FTC And DOJ Issue Revised Antitrust Guidelines For International Enforcement And Cooperation

On January 13, 2017, the US Federal Trade Commission ("FTC") and US Department of Justice ("DOJ") (collectively, the "Agencies") jointly issued revised Antitrust Guidelines for International Enforcement and Cooperation (the "Guidelines"). The new Guidelines, which replace the 1995 Antitrust Enforcement Guidelines for International Operations, "reflect the increasing importance of antitrust enforcement in a globalized economy." According to outgoing FTC Chairwoman Edith Ramirez, the revised Guidelines "explain to the business and antitrust communities [the Agencies'] current approaches to international enforcement policy and related investigative tools, and cooperation." FTC commissioners unanimously approved the Guidelines, suggesting a continuity of approach to international antitrust issues in the Trump administration. In particular, the Guidelines focus on three topics:

Application of US Law to Conduct Involving Foreign Commerce. The Guidelines emphasize the continued application of US federal antitrust laws to "foreign conduct that has a substantial and intended effect in the United States." They also affirm that the Agencies apply the same principles to enforcement decisions regarding mergers and acquisitions involving trade or commerce with foreign nations that they apply to conduct within the reach of the Sherman Act and the FTC Act. In particular, the Agencies take a broad view of the application of US antitrust law to allegedly anticompetitive foreign conduct under the Foreign Trade Antitrust Improvements Act ("FTAIA"). For example, import commerce is excluded from the FTAIA and is therefore always subject to US antitrust law. The Agencies define "import commerce" as including scenarios where a defendant does not import the product to the United States but merely places it into a distribution chain that eventually leads to the United States. The Agencies may also pursue investigations and enforcement actions when only a small number of the defendant's products were imported to the United States. The Agencies also take a pro-enforcement stance regarding non-import foreign commerce, which is only actionable under the FTAIA if it has a "direct, substantial, and reasonably foreseeable effect" on US commerce and "give[s] rise to" a claim under the Sherman Act. For instance, the Agencies view "reasonable foreseeability" as presenting an objective test under which a defendant's lack of actual knowledge or indifference as to whether its...