February Antitrust Bulletin

February 21, 2012

DOJ Opens New Year with Record Fines in Criminal Cartel Case

As previously reported, in fiscal year 2011 (the period running from Oct. 1, 2010, through Sept. 30, 2011), the Antitrust Division obtained more than $520 million in criminal fines. On Jan. 30, 2012, the Division announced that it had already surpassed that amount for fiscal year 2012 as two Japanese suppliers of automotive electrical components have agreed to pay a combined $548 million to resolve federal price-fixing and bid-rigging charges in the ongoing auto parts investigation. In addition, four Japanese nationals, all executives at one of the companies, have agreed to pay $20,000 criminal fines and serve sentences ranging from 15 months to two years. According to the Division, the auto parts investigation is the largest criminal investigation it has ever pursued, both in terms of its scope and the potential volume of commerce affected by the alleged anticompetitive conduct.

Canadian Competition Bureau Raises Premerger Notice Threshold

On Feb. 7, 2012, the Canadian Competition Bureau announced revised thresholds for premerger filings under the Competition Act. These thresholds determine whether companies are required to notify the Bureau about a proposed transaction. Under the new rules, which are now in effect, parties in a transaction involving a target company with Canadian-based assets or revenue valued in excess of CA$77 million will be required to notify the Bureau. Parties also will be required to report transactions in which the total combined assets or revenues exceed CA$400 million.

DOJ and EC Release Patents and Standards Policy Statements

The U.S. Department of Justice (DOJ) and European Commission (EC) both recently released key statements on their policies regarding patents and standards. On Feb. 13, 2012, the Antitrust Division announced the closing of its investigations into three separate transactions — Google’s acquisition of Motorola Mobility, a manufacturer of smartphones and computer tablets; the acquisition of Nortel Networks’ patents (at a bankruptcy auction) by a partnership comprised of Microsoft, Apple, RIM and others; and Apple’s acquisition of patents formerly owned by Novell. Each acquisition involved standard essential patents (SEPs) that the patent holders had committed to license to industry participants through their participation in standard-setting organizations (SSOs). In its closing statement, the Division emphasized the importance to the wireless device industry of seamless interaction with wireless communications technologies and the need for industry participants to work through SSOs collectively to develop technical standards that establish precise specifications for essential components of the technology, and stated that it “continues to have concerns about the potential inappropriate use of SEPs in the wireless device industry.” Similarly, in a speech presented on Feb. 10, 2012, EC Commissioner Joaquín Almunia expressed concern about “misuse” of SEPs and stated that he is “determined to use antitrust enforcement to prevent the misuse of patent rights to the detriment of a vigorous and accessible market.”

EU/UK Competition Law

We also publish a newsletter and bulletins on EU/UK competition law developments.

For more information, please contact the lawyers in the Antitrust & Trade Regulation Department at McGuireWoods.

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