and fined $20,000. Peake’s counterpart at Horizon, Gabriel Serra, was sentenced to 34 months in prison. Other executives at Sea Star and Horizon had pled guilty, and received prison terms ranging from seven months to 29 months. Three companies have paid more than $46 million in fines for their involvement in a conspiracy that included setting rates, bid rigging and other practices.

Farmer faced a maximum sentence of ten years in prison. Farmer was represented by Joseph C. Laws, Melanie Matos Gilroy Cardona and Terrance Reed.  Farmer was facing a maximum of ten years in prison if convicted and his legal team deserves great credit for the best outcome Farmer could have hoped for.  But, there are great difficulties that the Antitrust Division faces in a “last man standing trial.”  I am not familiar with the specifics of the Farmer trial but some of these inherent difficulties are:

  • Staleness:  Farmer was indicted in March 2013.  The indictment charged a conspiracy: “From at least as early as mid-2005, to in or about April 2008.”  So, Farmer was indicted just before the five-year statute of limitations expired.  His trial did not begin until more than two years after indictment.  Farmer was tried in 2015 for conduct that ended in early 2008.  Antitrust violations do not “shock the conscience” the way a crime of violence might, and the long delay between conduct and trial can diminish whatever “jury appeal” a price-fixing case might have had.
  • Witness Fatigue:  When a witness signs a cooperation agreement with the Antitrust Division, he usually doesn’t realize that his cooperation may last longer than many marriages.  It can be difficult to work with a witness who has long since (hoped) he had put this chapter of his life behind him.  Witness prep so many years after the alleged conduct occured can involve an increasing frequency of “I’m not sure.  That was a really long time ago.”  And, in this case it was.
  • Prior Statements:  As I said, I have not read the record in the Farmer case so I do not know who the witnesses were.  But, there is a good chance some of the witnesses previously testified in the Peake trial.  So besides witness fatigue and faded recollections, defense attorneys have prior statements to work with on cross-examination.
  • The Weak Cases Are The Ones That Go To Trial:  It used to be fair to say that the Antitrust Division got plea agreements from those who they had the strongest cases against, but often found itself trying weaker cases, sometimes against senior managers that had insulated themselves from most of the illegal conduct.  But, my opinion is that today cases go to trial because the sentencing guidelines are so severe (based on volume of commerce) that the “last man standing,” who can’t get a 5K cooperation agreement/downward departure, has little to lose by going to trial.  Mr. Farmer went to trial because he declared he was innocent and a jury did in fact acquit him.  But, even a guilty party might go to trial because: (a) he has at least a chance at acquittal; (b) even if convicted at trial, he will likely be sentenced to less time than he could have negotiated with the Antitrust Division pursuant to a recommended guidelines plea agreement; and (c) in any event he can appeal and hope to get a conviction reversed on appeal.  In essence, the trial is an extended sentencing hearing, with a chance of acquittal, and even if convicted, a hope the conviction can be overturned.  I co-authored an article “A Peek Behind the Record Peake Sentence” (here) that explored some of these ideas.

Congratulations to Farmer’s defense team and also to the Antitrust Division for an otherwise very successful investigation.

Thanks for reading.

3C’s: Anti-Cartel Day in Canada

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Anti-Cartel Day in Canada

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The Canadian Competition Bureau is celebrating “Anti-cartel Day: Helping businesses detect and prevent price-fixing and bid-rigging.” The press release is available here.

Below are some experts where the Commission provides many useful links:

 “The Bureau has developed resources to assist businesses and trade associations in recognizing and preventing cartel activity. The videos were made available on the Bureau’s Facebook page, YouTube channel and its website earlier this week, and include:

 

The press release has this quote from John Pecman, Commissioner of Competition:  “Cartels are corrosive to a healthy marketplace. Anti-cartel Day is a way for us to raise awareness as to the devastating effects of anti-competitive conduct but also to highlight the benefits of compliance for companies and the individuals managing them.”

The following helpful links are also in the press release:

Kudos to Commissioner Pecman and the Canadian Competition Bureau for their efforts in publicizing broadly the benefits of competition/compliance and providing resources to support the effort.

Happy Anti-Cartel Day!

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.

* * * * * Click Here for the Rest of the Story * * * * *

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.

* * * * * Click Here for the Rest of the Story * * * * *

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:

* * * * * Click Here for the Rest of the Story * * * * * 

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.