June 9, 2011 1 ANTITRUST IN THE AMERICAS CONFERENCE Presented by the ABA Section of Antitrust Law & IBRAC JUNE 16‐17, 2011 JW MARRIOTT HOTEL, RIO DE JANEIRO, BRAZIL New developments in competition law and policy continue to proliferate throughout Latin America. Plan to attend to learn more about these important developments, and to get a chance to meet the government enforcement officials from Brazil, Chile and Mexico who are playing leading roles in this process, as well as the leading private practitioners from around the region who are handling antitrust matters that are making headlines in these countries. For Latin American antitrust practitioners, this conference also presents a great opportunity to meet government enforcement officials and top antitrust lawyers from the U.S. and Canada, as well as to learn more about recent developments in antitrust enforcement in North America. Registration and sessions are at the Wayana Ballroom. Wednesday, June 15, 2011 15h30 – 17h30 Registration Thursday, June 16, 2011 08h00 – 17h30 08h45 – 09h00 09h00 – 10h15 Registration Welcome remarks Multi‐Lateral Cooperation Competition enforcement agencies are flexing their muscles throughout Latin America, an important development that reflects not only a broad policy consensus as to the value of competition to economic development but also a cooperative effort among numerous governments in recognition of the increasing globalization of business. This panel will explore the emergence of multi‐lateral cooperation as an aid to national competition enforcement efforts throughout the Americas, and will examine both the benefits and the challenges of this process. Moderator: Terry CALVANI, Freshfields Bruckhaus Deringer, Washington, DC Panelists: Melanie L. AITKEN, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada Olavo Zago CHINAGLIA, Commissioner, CADE‐Conselho Administrativo de Defesa Econômica, Brasília, Brazil Julián PEÑA, Allende & Brea, Buenos Aires, Argentina Randolph W. TRITELL, Director, Office of International Affairs, US Federal Trade Commission, Washington, DC June 9, 2011 2 Thursday, June 16, 2011 10h15 – 11h30 Anatomy of a Leniency Deal The most important development for cartel enforcement in the modern era has been the emergence and steadily growing embrace of “leniency” as an aid to uncovering wrongdoing and a tool for determining appropriate punishment for offenders. This panel of experts featuring unmatched experience from both sides of the leniency negotiating table will explore both the opportunities and the landmines that face leniency candidates and enforcers as this complex process unfolds. Moderator: Marcelo CALLIARI, Tozzini Freire Advogados, São Paulo, Brazil Panelists: Vinícius Marques de CARVALHO, Secretary, SDE‐Secretaria de Direito Econômico, Brasília, Brazil Scott D. HAMMOND, Deputy Assistant Attorney General for Criminal Enforcement, U.S. Department of Justice, Antitrust Division, Washington, DC Roxann E. HENRY, Dewey & LeBoeuf LLP, Washington, DC Felipe IRARRÁZABAL Philippi, National Economic Prosecutor, FNE‐Fiscalía Nacional Económica, Santiago, Chile 11h30 – 11h45 11h45 – 13h00 Break Merger Control Regimes in Latin America As the number and size of merger deals with an important Latin America footprint continue to grow, the decisions by merger enforcement agencies throughout the region have garnered increasing public attention and news headlines. The surging growth of Latin American markets is putting increasing pressure on the agencies not only to “get it right” but to do so as quickly and efficiently as possible while still assuring that all important competition law concerns have been adequately examined. This multi‐ jurisdiction panel of experts will discuss some of the similarities and differences in the ways merger control is administered in leading countries throughout Latin America. Moderator: Fiona A. SCHAEFFER, Jones Day, New York, NY Panelists: Marcelo DEN TOOM, M & M Bomchil Abogados, Buenos Aires, Argentina Aurélio Marchini SANTOS, Cascione Pulino Boulos & Santos Advogados, São Paulo, Brazil Luis SANTOS, Santos y Rios Abogados, Mexico City, Mexico Eduardo A. WIESNER, Wiesner & Asociados Abogados, Bogota, Colombia 13h00 – 14h30 Lunch at the JW Marriott Terraneo Restaurant June 9, 2011 3 Thursday, June 16, 2011 14h30 – 15h45 Models of Private Enforcement The United States is famous, or notorious, for the prominent role it gives to private plaintiffs and their attorneys to serve as “private attorneys general” in the enforcement of antitrust law. But is this model right for other countries in the region? And how have Latin American policy‐makers attempted to adapt their jurisdictions to address the concerns of private companies that claim to have been injured by anti‐competitive conduct? This panel of litigation experts will explore these topics and debate the advantages and costs of private enforcement. Moderator: Allan VAN FLEET, Greenberg & Traurig LLP, Houston, TX Panelists: Claudio LIZANA, Carey y Cía Ltda, Santiago, Chile Anthony MATON, Hausfeld LLP, London, UK Richard G. PARKER, O’Melveny & Myers LLP, Washington, DC Mariana VILLELA, Veirano Advogados Associados, Rio de Janeiro, Brazil 15h45 – 17h00 Climbing Fines in Cartel Cases Nearly every top criminal antitrust enforcement official in the modern era has been able to point to rapidly rising aggregate fines as a measure of the success of the country’s cartel enforcement program. What process lies behind these impressive numbers? How are the fines determined? What are the factors that have led some cartel defendants to pay higher or lower fines than their co‐defendants? This panel of experts, including current and former cartel enforcement officials from several jurisdictions, will offer answers to these important questions. Moderator: James M. GRIFFIN, King & Spalding LLP, Washington, DC Panelists: Michael G. EGGE, Latham & Watkins LLP, Washington, DC Fernando de Magalhães FURLAN, Chairman, CADE ‐ Conselho Administrativo de Defesa Econômica, Brasília, Brazil Mauro GRINBERG, Grinberg Cordovil e Barros Advogados, São Paulo, Brazil Katherine KAY, Stikeman Elliott LLP, Toronto, Canada 17h00 – 17h30 Keynote speaker Eleanor M. FOX, New York University School of Law, New York, NY 17h45 – 19h15 Rooftop Reception June 9, 2011 4 Friday, June 17, 2011 08h00 – 12h30 08h45 – 09h00 09h00 – 10h00 Registration Welcome remarks Procedural Fairness, Transparency and Institutional Design As the stakes continue to grow higher in terms of the size and importance of global mergers and the proliferation of international cartel enforcement actions, increasing attention is paid to fairness issues in the administration of competition law justice. Should the enforcers allow greater transparency in terms of how they reach important decisions as the process unfolds? Should greater care be taken to ensure that the roles of investigator, prosecutor and decider are held separate within the justice system? Should competition enforcement be consolidated within a single government agency or are there benefits to a multi‐agency model? These issues are hot topics in many countries across the globe, and their application in the Americas will be explored by speakers from five key jurisdictions in our hemisphere. Moderator: Barbara ROSENBERG, Barbosa Müssnich & Aragão Advogados, São Paulo, Brazil Panelists: Thomas O. BARNETT, Covington & Burling LLP, Washington, DC María Isabel DÍAZ Velasco, Isabel Díaz y Asociados Abogados, Santiago, Chile Calvin S. GOLDMAN, Blake Cassels & Graydon LLP, Toronto, ON, Canada Eduardo PÉREZ Motta, President, CFC‐Comisión Federal de Competencia, Del Cuajimalpa, Mexico 10h00 – 11h00 How Far Have We Come and Where Are We Going: The Evolution of Merger Review in Brazil It has been over 10 years since the milestone ruling in the Ambev case. How has that decision stood the test of time? And what lessons can practitioners and their clients in the M&A field learn from the series of equally important merger reviews that have been rendered by more recent CADE administrations in succeeding years? This question and answer session with expert practitioners and former Brazilian merger control officials will address each of these key issues. Moderators: Tito ANDRADE, Machado Meyer Sendacz e Opice Advogados, São Paulo, Brazil Theodore VOORHEES Jr., Covington & Burling LLP, Washington, DC Panelists: Elizabeth FARINA, University of São Paulo, São Paulo, Brazil Gesner de OLIVEIRA, Fundação Getúlio Vargas and G.O. Associados, São Paulo, Brazil Tércio SAMPAIO FERRAZ Jr., Sampaio Ferraz Advogados, São Paulo, Brazil Carlos E. J. RAGAZZO, Commissioner, CADE ‐ Conselho Administrativo de Defesa Econômica, Brasília, Brazil June 9, 2011 5 Friday, June 17, 2011 11h00 – 11h15 11h15 – 12h30 Break Interviews of the New Heads of CADE, SDE and SEAE The torch has been passed from Lula to Dilma. A new slate of top competition enforcement officials will have gotten down to business by the time the conference convenes. What major policy initiatives do they anticipate setting for their enforcement agenda? How will things be different compared to the last administration? What key developments set in motion during the Lula administration will continue to be pursued and are there some policies that may be retired? This question and answer session will likely be the first occasion on which Brazil’s new competition leadership will be addressing these issues on the same public stage at the same time. Interviewers: Amadeu RIBEIRO, Mattos Filho Advogados, Rio de Janeiro, Brazil Theodore VOORHEES Jr., Covington & Burling LLP, Washington, DC Interviewees: Vinícius Marques de CARVALHO, Secretary, SDE‐Secretaria de Direito Econômico, Brasília, Brazil Antônio Henrique Pinheiro SILVEIRA, Secretary, SEAE‐Secretaria, Brasília, Brazil Fernando de Magalhães FURLAN, Chairman, CADE ‐ Conselho Administrativo de Defesa Econômica, Brasília, Brazil Hotel reservations can be made directly through the JW Marriott at http://cwp.marriott.com/riomc/antitrust/ ABA Section of Antitrust Law Antitrust in the Americas REGISTRANTS (as of 6.23.11) Online registrants were sent electronic confirmations within two days of registration. Please email [email protected] if there is a correction to your listing. REGISTRANT AFFILIATION CITY STATE COUNTRY Achcar;Tiago;De Faria Syngenta Protecao De Cultivos LTDA Sao Paulo Brazil Aitken;Melanie;L Competition Bureau Canada Gatineau Canada Almeida;Silvia;Faga LCA Consultores Sao Paulo Brazil Alves;Joyce;Ruiz Rodrigues Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Amaral de Andrade;Tito Machado Meyer Sendacz Opice Sao Paulo Brazil Anastacio;Goncalo SRS Lisbon Portugal Anastacio;Teresa;Catarina Portuguese Competition Authority Lisboa Portugal Anders;Eduardo;Caminati Lino Beraldi Bueno e Belluzzo Sao Paulo Brazil Andreoli;Daniel;Oliveira Tozzini Freire Sao Paulo Brazil Andres Artagaveytia;Pablo Marval O'Farrell & Mairal Buenos Aires Argentina Araujo;Patricia;Agra CMCP Sao Paulo Brazil Arruda;Vivian;A Fraga Tozzini Freire Sao Paulo Brazil Azevedo;Marcelo;Souza Brazilian National Confederation of Industry Brasilia Brazil Barnett;Thomas;O;;;;Tom Covington & Burling LLP Washington Barreira;Lilian Pinheiro Neto Sao Paulo Brazil Belliboni;Flavio;Lemos Pinheiro Neto Sao Paulo Brazil Beraldi;Fabio;F Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Borges;Marina;Teixeira e Petrobras-Petroleo Brasileiro SA Rio De Janeiro Brazil Botelho;Ricardo;Franco Cascione Pulino Boulos & Santos Sao Paulo Brazil Bruna;Sergio;Varella Lobo & de Rizzo Sao Paulo Brazil Bueno;Marcio;C S Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Page 1 DC United States of America Cadena;Dario Wiesner & Asociados Calliari;Marcelo;Procopio Tozzini Freire Sao Paulo Calvani;Terry Freshfields Bruckhaus Deringer Washington Cardozo;Maria;Izabel Philip Morris Brasil Curitiba Brazil Casagrande;Paulo;Leonardo BPGM Sao Paulo Brazil Casco;Luis Bernardo;Coelho Barbosa Mussnich & Aragao Sao Paulo Brazil Castello;Robin;Reine VALE SA Rio de Janeiro Brazil Castro;Renault Abralatas Brasília Brazil Chinaglia;Olavo;Zago CADE - Conselho Administrativo de Defesa E Brasilia Brazil Chrestani;Valeska;da Cunha Law Student Brazil Chueke;Gabriel;Arruda Mattos Filho Veiga Filho Marrey Jr E Quiroga Rio de Janeiro Brazil Cianfarani;Joana;Temudo Tozzini Freire Brazil Coelho;Gustavo;Flausino Tauil & Chequer associado A Mayer Brown LLRio de Janeiro Brazil Cordovil;Leonor Grinberg Cordovil E Barros Sao Paulo Brazil Coutinho;Diogo;R University of Sao Paulo Sao Paulo Brazil Cristofaro;Pedro Paulo;Salles Lobo & Ibeas Rio de Janeiro Brazil Da Costa;Carolina;Saito Grinberg Cordovil E Barros Sao Paulo Brazil De Carvalho;Livia;Gandara Veirano Rio De Janeiro Brazil de Carvalho;Vinicius;Marques Departamento de Protecao E defensa Brasilia Brazil de Sousa;Ricardo;Ingles Dias Carneiro Sao Paulo Brazil Del Chiaro;Jose Advocacia Jose Del Chiaro Sao Paulo Brazil Del Debbio;Cristiano;Rodrigo Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Del Pino;Miguel Marval O'Farrell & Mairal Buenos Aires Argentina Den Toom;Marcelo M & M Bomchil Buenos Aires Argentina Santiago Chile Diaz Velasco;Maria;Isabel;;;;IsabeIsabel Diaz Y Asociados REGISTRANTS Bogota Curitiba Sao Paulo Page 2 Colombia Brazil DC United States of America Dobler;Sonia Maria G M;;;;;Sonia Sonia Marques Dobler REGISTRANTS Sao Paulo Brazil Domingues;Juliana;Oliveira LO Baptista Sao Paulo Brazil Drago;Bruno;De Luca Demarest E Almeida Sao Paulo Brazil Duarte;Leonardo;Maniglia Veirano Brasília Brazil Dutra;Pedro Pedro Dutra Sao Paulo Brazil Egge;Michael;G Latham & Watkins LLP Washington DC United States of America Engel;Ana Carolina;Lopes de CarvOliveira Marques Sao Paulo Brazil Exposto;Marcos;Antonio;;Jr Barbosa Mussnich & Aragao Sao Paulo Brazil Farina;Elizabeth;Maria Mercier University of Sao Paulo Sao Paulo Brazil Farina;Laercio;Nilton L Farina Sao Paulo Brazil Felix;Natalia;Oliveira Marques Gilberto & Oliveira Felix Sao Paulo Brazil Ferreira;Ana Batia;Glenk Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Ferreira;Luciana Lafarge Brasil Rio de Janeiro Brazil Ferreira;Paulo;Lamego Carpenter White Martins Gases Industriais Ltda Rio de Janeiro Brazil Figueira;Fabio;Amaral Veirano Rio De Janeiro Brazil Fonseca;Ethel RBB Economics London United Kingdom Fonseca;Lisiane;Marques da Embratel Sao Paulo Brazil Fox;Eleanor;M New York University New York Frederico;Daniel;Braga Sindicato Nacional das Empresas Rio de Janeiro Furlan;Fernando CADE - Conselho Administrativo de Defesa E Brasilia Brazil Gaban;Eduardo;Molan Jose Mauricio Machado E Associados Sao Paulo Brazil Gana;Jose Miguel;;;;;Jose Avendano y Merino Santiago Chile Garbelini;Antonio Siqueira Castro Sao Paulo Brazil Garrido;Renata;Lorenzetti Procter & Gamble Sao Paulo Brazil Girardi;Camila;Castanho Cascione Pulino Boulos & Santos Sao Paulo Brazil Page 3 NY United States of America Brazil Goncalves;Priscila;Brolio Vella Pugliese Buosi E Guidoni REGISTRANTS Sao Paulo Brazil Griffin;James;M King & Spalding LLP Washington Grinberg;Mauro Grinberg Cordovil E Barros Sao Paulo Brazil Guimares;Denis;Alves Tozzini Freire Sao Paulo Brazil Hammond;Scott;D;; US Department of Justice Washington DC United States of America Henry;Roxann;E Dewey & LeBoeuf LLP Washington DC United States of America DC United States of America Hoffmann Formiga;Andrea;FabrinoHoffmann Formiga Brasília Brazil Honda;Joyce Souza Cescon Barrieu E Flesch Sao Paulo Brazil Irarrazabal;Felipe Fiscalia Nacional Economica Santiago Chile Junqueira;Denise Law Student New York Kay;Katherine Stikeman Elliott LLP Toronto Canada Le Grand;Ludmilla Law Student Ashbourne United Kingdom Leopoldino da Fonseca;Joao BoscJoao Bosco Leopoldino Adv & Consulting Belo Horizonte Brazil Lizana;Claudio Carey Y Cia Ltda Santiago Chile Macedo;Bernardo;Gouthier LCA Consultores Sao Paulo Brazil Machado;Michelle;Marques Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Macrander;Thomas;George Florence Boltz Sao Paulo Brazil Marques;Evy;Cynthia Felsberg & Associados Sao Paulo Brazil Marques;Fernando;de Oliveira Oliveira Marques Sao Paulo Brazil Martinez;Ana;Paula Levy & Salomao Sao Paolo Brazil Mason;Euridice Lafarge Brasil Rio de Janeiro Brazil Maton;Anthony Hausfeld LLP London United Kingdom Mazzucato;Paolo;Zupo Grebler Belo Horizonte Brazil Medrado;Rene;Guilherme Da Silv Pinheiro Neto Sao Paulo Brazil Medvedovsky;Cintia;Schaimberg Telemar Norte Leste S.A - Oi Rio de Janeiro Brazil Page 4 NY United States of America Mendonca;Elvino;de Carvalho CADE - Conselho Administrativo de Defesa REGISTRANTS E Brasilia Brazil Mercant;Juan;Manuel Guyer & Regules Montevideo Uruguay Mercez;Tathiana;Soares Frota Petrobras-Petroleo Brasileiro SA Rio de Janeiro Brazil Moreira Lima;Everardo Luiz;;;;;EveRibeiro Almeida Freeland & Associados Rio de Janeiro Brazil Motta;Rita Latham & Watkins LLP Brussels Belgium Negro;Francisco;Niclos Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Neto;Jose Alexandre;Buaiz Pinheiro Neto Brasilia Brazil Nogara;Andreia;Molinari Saad Globo Comunicacao E Participacoes SA Rio de Janeiro Brazil Nolasco;Gabriela Barbosa Mussnich & Aragao Sao Paulo Brazil Novis;Maria;Eugenia Machado Meyer Sendacz Opice Sao Paulo Brazil Nunes;Gianni GNA - Gianni Nunes Sao Paulo Brazil Sao Paulo Brazil Oliveira;Gesner Fundacao Getúlio Vargas and GO AssociadosSao Paulo Brazil Parker;Richard;G;;;;Rich O'Melveny & Myers LLP Washington Pasayat;Arijit Competition Appellate Tribunal New Delhi India Pavic;Lorena Carey Y Cia Ltda Santiago Chile Peixoto;Bruno;L Lanna Peixoto Sao Paulo Brazil Pena;Julian Allende & Brea Buenos Aires Argentina Pereira Junior;Ademir;Antonio Advocacia Jose Del Chiaro Sao Paulo Brazil Perez;Eduardo;Motta Federal Competition Commission Del Cuajimalpa Mexico Porto;Luciana;Feres Zogbi Tozzini Freire Sao Paulo Brazil Povolo;Diego;Pablo Argentinean Natl Comm of Competition DefenBuenos Aires Oliveira;Bruna;Collaco Lopez de Syngenta Protecao De Cultivos LTDA DC United States of America Argentina Prado Filho;Jose Inacio;Ferraz de Barbosa Mussnich & Aragao Sao Paulo Brazil Prado;Luiz Carlos;Delorme Federal University of Rio de Janeiro Rio de Janeiro Brazil Pugliese;Paola Lefosse Sao Paulo Brazil Page 5 Quagliato;Pedro Whirlpool SA Embraco REGISTRANTS Joinville Brazil Regazzini;Jose Tozzini Freire Sao Paulo Brazil Regueira;Juliana Law Student Rio de Janeiro Brazil Reis Neto;Lauro Celidonio;GomesMattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Rezende;Gustavo;Madi LCA Consultores Sao Paulo Brazil Ribeiro;Amadeu;Carvalhaes Mattos Filho Rio De Janeiro Brazil Ribeiro;Luisa;da Cunha Petróleo Brasileiro SA Rio de Janeiro Brazil Righetto;Gabriela Procter & Gamble Sao Paulo Brazil Riva;Fabio AMBEV Sao Paulo Brazil Rosa;Renato;Jose Santanna Tokio Marine Seguradora Sao Paulo Brazil Rosenberg;Barbara Barbosa Mussnich & Aragao Sao Paulo Brazil Ruiz Calzado;Javier Latham & Watkins LLP Brussels Belgium Salles;Paula Simonetti;Junqueira Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Santos;Aurelio;Marchini Cascione Pulino Boulos & Santos Sao Paulo Brazil Santos;Luis Santos Y Rios Mexico City Mexico Santos;Maria Cecilia;Dias de AndrMattos Muriel Kestener Sao Paulo Brazil Santos;Maria Cibele Siqueira Castro Sao Paulo Brazil Scazufca;Pedro;Silva GO Associados Sao Paulo Brazil Schaeffer;Fiona;Anne Jones Day New York Schindler;Juergen;;;;;Jurgen Allen & Overy LLP Brussels Schulte;Karina Souza Cescon Barrieu E Flesch Advogados Sao Paulo NY United States of America Belgium Brazil Schulz;Maira;de Magalhaes GomeProcter & Gamble Sao Paulo Brazil Seabra;Luiz Felipe;Rocha Rio de Janeiro Brazil Brasilia Brazil Silveira;Antonio;Henrique PinheiroSecretariat for Economic Monitoring (SEAE) Brasilia Brazil VALE SA Silva;Leonardo;Peres Da Rocha EPinheiro Neto Page 6 Silveira;Reinaldo Solvay Do Brasil LTDA REGISTRANTS Sao Paulo Brazil Silvestre;Cristiane Braskem SA Sao Paulo Brazil Soares;Marcio;Dias Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Souza;Marina Lefosse Sao Paulo Brazil Strobel;Carolina Intel Corporation Sao Paulo Brazil Tao;Vivian Shiyu;;;;;Vivian Harvard University Sao Paulo Brazil Tavares De Araujo;Mariana Levy & Salomao Rio de Janeiro Brazil Tito;Fabiana;Melo Tendências Consultoria Integrada Sao Paulo Brazil Tritell;Randolph;W;;;;Randy Federal Trade Commission Washington Tumba;Renata Oi-Telemar Norte Leste SA Rio de Janeiro Brazil Valenzuela;Pedro;Andres Garcia Veirano Rio de Janeiro Brazil Van Fleet;Allan Greenberg Traurig LLP Houston Veiga;Ewald;Possolo Correa da Ulhaa Canto Rezende e Guerra Rio de Janeiro Brazil Villela Correa;Mariana Veirano Rio de Janeiro Brazil Volujewicz;Federico De Dios & Goyena Buenos Aires Argentina Voorhees;Theodore;;;Jr;;Ted Covington & Burling LLP Washington Wiesner;Eduardo;A Wiesner & Asociados Bogota Colombia Yamashita;Erica;Sumie Machado Meyer Sendacz Opice Sao Paulo Brazil Zanotta;Pedro;S C Albino Associados Sao Paulo Brazil Zarzur;Cristianne;Saccab Pinheiro Neto Sao Paulo Brazil Zoricic;Ana Carolina;Cabana Vella Pugliese Buosi E Guidoni Sao Paulo Brazil Zuccolo;Renata;Fonseca Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil DC TX DC The material contained in this American Bar Association listing is protected by copyright and is solely intended for the individual and private use of ABA members in a manner that is consistent with the ABA's mission, goals, and activities. 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Page 8 REGISTRANT AFFILIATION AFFILIATION CITY STATE COUNTRY Castro;Renault Abralatas Brasília Brazil Del Chiaro;Jose Advocacia Jose Del Chiaro Sao Paulo Brazil Pereira Junior;Ademir;Antonio Advocacia Jose Del Chiaro Sao Paulo Brazil Zanotta;Pedro;S C Albino Associados Sao Paulo Brazil Schindler;Juergen;;;;;Jurgen Allen & Overy LLP Brussels Belgium Pena;Julian Allende & Brea Buenos Aires Argentina Riva;Fabio AMBEV Sao Paulo Brazil Povolo;Diego;Pablo Argentinean Natl Comm of Competition DefenBuenos Aires Argentina Gana;Jose Miguel;;;;;Jose Avendano y Merino Santiago Chile Casco;Luis Bernardo;Coelho Barbosa Mussnich & Aragao Sao Paulo Brazil Exposto;Marcos;Antonio;;Jr Barbosa Mussnich & Aragao Sao Paulo Brazil Nolasco;Gabriela Barbosa Mussnich & Aragao Sao Paulo Brazil Prado Filho;Jose Inacio;Ferraz de Barbosa Mussnich & Aragao Sao Paulo Brazil Rosenberg;Barbara Barbosa Mussnich & Aragao Sao Paulo Brazil Casagrande;Paulo;Leonardo BPGM Sao Paulo Brazil Silvestre;Cristiane Braskem SA Sao Paulo Brazil Azevedo;Marcelo;Souza Brazilian National Confederation of Industry Brasilia Brazil Chinaglia;Olavo;Zago CADE - Conselho Administrativo de Defesa E Brasilia Brazil Furlan;Fernando CADE - Conselho Administrativo de Defesa E Brasilia Brazil Mendonca;Elvino;de Carvalho CADE - Conselho Administrativo de Defesa E Brasilia Brazil Lizana;Claudio Carey Y Cia Ltda Santiago Chile Pavic;Lorena Carey Y Cia Ltda Santiago Chile Botelho;Ricardo;Franco Cascione Pulino Boulos & Santos Sao Paulo Brazil Girardi;Camila;Castanho Cascione Pulino Boulos & Santos Sao Paulo Brazil Santos;Aurelio;Marchini Cascione Pulino Boulos & Santos Sao Paulo Brazil Page 9 Araujo;Patricia;Agra CMCP AFFILIATION Sao Paulo Pasayat;Arijit Competition Appellate Tribunal New Delhi India Aitken;Melanie;L Competition Bureau Canada Gatineau Canada Barnett;Thomas;O;;;;Tom Covington & Burling LLP Washington DC United States of America Voorhees;Theodore;;;Jr;;Ted Covington & Burling LLP Washington DC United States of America Volujewicz;Federico De Dios & Goyena Buenos Aires Argentina Drago;Bruno;De Luca Demarest E Almeida Sao Paulo Brazil de Carvalho;Vinicius;Marques Departamento de Protecao E defensa Brasilia Brazil Henry;Roxann;E Dewey & LeBoeuf LLP Washington de Sousa;Ricardo;Ingles Dias Carneiro Sao Paulo Brazil Fonseca;Lisiane;Marques da Embratel Sao Paulo Brazil Perez;Eduardo;Motta Federal Competition Commission Del Cuajimalpa Mexico Tritell;Randolph;W;;;;Randy Federal Trade Commission Washington Prado;Luiz Carlos;Delorme Federal University of Rio de Janeiro Rio de Janeiro Brazil Marques;Evy;Cynthia Felsberg & Associados Sao Paulo Brazil Irarrazabal;Felipe Fiscalia Nacional Economica Santiago Chile Macrander;Thomas;George Florence Boltz Sao Paulo Brazil Calvani;Terry Freshfields Bruckhaus Deringer Washington Oliveira;Gesner Fundacao Getúlio Vargas and GO AssociadosSao Paulo Brazil Nogara;Andreia;Molinari Saad Globo Comunicacao E Participacoes SA Rio de Janeiro Brazil Nunes;Gianni GNA - Gianni Nunes Sao Paulo Brazil Scazufca;Pedro;Silva GO Associados Sao Paulo Brazil Mazzucato;Paolo;Zupo Grebler Belo Horizonte Brazil Van Fleet;Allan Greenberg Traurig LLP Houston Cordovil;Leonor Grinberg Cordovil E Barros Sao Paulo Brazil Da Costa;Carolina;Saito Grinberg Cordovil E Barros Sao Paulo Brazil Page 10 Brazil DC DC DC TX United States of America United States of America United States of America United States of America Grinberg;Mauro Grinberg Cordovil E Barros AFFILIATION Sao Paulo Mercant;Juan;Manuel Guyer & Regules Montevideo Uruguay Tao;Vivian Shiyu;;;;;Vivian Harvard University Sao Paulo Brazil Maton;Anthony Hausfeld LLP London United Kingdom Hoffmann Formiga;Andrea;FabrinoHoffmann Formiga Brasília Brazil Strobel;Carolina Sao Paulo Brazil Diaz Velasco;Maria;Isabel;;;;IsabeIsabel Diaz Y Asociados Santiago Chile Leopoldino da Fonseca;Joao BoscJoao Bosco Leopoldino Adv & Consulting Belo Horizonte Brazil Schaeffer;Fiona;Anne Jones Day New York Gaban;Eduardo;Molan Jose Mauricio Machado E Associados Sao Paulo Griffin;James;M King & Spalding LLP Washington Farina;Laercio;Nilton L Farina Sao Paulo Brazil Ferreira;Luciana Lafarge Brasil Rio de Janeiro Brazil Mason;Euridice Lafarge Brasil Rio de Janeiro Brazil Peixoto;Bruno;L Lanna Peixoto Sao Paulo Brazil Egge;Michael;G Latham & Watkins LLP Washington Motta;Rita Latham & Watkins LLP Brussels Belgium Ruiz Calzado;Javier Latham & Watkins LLP Brussels Belgium Chrestani;Valeska;da Cunha Law Student Curitiba Brazil Junqueira;Denise Law Student New York Le Grand;Ludmilla Law Student Ashbourne United Kingdom Regueira;Juliana Law Student Rio de Janeiro Brazil Almeida;Silvia;Faga LCA Consultores Sao Paulo Brazil Macedo;Bernardo;Gouthier LCA Consultores Sao Paulo Brazil Rezende;Gustavo;Madi LCA Consultores Sao Paulo Brazil Pugliese;Paola Lefosse Sao Paulo Brazil Intel Corporation Page 11 Brazil NY United States of America Brazil DC DC NY United States of America United States of America United States of America Souza;Marina Lefosse AFFILIATION Sao Paulo Brazil Martinez;Ana;Paula Levy & Salomao Sao Paolo Brazil Tavares De Araujo;Mariana Levy & Salomao Rio de Janeiro Brazil Anders;Eduardo;Caminati Lino Beraldi Bueno e Belluzzo Sao Paulo Brazil Beraldi;Fabio;F Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Bueno;Marcio;C S Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Domingues;Juliana;Oliveira LO Baptista Sao Paulo Brazil Bruna;Sergio;Varella Lobo & de Rizzo Sao Paulo Brazil Cristofaro;Pedro Paulo;Salles Lobo & Ibeas Rio de Janeiro Brazil Den Toom;Marcelo M & M Bomchil Buenos Aires Argentina Amaral de Andrade;Tito Machado Meyer Sendacz Opice Sao Paulo Brazil Novis;Maria;Eugenia Machado Meyer Sendacz Opice Sao Paulo Brazil Yamashita;Erica;Sumie Machado Meyer Sendacz Opice Sao Paulo Brazil Del Debbio;Cristiano;Rodrigo Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Negro;Francisco;Niclos Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Felix;Natalia;Oliveira Marques Gilberto & Oliveira Felix Sao Paulo Brazil Andres Artagaveytia;Pablo Marval O'Farrell & Mairal Buenos Aires Argentina Del Pino;Miguel Marval O'Farrell & Mairal Buenos Aires Argentina Ribeiro;Amadeu;Carvalhaes Mattos Filho Rio De Janeiro Brazil Alves;Joyce;Ruiz Rodrigues Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Chueke;Gabriel;Arruda Mattos Filho Veiga Filho Marrey Jr E Quiroga Rio de Janeiro Brazil Ferreira;Ana Batia;Glenk Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Machado;Michelle;Marques Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Reis Neto;Lauro Celidonio;GomesMattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Salles;Paula Simonetti;Junqueira Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Soares;Marcio;Dias Brazil Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Page 12 Zuccolo;Renata;Fonseca Mattos Filho Veiga Filho Marrey Jr E Quiroga AFFILIATION Sao Paulo Brazil Santos;Maria Cecilia;Dias de AndrMattos Muriel Kestener Sao Paulo Fox;Eleanor;M New York University New York Tumba;Renata Oi-Telemar Norte Leste SA Rio de Janeiro Brazil Engel;Ana Carolina;Lopes de CarvOliveira Marques Sao Paulo Brazil Marques;Fernando;de Oliveira Oliveira Marques Sao Paulo Brazil Parker;Richard;G;;;;Rich O'Melveny & Myers LLP Washington Dutra;Pedro Pedro Dutra Sao Paulo Brazil Borges;Marina;Teixeira e Petrobras-Petroleo Brasileiro SA Rio De Janeiro Brazil Mercez;Tathiana;Soares Frota Petrobras-Petroleo Brasileiro SA Rio de Janeiro Brazil Ribeiro;Luisa;da Cunha Petróleo Brasileiro SA Rio de Janeiro Brazil Cardozo;Maria;Izabel Philip Morris Brasil Curitiba Brazil Barreira;Lilian Pinheiro Neto Sao Paulo Brazil Belliboni;Flavio;Lemos Pinheiro Neto Sao Paulo Brazil Medrado;Rene;Guilherme Da Silv Pinheiro Neto Sao Paulo Brazil Neto;Jose Alexandre;Buaiz Pinheiro Neto Brasilia Brazil Silva;Leonardo;Peres Da Rocha EPinheiro Neto Brasilia Brazil Zarzur;Cristianne;Saccab Pinheiro Neto Sao Paulo Brazil Anastacio;Teresa;Catarina Portuguese Competition Authority Lisboa Portugal Garrido;Renata;Lorenzetti Procter & Gamble Sao Paulo Brazil Righetto;Gabriela Procter & Gamble Sao Paulo Brazil Schulz;Maira;de Magalhaes GomeProcter & Gamble Sao Paulo Brazil Fonseca;Ethel London United Kingdom Moreira Lima;Everardo Luiz;;;;;EveRibeiro Almeida Freeland & Associados Rio de Janeiro Brazil Santos;Luis Mexico City Mexico RBB Economics Santos Y Rios Silveira;Antonio;Henrique PinheiroSecretariat for Economic Monitoring (SEAE) Brasilia Page 13 Brazil NY DC United States of America United States of America Brazil Frederico;Daniel;Braga Sindicato Nacional das Empresas Garbelini;Antonio Siqueira Castro Sao Paulo Brazil Santos;Maria Cibele Siqueira Castro Sao Paulo Brazil Silveira;Reinaldo Solvay Do Brasil LTDA Sao Paulo Brazil Dobler;Sonia Maria G M;;;;;Sonia Sonia Marques Dobler Sao Paulo Brazil Honda;Joyce Souza Cescon Barrieu E Flesch Sao Paulo Brazil Schulte;Karina Souza Cescon Barrieu E Flesch Advogados Sao Paulo Brazil Anastacio;Goncalo SRS Lisbon Portugal Kay;Katherine Stikeman Elliott LLP Toronto Canada Achcar;Tiago;De Faria Syngenta Protecao De Cultivos LTDA Sao Paulo Brazil Oliveira;Bruna;Collaco Lopez de Syngenta Protecao De Cultivos LTDA Sao Paulo Brazil Coelho;Gustavo;Flausino AFFILIATION Rio de Janeiro Brazil Tauil & Chequer associado A Mayer Brown LLRio de Janeiro Brazil Medvedovsky;Cintia;Schaimberg Telemar Norte Leste S.A - Oi Rio de Janeiro Brazil Tito;Fabiana;Melo Tendências Consultoria Integrada Sao Paulo Brazil Rosa;Renato;Jose Santanna Tokio Marine Seguradora Sao Paulo Brazil Andreoli;Daniel;Oliveira Tozzini Freire Sao Paulo Brazil Arruda;Vivian;A Fraga Tozzini Freire Sao Paulo Brazil Calliari;Marcelo;Procopio Tozzini Freire Sao Paulo Brazil Cianfarani;Joana;Temudo Tozzini Freire Sao Paulo Brazil Guimares;Denis;Alves Tozzini Freire Sao Paulo Brazil Porto;Luciana;Feres Zogbi Tozzini Freire Sao Paulo Brazil Regazzini;Jose Tozzini Freire Sao Paulo Brazil Veiga;Ewald;Possolo Correa da Ulhaa Canto Rezende e Guerra Rio de Janeiro Brazil Coutinho;Diogo;R University of Sao Paulo Sao Paulo Brazil Farina;Elizabeth;Maria Mercier University of Sao Paulo Sao Paulo Brazil Hammond;Scott;D;; US Department of Justice Washington Page 14 DC United States of America Castello;Robin;Reine VALE SA AFFILIATION Rio de Janeiro Brazil Seabra;Luiz Felipe;Rocha VALE SA Rio de Janeiro Brazil De Carvalho;Livia;Gandara Veirano Rio De Janeiro Brazil Duarte;Leonardo;Maniglia Veirano Brasília Brazil Figueira;Fabio;Amaral Veirano Rio De Janeiro Brazil Valenzuela;Pedro;Andres Garcia Veirano Rio de Janeiro Brazil Villela Correa;Mariana Veirano Rio de Janeiro Brazil Goncalves;Priscila;Brolio Vella Pugliese Buosi E Guidoni Sao Paulo Brazil Zoricic;Ana Carolina;Cabana Vella Pugliese Buosi E Guidoni Sao Paulo Brazil Quagliato;Pedro Whirlpool SA Embraco Joinville Brazil Ferreira;Paulo;Lamego Carpenter White Martins Gases Industriais Ltda Rio de Janeiro Brazil Cadena;Dario Wiesner & Asociados Bogota Colombia Wiesner;Eduardo;A Wiesner & Asociados Bogota Colombia Page 15 REGISTRANT AFFILIATION COUNTRY CITY STATE COUNTRY Andres Artagaveytia;Pablo Marval O'Farrell & Mairal Buenos Aires Argentina Del Pino;Miguel Marval O'Farrell & Mairal Buenos Aires Argentina Den Toom;Marcelo M & M Bomchil Buenos Aires Argentina Pena;Julian Allende & Brea Buenos Aires Argentina Povolo;Diego;Pablo Argentinean Natl Comm of Competition Defense Buenos Aires Argentina Volujewicz;Federico De Dios & Goyena Buenos Aires Argentina Motta;Rita Latham & Watkins LLP Brussels Belgium Ruiz Calzado;Javier Latham & Watkins LLP Brussels Belgium Schindler;Juergen;;;;;Jurgen Allen & Overy LLP Brussels Belgium Achcar;Tiago;De Faria Syngenta Protecao De Cultivos LTDA Sao Paulo Brazil Almeida;Silvia;Faga LCA Consultores Sao Paulo Brazil Alves;Joyce;Ruiz Rodrigues Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Amaral de Andrade;Tito Machado Meyer Sendacz Opice Sao Paulo Brazil Anders;Eduardo;Caminati Lino Beraldi Bueno e Belluzzo Sao Paulo Brazil Andreoli;Daniel;Oliveira Tozzini Freire Sao Paulo Brazil Araujo;Patricia;Agra CMCP Sao Paulo Brazil Arruda;Vivian;A Fraga Tozzini Freire Sao Paulo Brazil Azevedo;Marcelo;Souza Brazilian National Confederation of Industry Brasilia Brazil Barreira;Lilian Pinheiro Neto Sao Paulo Brazil Belliboni;Flavio;Lemos Pinheiro Neto Sao Paulo Brazil Beraldi;Fabio;F Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Borges;Marina;Teixeira e Petrobras-Petroleo Brasileiro SA Rio De Janeiro Brazil Botelho;Ricardo;Franco Cascione Pulino Boulos & Santos Sao Paulo Brazil Bruna;Sergio;Varella Lobo & de Rizzo Sao Paulo Brazil Bueno;Marcio;C S Lino Beraldi Bueno E Belluzzo Sao Paulo Brazil Page 16 Calliari;Marcelo;Procopio Tozzini Freire COUNTRYSao Paulo Cardozo;Maria;Izabel Philip Morris Brasil Curitiba Brazil Casagrande;Paulo;Leonardo BPGM Sao Paulo Brazil Casco;Luis Bernardo;Coelho Barbosa Mussnich & Aragao Sao Paulo Brazil Castello;Robin;Reine VALE SA Rio de Janeiro Brazil Castro;Renault Abralatas Brasília Brazil Chinaglia;Olavo;Zago CADE - Conselho Administrativo de Defesa EconomBrasilia Brazil Chrestani;Valeska;da Cunha Law Student Curitiba Brazil Chueke;Gabriel;Arruda Mattos Filho Veiga Filho Marrey Jr E Quiroga Rio de Janeiro Brazil Cianfarani;Joana;Temudo Tozzini Freire Sao Paulo Brazil Coelho;Gustavo;Flausino Tauil & Chequer associado A Mayer Brown LLP Rio de Janeiro Brazil Cordovil;Leonor Grinberg Cordovil E Barros Sao Paulo Brazil Coutinho;Diogo;R University of Sao Paulo Sao Paulo Brazil Cristofaro;Pedro Paulo;Salles Lobo & Ibeas Rio de Janeiro Brazil Da Costa;Carolina;Saito Grinberg Cordovil E Barros Sao Paulo Brazil De Carvalho;Livia;Gandara Veirano Rio De Janeiro Brazil de Carvalho;Vinicius;Marques Departamento de Protecao E defensa Brasilia Brazil de Sousa;Ricardo;Ingles Dias Carneiro Sao Paulo Brazil Del Chiaro;Jose Advocacia Jose Del Chiaro Sao Paulo Brazil Del Debbio;Cristiano;Rodrigo Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Dobler;Sonia Maria G M;;;;;Sonia Sonia Marques Dobler Sao Paulo Brazil Domingues;Juliana;Oliveira LO Baptista Sao Paulo Brazil Drago;Bruno;De Luca Demarest E Almeida Sao Paulo Brazil Duarte;Leonardo;Maniglia Veirano Brasília Brazil Dutra;Pedro Pedro Dutra Sao Paulo Brazil Sao Paulo Brazil Engel;Ana Carolina;Lopes de CarvOliveira Marques Page 17 Brazil Exposto;Marcos;Antonio;;Jr Barbosa Mussnich & Aragao COUNTRYSao Paulo Brazil Farina;Elizabeth;Maria Mercier University of Sao Paulo Sao Paulo Brazil Farina;Laercio;Nilton L Farina Sao Paulo Brazil Felix;Natalia;Oliveira Marques Gilberto & Oliveira Felix Sao Paulo Brazil Ferreira;Ana Batia;Glenk Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Ferreira;Luciana Lafarge Brasil Rio de Janeiro Brazil Ferreira;Paulo;Lamego Carpenter White Martins Gases Industriais Ltda Rio de Janeiro Brazil Figueira;Fabio;Amaral Veirano Rio De Janeiro Brazil Fonseca;Lisiane;Marques da Embratel Sao Paulo Brazil Frederico;Daniel;Braga Sindicato Nacional das Empresas Rio de Janeiro Brazil Furlan;Fernando CADE - Conselho Administrativo de Defesa EconomBrasilia Brazil Gaban;Eduardo;Molan Jose Mauricio Machado E Associados Sao Paulo Brazil Garbelini;Antonio Siqueira Castro Sao Paulo Brazil Garrido;Renata;Lorenzetti Procter & Gamble Sao Paulo Brazil Girardi;Camila;Castanho Cascione Pulino Boulos & Santos Sao Paulo Brazil Goncalves;Priscila;Brolio Vella Pugliese Buosi E Guidoni Sao Paulo Brazil Grinberg;Mauro Grinberg Cordovil E Barros Sao Paulo Brazil Guimares;Denis;Alves Tozzini Freire Sao Paulo Brazil Hoffmann Formiga;Andrea;FabrinoHoffmann Formiga Brasília Brazil Honda;Joyce Sao Paulo Brazil Leopoldino da Fonseca;Joao BoscJoao Bosco Leopoldino Adv & Consulting Belo Horizonte Brazil Macedo;Bernardo;Gouthier LCA Consultores Sao Paulo Brazil Machado;Michelle;Marques Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Macrander;Thomas;George Florence Boltz Sao Paulo Brazil Marques;Evy;Cynthia Felsberg & Associados Sao Paulo Brazil Marques;Fernando;de Oliveira Oliveira Marques Sao Paulo Brazil Souza Cescon Barrieu E Flesch Page 18 Martinez;Ana;Paula Levy & Salomao COUNTRYSao Paolo Brazil Mason;Euridice Lafarge Brasil Rio de Janeiro Brazil Mazzucato;Paolo;Zupo Grebler Belo Horizonte Brazil Medrado;Rene;Guilherme Da Silv Pinheiro Neto Sao Paulo Brazil Medvedovsky;Cintia;Schaimberg Telemar Norte Leste S.A - Oi Rio de Janeiro Brazil Mendonca;Elvino;de Carvalho CADE - Conselho Administrativo de Defesa EconomBrasilia Brazil Mercez;Tathiana;Soares Frota Petrobras-Petroleo Brasileiro SA Rio de Janeiro Brazil Moreira Lima;Everardo Luiz;;;;;EveRibeiro Almeida Freeland & Associados Rio de Janeiro Brazil Negro;Francisco;Niclos Magalhaes Nery E Dias - Advocacia Sao Paulo Brazil Neto;Jose Alexandre;Buaiz Pinheiro Neto Brasilia Brazil Nogara;Andreia;Molinari Saad Globo Comunicacao E Participacoes SA Rio de Janeiro Brazil Nolasco;Gabriela Barbosa Mussnich & Aragao Sao Paulo Brazil Novis;Maria;Eugenia Machado Meyer Sendacz Opice Sao Paulo Brazil Nunes;Gianni GNA - Gianni Nunes Sao Paulo Brazil Oliveira;Bruna;Collaco Lopez de Syngenta Protecao De Cultivos LTDA Sao Paulo Brazil Oliveira;Gesner Fundacao Getúlio Vargas and GO Associados Sao Paulo Brazil Peixoto;Bruno;L Lanna Peixoto Sao Paulo Brazil Pereira Junior;Ademir;Antonio Advocacia Jose Del Chiaro Sao Paulo Brazil Porto;Luciana;Feres Zogbi Tozzini Freire Sao Paulo Brazil Prado Filho;Jose Inacio;Ferraz de Barbosa Mussnich & Aragao Sao Paulo Brazil Prado;Luiz Carlos;Delorme Federal University of Rio de Janeiro Rio de Janeiro Brazil Pugliese;Paola Lefosse Sao Paulo Brazil Quagliato;Pedro Whirlpool SA Embraco Joinville Brazil Regazzini;Jose Tozzini Freire Sao Paulo Brazil Regueira;Juliana Law Student Rio de Janeiro Brazil Sao Paulo Brazil Reis Neto;Lauro Celidonio;GomesMattos Filho Veiga Filho Marrey Jr E Quiroga Page 19 Rezende;Gustavo;Madi LCA Consultores COUNTRYSao Paulo Ribeiro;Amadeu;Carvalhaes Mattos Filho Rio De Janeiro Brazil Ribeiro;Luisa;da Cunha Petróleo Brasileiro SA Rio de Janeiro Brazil Righetto;Gabriela Procter & Gamble Sao Paulo Brazil Riva;Fabio AMBEV Sao Paulo Brazil Rosa;Renato;Jose Santanna Tokio Marine Seguradora Sao Paulo Brazil Rosenberg;Barbara Barbosa Mussnich & Aragao Sao Paulo Brazil Salles;Paula Simonetti;Junqueira Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Santos;Aurelio;Marchini Sao Paulo Brazil Santos;Maria Cecilia;Dias de AndrMattos Muriel Kestener Sao Paulo Brazil Santos;Maria Cibele Siqueira Castro Sao Paulo Brazil Scazufca;Pedro;Silva GO Associados Sao Paulo Brazil Schulte;Karina Souza Cescon Barrieu E Flesch Advogados Sao Paulo Brazil Schulz;Maira;de Magalhaes GomeProcter & Gamble Sao Paulo Brazil Seabra;Luiz Felipe;Rocha Rio de Janeiro Brazil Silva;Leonardo;Peres Da Rocha EPinheiro Neto Brasilia Brazil Silveira;Antonio;Henrique PinheiroSecretariat for Economic Monitoring (SEAE) Brasilia Brazil Silveira;Reinaldo Solvay Do Brasil LTDA Sao Paulo Brazil Silvestre;Cristiane Braskem SA Sao Paulo Brazil Soares;Marcio;Dias Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Souza;Marina Lefosse Sao Paulo Brazil Strobel;Carolina Intel Corporation Sao Paulo Brazil Tao;Vivian Shiyu;;;;;Vivian Harvard University Sao Paulo Brazil Tavares De Araujo;Mariana Levy & Salomao Rio de Janeiro Brazil Tito;Fabiana;Melo Tendências Consultoria Integrada Sao Paulo Brazil Tumba;Renata Oi-Telemar Norte Leste SA Rio de Janeiro Brazil Cascione Pulino Boulos & Santos VALE SA Page 20 Brazil Valenzuela;Pedro;Andres Garcia Veirano COUNTRYRio de Janeiro Brazil Veiga;Ewald;Possolo Correa da Ulhaa Canto Rezende e Guerra Rio de Janeiro Brazil Villela Correa;Mariana Veirano Rio de Janeiro Brazil Yamashita;Erica;Sumie Machado Meyer Sendacz Opice Sao Paulo Brazil Zanotta;Pedro;S C Albino Associados Sao Paulo Brazil Zarzur;Cristianne;Saccab Pinheiro Neto Sao Paulo Brazil Zoricic;Ana Carolina;Cabana Vella Pugliese Buosi E Guidoni Sao Paulo Brazil Zuccolo;Renata;Fonseca Mattos Filho Veiga Filho Marrey Jr E Quiroga Sao Paulo Brazil Aitken;Melanie;L Competition Bureau Canada Gatineau Canada Kay;Katherine Stikeman Elliott LLP Toronto Canada Diaz Velasco;Maria;Isabel;;;;IsabeIsabel Diaz Y Asociados Santiago Chile Gana;Jose Miguel;;;;;Jose Avendano y Merino Santiago Chile Irarrazabal;Felipe Fiscalia Nacional Economica Santiago Chile Lizana;Claudio Carey Y Cia Ltda Santiago Chile Pavic;Lorena Carey Y Cia Ltda Santiago Chile Cadena;Dario Wiesner & Asociados Bogota Colombia Wiesner;Eduardo;A Wiesner & Asociados Bogota Colombia Pasayat;Arijit Competition Appellate Tribunal New Delhi India Perez;Eduardo;Motta Federal Competition Commission Del Cuajimalpa Mexico Santos;Luis Santos Y Rios Mexico City Mexico Anastacio;Goncalo SRS Lisbon Portugal Anastacio;Teresa;Catarina Portuguese Competition Authority Lisboa Portugal Fonseca;Ethel RBB Economics London United Kingdom Le Grand;Ludmilla Law Student Ashbourne United Kingdom Maton;Anthony Hausfeld LLP London United Kingdom Barnett;Thomas;O;;;;Tom Covington & Burling LLP Washington Page 21 DC United States of America Calvani;Terry Freshfields Bruckhaus Deringer COUNTRYWashington DC United States of America Egge;Michael;G Latham & Watkins LLP Washington DC United States of America Fox;Eleanor;M New York University New York NY United States of America Griffin;James;M King & Spalding LLP Washington DC United States of America Hammond;Scott;D;; US Department of Justice Washington DC United States of America Henry;Roxann;E Dewey & LeBoeuf LLP Washington DC United States of America Junqueira;Denise Law Student New York NY United States of America Parker;Richard;G;;;;Rich O'Melveny & Myers LLP Washington DC United States of America Schaeffer;Fiona;Anne Jones Day New York NY United States of America Tritell;Randolph;W;;;;Randy Federal Trade Commission Washington DC United States of America Van Fleet;Allan Greenberg Traurig LLP Houston TX United States of America Voorhees;Theodore;;;Jr;;Ted Covington & Burling LLP Washington DC United States of America Mercant;Juan;Manuel Guyer & Regules Montevideo Page 22 Uruguay Antitrust in the Americas Conference Presented by the ABA Section of Antitrust Law & IBRAC JUNE 16-17, 2011 JW Marriott Hotel, Rio De Janeiro, Brazil Conference Chairs: Theodore Voorhees, Jr. Amadeu C. Ribeiro www.americanbar.org/groups/antitrust_law.html Welcome Dear Colleagues: On June 16-17, 2011, experienced practitioners, government enforcement officials and respected scholars from the Americas will convene in Rio de Janeiro, Brazil, for the first conference jointly sponsored by the American Bar Association – Section of Antitrust Law and IBRAC, the Brazilian Association for Studies on Competition, Consumer Affairs and International Trade (Instituto Brasileiro de Estudos de Concorrência, Consumo e Comércio Internacional). The Antitrust in the Americas Conference will cover new developments in competition law and policy in the Americas, with a special focus on Latin American countries. If you are interested in learning more about these important developments, as well as meeting government enforcement officials and leading private practitioners from countries such as Brazil, Argentina, Chile, Colombia and Mexico, this conference presents a unique opportunity. For Latin American antitrust practitioners, this conference also presents a great opportunity to meet government enforcement officials and top antitrust lawyers from the U.S. and Canada, as well as to learn more about recent developments in antitrust enforcement in North America. The conference will offer a wide range of timely and practical programs, including multi-lateral cooperation, leniency programs, developments in the merger control regimes of Latin America, the growth of private antitrust litigation, the increasing level of fines in cartel cases, procedural fairness and transparency, as well as an interview with the new heads of CADE, SDE and SEAE, the Brazilian agencies in charge of enforcing Brazil’s competition law. Professor Eleanor M. Fox, from the New York University School of Law, will be our keynote speaker. The conference will be held at the JW Marriott in Rio de Janeiro, Brazil. We look forward to seeing you there. Marcelo Calliari President, IBRAC Allan Van Fleet Chair, ABA Section of Antitrust Law Amadeu C. Ribeiro Conference Co-chair Welcome Theodore Voorhees Jr. Conference Co-chair Page 2 Antitrust in the Americas Conference Conference Agenda Wednesday, June 15, 2011 16h00 – 18h00 Registration Thursday, June 16, 2011 08h00 – 17h30 Registration 08h45 – 09h00 Welcome remarks 09h00 – 10h15 Multi-Lateral Cooperation Competition enforcement agencies are flexing their muscles throughout Latin America, an important development that reflects not only a broad policy consensus as to the value of competition to economic development but also a cooperative effort among numerous governments in recognition of the increasing globalization of business. This panel will explore the emergence of multi-lateral cooperation as an aid to national competition enforcement efforts throughout the Americas, and will examine both the benefits and the challenges of this process. Moderator: Terry Calvani, Freshfields Bruckhaus Deringer, Washington, DC Panelists: Melanie L. Aitken, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada Olavo Zago Chinaglia, Commissioner, CADE-Conselho Administrativo de Defesa Econômica, Brasília, Brazil Ricardo Alberto Napolitani, President, CNDC-Comision Nacional de Defensa de la Competencia, Buenos Aires, Argentina Randolph W. Tritell, Director, Office of International Affairs, Federal Trade Commission, Washington, DC Thursday, June16, 2011 Antitrust in the Americas Conference Page 3 10h15 – 11h30 Anatomy of a Leniency Deal The most important development for cartel enforcement in the modern era has been the emergence and steadily growing embrace of “leniency” as an aid to uncovering wrongdoing and a tool for determining appropriate punishment for offenders. This panel of experts featuring unmatched experience from both sides of the leniency negotiating table will explore both the opportunities and the landmines that face leniency candidates and enforcers as this complex process unfolds. Moderator: Marcelo Procopio Calliari, Tozzini Freire Advogados, São Paulo, Brazil Panelists: Scott D. Hammond, Deputy Assistant Attorney General for Criminal Enforcement, U.S. Department of Justice, Antitrust Division, Washington, DC Roxann E. Henry, Dewey & LeBoeuf LLP, Washington, DC Felipe Irarrázabal Philippi, National Economic Prosecutor, FNE-Fiscalía Nacional Económica, Santiago, Chile 11h30 – 11h45 Break 11h45 – 13h00 Merger Control Regimes in Latin America As the number and size of merger deals with an important Latin America footprint continue to grow, the decisions by merger enforcement agencies throughout the region have garnered increasing public attention and news headlines. The surging growth of Latin American markets is putting increasing pressure on the agencies not only to “get it right” but to do so as quickly and efficiently as possible while still assuring that all important competition law concerns have been adequately examined. This multi-jurisdiction panel of experts will discuss some of the similarities and differences in the ways merger control is administered in leading countries throughout Latin America. Moderator: Fiona A. Schaeffer, Jones Day, New York, NY Thursday, June16, 2011 Panelists: Marcelo Den Toom, M & M Bomchil Abogados, Buenos Aires, Argentina Pablo Marquez, Head of the Competition Department, SIC-Superintendencia de Industria y Comercio, Santa Fé de Bogotá, Colombia Aurélio Marchini Santos, Cascione Pulino Boulos & Santos Advogados, São Paulo, Brazil Luis Santos, Santos y Rios Abogados, Mexico City, Mexico 13h00 – 14h30 Lunch Page 4 Antitrust in the Americas Conference 14h30 – 15h45 Models of Private Enforcement The United States is famous, or notorious, for the prominent role it gives to private plaintiffs and their attorneys to serve as “private attorneys general” in the enforcement of antitrust law. But is this model right for other countries in the region? And how have Latin American policy-makers attempted to adapt their jurisdictions to address the concerns of private companies that claim to have been injured by anti-competitive conduct? This panel of litigation experts will explore these topics and debate the advantages and costs of private enforcement. Moderator: Allan Van Fleet, Greenberg Traurig LLP, Houston, TX Panelists: Claudio Lizana, Carey y Cía Ltda, Santiago, Chile Anthony Maton, Hausfeld LLP, London, UK Richard G. Parker, O’Melveny & Myers LLP, Washington, DC Mariana Villela, Veirano Advogados Associados, Rio de Janeiro, Brazil 15h45 – 17h00 Climbing Fines in Cartel Cases Nearly every top criminal antitrust enforcement official in the modern era has been able to point to rapidly rising aggregate fines as a measure of the success of the country’s cartel enforcement program. What process lies behind these impressive numbers? How are the fines determined? What are the factors that have led some cartel defendants to pay higher or lower fines than their co-defendants? This panel of experts, including current and former cartel enforcement officials from several jurisdictions, will offer answers to these important questions. Moderator: James M. Griffin, King & Spalding LLP, Washington, DC Panelists: Michael G. Egge, Latham & Watkins LLP, Washington, DC Fernando de Magalhães Furlan, Chairman, CADE - Conselho Administrativo de Defesa Econômica, Brasília, Brazil Mauro Grinberg, Grinberg Cordovil e Barros Advogados, São Paulo, Brazil Katherine Kay, Stikeman Elliott LLP, Toronto, Canada 17h00 – 17h30 Thursday, June16, 2011 Keynote speaker Eleanor M. Fox, New York University School of Law, New York, NY 17h45 – 19h15 Reception 19h45 Dine-Around Options Antitrust in the Americas Conference Page 5 Friday, June 17, 2011 08h00 – 12h30 Registration 08h45 – 09h00 Welcome remarks 09h00 – 10h00 Procedural Fairness, Transparency and Institutional Design As the stakes continue to grow higher in terms of the size and importance of global mergers and the proliferation of international cartel enforcement actions, increasing attention is paid to fairness issues in the administration of competition law justice. Should the enforcers allow greater transparency in terms of how they reach important decisions as the process unfolds? Should greater care be taken to ensure that the roles of investigator, prosecutor and decider are held separate within the justice system? Should competition enforcement be consolidated within a single government agency or are there benefits to a multi-agency model? These issues are hot topics in many countries across the globe, and their application in the Americas will be explored by speakers from five key jurisdictions in our hemisphere. Moderator: Barbara Rosenberg, Barbosa Müssnich & Aragão Advogados, São Paulo, Brazil Panelists: Thomas O. Barnett, Covington & Burling LLP, Washington, DC María Isabel Díaz Velasco, Isabel Díaz y Asociados Abogados, Santiago, Chile Calvin S. Goldman, Blake Cassels & Graydon LLP, Toronto, ON, Canada Eduardo Pérez Motta, President, CFC-Comisión Federal de Competencia, friday, June 17, 2011 Del Cuajimalpa, Mexico Page 6 Antitrust in the Americas Conference 10h00 – 11h00 How Far Have We Come and Where Are We Going: The Evolution of Merger Review in Brazil It has been over 10 years since the milestone ruling in the Ambev case. How has that decision stood the test of time? And what lessons can practitioners and their clients in the M&A field learn from the series of equally important merger reviews that have been rendered by more recent CADE administrations in succeeding years? This question and answer session with expert practitioners and former Brazilian merger control officials will address each of these key issues. Moderators: Tito Andrade, Machado Meyer Sendacz e Opice Advogados, São Paulo, Brazil Theodore Voorhees Jr., Covington & Burling LLP, Washington, DC Panelists: Elizabeth Farina, University of São Paulo, São Paulo, Brazil Gesner de Oliveira, Fundação Getúlio Vargas and G.O. Associados, São Paulo, Brazil Tércio Sampaio Ferraz Jr., Sampaio Ferraz Advogados, São Paulo, Brazil Carlos E. J. Ragazzo, Commissioner, CADE - Conselho Administrativo de Defesa Econômica, Brasília, Brazil 11h00 – 11h15 Break 11h15 – 12h30 Interviews of the New Heads of CADE, SDE and SEAE The torch has been passed from Lula to Dilma. A new slate of top competition enforcement officials will have gotten down to business by the time the conference convenes. What major policy initiatives do they anticipate setting for their enforcement agenda? How will things be different compared to the last administration? What key developments set in motion during the Lula administration will continue to be pursued and are there some policies that may be retired? This question and answer session will likely be the first occasion on which Brazil’s new competition leadership will be addressing these issues on the same public stage at the same time. Interviewers: Amadeu Ribeiro, Mattos Filho Advogados, Rio de Janeiro, Brazil Theodore Voorhees Jr., Covington & Burling LLP, Washington, DC Vinícius Marques de Carvalho, Secretary, SDE-Secretaria de Direito Econômico, Brasília, Brazil Antônio Henrique Pinheiro Silveira, Secretary, SEAE-Secretaria, Brasília, Brazil Fernando de Magalhães Furlan, Chairman, CADE - Conselho Administrativo de Defesa Econômica, Brasília, Brazil Antitrust in the Americas Conference Page 7 friday, June 17, 2011 Interviewees: Conference Information REGISTRATION CUT-OFF DATE: May 26, 2011 HOTEL CUT-OFF DATE: April 13, 2011 Various registration rates and discounts are available for your convenience. Those registered by the cut-off date will be included in the Roster of Attendees posted on the conference website and will have access to the course materials prior to the conference. The following discounts are available to each attendee. The ABA automatically adjusts registrations submitted at the incorrect rate. Full payment at the correct rate must be received in order to process your registration and CLE credits. The ABA does not accept wire transfers or purchase orders. Antitrust in the americas June 16 - 17, 2011 - Rio de janeiro,brazil JW marriott Hotel Registration Fees Not an ABA Member? Join now ABA Membership Dues www.americanbar.org/membership/ join_the_aba.html By 5/26 After 5/26 • ABA Antitrust Law Section Member $675 $775 • IBRAC Member $675 $775 • ABA Antitrust Law Section or IBRAC Non-Member • Government/Academic ABA Antitrust Section or IBRAC Member • Government/Academic ABA Antitrust Section or IBRAC Non-Member • Law Students/Paralegals (Limited space available via online registration) $775 $875 $225 $325 $325 $425 • Thursday Luncheon $50 N/A Register online at www.americanbar.org/groups/antitrust_law.html. A. Methods of Registration Online www.americanbar.org/groups/antitrust_law.html Online registrants will receive an electronic confirmation within one day. Online registration closes June 8. On-site June 16 & 17 JW Marriott Rio de Janeiro Wed, June 15 16h00-18h00/Thur, June 16 08h00 - 17h30/Fri, June 17 08h00 - 12h30 There is no guarantee that space will be available at the conference for on-site registration. Your registration fee includes: admission to sessions, refreshment breaks, course materials, and the luncheon. Registration Discounts Early Registration Registrations received by May 26 will be processed at the discounted registration rate. ABA Antitrust Law Section Members and IBRAC Members The registration rate for Antitrust Law Section and IBRAC members is reduced for this conference as a member benefit. The discount is reflected on the registration page online. ABA Members Join the Section of Antitrust Law ($60.00) and register at the reduced rate reserved for Antitrust Law Section members. Government and Academic Available for those with a primary position at a government or academic institution (e.g., law firm lawyers who also are adjunct professors would pay the law firm rate) Law Students/Paralegals Complimentary registration for law students and paralegals who have not passed a Bar. Availability is limited. Page 8 Antitrust in the Americas Conference B. Confirmations Confirmations will be sent electronically within one day of online registration. Please bring the confirmation with you to the conference. C. Cancellations In the event of cancellation, a refund of the registration fee, less a $50.00 administrative fee, will be granted only for written requests received by Patricia Harris (at-registrar@ americanbar.org) by 5:00 pm CST, May 26, 2011. There will be no refunds after this date. Please allow four to six weeks after the conference for the processing of any refunds. The ABA & IBRAC reserve the right to cancel any conference or portion thereof and assumes no responsibility for personal expenses. D. Substitutions Written requests for substitutions will be permitted prior to the conference for requests received by May 26, 2011. After this date, substitutions will need to be made on-site. There is no additional cost for substitutions. Substitutions are not permitted once a registrant has registered on-site or after the conference has occurred. Please submit a request on firm letterhead to transfer the registration to another person. The substitute and original registrant must work out the payment between themselves. E. Special Needs Confirmed registrants should notify [email protected] by May 26th if special assistance for access and/or dietary needs is required. F. Course Materials Course materials for each session will be compiled on USB flash drives and distributed at the conference. G. On-site Please bring your confirmation to the on-site ABA Registration Desk, located at the JW Marriott Rio de Janeiro, to pick up your name badge and materials. Space is limited and on-site registration cannot be guaranteed. H. CLE CLE will not be offered at this conference. I. Delegates Roster A roster of conference delegates is available on the conference website and updated weekly. Participants must be registered to be listed. Conference Information J. Tape Recording No audio recording or videotaping of any part of the conference will be permitted. Special Assistance? Special Dietary Needs? Questions? Email [email protected] Antitrust in the Americas Conference Page 9 Travel Information Individuals are responsible for making their own travel arrangements. Air Travel Rio de Janeiro is host to two airports: Rio De Janeiro- Antonio Carlos Jobim International Airport - GIG Phone: 55 21 3398 5050 Hotel direction: 9.3 mile(s) N The hotel does not provide shuttle service. Estimated taxi fare: 55.00 USD (one way) Santos Dumont Airport - SDU Phone: 55 21 38147070 Hotel direction: 5 mile(s) SW The hotel does not provide shuttle service. Estimated taxi fare: 35.00 USD (one way) Discounted airfares are available from ABA Orbitz for Business including ABA negotiated discounts on American and United. To book online, go to www.abanet.org/travel > click under the Orbitz for Business logo at the top of the page > click on the appropriate link in the Self Paid Travel box. For assistance with online or offline reservations, call toll free 1.877.222.4185. ABA discounts can also be obtained directly from the carrier: American – Call 800.433.1790 code A191SS United – Call 800.521.4041 code 578IG Please check the TSA site for updates and travel tips on www.tsa.gov. The site also has information for travelers flying to the United States. Hotel/Sessions The JW Marriott Rio de Janeiro – Single/Double Room @ $290.00USD + tax (www.marriott.com/riomc) Cut off: April 13 Avenida Atlantica, 2600 Copacabana, Rio de Janeiro, 22041-001 Brazil Phone: 55.21.2545.6500 Online http://cwp.marriott.com/riomc/antitrust/ A discounted block of sleeping rooms has been reserved under the “Antitrust in the Americas Conference.” Rooms will be available until April 13, or when the block fills, whichever comes first. You are responsible for making your own hotel accommodations. International Travel International Travel International travelers should check their visa requirements with their local Embassy or Consulate. We are unable to send out letters supporting visa applications prior to processing the registration. Detailed information is available on the U.S. State Department site at www.state.gov/ travelandbusiness and Federative Republic of Brazil government site at www.brasil. gov.br/para/foreign-visitors • Hotels generally include any service charge on the bill. • Restaurants-tips are discretionary but are often found on the final bills as a “suggestion” 10% is the norm. • Taxis-tips are not expected by taxi drivers although most passengers will round the fare up if satisfied with the service. • Airport and hotel porters-- the Real equivalent of U.S. $1.00 per suitcase. Medical Insurance Rio de Janeiro and Brazil have a number of internationally respected hospitals, clinics and doctors, but treatment is expensive so visitors are strongly advised to take out medical trip insurance before traveling to Brazil. Visa Requirements As the Brazilian Foreign Office bases its actions on reciprocity, visitors from some foreign countries will require a visa which is usually processed within two working days by applying to the nearest Brazilian Embassy or Consulate. Requirements for a tourist visa include a passport valid for at least six months from the date of arrival, one passport size photograph and a round trip ticket. Most international airlines can advise on visa requirements for tourists. Travel Gratuities Page 10 Antitrust in the Americas Conference Local Travel Bus Station Rodoviaria Novo Rio (9.3 miles) Shuttle Service for a fee Parking On-site & Valet 17 USD daily Subway Station Copacabana - Siqueira Campos station (1.2 miles) Taxis Rio has an extensive taxi fleet which includes yellow metered cabs which can be hailed in the streets, as well as a series of special taxis operated by licensed companies which can be found at the airports, hotels or booked by phone. From the international airport and the main shopping centers most of the special taxis work on a fixed fare by area which is paid in advance at the company’s counter above which the fare price must be displayed. Train Station Central do Brasil (9.3 miles) Mark your calendar for other upcoming ABA Section of Antitrust Law Conferences. Visit www.americanbar.org/groups/antitrust_law.html for details. August 4–9, 2011 ABA Annual Meeting Toronto, Canada October 6, 2011 Antitrust and IP in Silicon Valley: The Great Debates Palo Alto, CA November 17, 2011 Fall Forum Washington, DC February 1-3, 2012 International Cartel Workshop Vancouver, Canada Mark your calendar for other upcoming IBRAC Conferences. Visit www.ibrac.org.br for details. November 2011 IBRAC’s International Competition Law Conference Travel/Calendar Antitrust in the Americas Conference Page 11 Rio de Janeiro, Brazil You will need to download QR code reading software. 1. From your mobile device, open browser www.mobile-barcodes.com/ qr-code-software/ 2. Click “Find a QR-Code Reader” and select your mobile device. 3. Choose one of the applications and follow instructions to download. 4. Once installed, the QR-Code Reader can be found… …• for your Blackberry –Downloads Folder …• for your Iphone/Ipad/Itouch - Home Screen …• for Android – Market 5. Click “Scan” to open camera. 6. Take a clear photo of the barcode which will direct you to the ABA website. Registration Cut-off: May 26 Hotel Cut-off: April 13 THE JW MARRIOTT RIO DE JANEIRO Avenida Atlantica 2600, Copacabana, Rio de Janeiro, 22041-001 Brazil June 16-17, 2011 Antitrust in the americas Promotin g Compe t i t i o n | Prot ect in g Co nsume rs Antitrust in the Americas: Multi-lateral Cooperation Moderator: Terry Calvani, Freshfields Bruckhaus Deringer US LLP, Washington, DC Panelists: Melanie L. Aitken, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada Randolph W. Tritell, Director, Office of International Affairs, US Federal Trade Commission, Washington, DC Olavo Zago Chinaglia, Commissioner, CADE-Conselho Administrativo de Defesa Econômica, Brasília, Brazil Julián Peña, Allende & Brea Abogados, Buenos Aires, Argentina I. Introduction Terry Calvani, Moderator 2 of Antitrust: 1980* * Slides courtesy of R. Tritell, US FTC. 3 of Antitrust: 1990* * Slides courtesy of R. Tritell, US FTC. 4 of Antitrust: 2000* * Slides courtesy of R. Tritell, US FTC. 5 of Antitrust: 2010* * Slides courtesy of R. Tritell, US FTC. 6 Bi-lateral UK-US Meeting on Transnational Enforcement May 1986 Leeds Castle, Kent 7 In re Institute Merieux, S.A. 113 F.T.C. 742 (1990). • Merger of Canadian & French firms, neither of which had productive assets in the United States. • Employing the effects test of jurisdiction and an actual potential competition merger theory, the FTC required the divestiture of a Canadian vaccination business. • The FTC did not notify—much less consult with—the Canadian Bureau. 8 Melanie L. Aitken Commissioner of Competition • • • • • Ms. Aitken has held a variety of posts at the Competition Bureau. She joined the Bureau in 2005 as Assistant Deputy Commissioner of Competition, Mergers, and was appointed Senior Deputy Commissioner, Mergers in May 2007. She held the position of Interim Commissioner from January 12, 2009 to August 4, 2009, when she was appointed as Commissioner for a full five-year term. From 2003 to 2005, Ms. Aitken was a partner at Bennett Jones LLP, practising commercial and competition litigation. Between 2001 and 2003, she was seconded to the Department of Justice (Canada) as Senior Counsel, where she was involved in major competition and trade litigation before the Competition Tribunal and the Federal Courts. Prior to her two-year secondment, Ms. Aitken was a partner at Davies Ward Phillips & Vineberg LLP in Toronto. She has been listed as a leading Competition/Antitrust lawyer in Chambers Global, The World's Leading Lawyers and as top 40 under 40 by Lexpert (2005). She was an elected Bencher of the Law Society of Upper Canada from 2007 until her appointment as Commissioner. She has been a Co-Chair of the University of Toronto Academic Appeals Tribunal and an Adjunct Professor at Osgoode and Queen's Law Schools. Ms. Aitken received her LL.B. from the University of Toronto and received the Dean Cecil A. Wright Key. 9 Olavo Zago Chinaglia Commissioner, Conselho Administrativo de Defesa Economica • • • Mr. Chinaglia has acted as an antitrust and corporate lawyer for ten years and was appointed a commissioner at CADE – Administrative Councile for Economic Defense, the Brazilian antitrust tribunal, where he is exercising his second two-year mandate. Mr. Chinaglia is also a member of the editorial council of the Competition Law Revue (CADE) and coordintator of the LLM on Competition of the Instituto Internacional de Ciencias Sociais – IICS, in Sao Paulo. Mr. Chinaglia holds a Bachelor of Law (LLB) at the University of Sao Paulo (1997), an LLM in Business Law at the Magistrates’ School of the Sao Paulo State Court (2002), and a Ph.D degree in Commercial Law at the University of Sao Paulo (2008). 10 Julián Peña Allende & Brea Abogados • • • • • • • • • Mr. Peña is currently the partner in charge of Allende & Brea’s antitrust and trade department. Mr. Peña was legal adviser at the CNDC, the Argentine antitrust agency from 1999-2001. Mr. Peña has held a variety of government posts. He was adviser of the Ministers of Economy of Argentina from 19981999 and in 2001, and at the Ministry of Economy he was advisor of the Secretary of Industry and Trade in 2002-2003, and advisor of the Secretary of Coordination in 1996-1998. Since 2004, Mr. Peña has been a Professor of Compeition Law at the Graduate Program of the University of Buenos Aires. In 2009, Mr. Peña was a Visiting Professor at the University of Florida. Mr. Peña is the founder and moderator of ForoCompetencia, a discussion group created in 2001 on competition issues with members from more than 20 countries. Mr. Peña is the author of the book Merger Control: Legal framework and case law (2002) and of numerous articles. Mr. Peña was listed in Global Competition Review’s “40 under 40.” Mr. Peña graduated from the Universidad Católica Argentina’s Law School in 1995. 11 Randolph W. Tritell Director, Office of International Affairs Federal Trade Commission • • • • • Mr. Tritell is responsible for coordinating the FTC’s international antitrust, consumer protection, and technical assistance policies and the FTC’s involvement in cases that raise international issues. He represents the Federal Trade Commission in multilateral fora including the International Competition Network and the OECD Competition Committee. He is also responsible for the FTC’s negotiation and implementation of bilateral international cooperation agreements and competition and consumer protection provisions of US free trade agreements. Prior to joining the Federal Trade Commission in 1998, Mr. Tritell was a partner with the New York-based law firm of Weil, Gotshal & Manges LLP. Following six years in the firm’s New York office, in 1992 he opened the firm’s Brussels office where he practiced European Community and international competition law. Mr. Tritell is co-chair of the International Task Force of the ABA’s Section of Antitrust Law and a member of the Steering Group of the International Law Section’s Antitrust Committee. He is a frequent lecturer and author, particularly on international antitrust issues, and has taught Federal Trade Commission law in the Master of Laws program of New York University Law School. Mr. Tritell began his career at the Federal Trade Commission, serving as a staff attorney in the Bureau of Consumer Protection, Assistant to the Director of the Bureau of Consumer Protection, Attorney Advisor to Commissioner Terry Calvani, and Executive Assistant to the Chairman. Mr. Tritell obtained his law degree in 1977 from the University of Pennsylvania Law School and his B.A. in 1974 from the State University of New York at Stony Brook. 12 II. United States & Canada • Melanie L. Aitken, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada • Randolph W. Tritell, Director, Office of International Affairs, US Federal Trade Commission, Washington, DC 13 II. United States & Canada Randy W. Tritell Melanie L. Aitken Director Office of International Affairs Federal Trade Commission Commissioner of Competition 14 II. U.S. & Canada A. The Bilateral Relationship 15 II. U.S. & Canada B. Canada’s Relationships with Other Countries in the Americas 16 II. U.S. & Canada C. United States’s Relationships with Other Countries in the Americas 17 II.C. U.S. Relationships with Other Countries • Relationships with competition agencies throughout the hemisphere are a high priority for the Federal Trade Commission. • We cooperate through formal agreements, informal arrangements, multilateral organizations, and technical cooperation. 18 II.C. Cooperation Mechanisms • Formal agreements: – Canada (1995, 2004), Brazil (1999), Mexico (2000), Chile (2011) • Free Trade Agreements: – NAFTA, Chile, Peru • Informal Cooperation – Welcome with all agencies 19 II.C. Cooperation Process • Public Information • “Agency confidential” information – Market definition, competitive effects, potential remedies • Confidential information – Waivers – Second generation agreements 20 II.C. Multilateral Fora • Regional – Inter-American Alliance – Latin American Competition Forum – APEC • International – ICN – OECD – UNCTAD 21 II.C. Technical Cooperation • FTC technical assistance program – Long and short term advisors – Country-specific and regional – Also consumer protection • FTC International Fellows program 22 III. Latin America • Olavo Zago Chinaglia, Commissioner, CADEConselho Administrativo de Defesa Econômica, Brasília, Brazil • Julián Peña, Allende & Brea Abogados, Buenos Aires, Argentina 23 III. Latin America Olavo Zago Chinaglia Julián Peña Commissioner, CADE-Conselho Administrativo de Defesa Econômica Allende & Brea Abogados 24 III. Latin America A. Mechanisms of Multilateral Cooperation 25 III. Latin America B. Expected Results of Cooperation 26 III. Latin America C. Cooperation in Practice: Experience from Brazil and Argentina 27 III. Latin America D. Moving Forward: What are the Reasons for Effectiveness and Efficiency, and Lack Thereof? 28 IV. General Discussion Moderator: Terry Calvani, Freshfields Bruckhaus Deringer US LLP, Washington, DC Panelists: Melanie L. Aitken, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada Randolph W. Tritell, Director, Office of International Affairs, US Federal Trade Commission, Washington, DC Olavo Zago Chinaglia, Commissioner, CADE-Conselho Administrativo de Defesa Econômica, Brasília, Brazil Julián Peña, Allende & Brea Abogados, Buenos Aires, Argentina 29 IV. General Discussion • Where does cooperation work well? • Where does cooperation not work well? • Possible future developments to facilitate cooperation? 30 V. Q&A/Discussion with Audience Moderator: Terry Calvani, Freshfields Bruckhaus Deringer US LLP, Washington, DC Panelists: Melanie L. Aitken, Commissioner of Competition, Competition Bureau Canada, Gatineau QC, Canada Randolph W. Tritell, Director, Office of International Affairs, US Federal Trade Commission, Washington, DC Olavo Zago Chinaglia, Commissioner, CADE-Conselho Administrativo de Defesa Econômica, Brasília, Brazil Julián Peña, Allende & Brea Abogados, Buenos Aires, Argentina 31 Procedural Fairness, Transparency and Institutional Design Antitrust in the Americas Conference ABA/IBRAC Rio de Janeiro, Brazil June 16‐17, 2011 Isabel Díaz / Chile [email protected] 1 Transparency – A General Principle in Chile In 2008, Law Nº20.285 was enacted, giving formal recognition to the Public Functions Transparency Principle. Isabel Díaz Velasco, Socia • Grants the right of access to any and all information of public administration bodies (exceptions: sensitive / competitive information). Antitrust perspective. Problems arising from the incorrect utilization of this law: very commonly used to obtain information from competitors (hopefully controls did work). 2 Procedure Fairness and Institutional Design In 2003, the institutional antitrust design was entirely reformulated. Former antitrust commissions were eliminated (Comision Preventiva Central / with an administrative character and Comisión Resolutiva / with an limited jurisdicctional character): x Both financially dependent of the antitrust prosecutor. x In fact, functioning in the same building (and floor …). 3 Procedure Fairness and Institutional Design An Antritrust Tribunal (AT) was created: Unique composition: 3 lawyers and 2 economists. Market remuneration (more exclusive dedication to the position). Subject to due process of law. 4 Procedure Fairness and Institutional Design The Antitrust Prosecutor remains as an independent investigator and acusser, but not authorized to apply fines, faculty which corresponds to the AT. “One more” of the many litigants before the AT: 50/50 cases won / lost. Its budget was significantly increased and new faculties were given (especially in collusions cases). 5 Institutional Design: Independency / Efficiency This institutional design – almost unique in the world – grants independency and therefore, transparency. Has proved to be very efficient in terms of the extension of the processes: as an average 1,8 years. 6 Institutional Design: Independency / Efficiency Collaborates with the foregoing more exclusive dedication of the members of the AT and that after the AT, only the Supreme Court intervenes (only 2 instances). The Supreme Court has evaluated the AT well (since 2004, the AT issued 111 resolutions, of which 58 have been appealed and only 7 have been reversed). 7 Transparency in the criterias of the Antitrust Court General regulations forces every tribunal to support their resolutions. Isabel Díaz Velasco, Socia Antitrust regulations, in addition, force the Antitrust Court to provide, besides juridical support, economic arguments and analysis. Major issues on transparency arises in control of merger operations where, generally speaking, the Tribunal acts as a predictor and not as a historian (resolving facts already occurred in the past). This means that the Tribunal carry out a probabilistic analysis, considering factors that could happen or not (e.g. entrance of new competitors, rapid technological changes, globalization of various 8 markets in goods and services). Transparency in the criterias of the Antitrust Court This “can make predictions about competitive effects Isabel Díaz Velasco, Socia highly uncertain” (Kovacic). Also, transparency must be shown in the consistency in precedents (in the context of a law – which following international standars ‐ define conducts in a broad way). Correlatively, it is imperative to justify criteria changes. 9 Transparency , information and confidentiality Guidelines regarding the information (not the criteria of the AT) that has to be provided to the Antritrust Tribunal Isabel Díaz Velasco, Socia in merger operations (voluntary consultation). Guidelines on confidential and reserved information to be submitted in any kind of process, regarding instruments and or documents containing formulas, strategies or trade secrets or any other element that if revealed and or disclosed could significantly affect the competitive performance of its owner. 10 Transparency in the Antitrust Prosecutor Criterias On line reports, regarding different markets, issued radomly or during the course of the Antitrust Tribunal Isabel Díaz Velasco, Socia procedures. Guidelines (not mandatory for privates nor for the AT): Horizontal mergers operations. Professional and Industrial Associations (Asociaciones Gremiales). Leniancy program, enforced in 2009. 11 Is everything perfect ? x D&S / Falabella : arguable definition of relevant markets envolved. Isabel Díaz Velasco, Socia x LAN / TAM: third parties consultations vs agremeent with the Antitrust Prosecutor. x Collusion Pharmacy Market: criteria regarding amount of fines. Why US$1M? 12 Professor Eleanor Fox New York University School of Law ABA Section of Antitrust Law & IBRAC June 16-17 2011 Rio de Janeiro 2 Context and Culture The world as context Multi-level network of competition policy/law The local as context: exports, imports, transplants Latin America as context Implications for Substantive law Priorities: the Agenda Institutional design The New York University project on global norms Most common shortcomings Wisest cures Concluding reflections on Learning, discovering, experimenting, (trans)planting, growing 3 4 The world Cross border markets; world controls, national controls Cosmopolitan versus nationalistic Trade law The state and the market Competition law National trade law Sector regulation Economic development and poverty Trade liberalization and information technology The shrinking world 5 China India Brazil The BRICs The BRIICS The CIVETS The CVETs 6 I. “We must have convergence” 1 2 For the West - efficiency of business For the Rest - integration of the less robust nations into the world economy to lift their standards of living II. “Convergence is not the primary goal” Law that fits is the primary goal But,7 with knowledge, (much) convergence happens 7 The MNEs, the cross-border deals, the lawyers, the economists, the competition authorities, the joint working groups, the networks, ABA, IBRAC 8 Latin America’s capabilities are growing “The region has entered into an era of unprecedented economic, political, and diplomatic success” Foreign Affairs This will be “Latin America’s century” Colombian President Juan Manuel Santos The Post-American Hemisphere Russell Crandall Foreign Affairs, May/June 2011: but problems of the past persist 9 The story must begin with history A long struggle for political independence At last, democratic reforms But often anti-market And culture of privilege, subsidies, price-controls, poverty, inequality, political instability, corruption Private sector developed through favors of government 1990 - Washington Consensus, to counter intrusive government Free trade, privatization Growth but hyperinflation, and the poor saw few benefits Backlash, producing shifts to the left and some market-unfriendly regimes But important market friendly nations such as Brazil, Chile, Colombia with increasing economic stability and growth 10 In many nations serious challenges remain Poor infrastructure Huge informal economy Great inequality Mass of small and inefficient service businesses Still much state ownership, privilege for vested interests, uncompetitive business Courts: undependable and inefficient Even while great progress is made The BRICs and Brazil The CIVETS and Colombia Chile, Peru, others And promise of regional FTAs 11 12 Initiative in Colombia suggests a core Bid-rigging scandal in road construction Superintendencia v. contractors for bid rigging Competition agency worked with federal prosecutor A Latin American agenda Procurement – competition and corruption Other cartels Especially through new instruments Sometimes side-by-side US, EU Brazil – crushed rock, marine hose Essential facilities in regulated sectors Advocacy, fighting corruption, government restraints 13 The Global Administrative Law project Our sample jurisdictions Mature United States Canada Australia/New Zealand European Union Japan Newer and evolving: China, Chile, South Africa International The norms E.g. Rule of law, predictability, timeliness, expertise, transparency, reason-giving, right of participation and review; in general accountability and legitimacy 14 Lack of independence Lack of funding Lack of sufficient technical expertise, management skill Flaws in the legislation Lack of power and information Imprecise proscriptions Weak discovery powers, inadequate sanctions Immunities, non-coverage Lack of private rights and the agency must handle all complaints to catch and remedy the worst restraints - some cross-border Courts Appeals panels that undermine the agency Slow courts and unknowledgeable jurists 15 Does the respondent get a fair hearing? Combination of functions – prosecutor and decider Do the agency’s decisions get a fair chance at being upheld and implemented with reasonable speed? Appeals panel with competence How to get this when so few cases are litigated? Tools that can hamstring the agency; how to reform? E.g. Mexico – amparo Are there “one-world” answers? Every design has its shortcomings – and strengths Agencies and nations adjust, given the significance of the problem, where they are now, and what is possible within their system EU, US, Canada, South Africa, UK, Chile, Brazil 16 learning, discovering, experimenting, (trans)planting, growing; universalities and individualities preparing for “Latin America’s century” 17 18 COMPETITION / ANTITRUST LAW Prepared for the 2011 Antitrust in the Americas Conference presented by the ABA Section of Antitrust Law and IBRAC (June 2011, Rio de Janeiro, Brazil) Canadian Cartel Law: Canada Raises the Stakes Katherine L. Kay ([email protected]) Stikeman Elliott LLP Introduction – A Very Busy Year or Two While there have been no litigated cartel cases in Canada in the last couple of years – and there has never been a litigated international cartel case in Canada – this period of time has nevertheless seen very significant changes to Canadian conspiracy law and the issuance of important statements regarding the approach of the Canadian antitrust enforcement authority, the Competition Bureau (the “Bureau”), to cartel matters. By way of rundown of recent Canadian developments on the cartel side: The Canadian Competition Act1 was amended to enact a new section cartel law, effective March 12, 2010, which (among other things): changed the law from what had been described as a “partial rule of reason” provision to a per se provision; increased the maximum fine from $10 million per count to $25 million per count; increased the maximum period of imprisonment from five years to 14 years; and created a new civil provision for “competitor collaborations”, under which arrangements that are not “naked restraints” will be analyzed in a civil proceeding with a full consideration of the impact on competition. At the end of 2009, the Competition Bureau released “Competitor Collaboration Guidelines”2 which are, in the words of the Bureau, “intended to assist firms in assessing the likelihood that a competitor collaboration will raise concerns under the criminal or civil provisions of the Act and, if so, whether the Commissioner [of Competition] would commence an inquiry in respect of the collaboration.” In June 2010, the Competition Bureau updated its Bulletin entitled “Immunity Program Under the Competition Act”3 (the “Immunity Bulletin”). The 2010 update reflects legislative amendments but is otherwise essentially the same as the October 2007 Bulletin regarding the immunity program (which replaced the initial Immunity Bulletin from 2000). In September 2010, the Bureau released its “Leniency Program Bulletin”4 (the “Leniency Bulletin”), which formalizes the Canadian leniency program. The final version of the Leniency Bulletin differs substantially Earlier versions of this paper were presented at the 2010 ABA/IBA International Cartel Workshop and the ABA Spring Meeting. 1 (hereinafter, the “Act”), R.S.C. 1985, c. C-34, as amended. 2 Online at http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03177.html. 3 Online at http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03248.html. 4 Online at http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03288.html. STIKEMAN ELLIOTT LLP │ MONTRÉAL TORONTO OTTAWA CALGARY VANCOUVER NEW YORK LONDON SYDNEY www .stikeman.com from the prior draft released for consultation, and in its final form does not address sentencing principles as the draft had originally proposed to do. In April 2011, the Bureau updated its document “Immunity Program: Frequently Asked Questions”5 (the “Immunity FAQs”). The FAQs are expressly said in the new Immunity Bulletin to continue to apply. In May 2011, the Bureau released updated “Leniency Program FAQs”6, which reflect the new Leniency Bulletin and changes in the legislation. It should be noted that the Bureau engaged in extensive consultations with members of the Canadian and other bars regarding its immunity and leniency programs and the Competitor Collaboration Guidelines. The Bureau is clearly cognizant of the benefits to the efficient operation of business in Canada for guidance to be issued by the Canadian enforcement authority where practicable.7 Before moving to a discussion of these recent developments, a description of the Canadian “setting” (including points of distinction from the U.S. and jurisdictional issues) is useful. A Word About the Canadian Landscape The Canadian Competition Bureau, headed by the Commissioner of Competition, investigates alleged anti‐ competitive conduct in Canada and, in the case of criminal matters, recommends prosecution to the Public Prosecution Service of Canada8 (the “PPSC”). In practice, discussions and negotiations regarding criminal matters are conducted on behalf of the Canadian competition enforcement authorities by representatives of both the Competition Bureau and the PPSC. Notwithstanding the practice, as a legal matter the PPSC has the final legal authority in respect of criminal prosecution issues: it decides whether to accept immunity and leniency applications and has the final say in a negotiated resolution. The Canadian criminal competition law climate shares many characteristics with its United States (and, increasingly, worldwide) counterparts: advocacy conducted in meeting rooms rather than courtrooms, and negotiated rather than litigated outcomes. There are, of course, very good reasons for this, falling primarily in the risk management category: a negotiated resolution of criminal charges won’t leave anyone on the pleading defendant’s side happy, but it will create certainty and a measure of finality, should contain adverse public relations, and allows for the proverbial “turning of the page”. Those benefits exist across jurisdictions and irrespective of the particular legal issues in any jurisdiction. That said, there are a few particular “facts of life” in Canada which seem to lead inexorably to negotiated resolutions of criminal exposure on the competition side. First is the virtual absence of litigated cases, leaving us with no guidance on many crucial points of Canadian law; this is a notable difference to the U.S. situation. The second is the reality of life as a close neighbour to the United States and its aggressive antitrust enforcement authorities (and plaintiffs’ class action lawyers): exposure to U.S. proceedings looms large and will almost certainly be addressed, and once exposure in the United States is being resolved, Canadian issues will almost always be resolved as well. The third is the reality that the Canadian volume of commerce is virtually always a fraction (as a rough rule of thumb, 10%) of the U.S. volume of commerce. If that company is settling its exposure in the United States, a Canadian settlement based (as it almost invariably is) on the Canadian volume of commerce is likely to be seen by the company as a rounding error. Hence the Canadian defence lawyer’s lament: so many issues, so little opportunity to litigate. As a practical matter, much of the advocacy in Canadian cartel cases takes place at the negotiating table rather than in a courtroom. Nevertheless, vigorously asserting defences, including jurisdictional arguments, and laying out all 5 Online at http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03250.html. 6 Online at http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03289.html 7 Although lavish praise for the Bureau does not flow frequently from this author, the Bureau’s consultation efforts with respect to these publications are laudable and appreciated. 8 The PPSC is also referred to as the Department of Public Prosecutions or DPP. While the Leniency Bulletin refers to the PPSC, the Immunity Bulletin refers to the DPP; both references are to the same entity. STIKEMAN ELLIOTT LLP 2 of the frailties in the prosecution’s case is a key role for defence counsel to play, whether the setting is the negotiating table or the courtroom. A negotiated resolution can take many forms: immunity, where there is actually no prosecution or fine to be negotiated, but there will be a lot of interplay with the Bureau and the PPSC and much expense and effort (and a fair bit of negotiating, to be sure) in meeting a party’s obligations under the immunity program; leniency, where there will be a guilty plea and a fine, to be negotiated and which will include the relevant reduction for the party’s status in the leniency program; and a negotiation outside of the leniency program, where virtually all of the same sentencing principles and negotiation dynamics apply. Points of Distinction Between the United States and Canada Because of Canada’s proximity to the United States, both physically and commercially, most antitrust enforcement activities which occur in the U.S. have at least some spill‐over into Canada. Thus, for a company accused of violating Canadian competition law, there are several points of distinction between Canadian and U.S. antitrust law which will be of interest to the company and its non‐Canadian legal advisors and which require consideration. Some notable ones are: ■ There is no limitation period for criminal offences under the Canadian Competition Act. ■ As discussed above, the Canadian conspiracy offence has moved from what has been described as a “partial rule of reason” offence to a per se offence. We have a brand new criminal conspiracy provision, which is completely untested. ■ There are no formal sentencing guidelines in Canada as in the United States, although (as discussed herein) the Bureau’s approach to sentencing (at least in a leniency context) is discussed briefly in the Bureau’s recent Leniency Bulletin. ■ In an immunity context, the failure by an immunity applicant to disclose the commission of another competition law offence to the prosecution does not give rise to “penalty plus” in respect of subsequent offences. Instead, the penalty for failure to disclose is said to be revocation of the immunity granted in respect of the first offence. ■ In civil actions which follow on criminal investigations (including class actions), treble damages are not available; damages are meant to be compensatory only. Jurisdictional Issues There are no cases in Canada which deal with the issue of jurisdiction of Canadian courts in respect of a conspiracy allegation under section 45 of the Act (the criminal cartel provision) where the conduct took place wholly outside of Canada but is alleged to have had an impact in Canada. Outside of the competition law area, Canadian legal authority from the Supreme Court of Canada (the country’s highest court) states that as a general rule, no person can be convicted in Canada of an offence committed outside Canada.9 For a Canadian criminal court to act, there must be a “real and substantial link” between the conduct and Canada. In a civil context where the issue of criminal liability was not before the court, a judge in Ontario (the largest province in Canada) observed in a price‐fixing class action that “the language of section 45 is not directed to only those conspiracies entered into within Canada.”10 One would hope that in a contest between the Supreme Court of Canada’s approach to jurisdiction in criminal matters and the musings of an Ontario judge in a different context, the Supreme Court’s approach would be preferred. As noted, however, there is no case which has considered the jurisdictional issue as a matter of Canadian criminal competition law. 9 Libman v. R. [1985] S.C.R. 178 at 213. 10 VitaPharm Canada Ltd. v. F. Hoffman-LaRoche Ltd., [2002] O.J. No. 298 (S.C.) (QL) at para. 59. STIKEMAN ELLIOTT LLP 3 In addressing jurisdictional issues where the Bureau has commenced an inquiry regarding a non‐Canadian company and is trying to get that company to come to a negotiated resolution, the Canadian competition authorities will first point to any sort of physical contact with Canada: a meeting in a Toronto airport hotel, a shared limo to a trade association meeting in a resort at Whistler, etc. (all hypothetical examples). Whether such a fleeting contact would be considered sufficient to establish jurisdiction on a “real and substantial link” test has not been litigated. Even in the absence of a physical contact with Canada, the prosecution takes the position that a conspiracy entered into outside of Canada in which Canada is addressed (by way of discussions regarding Canadian pricing, for example) provides the requisite “real and substantial link” to Canada. Even more remote, the same conspiracy without an actual mention of Canada but where there is an impact on Canada (typically, in the form of an alleged price increase for the product in Canada) is also said by the prosecution to meet the jurisdictional test for Canada. Again, there has been no judicial consideration of this issue as a matter of Canadian criminal law. Even assuming that the Canadian courts have subject‐matter jurisdiction over the offence, the matter of personal jurisdiction over the accused also needs to be addressed. Furthermore, the prosecution needs to be able to effect service of legal process (the indictment). There is no express legislative provision authorizing service ex juris of legal process in respect of offences under the Competition Act. This means that service on a non‐Canadian company with no physical presence in Canada cannot likely be duly effected as a matter of Canadian law. That said (more lamenting here), that issue has also never been litigated. The existence of interesting legal arguments regarding the limits of the jurisdictional reach of Canada’s cartel law has not stopped dozens of guilty pleas in Canada in international price‐fixing cases, typically entered into where companies are resolving their cartel exposure in multiple jurisdictions in the world. New Criminal Cartel Offence The former (and longstanding) Canadian criminal conspiracy law required (in addition to proving an arrangement, agreement, understanding or other form of “meeting of the minds” between the alleged co‐ conspirators) proof of an undue lessening of competition. As of March 12, 2010, the requirement to show market impact is no longer a feature of the conspiracy provision. New section 45 provides (in part) as follows: 45(1) Conspiracies, agreements or arrangements between competitors – Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges (a) to fix, maintain, increase or control the price for the supply of the product; (b) to allocate sales, territories, customers or markets for the production or supply of the product; or (c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product. (2) Penalty – Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine not exceeding $25 million, or to both. (3) Evidence of conspiracy, agreement or arrangement – In a prosecution under subsection (1), the court may infer the existence of a conspiracy, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties to it, STIKEMAN ELLIOTT LLP 4 but, for greater certainty, the conspiracy, agreement or arrangement must be proved beyond a reasonable doubt. (4) Defence – No person shall be convicted of an offence under subsection (1) in respect of a conspiracy, agreement or arrangement that would otherwise contravene that subsection if (a) that person establishes, on a balance of probabilities, that (i) it is ancillary to a broader or separate agreement or arrangement that includes the same parties, and (ii) it is directly related to, and reasonably necessary for giving effect to, the object of that broader or separate agreement or arrangement; and (b) the broader or separate agreement or arrangement, considered alone, does not contravene that subsection. Subsection 45(8) defines “competitor” as “includ[ing] a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of a conspiracy, agreement or arrangement…” All of the defences which had existed under the predecessor section 45 continue to apply, along with the new “ancillary restraints defence” (or “ARD”) in subsection 45(4). In consultations regarding prior proposed language which was similar to the ARD, many parties criticized the ARD as being too narrow and potentially subjecting many widely‐accepted agreements (such as exclusive distribution arrangements) to criminal prosecution. It seems reasonable to expect that the “rule of reason” analysis seen in the U.S. will make its way into arguments made in Canada, as our courts interpret the new defence. Along with changing the criminal law to make prosecutions easier, the amendments to the Act also introduced a new civil provision, section 90.1, which applies to agreements or arrangements between competitors which prevent or lessen or are likely to prevent or lessen competition substantially in a market. Such cases are dealt with before a specialized administrative tribunal, the Competition Tribunal, in a civil proceeding and using a full rule of reason analysis. Competitor Collaboration Guidelines The Canadian Competition Bureau published the “Competitor Collaboration Guidelines”11 (the “Guidelines”) on December 23, 2009, less than three months before the coming into force of the new criminal cartel provisions and the companion civil provisions. The Guidelines, which were preceded by an earlier consultation draft published in May 2009, answer several questions raised by the new sections 45 and 90.1 of the Act, but leave many more to be answered by the courts and the Competition Tribunal. As noted repeatedly in this paper, under new section 45, agreements between competitors (which the new provisions define to include potential competitors) to fix prices, to allocate sales, customers or markets, or to fix or control production or supply of a product will be illegal – full stop. No longer will the prosecution be required to prove the anti‐competitive effect of such agreements in order to obtain a conviction in so‐called “hard core” cartel cases. The more stringent approach to competitor agreements reflected in the new section 45 is accompanied by an alternative, civil track for non‐hard core cartels: agreements between competitors that are not appropriate for criminal prosecution but may nonetheless have anti‐competitive effects. The new section 90.1 of the Act (which came into effect on March 12, 2010), creates a civilly reviewable matter in respect of existing or proposed agreements between persons, two or more of whom are “competitors”, that prevent or lessen 11 Supra note 2. STIKEMAN ELLIOTT LLP 5 competition substantially (or are likely to do so). The factors to be considered by the Competition Tribunal in undertaking this assessment are effectively the same as those applicable to the existing merger review provisions (i.e., effective remaining competition, barriers to entry, change and innovation, etc.). In terms identical to the existing merger review provisions, an efficiencies defence will apply if the agreement brings about “gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition” and the efficiency gains would not be attained if a prohibition order were issued. In contrast to section 45, available remedies under section 90.1 are purely injunctive in nature, and no private actions for damages are available for alleged breaches of section 90.1. One concern expressed in relation to the dual‐track approach to cartels was that it could permit the Bureau to delay choosing between the criminal and civil tracks, and use the threat of criminal prosecution to encourage civil settlements. To address this concern, the Guidelines state that “at no time will the Bureau use the threat of criminal prosecution to induce settlement in cases proceeding by way of the civil track.” The Guidelines also state that “the Bureau will make every effort to arrive at a timely decision on the appropriate section to be applied in evaluating an agreement.” As to the question of “what is an agreement”, the Guidelines take the position that both explicit and tacit agreements can violate the criminal prohibition against price‐fixing and other hard core cartel behaviour. Accordingly, while so‐called conscious parallelism (a few competitors independently deciding, for example, not to compete on the basis of price since to do so would only incite a price war) is recognized not to be illegal, the Guidelines state that conscious parallelism plus facilitating practices such as sharing sensitive pricing information could be enough to prove the existence of an agreement between the parties. A useful aspect of the Guidelines is the explicit recognition that the Bureau will not view market restriction elements of dual‐distribution agreements or franchise agreements as potentially subject to criminal prosecution under section 45 (provided, of course, that such agreements are truly limited to the supplier/distributor or franchisor/franchisee in question, and do not mask a broader conspiracy among suppliers, distributors, franchisors or franchisees). A consistent theme through the Guidelines is that the Bureau regards section 45 as applying only to so‐called “naked restraints” on competition, which it describes as “restraints that are not implemented in furtherance of a legitimate collaboration, strategic alliance or joint venture.” Such an enforcement approach is welcome, and is reflected in several hypothetical examples included in the Guidelines. The Competition Bureau has said that although it intends to use its new criminal powers to act against hard core cartel activity, it is nonetheless looking for test cases to clarify the ambit of the new law. In addition, it is important to note that the Guidelines reflect the enforcement approach of the Bureau and the PPSC, and are not binding on private litigants or, indeed, the courts, which will have the ultimate say on the meaning of the new competitor agreement provisions. The Canadian Immunity Process Immunity under the Canadian process12 means total amnesty or immunity from prosecution. If a defendant qualifies for immunity, no prosecution will be brought against that party, provided the conditions of the immunity program are met. Immunity is available only to the “first‐in”, being the first party to contact the Bureau and qualify for immunity. Subsequent cooperating parties who wish to acknowledge their guilt and cooperate with the authorities, including by pleading guilty and providing cooperation by way of evidence, witnesses and documents, may qualify for the leniency program, discussed below. As in all other jurisdictions in the world, the Bureau’s immunity program has been remarkably successful in allowing for the discovery of cartel activity and in facilitating further prosecutions. As stated in the preface to the Immunity Bulletin, the immunity program “has proven to be the Bureau’s single most powerful means of 12 The Bureau’s immunity program is contained in the Immunity Bulletin (supra note 3) and the FAQs (supra note 5). STIKEMAN ELLIOTT LLP 6 detecting criminal activity. Its contribution to effective enforcement is unmatched. Its continued appeal to those who would otherwise remain undercover is pivotal to our enforcement efforts.” As in other jurisdictions, because immunity is available only to the first‐in, the quest for immunity can be “a race to the door” in Canada. This is particularly a factor in this country, where Canadian immunity applications are often made in conjunction with amnesty applications in the United States (and elsewhere); the clock is ticking across the world, and there is a great deal of coordination required and consideration of consequences and consistency of approaches is very important (and Canada is not always top of mind for people putting out worldwide fires). Immunity will be available if the Bureau is not aware of the offence and the party is the first to disclose it, or the Bureau is aware of the offence and the party is the first to come forward before there is sufficient evidence to warrant a referral of the matter to the PPSC. The party must terminate its participation in the illegal activity. The party must not have coerced another to be a party to the illegal activity. Immunity is not available for single party conduct (you only get immunity if you can “rat out” someone else). Throughout the course of the Bureau’s investigation and subsequent prosecutions, the party must provide complete, timely and ongoing cooperation, including not disclosing its immunity status; revealing all conduct that is an offence under the Act; providing full, complete, frank and truthful disclosure of all non‐privileged information, evidence and records in its possession, under its control or available to it, wherever located; taking all available measures to secure the cooperation of current directors, officers and employees for the duration of the investigation and any ensuing prosecution and doing so with respect to former employees as agreed by the Bureau; facilitating interviews of current and former personnel; and doing all of that at the party’s own expense and at locations chosen by the Bureau. An application for immunity may be made by a company or by an individual. If a company qualifies for immunity, all current directors, officers and employees who admit their involvement in the illegal cartel and who provide complete, timely and ongoing cooperation also qualify for immunity. Former directors, officers and employees who offer to cooperate with the Bureau’s investigation may qualify for immunity, based on the Bureau’s review (this is typically a point for negotiation). As noted above, even where a company does not qualify for immunity, current or former directors, officers, employees or agents may be considered for personal immunity. The steps in the immunity process are as follows: ■ Step 1: Initial Contact (Marker): a request for immunity is initiated by a communication to the head of the Bureau’s Criminal Matters Branch to discuss the possibility of receiving immunity from prosecution in connection with an offence under the Act. Typically the initial call is made by Canadian legal counsel to the defendant who names the product at issue and asks for a “marker” as the first‐in, which preserves that party’s place in the immunity queue. ■ Step 2: Proffer: by way of a proffer, the party provides a detailed description of the illegal activity and discloses sufficient information for the Bureau to determine whether the party qualifies for immunity. The proffer is usually made by legal counsel and can be made on a hypothetical basis. Proffers can be made orally or in writing; the Bureau recognizes the sensitivity to providing written material and frequently Canadian proffers are made orally. The FAQs state that the proffer must be provided within 30 days of the marker request, although the FAQs also acknowledge that extensions can be provided (communication with the Bureau regarding timing challenges is crucial; in practice, if there are good reasons for an extension, one will be given). Question 19 in the FAQs describes in some detail that on a proffer the Bureau will expect to receive information regarding: the parties, the product, the industry, market definition (which will be less relevant under the new law), the conduct, impact of the conduct, evidentiary process (available witnesses, records, etc.), and immunity applications in other jurisdictions. The Bureau may ask to interview an employee or other company witness before deciding on the immunity STIKEMAN ELLIOTT LLP 7 application. If the Bureau concludes that the party will provide cooperation and meet the requirements of the program, the Bureau will recommend to the PPSC that immunity be granted. The PPSC has an independent discretion as to whether to accept the Bureau’s recommendation. ■ Step 3: Immunity Agreement: if the PPSC accepts the recommendation, a written immunity agreement will be entered into between the party and the authority. ■ Step 4: Full Disclosure and Cooperation: after the immunity agreement is entered into, the obligation to provide full disclosure and cooperation applies. The Bureau treats as confidential the identity of a party requesting immunity, except as required by law, is necessary for judicial authorization or to secure the assistance of a Canadian law enforcement agency, if the party consents, if the immunity status has already been disclosed, or if necessary to prevent the commission of a serious criminal offence. The Bureau will share information with a foreign enforcement authority if a waiver is provided by the immunity applicant; the Bureau will expect a waiver where immunity applications have been made in other jurisdictions. If, after receiving immunity, the party fails to comply with its obligations under the immunity agreement, the PPSC may revoke a party’s immunity and take action against the party. A witness that refuses to provide complete, timely and ongoing cooperation with the Bureau’s investigation may be “carved out” of the immunity agreement. The FAQs state (and the practice is) that the Bureau will in the normal course discuss the situation with the immunity applicant and provide a reasonable opportunity to the applicant to address any shortfalls in its conduct before the Bureau would recommend revocation to the PPSC. The PPSC will provide 14 days written notice to the party before revocation. Where a company loses immunity, its employees continue to be immunized, except for employees who fail to meet their cooperation obligations. The Canadian immunity program includes “Immunity Plus”, whereby a company may not qualify for immunity in respect of Offence A because it was not first‐in, but it may disclose to the Bureau a new (typically related) Offence B, previously unknown to the Bureau. The company will get immunity with respect to Offence B (assuming it otherwise qualifies), and will receive a credit (or “plus”), which is not specified, but is typically significant, in respect of Offence A. The Canadian Leniency Process The Bureau has formalized its leniency program in the form of the Leniency Bulletin,13 which had been released in draft in 2009 for public consultation. As noted above, the draft Bulletin had contained discussion of the Bureau’s approach regarding sentencing, but those portions of the draft were deleted before the Bulletin was finalized. Leniency in Canada applies to a party which is not the first‐in (the first‐in party gets immunity), but comes in to the Bureau further down the line, would like to admit its guilt and qualify for lenient treatment. Although formalized by way of the Leniency Bulletin, a form of leniency process has in fact existed in Canada for many years. The Leniency Bulletin and FAQs provide more specific guidance and create a framework which was not in place previously, and address some issues about which there had previously been uncertainty. As with the immunity program, the leniency program is an important part of the Bureau’s enforcement efforts. As noted in the preface to the Bulletin: “Parties are more likely to come forward, cooperate and plead guilty (rather than litigate) when they are aware of the relevant leniency considerations and when they are confident that the Bureau will follow them in its leniency recommendations to the PPSC.” The Leniency Bulletin “sets out the factors and principles that the Bureau considers in making a recommendation to the PPSC for lenient treatment in the sentencing of individuals or business organizations accused of criminal cartel offences”. 13 Supra note 4. STIKEMAN ELLIOTT LLP 8 As in other jurisdictions, the context for the leniency program is a negotiated resolution which will involve the party pleading guilty and the negotiation of an agreed sentence (typically a fine), subject to approval of the court. Although the court can depart from the PPSC recommendation, in practice courts will approve sentencing recommendations made by the PPSC. A judge will only depart from a sentencing recommendation where accepting the recommendation would either be contrary to the public interest or bring the administration of justice into disrepute. The following basic conditions apply in order to qualify for the leniency program: ■ The party must have terminated its participation in the illegal activity. ■ The party must cooperate fully and in a timely manner, at its own expense, with the Bureau’s investigation and any subsequent prosecution of the other cartel participants by the PPSC. ■ The party must agree to plead guilty. Under the leniency program, applicants are required to provide full, frank, timely and truthful cooperation. Timely cooperation is said to be of paramount importance to the Bureau’s determination of the leniency discount it will recommend to the PPSC in respect of any leniency applicant. The earlier the cooperation, the better the mitigation of the sentence. The first leniency applicant who meets (and continues to meet) the Bureau’s qualifications is eligible for a reduction of up to 50% of the fine that would otherwise be recommended. Where the party is a business organization, the Bureau will also typically recommend that no separate charges be laid against the applicant’s directors, officers and employees (subject to exceptions in extreme cases of wrongdoing). Subsequent leniency applicants may qualify for reductions in fines of up to 30%. The Bulletin describes six steps for leniency applications, similar to those applicable to immunity: ■ Initial Contact/Marker Request. ■ The Proffer. ■ Leniency Recommendation to the PPSC. ■ The Plea Agreement. ■ Full Disclosure. ■ Court Proceedings. The initial contact with the Bureau is usually made by the party’s Canadian legal counsel and a place in the leniency queue (referred to as a “marker”) is provided by the Bureau (second‐in, etc.). The proffer follows within 30 days. The proffer is made on a “without prejudice” basis, and must describe in detail the anti‐ competitive activity, including the participants to the offence, the nature of the agreement, the affected volume of commerce in Canada and any other factors relevant to culpability. In preparing the proffer, leniency applicants are expected to conduct thorough internal investigations to locate all relevant evidence, wherever located. The Bureau will make its leniency recommendation to the PPSC only after the applicant has completed its proffer and provided all relevant information. The Leniency Bulletin states that “The PPSC retains full discretion whether to follow the Bureau’s recommendation, but will give the Bureau’s recommendation due consideration.” A plea agreement is entered into with the PPSC and is conditional on full and timely cooperation of the leniency applicant and those covered thereunder (employees, typically). Once the plea agreement is concluded, the leniency applicant is expected to complete its production of evidence, information, records, and other material to the Bureau; individuals will attend interviews and be prepared to testify at a trial; and the corporate applicant is to facilitate the cooperation of directors, officers and employees (including former people in those categories, if they qualify for lenient treatment under the plea agreement). After the plea agreement is reached, a date for the entering of a guilty plea is arranged. STIKEMAN ELLIOTT LLP 9 The Bureau will treat as confidential the identity of the party requesting leniency (and the information provided by the party in furtherance of that request) except where that information is already public, disclosure is required by law, to a Canadian law enforcement agency for the purposes of the administration and enforcement of the Act, is necessary to prevent the commission of a serious criminal offence, or disclosure is authorized by the party. A leniency applicant is required to keep its contact with the Bureau confidential; its leniency application is not to be disclosed to anyone without the consent of the Bureau, which will not be unreasonably withheld. The Bureau states that it will not disclose the existence of a leniency application or information obtained thereunder to competition authorities in other jurisdictions, but the Bulletin makes clear that the Bureau will request and expect to receive a waiver entitling it to do so from any leniency applicant. Negotiating a Resolution While many negotiations with the Bureau and PPSC take place in the context of the leniency process, settlement discussions are very similar whether they occur “in” or “out” of the formal leniency process. With the move to a more formal leniency process, the Bureau is taking the position that a party must declare “up front” its guilt in order to qualify for leniency. In practice, however, a party can enter the leniency process as the second‐in (for example) and if a negotiated resolution cannot be achieved because (for example) the Bureau’s view of the relevant volume of commerce is simply not consistent with what the party would accept as the basis for an agreed fine, the party might say “we are done talking” and would no longer be part of the formal leniency process and would not qualify for the 50% reduction its second‐in status would otherwise generate. In real life, it’s all a negotiation with several moving pieces: time frame, volume of commerce, affected products, any evidence of actual overcharge, credit for cooperation, leniency discount, etc. It is, of course, in negotiating the penalty that “the rubber hits the road”. The Bureau/PPSC generally start any discussion of fine amounts based on 20% of the relevant volume of commerce, with adjustments for aggravating and mitigating circumstances. As noted above, the draft Leniency Bulletin had a fairly lengthy discussion of sentencing principles and calculation of fine amounts, including a discussion of the role of indirect commerce, but that entire discussion was deleted. In order to understand the approach to sentencing in cartel cases in Canada, therefore, one must rely on the knowledge of those who have done it before, perhaps supplemented by locating transcripts of submissions made on sentencing during a plea hearing or written submissions of the PPSC. Plea/sentence negotiations with the PPSC/Bureau are vigorous, including regarding the time period of the conduct to be pleaded to and products covered by the plea. Demonstrable price war or “cheating” periods can sometimes be negotiated out of the volume of commerce calculation for the negotiated fine amount. Quite apart from the obvious incentives to keep the time period and list of price‐fixed products as narrow as possible in terms of the criminal penalty, the consequences in subsequent civil (class action) litigation can be considerable. As a matter of Canadian practice, guilty pleas are accompanied by agreed statements of fact or statements of admissions filed by both parties with the court and publicly available thereafter, in which the particulars of the offence are described. Defence counsel work hard at limiting the damage which will inevitably occur in future class and other civil actions based on the court filings. The negotiation of guilty pleas almost invariably involves offering up the valuable assistance which this now‐ cooperating defendant can provide in order that the Bureau can pursue other participants in the alleged conspiracy, who can be persuaded to plead guilty only if the negotiating accused provides the evidence tantalizingly offered during the plea negotiations and the cooperation discussions. This sets up the distasteful spectre of company employees wracking their corporate brains for recall of who was present at a meeting at a golf club, or what additional products were discussed, etc. The obligation to cooperate with the Bureau as part of its ongoing investigation is typically part of the agreed resolution, even outside of a formal leniency application. The way the game is played, of course, the threat of the cooperating party’s evidence is enough to ensure that there are other cooperating parties, and so on, and so on. STIKEMAN ELLIOTT LLP 10 One of the key advantages to a negotiated resolution (even outside of a formal leniency application) is the potential ability to negotiate an agreement from the prosecution that no or only limited company individuals will be “carved out” or exposed to being pursued personally for the alleged offences under the Competition Act. While Canadian antitrust authorities do not put notches in their enforcement belts based on person‐days in jail (as a cynical Canadian would portray the U.S. enforcement attitude), the threat of individual prosecution is nevertheless a real one in Canada and its removal is of considerable value to a corporation and its employees. Often a negotiated resolution for a company will end the exposure for its directors, officers and employees provided they agree to cooperate (exceptions to this include where the employee occupied a leadership or ringleader position in the conspiracy). What Next? The next phase of Canada cartel law will indeed be interesting. Hope springs eternal that the defence lawyer’s lament will be answered in the form of cases to test the new law. It seems more likely, though, that with the higher stakes and a more rigorous set of principles guiding immunity and leniency applications, there will be increased and increasingly vigorous settlement negotiations with the Bureau and the PPSC. Much is new and there are many areas for debate and challenge, so there will be no shortage of activity! STIKEMAN ELLIOTT LLP 11 Katherine L. Kay 5300 Commerce Court West, 199 Bay Street, Toronto, Canada M5L 1B9 Direct: (416) 869-5507 Fax: (416) 947-0866 [email protected] Law Practice Katherine Kay is a partner with the litigation and competition departments in the Toronto office of Stikeman Elliott. She is a member of the firm’s Partnership Board and the Toronto office Management Committee. Katherine’s practice is concentrated on complex commercial litigation, frequently involving the overlap between regulatory, civil and criminal law regimes, and across multiple jurisdictions. Katherine heads the firm’s competition litigation practice. Chambers Global 2011 recently described Katherine as "virtually insurmountable in the area of competition litigation" and quoted client feedback that “she is always on top of her game ‐ outstanding expertise, energetic, insightful and very practical." She is described in Global Competition Review's Country Survey: Canada 2010 as “arguably the best competition litigator Canada has to offer.” Katherine is lead counsel on a broad range of cases dealing with all aspects of competition law, including criminal defence work, class and other civil actions, mergers, abuse of dominance and other reviewable matters before the Competition Tribunal. Katherine’s competition litigation practice emphasizes the key aspects of formulating and coordinating strategic responses, often working very closely with counsel in the United States, Europe and other jurisdictions; managing internal and external investigations, coordinating and directing multiple class actions across several Canadian jurisdictions; and vigorous and highly effective advocacy before the relevant courts and tribunals throughout Canada. A major focus of Katherine’s practice is defence of class actions, where she has extensive experience in a wide range of cases, including those alleging anti‐competitive conduct and securities law violations, product liability, franchise and consumer cases. Katherine regularly acts for clients in regulatory and criminal proceedings arising from both competition and securities investigations. She has extensive advocacy experience before all levels of trial and appellate courts in Ontario, British Columbia, Québec, the Yukon Territory, the Federal Court of Canada, and the Supreme Court of Canada. She appears frequently before the Competition Tribunal, the Ontario Securities Commission, and other regulatory bodies. Katherine has been recently recognized in several publications, including: ■ The 2011 Lexpert/American Lawyer’s Guide to the Leading 500 Lawyers in Canada in the areas of Class Action Litigation and Competition. ■ The Canadian Legal Lexpert Directory 2011 as a practitioner “most frequently recommended” in Class Action Litigation, and Competition Law and “repeatedly recommended” in Corporate Commercial Litigation Law. ■ The 2011 Chambers Global’s The Guide to the World’s Leading Lawyers for Business as a #1 leading lawyer in Canada in Competition/Antitrust: Litigation and noted as being a leader “for cartel and litigation matters,” and further noted by a client that “[s]he has been a fantastic partner for us – strong, helpful and able to see the whole case through.” ■ PLC's Cross‐border Competition Handbook 2011. ■ The 2011 PLC Which Lawyer? as a highly recommended in Competition/Antitrust and recognized for Dispute Resolution. STIKEMAN ELLIOTT LLP 12 ■ The Best Lawyers in Canada 2011 in the area of Competition/Antitrust. ■ Global Competition Review’s The International Who’s Who of Competition Lawyers & Economists 2010, The International Who’s Who of Business Lawyers 2010 as well as being ranked as one of the “100 Women in Antitrust” in the world. ■ PLC's Cross‐border Dispute Resolution Handbook 2011. ■ The 2009 Legal Media Group's Guide to the World's Leading Competition & Antitrust Lawyers/Economists. ■ The 2009 LawDay’s Leading Lawyers in the areas of Class Action Defence and Competition Law. For further information, please contact your Stikeman Elliott representative, any author that may be listed above or any of our lawyers listed at www.stikeman.com. This article provides general commentary only and is not intended as legal advice. © Stikeman Elliott LLP Private Enforcement in Chile Claudio Lizana A. Partner Carey y Cia. Abogados 1 Background Law Decree 211 regulates antitrust matters in Chile known as the “Antitrust Law” or “DL 211”. Tribunal de Defensa de la Libre Competencia” or “TDLC”) Antitrust Authorities Antitrust Attorney General (“Fiscalía Nacional Económica” or “FNE”) Both are responsible for enforcing our Antitrust Law. 2 Main Provisions of DL 211 Article 1 (DL 211) States that its purpose is “to promote and defend free competition” in the markets. Article 3: “anyone who carries out or enters into, individually or collectively, any conduct, act or agreement that hampers, restricts or hinders free competition or that tends to produce such effects, shall be sanctioned with the measures indicated in DL 211”. Afterwards, it enumerates certain conducts, acts that hamper, restrict or hinder free competition. The enumeration of conducts is merely exemplary and their description is broad enough in terms that the definition of the criteria corresponds, in each particular case, to the Antitrust Court. 3 Tribunal de Defensa de la Libre Competencia (The Antitrust Court) The Antitrust Court is an independent entity (jurisdictional) with the fundamental mission of ruling on all cases filed by the FNE or private individuals. It is also in charge of issuing specific or – occasionally– general guidelines for the enforcement of antitrust regulations. Adversarial proceedings Issuing opinions/dicta in NonAdversarial procedures; Roles Non-adversarial proceedings Issuing General instructions to the market and reports; Proposing the Government reforms in order to promote free competition. 4 Fiscalía Nacional Económica (Antitrust Attorney General) The FNE is an independent administrative agency in charge of investigating any violations of the Antitrust Law, represents the public interest and seek the enforcement of resolutions, decisions and instructions issued and passed by the Antitrust Court or the courts of justice in antitrust cases. 5 Antitrust Attorney General Private entities / individuals All of them could file a claim Antitrust Court Could impose sanctions contemplated in article 26 DL 211 Supreme Court of Justice The parties may also appeal the final resolution issued by the Antitrust Court before the Supreme Court (recurso de reclamación) 6 Cartels Antitrust claim Private Enforcement Abuse of dominant Position Predatory conducts and unfair competition Compensation Damages (follow-on) 7 Measures the Antitrust Court may impose (a) Modify or terminate acts, contracts, agreements, systems or understandings in violation of Antitrust Law; (b) Require the transformation or dissolution of the companies, corporations and other private entities taking part in the acts, contracts, agreements, systems or understandings in violation of Antitrust Law and/or (c) Impose fines for up to the equivalent of twenty thousand annual tax units (approximately US$ 16,000,000) and in cartel cases up to thirty thousand annual tax units (approximately US$ 24,000,000) 8 Fines may be applied to both the infringing entity, and its directors, managers or any person taking part in the relevant act. In the case of fines against entities, their directors, managers and persons who derived benefit from the relevant act will be jointlyand-severally liable, provided they took part in the conduct act. In determining fines, factors include, without limitation, the monetary gain earned as a consequence of the infringement, the seriousness of the infringer’s conduct, and whether the entity is a recurrent offender or not. 9 What kind of liability are seek pursuant to our Antitrust Law Administrative (fines) Liabilities Criminal Civil 10 Criminal Liability Criminal liability is a matter of debate right now. Neither DL 211 nor the Criminal Code contemplated criminal sanctions for cartel activity. However, it has been argued that cartel behavior affecting prices may qualify as a criminal offence pursuant to Article 285 of the Criminal Code: “Whoever fraudulently alters the natural price of work, of fabrics or merchandise, shares, public or private revenues or any other items that may be the subject matter of contracts will be subject to lesser-severity imprisonment in its minimum to medium degrees and a fine of 6 to 10 monthly tax units.” 11 Article 285 of the Criminal Code contemplated imprisonment from 61 days to three years for ‘price fraudulent adulteration”. However, to date, there has been no collusion case sanctioned under such Article 285. 12 Civil Liability After the ruling of the Antitrust Court, and once confirmed by the Supreme Court (if applicable), a claim for damages may be brought before a civil court in accordance with general rules, and shall be dealt according to the summary procedure provided for in Book III of Title XI of the Code of Civil Procedure. A civil court, when ruling on compensation damages, must ground its decision on behavior, facts and qualifications, already established before the Antitrust Court. However, the amount of damages and causality (antitrust violations that caused the damages) have to be proven by plaintiff. 13 Compensation of Damages In a damages claim the affected party could request compensation for actual damages (daño emergente), loss of profits (lucro cesante) and moral damages (daño moral), all of which would be a direct result of the anticompetitive conducts determined by the Antitrust Court’s ruling. No treble damages are applicable. 14 Adversarial Proceeding In summary, who may claim? - Antitrust Attorney General - The party affected from an antitrust violation - Third party joinder 15 Non-Adversarial Proceedings Who may initiate a Consultation? - Antitrust Attorney General - The parties involved in a transaction - “Third parties” with a legitimate interest (i.e. “LAN-TAM” case) 16 The Legitimate Interest Dilemma On January 27 of 2011, a consumer protection association (“Conadecus”) initiated a consultation in order to establish if the Lan-Tam proposed merger violates or not free competition. This is the first case since the creation of our Antitrust Court, that a third party not directly involved in a transaction initiates a Consultation procedure. After the 2009 amendment, article 18 N°2 is not very precise about who may or may not initiate a Consultation; the concept of legitimate interest will be resolved case by case. 17 CFC’s Transparency Strategy Eduardo Pérez Motta June 2011 Main Messages The strengthening of competition policy in recent years has generated legitimate demands for greater transparency in the authority’s proceedings. In response to this demand, the CFC has undertaken a transparency strategy that has yielded concrete results. 2 In recent years, the CFC has increased the efficiency of its investigations… Sanctioned monopolistic practices and fines imposed by the CFC Moving Average (4 periods) Sanctioned Practices Fines (milllions of pesos) Mergers in fewer cases of high economic impact and deterrence Better use of resources 3 … has effectively used other tools to protect competition… Merger Control Intervention in Regulated Markets Procompetitive Abogacy Actions * Examples Impact 2005‐2007: Divestiture from Aeromexico and Mexicana (and authorization from new competitors) 7.5 million aditional passengers in two years (38.5% increase)* 2010: Limits to the 12 billion pesos anually in accumulation in spectrum for potential benefits for mobile telephony bids. consumers** 2007‐2011: Cooperation with 35 billion pesos in savings for IMSS in 2007‐2009*** the Mexican Social Security Institute (IMSS) to improve drug and medications bidding processes. SCT/DGAC Assumes a 5% decrease in prices as a result of an additional competition; estimates based on CFC / OECD Recommendations to promote a regulatory framework in favor of competition in the interconnection of networks in the telecommunication sector, June 2009.. *** IMSS, Annual Report 2009, p. 87. ** 4 …and it has improved its performance with the Judiciary Percentage of CFC’s sucessful cases in the Judiciary Won + Overseen cases / total cases 40.7% 73.0% • More robust resolutions • Specialized areas in the CFC (Contentiuos Affairs) • CFC‐Judiciary mutual training (fora, presentations, roundtables) 5 With the increasing impact of CFC’s actions, the demand for transparency in the Comission actions has increased Comisión de Economía 6 Main Messages The strengthening of competition policy in recent years has generated legitimate demands for greater transparency in the authority’s proceedings. In response to this demand, the CFC has undertaken a transparency strategy that has yielded concrete results. 7 The CFC carried out a public consultation about its transparency needs… Public Consultation on CFC’s Transparency Results (february‐april 2010) Priority Guides, Guidelines and Reference Papers Access to CFC’s products Information on the status of on‐going procedures Other relevant issues Information on the plenum decision process Oral Hearings Access to files 8 … which has resulted in a work program that has yielded concrete results Guides, Guidelines and Reference Papers Published • Leniency program • Trade Associations • Ellaboration of surveys • Relevant Market In elaboration • Abuse of Dominance • Collaboration among competitors • Merger Notification • Vertical restraints • Sanctions definition • Structured rule of reason 9 … which has resulted in a work program that has yielded concrete results (cont.) Access to CFC’s products • All CFC’s resolutions • Search by: Key word File Agent Sector Procedure Result 10 … which has resulted in a work program that has yielded concrete results (cont.) Information on the status of ongoing procedures Ability to consult ongoing cases Information on ongoing cases •Stage of the procedure •Period/extension 11 … which has resulted in a work program that has yielded concrete results (cont.) Information on the plenum decision process PLENUM’S SESSION MINUTES OF FEBRUARY 3RD, 2011 4.‐ Discussion on the publication of the Commissioners’ votes. After discussing the issue, by unanimity, the Commissioners agreed on the following: Currently Agreement 026‐2011: To make public the Commissioner’s votes in all the resolutions. Oral Hearings • Internal working group to develop aplicable procedures under the Federal Law of Economic Competition (FLEC) (and ready for the aproval of reforms to the FLEC) 12 Only in one issue there are no anticipated changes to current practice Access to files ARTICLE 31 BIS.‐ The information and the documents obtained directly by the CFC while conducting an investigation or an on‐site search will be classified as reserved, confidential or public information, according to the criteria established in this article. Arts. 7 and 35 Section V of the FLEC’s Bylaw During an investigation, the CFC will not allow access to the case file and, in during the proceeding, only the economic agents with legal interest in it will have access, with exception to the information classified as confidential «Balance between the right to access information and public interest.» «Legitimate interests that are important enough to limit the access to certain information.» Motives explanation, Federal Law of Transparency and Acces to Public Government Information 13 This year the CFC presented its 2010 Annual Report with more anticipation than ever Reforms to the FLEC «Article 28.‐ […] III. Present to the Federal Executive an annual report, which should be published, on the Commission’s performace The report referred to in the paragraph above will be submitted by March 31 of the year following the conclusion of the reporting period» 14
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