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THE TEMPLE OF LENIENCY: THOUGHTS INSPIRED BY THE WORK OF LAURA GUTTUSO.

I INTRODUCTION

Sadly, I never had the pleasure of meeting Laura Guttuso. We had corresponded extensively about her research and publication. Loyola University Chicago School of Law and the Institute for Consumer Antitrust Studies were supposed to host Laura for a Research Fellowship in the spring of 2016 to assist in her work on her PhD dissertation at the University of Queensland. The plan was for Laura to spend some weeks in Washington, DC on a similar fellowship through the Antitrust Section of the American Bar Association and then come to Chicago to work with me and the other professors and practitioners who comprise the Institute faculty and advisory board on issues of comparative competition law and enforcement. (1)

Instead we learned the tragic news that Laura fell ill upon arrival in Washington and passed away shortly thereafter. This short article mourns her loss, celebrates her contributions and accomplishments as a scholar, and comments on one of her final publications which appeared as a chapter in a fascinating book entitled Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion ('Leniency Religion'). (2) In this article, I discuss many of the general themes presented in the book as a whole and then turn to the specifics of Laura's chapter on the role of leniency and the intersection of private and public enforcement of competition law. She will be missed by all those who knew her and those who had the privilege to know her work.

II THE TEMPLE OF LENIENCY

Leniency Religion is an interesting, timely, and important book. There is a tremendous variety of economic, legal, philosophical, and practical perspectives on the role of leniency policies in modern cartel enforcement in the US, the EU, and in other jurisdictions. The authors hold diverse views and represent a broad number of jurisdictions and perspectives on the important topic of leniency and amnesty policies. It has been well received, well reviewed, and is a must for scholars and practitioners interested in this issue. (3)

Leniency policies are formal policies which competition authorities use to incentivize cartel members (and potentially other types of antitrust conspirators) to confess to the authorities. The cartel members must then cooperate going forward in return for some combination of mandatory or discretionary immunity or more lenient treatment for the entity and/or the individuals involved in the antitrust violation. In return, the competition authority receives direct evidence tending to establish an antitrust violation they were previously unaware of, or not yet in a position to challenge.

The leniency application may be enough for the authorities to obtain authorization for a search warrant or dawn raid to obtain enough further information to convict or find liable the other conspirators in the cartel. Frequently the other cartelists plead guilty, enter into civil settlements with the competition authorities, and/or seek to cooperate as well in return for more limited forms of leniency. An effective amnesty or leniency programme should also provide both specific and general deterrence for other would-be antitrust law breakers.

In the United States, there has been a formal amnesty and leniency programme for both businesses and individuals since the early 1990s. It has been responsible for the detection (and hopefully deterrence) of numerous significant national and international cartels including the infamous international vitamins cartel. (4)

In the United States, leniency will be granted to a corporation or other business entity reporting illegal activity before an investigation has begun, if the following six conditions are met:

1. At the time the corporation comes forward to report the illegal activity, the Antitrust Division of the US Justice Department has not received information about the illegal activity being reported from any other source;

2. The corporation, upon its discovery of the illegal activity being reported, took prompt and effective action to terminate its part in the activity;

3. The corporation reports the wrongdoing with candour and completeness and provides full, continuing and complete cooperation to the Division throughout the investigation;

4. The confession of wrongdoing is truly a corporate act, as opposed to isolated confessions of individual executives or officials;

5. Where possible, the corporation makes restitution to injured parties; and

6. The corporation did not coerce another party to participate in the illegal activity and clearly was not the leader in, or originator of, the activity. (5)

Leniency also may be granted under other discretionary circumstances. (6)

Leniency results in immunity from criminal prosecution for the business and any cooperating employees as well as a reduction in the inevitable private damage liability from treble to single damages. (7) More than fifty other jurisdictions have adopted similar policies adjusted for the criminal versus civil or administrative nature of liability, undertaking versus individual liability, mandatory versus discretionary leniency, and other factors tailored to the law, procedures, institutions, and history of the jurisdiction. (8) US officials and commentators like to point to the US amnesty and leniency system as the 'gold standard' of this burgeoning family of overlapping and sometimes conflicting leniency systems. (9)

Three overarching themes emerged from Leniency Religion about the varying utility and design of leniency programmes around the world. First, a number of the articles looked at how the law in action, rather than the law on the books, played out in the decisions to seek and or grant leniency in the real world. (10) Second, another group of articles explored in fresh ways the relationship between government leniency policies and corporate compliance programs. (11)

This article focusses on the third theme that runs throughout virtually all of the chapters in the volume, which is the need for a real (or at least perceived) independent threat of cartel detection and prosecution in order for leniency policies to offer the combination of carrots and sticks to work effectively. This is a vitally important question given that around two-thirds of cartel cases in the US and about three-quarters of cartel cases in the EU are generated through the leniency process. (12)

All competition agencies must have the ability to detect, investigate, and challenge cartels with or without leniency programmes. Not all cartel activity will ever be detected through leniency applications and even a quasi-rational organization or individual is unlikely to apply for leniency without some credible perception that the agency might take action even if every member of the cartel remained silent.

Several of the authors in Leniency Religion raise the issue of whether competition agencies thus over rely on leniency programmes. This seems indisputable, but there is also a more fundamental issue that is worth serious discussion. How to investigate and prosecute cartels separate from, or in addition to, a leniency programme?

Criminal cartel enforcement in the United States suffers from a bit of a 'special snowflake' problem where the Antitrust Division of the US Justice Department approaches virtually every criminal antitrust enforcement issue quite differently from the rest of federal white collar criminal enforcement. These differences include the automatic granting of leniency to the first in, the downplaying or ignoring of corporate compliance programmes in charging and sentencing decisions, the active interference with private enforcement efforts, and other approaches that simply are not present in other equally effective white collar criminal enforcement programmes.

Is antitrust really that radically different from, say, organized crime, foreign corrupt practices, or securities fraud/insider trading? All are serious crimes in the United States, done in secret, primarily federal in terms of who investigates and prosecutes, and investigated and prosecuted by different sections of the DOJ in conjunction with other regulatory and law enforcement agencies.

Some of the securities fraud and insider trading cases are mostly single firm or person conduct, but not all. Indeed, many of the recent cases involving anticompetitive manipulation of financial and banking benchmarks, interest rates, and foreign exchange rates were prosecuted in the US as fraud cases rather than Sherman Act violations. (13)

In general, insider trading cases are generated through three different mechanisms, none of which rely on a formal non-discretionary leniency programme. First, the US Securities and Exchange Commission (SEC) carefully monitors trading by designated insiders so a bell is rung when suspicious trading patterns emerge from registered insiders and can be linked to subsequent events and disclosures in the real world. Second, the SEC relies on tips and a formal whistle blower programme with statutory rewards depending on the outcome of any enforcement action. (14) And finally, insider trading cases are often generated as spin offs from securities fraud and other enforcement actions and investigations already underway.

As the cases move from SEC scrutiny to criminal investigation, the role of the SEC diminishes and the role of the US Attorneys Office (assisted by lawyers from the SEC) and the law enforcement agencies (the FBI and 1RS usually) increase. The interviews, subpoenas, evidence collection, surveillance, electronic intercepts, search warrants, and testimony before the grand jury for the case is done by the trained FBI and 1RS agents who present the case to the federal grand jury. Key witnesses who are less culpable may be offered immunity on a discretionary basis to overcome the 5th Amendment privilege against self-incrimination and secure their testimony before the grand jury and at trial. At trial, the case is normally prosecuted by one or more regular Assistant United States Attorneys with experience in dozens of previous trials seconded by the lawyers from the SEC.

It is much the same for organized crime cases which often involve multiple crime families or 'cartels' as in the drug (rather than antitrust) context. (15) As one would expect, organized crime cases are even more agent driven because of the threat of physical violence in many investigations (rather than the more genteel 'coercion' used in antitrust leniency parlance). Frequently the DOJ begins with smaller cases against low-level individuals to understand the scope and structure of the full extent of the operations of the crime family or families and identify the various levels of the family leadership (ringleaders and Sherpas?). Sometimes cases begin with an arrest, a tip from a victim, an agent who observes something in a related case, an informant, an undercover agent, or even publicly available information where what happened is obvious, but not necessarily who was involved. The full array of federal law enforcement agencies such as the FBI, IRS, ATF, and DEA, with the help of state and local authorities, do the typical interviews of victims, collection of evidence, surveillance, subpoenas, analysis of public records, wiretaps, video tapes, body wires, pen registers, and the other phases of the investigation.

The offenses involved obviously vary depending on the criminal conduct under investigation. Even if the primary offense cannot be proven, there still may be mail fraud, (16) wire fraud, (17) general conspiracy, (18) false statements, (19) obstruction of justice, (20) and tax charges (21) which can be charged and which must be proven beyond a reasonable doubt. The lowest level offenders (particularly if they themselves were coerced into participation) occasionally may be offered immunity on a discretionary basis as needed to secure their cooperation, testimony, and their safety. These deals are carefully negotiated between prosecutors and defense counsel, usually on the basis of detailed proffers where the government promises no direct use of the material in the proffer, but is free to use the material for leads in the event no deal is reached. In any given case, there may be no immunity or plea bargain, or more than one witness or entity immunized or granted some form of leniency based on the needs of the case, the value of the information, the degree of cooperation, and the culpability of the parties involved. (22)

In this context, cooperation may mean doing some very personally dangerous things to gather evidence as part of an immunity or plea deal, rather than just being debriefed and providing documents to lawyers for the Antitrust Division and/or private plaintiffs as part of a leniency agreement. Such cooperating witnesses may even eventually need the protection of the witness programme and relocation under an assumed identity. Through conviction, plea bargaining, selective immunity, cooperation, and continued investigation, the investigation broadens until a major organization-wide case hopefully can be made against the kingpins of the operation for whom leniency or amnesty is not on the cards in all but the most unusual circumstances.

At trial, the government often relies on the testimony of some very unsavoury individuals whose testimony is carefully corroborated by physical evidence, documentary evidence, tapes, videos, as well as the testimony of government agents and law-abiding citizens. At closing argument, the government may go so far as to argue that the case has been proved beyond a reasonable doubt even if the jury disregards everything the cooperating witnesses have said. While the defence hits back hard as to the deals these witnesses have struck with the government and the unsavoury things they have done in the real world (often serious fraud, violence, or murder, and not merely theft by men in suits), the government enjoys a conviction rate higher than in antitrust cases. (23)

These parallel investigation methods are not offered to question the accomplishments of the Antitrust Division, but rather to challenge the persistent claim of antitrust exceptionalism that only the current leniency programme, nowhere pursued in such stark form anywhere else in US federal criminal enforcement, is the only viable model for criminal cartel enforcement. The antitrust exceptionalism story goes well beyond leniency as well. Criminal antitrust prosecutors have different career paths, different training and overall experience, different roles in the investigatory stages of the case, different relationships with law enforcement agents, and different interactions with the defence bar and the bench than their counterparts in other areas of white collar criminal prosecution. (24)

The Antitrust Division is blessed with talented and dedicated public servants who are successful at what they do. Even with the current version of the leniency programme, there is much hard work still needed to prove the existence and membership of a cartel beyond a reasonable doubt. Without both the information from a leniency applicant and the other work necessary to build a case for trial, other defendants will be less likely to cooperate or plead guilty.

Nonetheless, it is worth continuing to study carefully the claims by both the career lawyers and agency heads that only heavy reliance on an unconditional first in leniency programme, active opposition to the aspects of private enforcement that allegedly threaten the leniency programme, and failure to take into account the role of corporate compliance programmes are all necessary to successful detection and prosecution of these types of crimes. Most of the rest of the US government does it differently, and quite well, in areas that have certain similarities to antitrust crimes and often with considerably more harm to the public at stake. (25)

Other areas of white collar enforcement may wish to look more closely at leniency in the antitrust area for their own needs, particularly in obtaining guilty pleas and convictions of the enterprises, rather than just the individuals involved. At the same time, it is hard to argue that the antitrust form of leniency produces optimal deterrence or punishment for the enterprises and individuals involved.

The final reason to question the religion of leniency is the paradox that leniency can only work where there is a credible threat that the cases will be detected, investigated, and successfully prosecuted in the absence of a leniency applicant. Failing to invest in the methods that make the US Attorney's Office and the rest of the DOJ good at their jobs risks much in the antitrust area. The risks outside the US may be even greater where experience and resources may be in shorter supply until the competition agencies develop their own investigatory and trial programmes and strong working relationships with the national criminal prosecutors in addition to the many bounties that leniency brings.

III THINKING ABOUT THE RELATIONSHIP BETWEEN LENIENCY, PUBLIC ENFORCEMENT, AND PRIVATE ENFORCEMENT

The reliance, or overreliance on leniency programmes to fight cartels raises one additional issue, namely, how to prioritise private rights of action versus public cartel enforcement. Many enforcers and commentators view private rights of action in a negative light since, everything else being equal, a corporation would be less inclined to seek amnesty or leniency if it would be subjecting itself to crushing private damage liability. (26) This sets up an unhealthy competition between public and private enforcement in several ways. For example, the US Congress passed the Antitrust Criminal Penalty Enhancement and Reform Act 2004 which detrebled subsequent private liability for successful leniency applicants. (27) The statute further specifies that single damage liability for successful leniency applicants is limited to that company's sales rather than the total sales of the conspiracy. (28) In addition, there is frequent litigation in the United States and elsewhere about access in private litigation to the leniency applications and whether discovery in private litigation should be stayed pending resolution of the public enforcement actions.

Laura Guttuso addressed several of these themes in her chapter in Leniency Religion entitled 'Leniency and the Two Faces of Janus: Where Public and Private Enforcement Merge and Converge in Leniency Religion'. (29) In this published work, she goes beyond addressing the relationship between public enforcement, private enforcement, and leniency policies in terms of narrow notions of optimal deterrence. Instead she thinks about public and private enforcement in terms of a broader array of values including deterrence, punishment, and compensation. This approach resonates with me and is consistent with past work in which I argued: 'Neither public nor private enforcement should "monopolise" competition law, but must work together to deter, detect, punish, and compensate victims of unlawful anticompetitive conduct. Only then is a consumer friendly competitive economy possible'. (30)

Guttuso responds to critics who minimise the value of private enforcement and argues that public enforcement alone fails to achieve either deterrence or compensation. (31) She questions both the empirical and theoretical arguments that private enforcement works against leniency applications, or public enforcement more broadly. Instead, she argues that private enforcement can be seen as adding to deterrence by stepping into the enforcement vacuum and increasing the costs of non-compliance. (32)

After seeking to dispel the prevalent myths about private enforcement, she moves on to a more affirmative argument that public and private enforcement form part of a wider system. One aspect of such a more holistic view would be integrating fining and compensation in the same proceeding as in the EU and member states. This is a helpful suggestion that deserves serious consideration in every enforcement system. While restitution 'where possible' is a condition of amnesty in the United States, (34) it is not formally part of the criminal judgment and sentence, as it is in most other federal criminal matters. Instead, it is assumed that the inevitable follow-on private damage litigation will provide that restitution or compensation. Too often, the government makes already complicated private litigation more difficult than it already is through opposition to the leniency tile and requesting stays and other delays to the private litigation while the government case and any follow-ups continue to be investigated and litigated.

Guttuso addresses some of these complex interactions toward the end of the chapter with a more theoretical and political lens about how enhancing private enforcement can serve the goals of corrective justice, collective redress, fairness, and democratic participation, particularly with regard to collective litigation (class actions in US parlance). These are arguments I am predisposed to like, (33) but she handles these issues with sophistication and courage. Overall, she succeeds in revealing 'the limits of the economic based paradigm in accurately depicting the role of compensation within the context of leniency and anti-cartel enforcement'. (36)

While Laura Guttuso did not survive to complete additional work or her PhD, her insights are sound and should be considered carefully in designing and reforming competition law systems throughout the globe. Private enforcement is not some irritant to be cabined or discarded to allow public authorities to reign alone or supreme in the field of competition enforcement. Public enforcement is incomplete in so many ways that only a few of the missing components can be mentioned. Criminal enforcement is on the rise globally, but still many jurisdictions decline to go down this path or are just beginning to implement criminal liability in an effective way. (37) It is unclear how deterrence can effectively work without individual liability (either criminal or civil), which is not a feature of EU law or of many of its member states and other systems modelled after the EU. (38) Civil or administrative fines can only go so far in achieving deterrence when the entity and its managers benefit from the violation and only the shareholders shoulder the fines imposed. In short, paying fines with other people's money is insufficient to ensure compliance from either a competition or corporate governance point of view. (39)

Even the most effective public enforcement system has resource issues, changing priorities, and typically confronts both more highly resourced defendants and respondents and a judicial system that has its own resource and expertise limitations. Few competition law systems provide for a public system that adequately compensates the victims of antitrust wrongs. As a result, private enforcement is on the rise globally to fill this gap. (40)

Guttuso is right to argue that private enforcement serves both as a gap filler for public enforcement but so much more. Private enforcement allows injured persons to take matters into their own hands, seek compensation, exercise agency, tell their story, and seek corrective justice. Collective litigation makes possible the aggregation of small claims which otherwise would be impossible. (41)

Even at its best, public enforcement alone fails to provide any of these benefits to those who suffered harm on an aggregate basis. This is a democratic value that is important for both instrumental and intrinsic reasons. Private enforcement should be structured and honoured in such a way that there is due process for both plaintiffs and defendants, and that both sides and the rest of the actors in the system can be treated fairly and be perceived as being treated fairly. As Laura Guttoso explained, the continuing challenge is to view competition enforcement as part of a broader holistic system of public and private enforcement working in harmony to achieve as far as possible multiple and, sometimes, conflicting aims.

IV CONCLUSION

Leniency programmes were an important lens for Laura Guttuso to discuss the relationship between public and private competition enforcement. She bucked the prevailing wisdom that private enforcement was a threat to leniency programmes and the public cartel enforcement that resulted from leniency applications. It was not the only topic that interested her, but it was an important part of her doctoral dissertation and her research agenda. Her contributions were original and timely and need to be taken seriously. Her work will continue to resonate, but her voice going forward will be missed as these issues continue to be debated.

SPENCER WEBER WALLER (*)

(*) John Paul Stevens Chair in Competition Law; Professor and Director, Institute for Consumer Antitrust Studies, Loyola University Chicago School of Law. This essay expands on work previously published on Antitrust and Competition Policy Blog.

(1) Institute for Consumer Antitrust Studies, <www.luc.edu/antitrust>.

(2) Caron Beaton-Wells and Christopher Tran (eds) (2016).

(3) An interesting set of reviews appeared in January 2016 on the Antitrust and Competition Policy Blog, <www.lawprofessors.typepad.com/antitrustprof_blog/>.

(4) Scott D Hammond, Director of Criminal Enforcement of the Antitrust Division, US Department of Justice, 'Detecting and Deterring Cartel Activity Through an Effective Leniency Program', (Paper presented at the International Workshop on Cartels, Brighton, England, 21-22 November 2000) <www.justice.gov/atr/speech/detecting-and-deterring-cartel-activity-through-effective-leniency-program>.

(5) Department of Justice, Corporate Leniency Policy, <www.juslice.gov/atr/file/810281/download>, [A].

(6) Ibid [B]. See also, Department of Justice, Individual Leniency Policy, <www.justice.gov/atr/individual-lcniency-policy>.

(7) Antitrust Criminal Penalty Enhancement and Reform Act 2004, Pub. L. No. 108-237, s 213(a)-(b), 118 Stat. 661, 666-668 (June 22, 2004).

(8) United Nations Conference on Trade and Development, UNC'I'AD MENA Programme, Competition Guidelines: Leniency Programmes 1 (2016), <www.unctad.org/en/PublicationsLibrary/ditcclp2016d3_en.pdf>.

(9) Douglas H Ginsburg, Joshua Wright, Albert Foer and Robert H Lande, 'DOJ has the Power to Crush Price-Fixers', USA Today, 27 May 2015, <www.usatoday.com/story/opinion/20l5/05/27/currency-manipulation-carlels-doj-antitrust-column/27920795/>.

(10) See, e.g., Andreas Stephen and Ali Nikpay, 'Leniency-Making from a Corporate Perspective: Complex Realities', in Leniency Religion, above n 2, 139; Ian S. Forrester and Pascal Berghe, 'Leniency: The Poisoned Chalice at the End of the Rainbow', in Leniency Religion, 159.

(11) Brent Fisse, 'Reconditioning Corporate Leniency: The Possibility of Making Compliance Programmes a Condition of Immunity', in ibid, 179; Howard Bergman and D Daniel Sokol, 'The Air Cargo Cartel: Lessons for Compliance', in ibid, 301; Joe Murphy, 'Combining Leniency Policies and Compliance Programmes', in ibid, 335.

(12) Melissa Lipman, 'Most Cartel Complaints Follow Leniency Apps, EU Says', Law 360, 13 June 2013), <www.law360.com/articles/449890/most-cartel-complaints-follow-leniency-apps-cu-says>. Some commentators have estimated that up to 90% of cartel cases in the US and EU are the result of leniency applications. 'Cartels and Leniency Applications in the ASEAN Countries', Cartel Capers, 1 April 2015, <www.cartelcapers.com/blog/guest-post-cartels-and-leniency-applications-in-the-asean-countries/>.

(13) Compare US Department of Justice, 'Former Rabobank Derivatives Trader Pleads Guilty for Scheme to Manipulate LIBOR Benchmark' (Press Release, 7 July 2016) <www.iustice.gov/opa/pr/former-rabobank-derivatives-trader-pleads-guilty-scheme-manipulate-libor-benchmark> (pleading guilty to mail and wire fraud) and US Department of Justice, 'Second Foreign Currency Exchange Dealer Pleads Guilty to Antitrust Conspiracy' (Press Release, 12 January 2017) <www.juslice.gov/opa/pr/second-foreign-currency-exchange-dealer-pleads-guilty-an ti trust-conspi racy>.

(14) United States Securities and Exchange Commission, 'Welcome to the Office of the Whistleblower', <www.sec.gov/whistleblower>. A few jurisdictions use whistleblower provision in competition enforcement as well. See Maurice E Stucke, 'Leniency, Whistle-Blowing and the Individual: Should We Create Another Race to the Competition Agency' in Leniency Religion, above n 2, 209.

(15) United States Department of Justice, Organized Crime and Gang Section (OCGS), <www.justice.gov/criminal-ocgs>.

(16) Crimes and Criminal Procedure, 18 USC [section] 1341.

(17) Ibid [section] 1343.

(18) Ibid [section]371.

(19) Ibid [section]1001.

(20) Ibid [section]73.

(21) Internal Revenue Code, 26 USC [section] 7201.

(22) See generally, US Department of Justice, Office of the United States Attorney, 'US Attorney's Manual, Title 9, Criminal, 9-23.000--Witness Immunity', <www.justice.gov/usam/usam-9-230()0-witness-immunity>; Jodi L Avergun and Douglas Cohan, 'Explaining the Inexplicable: The Perks and the Perils of Proffer Sessions and Best Practices for Explaining it All to Your Client', (2011) <www.cadwalader.com/uploads/books/0a31I986d2926e6929e74e27c97093a8.pdfX

(23) See, e.g., F Joseph Warin, David P Burns, and John W F Chesley, 'To Plead or Not to Plead? Reviewing a Decade of Criminal Antitrust Trials', The Antitrust Source, 1 July 2006 (surveying results from 1996 to 2005 and concluding 'the government's conviction rate in antitrust trials has been lower in comparison to other criminal cases').

(24) Spencer Weber Waller, 'Prosecution by Regulation: The Changing Nature of Antitrust Enforcement' (1997) 77 Oregon Law Review 1383.

(25) See also Michael Volkov, 'Parallel Universes: Antitrust Leniency and the FCPA Pilot Program', JD Supra Business Adviser, 22 February 2017, <www.jdsupra.com/legalnews/parallel-universes-antitrust-leniency-68300/> (discussing parallels and differences between antitrust leniency and Foreign Corrupt Practices cases).

(26) These were some of the arguments made by the United States and foreign governments as amici opposing standing for foreign plainti ffs injured in foreign markets in F Hoffmann-La Roche Ltd v Empagran SA 542 US 155 (2004).

(27) Above n 6, [section]213.

(28) Ibid.

(29) Above n 2, 273 (hereinafter 'Two Faces of Janus'). Other other published works can be found on the Social Science Research Network at <www.papers.ssm.com/sol3/results.cfm>.

(30) Spencer Weber Waller, 'Towards a Constructive Public-Private Partnership to Enforce Competition Law' (2006) 29 World Competition Law and Economics Review 367, 368.

(31) See, e.g., Daniel A Crane, 'Optimizing Private Antitrust Enforcement' (2010) 63 Vanderbilt Law Review 675.

(32) Guttuso, 'Two Faces of Janus', above n 25, 285.

(33) Ibid 290-91.

(34) See Corporate Leniency Policy, above n 4.

(35) See Harry First and Spencer Weber Waller, 'Antitrust's Democracy Deficit' (2013) 81 Fordham Law Review 2543.

(36) Guttuso, 'Two Faces of Janus', above n 2, 296.

(37) Gregory C Shaffer, Nathaniel 11 Nesbit and Spencer Weber Waller, 'Criminalizing Cartels: A Global Trend?' in Duns, Duke and Sweeney (eds) Comparative Competition Law (Elgar, 2015).

(38) Douglas H Ginsburg and Joshua D Wright, 'Antitrust Sanctions' (2010) 6 Competition Policy International 3 <www.papers.ssrn.com/sol3/papers2.cfm?abstract_id=l705701>.

(39) Spencer Weber Waller, 'Corporate Governance and Competition Policy' (2011)18 George Mason Law Review 833.

(40) One example is the creation of law firms specifically to bring private antitrust damage actions on a global basis. See, e.g., Hausfeld Global Litigation Solutions, <www.hausfeld.com/>. Another example is the growth of hedge funds and other types of finance firms to underwrite such claims. See Cartel Damage Claims, <www.carteldamageclaims.com/>.

(41) Spencer Weber Waller and Olivia Popal, 'The Fall and Rise of the Antitrust Class Action' (2016) 39 World Competition Law and Economics Review 29.
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Title Annotation:Special Issue on Laura Guttuso's Public-Private Competition Law Enforcement Model
Author:Waller, Spencer Weber
Publication:University of Queensland Law Journal
Date:Jun 1, 2018
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