The global cartel arena has seen a notable drop-off in the issuing of fines to corporates and individuals; the total value of fines handed out by regulators worldwide in 2017 was $4.2bn, compared with $7.8bn in 2016. This is largely attributable to a dearth of new large, cross-border investigations led by the US Department of Justice (DOJ) and existing ones – such as the automotive parts investigation – winding down. The DOJ has been active in other large ongoing cross-border investigations, such as in the financial services and shipping sectors.
Notwithstanding the lack of new blockbuster investigations, the overall level of global enforcement activity remains broadly consistent; in the US, there has been a notable focus by the DOJ on smaller, domestic cartel investigations, including in the packaged seafood industry, among others.
On the merger control front, there was much anticipation in 2017 as to what impact the incoming Trump administration would have; there has been some uncertainty, with Makan Delrahim only being confirmed in September 2017 as the DOJ’s assistant attorney general in charge of antitrust enforcement and also with key Federal Trade Commission positions still remaining unfilled. Merger enforcement has for the most part continued on broadly the same tramlines as the final year of the Obama administration. It should be noted that Makan Delrahim (who was confirmed as head of the DOJ’s Antitrust Division in September 2017) has stated that the DOJ will rely more on structural remedies – such as divestitures – to address merger concerns, and will move away from consent decrees. The DOJ’s recent lawsuit challenging the proposed AT&T/Time Warner deal caught the attention in relation to vertical mergers, but it remains to be seen whether this case is an outlier or whether it heralds more of these types of transactions being challenged in the future.
Published in 2018 at https://www.legal500.com for The Legal 500 United States 2018