January Antitrust Bulletin

January 20, 2012

Government Not Required to Identify Exculpatory Evidence in Discovery

On Dec. 23, 2011, a district court denied a motion to compel filed by defendants in ongoing litigation regarding alleged price fixing in the market for liquid crystal display panels used in computers and televisions. Defendants had sought to require the government to identify where in the voluminous discovery produced certain exculpatory material exists, arguing that the government had failed to comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). But the court ruled that the government has no obligation to affirmatively identify particular pieces of exculpatory evidence, nor is it required to produce internal communications relating to plea negotiations absent a separate basis for disclosure.

Canadian Competition Bureau Updates Merger Review Guidelines

On Jan. 11, 2012, the Canadian Competition Bureau issued revised Merger Review Process Guidelines, updating the guidelines originally published in September 2009. The guidelines describe the Bureau’s general approach to administering its two-stage merger review process, which is applicable to proposed transactions that exceed certain thresholds and are subject to mandatory premerger notification filing under the Competition Act. The Act establishes an initial 30-day waiting period during which the parties cannot close the transaction. This initial waiting period can be extended if the Bureau issues a supplementary information request (SIR) – similar to “second requests” issued in the United States – to obtain more information to determine the competitive impact of the transaction. The amendments to the merger review process do not affect the Bureau’s substantive approach to merger review.

Antitrust Division Continues to Prioritize Criminal Enforcement Program

On Dec. 7, 2011, Acting Assistant Attorney General Sharis Pozen testified before Congress that the Antitrust Division “obtained over $520 million in criminal fines” during Fiscal Year 2011 (the period running from Oct. 1, 2010 through Sept. 30, 2011). The Division filed 90 criminal cases – the highest number of criminal cases filed in the last 20 years, and a significant increase from the 60 criminal cases filed in Fiscal Year 2010 – charging 27 corporations and 82 individuals, and courts imposed 21 separate jail terms, totaling 10,544 days of jail time. The Division’s criminal investigations and cases have focused on a variety of industries, including real estate, auto parts, financial services, air transportation services, freight forwarding and liquid crystal display panels.

UK Office of Fair Trading Announces Results of Compliance Survey

In December 2011, the UK Office of Fair Trading issued a report assessing the impact of competition law on compliance measures adopted by UK companies. More than 800 companies were surveyed as part of a study considering what drives businesses to comply with competition law and what deters them from trying to infringe it. Additional information is available in our December 2011 EU Competition Law Compliance Update.

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