Criminal Antitrust Fines Top USD1 Billion Mark Again In 2013

by Allen & Overy LLP

The Antitrust Division obtained more than USD1.02bn in criminal fines in fiscal year 2013 (October 2012 – September 2013), which officially closed yesterday.  Fiscal year 2013 marks the second year in a row that the Division has eclipsed USD1bn in fines, but only the third time in the history of the now 123-year-old Sherman Act that fines have exceeded that threshold.

The Antitrust Division’s investigations into collusion surrounding LIBOR and into price-fixing and bid-rigging in the auto parts sector dominated the criminal antitrust enforcement agenda in fiscal year 2013.  The fines imposed in these investigations accounted for nearly 99% of the fiscal year total.

This year’s fine total is due in large part to a group of plea agreements in the auto parts investigation inked in the final days of the fiscal year, which yielded a total of USD740 million in criminal fines.  In these last-minute deals, nine Japanese car-parts makers and two executives entered plea agreements for their involvement in various conspiracies to fix prices of more than 30 different auto parts sold to manufacturers in the U.S. and abroad.  Attorney General Eric Holder announced the deals, explaining that “these international price-fixing conspiracies affected more than USD5bn in automobile parts sold to U.S. car manufacturers, and more than 25m cars purchased by American consumers were affected by the illegal conduct.”  So far, the investigation into auto parts has yielded over USD1.6bn in criminal fines, as well as prison sentences for 17 executives.

The 2013 fine statistics also reflect a continued focus of the Antitrust Division on conduct by foreign-based corporations.  Fines imposed on Japanese, Korean, UK, and Taiwanese companies, and their subsidiaries, account for 100% of the corporate fines imposed this year.  Japanese corporations were the hardest hit, with their combined total accounting for nearly 90% of the fines obtained.

While fiscal year 2013 proved to be another record year for the Antitrust Division in terms of corporate fines, there are signs that U.S. antitrust enforcers will struggle to achieve fines of a similar magnitude in fiscal year 2014.  The Antitrust Division continues to struggle under the weight of the LIBOR and auto parts investigations at a time when the Division is severely resource constrained.  If left unresolved, these constraints may slow the Antitrust Division’s activity in the auto parts and LIBOR investigations over the course of the coming year, as well as constrict the pipeline of new investigations the Division is capable of pursuing.  And the government shut down will only exacerbate the problem, with the Antitrust Division already announcing that many investigations may be suspended until Congress resolves the budget stalemate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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