POWELL, GOLDSTEIN, FRAZER & MURPHY LLP ORIGINAL IDEAS. UNCOMMON SOLUTIONS. PRIVATE LAWSUITS IN INTERNATIONAL ANTITRUST Presented by Neil R. Ellis Vienna, Austria October 13, 2000 Presented by Neil R. Ellis Vienna, Austria October 13, 2000

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Reach of the U.S. antitrust laws is as broad for private lawsuits as for criminal actions  U.S. antitrust laws authorize private rights of action for treble damages  Availability generally limited to parties directly harmed  Reach of the U.S. antitrust laws is as broad for private lawsuits as for criminal actions  U.S. antitrust laws authorize private rights of action for treble damages  Availability generally limited to parties directly harmed

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Private parties may also seek injunctions  May be available for threatened as well as current injury  Less strict requirement of direct harm  Private parties may also seek injunctions  May be available for threatened as well as current injury  Less strict requirement of direct harm

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Recognition that government authorities do not have sufficient resources to enforce antitrust laws alone  Private litigation operates independently of the government authorities’ enforcement priorities  Recognition that government authorities do not have sufficient resources to enforce antitrust laws alone  Private litigation operates independently of the government authorities’ enforcement priorities

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  The Foreign Trade Antitrust Improvements Act (‘FTAIA”) of 1982 applies to foreign conduct that affects --  Domestic commerce in the U.S., or  Import trade into the U.S., or  Export trade from the U.S. - but only if the injured party is a person in the U.S.  The Foreign Trade Antitrust Improvements Act (‘FTAIA”) of 1982 applies to foreign conduct that affects --  Domestic commerce in the U.S., or  Import trade into the U.S., or  Export trade from the U.S. - but only if the injured party is a person in the U.S.

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Application of U.S. antitrust laws to foreign conduct that has an impact only on U.S. exports has been controversial  More expansive than European view of the scope of EU’s competition law  In 1980s, Antitrust Division refused to apply U.S. law to situations in which no consumers in U.S. injured  That restrictive view was repudiated in 1992, but few cases since then  Application of U.S. antitrust laws to foreign conduct that has an impact only on U.S. exports has been controversial  More expansive than European view of the scope of EU’s competition law  In 1980s, Antitrust Division refused to apply U.S. law to situations in which no consumers in U.S. injured  That restrictive view was repudiated in 1992, but few cases since then

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Even with subject matter jurisdiction, many impediments to successful private litigation  Problems with:  Personal jurisdiction  Service of process  Discovery  Enforcement of award  Even with subject matter jurisdiction, many impediments to successful private litigation  Problems with:  Personal jurisdiction  Service of process  Discovery  Enforcement of award

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Some impediments overcome if private action preceded by criminal proceedings  Guilty verdict may be used as “prima facie” evidence of an antitrust violation in a follow-on private lawsuit  Private litigants can use evidence submitted in prior criminal trial  Some impediments overcome if private action preceded by criminal proceedings  Guilty verdict may be used as “prima facie” evidence of an antitrust violation in a follow-on private lawsuit  Private litigants can use evidence submitted in prior criminal trial

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  One benefit of cooperating with criminal investigation is that Antitrust Division will strive to maintain confidentiality  Under Leniency Program, Antitrust Division will not release information without prior approval or a court order  One benefit of cooperating with criminal investigation is that Antitrust Division will strive to maintain confidentiality  Under Leniency Program, Antitrust Division will not release information without prior approval or a court order

POWELL, GOLDSTEIN, FRAZER & MURPHY LLP EXPOSURE TO PRIVATE LAWSUITS  Still, strong incentives for private parties to bring “follow-on” actions seeking treble damages  Private litigation has occurred in wake of criminal prosecutions in international cases  Recent examples include thermal fax paper and vitamins cases  Still, strong incentives for private parties to bring “follow-on” actions seeking treble damages  Private litigation has occurred in wake of criminal prosecutions in international cases  Recent examples include thermal fax paper and vitamins cases