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CCC’s: It Is Time for an Antitrust Whistleblower Statute —Part I

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Kimberly Justice and I wrote an article published in Global Competition Review arguing that it is time for an “Antitrust Whistleblower Statute.”  [The article is behind a pay firewall (here).]  Kimberly and I will be expanding on this idea in Cartel Capers blog posts over the next two weeks.  Below is the first installment.  We explain why cartels are a great pond to be fishing in for informants, but a little “whistleblower” bait is needed.

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Over the last several years, Senators Chuck Grassley and Patrick Leahy have introduced antitrust whistleblower legislation that has passed in the Senate but died in the House.  Their proposed legislation would grant job protection to antitrust whistleblowers.  The legislation that Ms. Justice and I are proposing would go further; besides retaliation protection, we would offer potential financial reward to a whistleblower who initiated a successful cartel prosecution.

The time is right for antitrust whistleblower legislation. In 1993, the Antitrust Division revised its Corporate Leniency policy, setting the stage for similar, successful, legislation/polices to be enacted around the world.  Amnesty/Leniency rewards an entire company and its cooperating executives with non-prosecution for coming forward and reporting cartel behavior.  But leniency applications are slowing down—at least that is the perception of many observers—as the cost of obtaining leniency in terms of corporate time and attorney fees, in an expanding universe of jurisdictions, has would-be applicants reassessing the cost/benefit analysis.  A whistleblower statute would not replace, nor in our opinion undercut, leniency policies, but would add a new tool to uncover cartels that exist, and deter new cartels from forming.

There are two features of cartels that are key to understanding why an antitrust whistleblower statute would be a potent and needed weapon in the fight against cartels:

1)         There are many potential whistleblowers in virtually every price-fixing/bid rigging conspiracy.  The culpability level of the many players ranges from Masters (top-level) to Sherpas (working group guy).  Offering a potential whistleblower reward to a single cartel member still leaves a target rich enforcement of culpable executives to focus on; but

2)         It is costly for a potential whistleblower to come forward.  Any member of a cartel, even the least culpable, faces the possibility of significant jail time.  In order for a low-level cartel participant to come forward, he needs to engage a qualified attorney and negotiate a non-prosecution agreement with the Antitrust Division.  This is an expensive, potentially life changing decision.  Long-term unemployment may well follow.  Hefty attorney fees surely will.  Even the most desirable whistleblower—one with no culpability at all, such as a secretary, or customer– will not ensnare herself in a cartel investigation without some means to cover significant attorney costs and reap some compensation for doing “the right [but very costly] thing.”

Ms. Justice and I worked on two investigations which highlight these points.  The first was an international cartel investigation involving both US and foreign companies.  Within each company there were many executives—some retired—that had enough knowledge of the cartel that had they come forward, an investigation would have been opened.  If a single whistleblower had come forward, there still would have been many culpable individuals and companies left to prosecute.

Another prosecution involved a typical bid rigging scheme on a government contract.  This type of scheme is usually initiated by the owner/senior member of the company (who would not be eligible for whistleblower status).  But, it is also typical that an estimator who knows the boss has schemed with a competitor(s) is told to bump up the prices to reflect the agreement.  The estimator is liable as a participant in the cartel, but would make an excellent whistleblower.[1]

Given almost any cartel, international or local, a lower level employee could come forward and likely receive a non-prosecution/cooperation deal under the Antitrust Division’s current Individual Leniency Policy.  But the Individual Leniency Policy is almost never used because a rational person would likely prefer to lay low and hope the crime never gets uncovered than come forward, likely lose his job and have to pay an attorney to negotiate with the Antitrust Division for immunity.  Being an Antitrust Division witness is a marriage that lasts longer than many real marriages.  Criminal antitrust investigations take years, and if it is an international matter, a whistleblower will be called on to be interviewed by many jurisdictions around the globe.  Without some incentive of a reward, an individual would almost certainly not “volunteer” to assist in a cartel investigation.   Even a non-culpable witness/whistleblower such as a customer in whom a salesperson confided or a corporate administrative assistant who saw/heard incriminating information is not likely to come forward to the Antitrust Division on his/her own.

There are many potential antitrust whistleblowers.  But the disincentives to come forward voluntarily are significant.  Some “bait” is needed to entice a whistleblower:  protection from job retaliation and a financial incentive that would cover the significant costs of cooperation and perhaps even provide an “informants’’ bounty.”  The False Claims Act, the SEC and other whistleblower statutes are successful because individuals with knowledge can engage an attorney to guide them through the process in exchange for a possible award of attorney fees and a contingency fee.  The whistleblower’s attorney can develop the potential whistleblower’s claim, negotiate with the government, and represent the potential whistleblower throughout the process, all without an upfront cost to the potential whistleblower.  A former employee, for example, maybe one who has been fired or downsized—would have a way to report illegal conduct without assuming a tremendous legal bill—and even have a financial incentive to do so.

In the next blog post we will discuss some of the objections that have been raised to an antitrust whistleblower statute and why we think none of these concerns are serious enough to kill the whistleblower idea.  But, first, we’ll wrap this segment up by noting a couple of the benefits of a whistleblower statute which may be obvious:

  • A whistleblower can start a criminal cartel investigation with an insider’s view of the agreement and who is party to it. A single whistleblower does not preclude the Antitrust Division from also offering leniency, as it is unlikely one witnesses can provide indictable evidence.  But, whistleblower evidence/assistance should lead to an efficient investigation that preserves the most culpable cartel members for prosecution.
  • Like leniency, as the whistleblower tool gets used and generates publicity, it will be effective in deterring cartels from even forming. This effect is not capable of measurement, but it is logical that if a single member of a cartel (particularly lower-level Sherpas who may not be crazy about carrying out the Master’s scheme) has a means to report the cartel and be rewarded for actionable information, cartel members will have another reason to think twice before engaging in criminal antitrust behavior.

More to come.  Thanks for reading.

[email protected]

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[1]   Where the government is a victim of a fraud—and bid rigging is a fraud—a whistleblower case can currently be brought under the False Claims Act.  There are occasional instances of bid rigging whistleblower case.  But, it would be better to have these types of cases covered by a particular antitrust whistleblower statute and better publicized with an Antitrust Division Office Whistleblower Office.

CCC’s: It’s Time For an Antitrust Whistleblower Statute

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Kimberly Justice and I have written an article arguing that it is time for an “Antitrust Whistleblower Statute.”  The article was published in Global Competition Review, but is behind a paid firewall (here).  Kimberly and I will be expanding on this idea in Cartel Capers blog posts over the next two weeks.  The first installment will be on Monday and explain why cartels are a great pond to be fishing in for informants, but a little “whistleblower” bait is needed. Other topics will include:
1)      An evaluation of the objections to an antitrust whistleblower statute;
2)      A survey of whistleblower related incentives offered by foreign competition agencies;
3)      A preview of what an antitrust whistleblower statute should look like; and
4)      If we receive comments/feedback, we’d like to collect and post them together.
Stay tuned.  Thanks for reading.

CCC’s: Valspar Seeks Third Circuit En Banc Rehearing on Summary Judgment Standard

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In a recent guest post, Richard Wolfram discussed his objections to recent First and Third Circuit decisions on summary judgment in antitrust collusion cases.  See Supreme Court Dodges Question of Antitrust Summary Judgment Standard, Higher Bar to Reach Jury Splitting Circuits, Will Valspar Be Up Next?  Mr. Wolfram wrote:

As Evergreen [First Circuit case] explained in its petition, and as applies equally in Valspar [Third Circuit case], to require that the plaintiff show by a preponderance of evidence on summary judgment that a jury would find in its favor effectively pre-empts the role of the jury, infringes on the Seventh Amendment right of the plaintiff, and is illogical, in effect raising the bar by requiring that the plaintiff satisfy the preponderance standard at both the summary judgment phase and at trial.  Inquiring minds may wonder — will Valspar be the vehicle where the Court finally addresses these issues?

The plaintiff in Valspar just filed a Petition for Panel Rehearing and Rehearing En Banc in the Third Circuit.  Echoing the comments made by Mr. Wolfram, appellant’s petition states:

En banc review is necessary because the panel’s decision eviscerates the protections of Section 1 of the Sherman Antitrust Act by making an unprecedented summary judgment standard for plaintiffs trying to prove a price-fixing conspiracy by circumstantial evidence in the Third Circuit. A majority of the panel incorrectly created a new “more likely than not” standard to evaluate circumstantial evidence at summary judgment.

Valspar’s petition is here: Valspar en banc petition.

Stay tuned.  Thanks for reading

CCC’s: A New Article on Algorithmic Collusion (Guest Post by Ai Deng PhD.)

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Below is a post by valued guest contributor, Ai Deng, PhD. of Bates White Economic Consulting.

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In a new article I published in Law360 last week, I discussed the following four reasons why the scope of colluding algorithms, even if they are technologically possible, could be limited:

  • Algorithmic asymmetry
  • Robust compliance
  • Observable collusive outcomes
  • Risk of class actions

The paper is titled “Four Reasons We May Not See Colluding Robots Anytime Soon” and is available here. If you do not have a subscription to Law360 but would like to have a copy, please feel free to email me at [email protected]

As always, I appreciate your thoughts and comments. You can reach me at the email above or connect with me on LinkedIn [here].

Thanks for reading.

CCC’s: Evergreen: Supreme Court Dodges Question of Antitrust Summary Judgment Standard, Higher Bar to Reach Jury Splitting Circuits. Will Valspar be Next Up?

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Below is a Guest Post by Richard Wolfram, counsel for Evergreen Partnering Group, Inc.  Evergreen filed suit alleging polystyrene converters and their trade association engaged in a concerted refusal to deal with the company in violation of the Sherman Act. The United States District Court for the District of Massachusetts initially dismissed the action.  Evergreen appealed and the First Circuit vacated and remanded. 720 F. 3d 33 (1st Cir. 2013).  The district court then entered summary judgment in favor of the defendants. 116 F. Supp. 3d 1.  (D. Mass. 2015). Evergreen again appealed and the First Circuit upheld the dismissal of the action.  Evergreen Partnering Group v. Pactiv Corp, et. al., 832 F. 3d 1 (1stCir. 2017).  After the First Circuit denied without comment Evergreen’s petition for rehearing, Evergreen filed a petition for certiorari with the U.S. Supreme Court.  Respondents filed an Opposition brief at the request of the Court and Evergreen filed a Reply.  (No. 16-1148.)

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On October 2, 2017, the U.S. Supreme Court denied Evergreen’s petition for certiorari in its concerted refusal to deal case from the First Circuit.  Evergreen contended that the court of appeals, in dismissing the case, misinterpreted and misapplied the summary judgment standard in antitrust, and that the standard itself is the source of significant confusion and inconsistent reasoning among the federal circuits and thus calls for clarification by the Court.  Evergreen’s petition was supported by an amicus brief submitted by 12 professors of antitrust law and economics.

The Court, as is customary, gave no explanation for denying Evergreen’s petition.  The Court lost an important and timely opportunity to clarify an issue that has created tremendous confusion and inconsistency among the circuits — the proper tools for applying the summary judgment standard in antitrust.  Although the Court understandably focuses on issues of law and not fact for petitions that it accepts, one has to wonder what set of facts — with the lower court here improperly weighing evidence and making credibility determinations and applying the much-criticized equal inferences rule — would serve as a better vehicle for resolving this question.  This issue is not going away, and anyone who practices antitrust knows that. Click here and here for articles about the decision.

Confirming this comment, and on the same day, a panel of the Third Circuit Court of Appeals publicly issued a decision affirming summary judgment dismissal of a Sherman Act Section 1 oligopoly conspiracy case despite findings of 31 uniform price increases by defendants over 11 years, well over any increase in costs and despite declining demand and excess capacity.  Valspar Corp. v. Dupont,  (3d Cir., 10/2/17). Arguably pre-empting the role of the trier of fact, just as Evergreen alleged the First Circuit did in its case, the Third Circuit panel required that the plaintiff provide inferences that the alleged conspiracy was “more likely than not” rather than applying the general summary judgment standard, as repeated by the Supreme Court in Kodak, that the plaintiff show simply that a jury could reasonably find in favor of the plaintiff.  The plaintiff’s burden at trial is to prove its case by a preponderance of evidence (51%), whereas its burden on summary judgment is simply to show that a jury could reasonably find in its favor — which the Supreme Court itself has explained is less than the preponderance standard. As Evergreen explained in its petition, and as applies equally in Valspar, to require that the plaintiff show by a preponderance of evidence on summary judgment that a jury would find in its favor effectively pre-empts the role of the jury, infringes on the Seventh Amendment right of the plaintiff, and is illogical, in effect raising the bar by requiring that the plaintiff satisfy the preponderance standard at both the summary judgment phase and at trial.  Inquiring minds may wonder — will Valspar be the vehicle where the Court finally addresses these issues?  For more information on Valspar, see write-up by the American Antitrust Institute, which filed an amicus in support of the plaintiff (here).

Richard Wolfram  [email protected]

CCC’s: Antitrust Division DAAG Delivers Remarks at International Conference

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The Antitrust Division’s Deputy Assistant Attorney General for International Affairs, Roger Alford delivered a speech on October 3, 2017 in San Paolo, Brazil. (here).  There were no groundbreaking announcements in the speech, but since it was the first delivered since Makan Delrahim took over as head of the Antitrust Division, I thought it might be of interest.

There were two aspects of the talk worth noting.  First, Mr. Alford highlighted the Division’s longstanding focus on holding individuals accountable:

As my colleagues at the Antitrust Division have explained before, “[h]olding companies accountable and assessing large fines, alone, are not the only means, or even the most effective way, to accomplish our goal of deterring and ending cartels. Individuals commit the crimes for which corporate offenders pay. Every corporate crime involves individual wrongdoing.” For that reason, we at the Antitrust Division have a long history of holding individuals accountable for antitrust crimes, and we have consistently touted prison time for individuals as the single most effective deterrent to criminal collusion.

The other item that caught my eye in the speech was the Mr. Alford’s reference to two Antitrust Division recent prosecutions:

  • In June of this year, Yuval Marshak was sentenced to 30 months in prison for participating in a scheme to defraud the U.S. Department of Defense.
  • In 2016, we tried and obtained the conviction of John Bennett for fraud against the United States as a result of a kickback scheme in the procurement of environmental clean-up services. He was ultimately sentenced to five years in prison.

These examples of “fraud prosecutions” are interesting because there is sometimes an internal debate in the Antitrust Division about whether only Sherman Act, (i.e. price fixing or bid rigging) charges should be brought or whether the Division has a broader mandate to prosecute what is sometimes called “corruption of the bidding process.” A “corruption of the bidding process” example would be bribing a procurement official to tailor bid specifications to favor one company.  In a hybrid case, there may be both a bribe of a procurement official and collusion among the favored bidders.

At times, investigation and prosecution of collusion on public contracts such as defense, roads, and schools has been a priority for the Division.  Public contracts are typically where collusion and bribery turn up–and jail sentences tend to be long.  The Division has limited resources, however, so when international cartels dominate, there may be few resources left to devote to public contracts.

The interesting thing about public contract investigations, is that the Division has some ability to be proactive in generating new investigations (as opposed to being reactive to leads/leniencies that come into the Division.)  When resources are available, the Division will often beat the bushes talking to federal agents and procurement officials looking for tips on possible worthwhile investigations.  It will be worth watching to see if there is any noticeable shift in emphasis under the new Antitrust Division leadership.

Thanks for reading.

CCC’s: UK’s Competition and Market Authority: [Real] Estate Agents Cartel Case Study

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I thought this might be of interest to readers and/or to pass on to clients.  The UK’s Competition and Markets Authority (CMA) just published a case study of their investigation of a real estate against cartel in the UK (here).   Below are the lessons learned section of the study:

What are the lessons?

  • Be careful when talking business with your competitors – make sure you don’t agree not to compete with each other.

  • Be especially wary of any conversations about pricing, or about a shared approach to pricing. Each business must set and decide its prices independently.

  • Competition law applies to small businesses as well as large ones. The estate agents in this case were small local or regional businesses.

  • The consequences of breaking competition law can be severe; fines can be as much as 10% of a business’ global turnover and a director can be banned from being a director of a company, or being involved in the promotion, formation or management of one, for up to 15 years. In the most serious cases, individuals can go to prison for up to 5 years. [In the United States the maximum prison sentence is 10 years.]

  • Competition law applies to all industries and the CMA will take action against those breaking the law.

  • The Somerset estate agents’ cartel is the second recent enforcement case the CMA has taken in the property sector. The CMA remains committed to tackling illegal anti-competitive conduct in the sector.

You can subscribe to the CMS for email updates (here).

Thanks for reading.

CCC’s: A Shout Out From John Hughes

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Yesterday I had the pleasure of having lunch with my old boss, John Hughes.  Also with us were former office mates in the Philadelphia Field Office, Brad Geyer, Rich Rosenberg, and Wendy Norman.  I thought I’d post the picture because John is one of the most respected and beloved figures in the antitrust world and people often ask me, “How is John doing?”  John  is doing great!

John began his career in the Department of Justice, Antitrust Division, Philadelphia Field Office and immediately began to work on what would become the Great Electrical Conspiracy cases–a watershed event in antitrust history.  He later became Chief of the Philadelphia Field Office where I worked for 34 years.  Everyone that worked for John agreed–he was the greatest boss, mentor and friend that anyone could ever ask for.  When John retired in 1994, he became a trial advisor on a number of Antitrust Division cases so he got to know and help staffs throughout the Division.   It is pretty common for a trial staff not to want someone looking over their shoulder as an “advisor,” but everyone asked for John.  He is equally respected by the defense and plaintiff bar and the judiciary.

So, I just want to let everyone know John and his wife Helen are doing great.  They keep busy with a very large family of children, grandchildren and great grandchildren.  John gives his best to everyone who helped make his career in antitrust so fondly memorable.

CCC’s: Antitrust and Artificial Intelligence, Empirical Analysis in Class Certification: A Research Update (Guest Post)

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By: Ai Deng, PhD,  Principal, Bates White Economic Consulting

Hope everyone had a wonderful Labor Day weekend. During my time off CartelCapers, I have been working on several research projects. In this post, I’d like to give the interested readers an update on two of them.

When Machines Learn to Collude: Lessons from a Recent Research Study on Artificial Intelligence

From Professors Maurice Stucke and Ariel Ezrachi’s Virtual Competition published a year ago, to speeches by the Federal Trade Commission Commissioner Terrell McSweeny and Acting Chair Maureen K. Ohlhausen, to an entire issue of a recent CPI Antitrust Chronicles, and a conference hosted by Organisation for Economic Co-operation and Development (OECD) in June this year, there has been an active and ongoing discussion in the antitrust community about computer algorithms. In a short commentary (downloadable here), I briefly summarize the current views and concerns in the antitrust and artificial intelligence (AAI) literature pertaining to algorithmic collusion and then discuss the insights and lessons we could learn from a recent AI research study. As I argue in this article, not all assumptions in the current antitrust scholarship on this topic have empirical support at this point.

Sub-regressions, F test, and Class Certification

Did the anticompetitive conduct impact all or nearly all class members? This question is central to a court’s class certification decision. And to answer the question, a methodology—known as sub-regressions (also labelled less informatively as simply the “F test” in the recent Drywall litigation)—is being increasingly employed, particularly by defendants’ expert witnesses. A key step of a sub-regression type analysis is to partition the data into various sub-groups and then to examine data poolability.[1]

Forthcoming in the Journal of Competition Law & Economics, my article titled “To Pool or Not to Pool: A Closer Look at the Use of Sub-Regressions in Antitrust Class Certification” focuses on three areas of interest pertaining to sub-regressions:

  • The related law and economics literature related to this methodology
  • Courts’ recent class certification decisions in cases where parties introduced sub-regression analysis
  • Several methodological challenges, many of which have not been previously acknowledged, as well as potential ways to address them. Specifically, what test should one use? How does one choose the subsets or partitions of data to test? Are individual estimates of damages always the most reliable approach when we believe the impact varies across customers or across some other dimensions?

This paper is currently being processed at the Journal. If you would like a copy, please feel free to reach out to me.

As always, I appreciate your thoughts and comments. You can reach me at [email protected] or connect with me on LinkedIn [here].

Thanks for reading.

Ai Deng, PhD
Principal, Bates White Economic Consulting
Lecturer, Advanced Academic Program, Johns Hopkins University
direct: 2022161802 | fax: 2024087838
1300 Eye Street NW, Suite 600, Washington, DC 20005
[email protected]
BATESWHITE.COM

[1] I first provided an update on this project on CartelCapers here.

CCC’s: Court Dismisses Heir Locator Indictment

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Kemp & Associates, Inc. and its vice-president and part owner Daniel J. Mannix, were indicted on August 17, 2016 in the District of Utah on a single-count conspiracy to violate the Sherman Act, 15 U.S.C. § 1, by engaging in a customer allocation agreement.  The agreement at issue was a set of guidelines which governed the joint activity between defendants and co-conspirators.  On March 31, 2017, the defendants filed a Motion for Order that the case be Subject to the Rule of Reason and to Dismiss the Indictment as time barred on Statute of Limitations grounds.  On August 29, 2017, the district court affirmed an earlier ruling that the indictment would be tried under the Rule of Reason, but then made that ruling moot by dismissing the case on statute of limitations grounds.  The court ruled that the conspiracy ended three years outside the statute of limitations.  In a nutshell, the court found the conspiracy ended when the last customer was allocated, while the government argued, unsuccessfully, that the conspiracy continued while the defendants reaped the supra competitive profits from allocating the customers.  The government’s “payment theory” usually prevails, but not in this case.

When I have time, I’d like to comment on the court’s ruling but for now I simply provide the ruling (US v. Kemp & Associates, Inc and Daniel J. Mannix) for your perusal.

Thanks for reading.

P.S.  Want to write a guest post?  The pay stinks but contributors welcome.