Government Not Required to Identify Exculpatory Evidence in
On Dec. 23, 2011, a district court denied a motion to compel filed by defendants
in ongoing litigation regarding alleged price fixing in the market
for liquid crystal display panels used in computers and
televisions. Defendants had sought to require the government to
identify where in the voluminous discovery produced certain
exculpatory material exists, arguing that the government had failed
to comply with its obligations under Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S.
150 (1972). But the court ruled that the government has no
obligation to affirmatively identify particular pieces of
exculpatory evidence, nor is it required to produce internal
communications relating to plea negotiations absent a separate
basis for disclosure.
Canadian Competition Bureau Updates Merger Review
On Jan. 11, 2012, the Canadian Competition Bureau issued revised
Merger Review Process Guidelines, updating the
guidelines originally published in September 2009. The guidelines
describe the Bureau's general approach to administering its
two-stage merger review process, which is applicable to proposed
transactions that exceed certain thresholds and are subject to
mandatory premerger notification filing under the Competition Act.
The Act establishes an initial 30-day waiting period during which
the parties cannot close the transaction. This initial waiting
period can be extended if the Bureau issues a supplementary
information request (SIR) – similar to "second
requests" issued in the United States – to obtain
more information to determine the competitive impact of the
transaction. The amendments to the merger review process do not
affect the Bureau's substantive approach to merger review.
Antitrust Division Continues to Prioritize Criminal Enforcement
On Dec. 7, 2011, Acting Assistant Attorney General Sharis Pozen
testified before Congress that the Antitrust
Division "obtained over $520 million in criminal fines"
during Fiscal Year 2011 (the period running from Oct. 1, 2010
through Sept. 30, 2011). The Division filed 90 criminal cases
– the highest number of criminal cases filed in the last
20 years, and a significant increase from the 60 criminal cases
filed in Fiscal Year 2010 – charging 27 corporations and
82 individuals, and courts imposed 21 separate jail terms, totaling
10,544 days of jail time. The Division's criminal
investigations and cases have focused on a variety of industries,
including real estate, auto parts, financial services, air
transportation services, freight forwarding and liquid crystal
UK Office of Fair Trading Announces Results of Compliance
In December 2011, the UK Office of Fair Trading issued a report assessing the impact of competition law
on compliance measures adopted by UK companies. More than 800
companies were surveyed as part of a study considering what drives
businesses to comply withh competition law and what deters them
from trying to infringe it. Additional information is available in
December 2011 EU Competition Law Compliance Update.
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Though similar legislation failed to pass last year, Representative Ehrlich said that she believes there is now greater support in the legislature for limitations on the use of non-competes. Significantly, however, Governor Baker has yet to take a position on the issue.
On November 12, the U.S. Court of Appeals for the Third Circuit issued a decision reversing the U.S. District Court for the District of New Jersey, and holding that Village Supermarkets, Inc., which attempted to thwart the plans of Hanover 3201 Realty LLC to develop its property with a competitor supermarket, may be subject to an antitrust claim brought by Hanover Realty.
This past summer the Department of Justice opened up an investigation into the domestic airline market to determine if there had been collusion in the decisions to limit the expansion of seat capacity.
The U.S. Department of Justice Antitrust Division will consider individual civil enforcement actions against executives implicated in corporate wrongdoing, according to recent comments by DOJ Assistant U.S. Attorney General Bill Baer.
The DOJ dealt United its latest regulatory blow on Tuesday after it filed suit to prevent United from renting 24 slots—Federal Aviation Administration takeoff and landing authorizations—at Newark Liberty International Airport.