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##### DEPARTMENT OF JUSTICE

## GLOBAL ANTITRUST ENFORCEMENT

Thomas O. Barnett

Assistant Attorney General

Antitrust Division

### U.S. Department of Justice

### Presented at the

Georgetown Law Global Antitrust Enforcement Symposium

September 26, 2007

**I. Introduction**

Good morning. I am pleased to be here today to talk with you about the
globalization of antitrust enforcement. I observe at the outset that we
now take as a given that the economy is global, and most antitrust
practitioners are keenly aware of the proliferation of antitrust
enforcement agencies around the world. It should come as no surprise to
those of you gathered here today that the globalization of both the
economy and antitrust enforcement has imposed additional burdens on
market participants and increased the need for cooperation and comity
among antitrust enforcement agencies. Certainly anyone who has
shepherded merging parties through the merger process in multiple
jurisdictions appreciates this fact. Indeed, your presence here today
suggests that you recognize the importance of these developments and
want to be involved in the dialogue about how best to address the issues
raised by the globalization of antitrust enforcement.

In my time here with you this morning, I want to focus on what
globalization of the economy and antitrust enforcement means for
anti-cartel enforcement, merger enforcement, and enforcement involving
unilateral conduct.

**II. Anti-Cartel Enforcement**

Let me begin with some good news: the world is less safe for cartels.
Cartels remain \"the supreme evil of antitrust,\"[^1] and antitrust
enforcement authorities around the world are united in a commitment to
pursue hard core anticompetitive conduct (that is, horizontal agreements
among competitors not to compete such as price fixing, bid rigging and
market allocation) that we know to be the most pernicious. Accordingly,
many jurisdictions punish such conduct with significant fines and, in
the case of the United States and soon a number of other jurisdictions,
with jail time. The Organisation for Economic Cooperation and
Development (OECD) has recommended that governments consider imposing
criminal sanctions against individuals to enhance deterrence and
creating incentives to cooperate through leniency programs.[^2] Recent
developments in Australia, Japan, Israel and Ireland are prime examples
of the global trend toward greater individual accountability.

Here in the United States, prosecuting cartel offenses---and deterring
the formation of cartels and the activities of cartelists---continues to
be our highest priority. International cartel investigations account for
almost half of our ongoing grand jury investigations. The subjects and
targets of our international investigations have been located in roughly
twenty-five different countries on six continents. Our investigations
have uncovered meetings of international cartels in well over a hundred
cities in more than thirty-five countries, including most of Europe and
Asia. More than ninety percent of the \$1.9 billion in criminal fines
imposed in Antitrust Division cases during the past five years has been
in connection with the prosecution of international cartel activity.

Because of the international nature of many cartels---a typical
international cartel consists of a U.S. company and three or four of its
competitors that are market leaders in Europe, Asia and throughout the
world---enforcement takes on a global dimension. A shared commitment to
fighting international cartels has led to the establishment of
cooperative relationships among antitrust enforcement agencies around
the world. One result of this coordination in global antitrust
enforcement has been an enhanced ability to detect, investigate,
prosecute and punish cartel offenses in this country. I will mention
several ways in which this benefit is being achieved.

**First**, with more antitrust enforcement agencies on the beat, cartels
run a greater risk of detection. Having antitrust enforcement agencies
in multiple jurisdictions focused on criminal enforcement has led to
greater success globally in the detection of cartels. A key factor has
been the adoption of and convergence in leniency programs. The Antitrust
Division\'s leniency program continues to be our greatest source of
cartel evidence. The Antitrust Division has had great success combining
vigorous criminal prosecution with our leniency program in order to
increase the likelihood of cartel detection and prosecution.

The extraordinary success of the Antitrust Division\'s leniency program
has generated widespread interest around the world, and our leniency
program has served as a model for similar programs that have been
adopted by other antitrust enforcement agencies. We have advised a
number of foreign governments in drafting and implementing effective
leniency programs in their own jurisdictions. Countries such as Japan,
Australia, Brazil, Canada, Germany, Ireland, South Korea and the United
Kingdom have announced new or revised leniency programs, and still other
countries are in the process of doing the same. The convergence in
leniency programs has made it easier and more attractive for companies
to simultaneously seek and obtain amnesty in the United States, Europe,
Canada and other jurisdictions.

**Second**, it is becoming easier to collect evidence to use in
prosecuting a cartel once it is detected. The Antitrust Division
regularly coordinates with antitrust enforcement agencies conducting
searches across multiple continents. One recent example is the searches
of marine hose suppliers conducted in May 2007.[^3] Eight executives
from the United Kingdom, France, Italy and Japan were arrested in
Houston and San Francisco and charged for their role in a conspiracy to
rig bids, fix prices and allocate markets for U.S. sales of marine hose
used to transport oil between tankers and storage facilities and buoys.
Simultaneous with those arrests, searches were conducted by agents of
the Defense Criminal Investigative Service of the Department of
Defense\'s Office of Inspector General in the United States, and the
United Kingdom\'s Office of Fair Trading and the European Commission
executed search warrants in Europe. And in August 2007 the Antitrust
Division announced plea agreements had been reached with British Airways
Plc and Korean Air Lines Co. Ltd. for their roles in conspiracies to fix
the prices of passenger and cargo flights.[^4] The Antitrust Division\'s
investigation was coordinated with the United Kingdom\'s Office of Fair
Trading, which announced that same day that it had resolved similar
charges against British Airways in its parallel investigation.[^5] Such
coordination among multiple jurisdictions will continue to be an
important part of cartel investigations, and such cooperation will lead
to more effective anti-cartel enforcement in the future. Moreover, while
there remain some limitations, antitrust enforcement agencies can often
share evidence that each of us collects either through searches or
through voluntary cooperation from leniency applicants or pleading
defendants.

**Third**, it is now easier to apprehend culpable individuals. With the
increasingly vigorous resolve that foreign governments are taking toward
punishing cartel activity and their increased willingness to assist the
United States in tracking down and prosecuting cartel offenders, the
safe harbors for antitrust offenders are rapidly shrinking. Not only is
it more likely that an offender will be prosecuted in another country,
but it also is more likely that foreign nationals who violate U.S.
antitrust laws will be prosecuted in the United States. The improved
cooperation with foreign law enforcement authorities already has
provided the Antitrust Division with increased access to foreign‑located
evidence and witnesses that have proven to be instrumental in the
cracking of a number of international cartels. The Antitrust Division
has successfully prosecuted foreign defendants from Canada, France,
Germany, Japan, South Korea, the Netherlands, Norway, Sweden,
Switzerland and the United Kingdom for engaging in cartel activity, and
these individuals have served, or are currently serving, prison
sentences in U.S. jails.

I note that when the Antitrust Division began prosecuting international
cartels, just convincing a foreign national to submit to U.S.
jurisdiction and plead guilty was a major achievement. A no‑jail deal
was at times necessary for the Antitrust Division to secure access to an
important foreign witness or key foreign‑located documents. The dramatic
increase in international cooperation and our improved use of
investigative tools over the last few years has caused a significant
shift in the negotiating balance. The Antitrust Division now seeks jail
sentences for *all* defendants, domestic and foreign.

The Antitrust Division\'s practice is to put foreign witnesses and
subjects of investigation on border watches to detect their entry into
the United States. In 2001, the Antitrust Division raised the stakes for
fugitive defendants even further by adopting a policy of placing
fugitives on a Red Notice list maintained by the International Criminal
Police Organization (Interpol). A Red Notice is essentially an
international wanted notice that many of Interpol\'s member countries
recognize as the basis for a provisional arrest, with a view toward
extradition. The Antitrust Division will seek to extradite any fugitive
defendant apprehended through the Interpol Red Notice Watch. Thus, even
if a fugitive resides in a country that would not extradite the
defendant to the United States for an antitrust offense, the fugitive
still runs the risk of being extradited if he or she travels outside of
that home country to a third country that participates in the Red Notice
list. These restrictions on a foreign national\'s travel to the United
States are often a significant and unacceptable burden on his or her
business and personal life, and have contributed to the decision of many
individuals to accept responsibility for their cartel offenses, plead
guilty, and negotiate plea agreements with the Antitrust Division that
include prison sentences.

The development of the United Kingdom\'s anti-cartel policies over the
last few years, including its policies toward corporate executives,
offers a good example of the evolution in international anti‑cartel
enforcement. Formerly the United Kingdom would not assist U.S. antitrust
investigations pursuant to a Mutual Legal Assistant Treaty (MLAT)
request. But, over the last six years, the United Kingdom has become one
of the strongest advocates in the international fight against cartels.
In 2004 the Antitrust Division indicted the former chairman of Morgan
Crucible Company, Ian P. Norris, for fixing prices of carbon brushes
(used to transfer electrical current in automotive and transit
applications) and for orchestrating a conspiracy to obstruct justice,
tamper with witnesses and destroy documents. The Antitrust Division is
seeking extradition of Norris, a British national, on all counts of the
indictment. Norris is appealing the rulings that have ordered his
extradition.[^6] Throughout this process we have been working
cooperatively with the British government.

**Fourth**, expected penalties for cartel conduct are increasing.
International cooperation has enabled the Antitrust Division to enhance
the threat of prosecution on foreign nationals who commit cartel
offenses in the United States. As a result we see more foreign nationals
agree to plead guilty, to cooperate against other cartelists, and to
serve increasingly long prison sentences. For example, in April 2007 a
South Korean executive agreed to plead guilty to a single count of price
fixing, pay a \$250,000 criminal fine and serve fourteen months in a
U.S. prison, the longest imprisonment ever by a foreign defendant
charged with price fixing in the United States.[^7] Indeed, over the
last ten years the average jail sentence for defendants prosecuted by
the Antitrust Division has increased from eight months (in 1997) to more
than thirty months (in 2007). And the expected penalties for engaging in
cartel conduct are increasing.

**Fifth**, we are significantly enhancing the deterrence of cartel
conduct. In addition to the deterrence from the increased expected
penalties just discussed, antitrust enforcement agencies around the
world have played a leading role in changing the business culture toward
cartel activity. In the past, many countries have had no prohibition on
cartels and some business people came to view price-fixing and other
agreements not to compete as simply one way of doing business.
Businesses on virtually every continent are increasingly aware that
cartel activity is illegal and is viewed as tantamount to fraud or
theft. Inculcating such awareness in the business community is one of
the most effective means we have available to deter cartels from forming
in the first instance.

**III. Merger Review Process**

Next, some mixed news: the world is more complicated for mergers. At
present, more than seventy jurisdictions around the world have some form
of antitrust merger review. Next year when China\'s Antimonopoly Law
goes into effect, we will add one more jurisdiction to that list. One
result of the increasing globalization of our economy is that
multijurisdictional mergers are now commonplace and will face review by
multiple antitrust authorities. The positive aspect of this development
is that consumers in more countries around the world have the potential
to benefit from merger reviews that consider whether there is harm to
competition in markets that affect their local regions. This benefit
comes, however, with several challenges.

**First**, most mergers do not threaten harm to competition and may
bring affirmative benefits for consumers. Accordingly, in the United
States we place a high priority on identifying those relatively few
mergers that might threaten harm to competition as quickly as possible
and closing our reviews of the others as expeditiously and as
efficiently as possible.

Review by multiple antitrust enforcement authorities can impose
significant burdens and costly delays on corporate transactions, as well
as heavy and non-productive burdens on the resources of the reviewing
agencies themselves. This recognition led the International Competition
Network (ICN)[^8] to focus much of its initial efforts on procedural
aspects of the merger review process. The result of the ICN\'s work in
this area has been a set of recommended practices that reflects
international consensus on basic principles for merger notification
systems. The *Recommended Practices for Merger Notification and Review
Procedures* have influenced changes by member jurisdictions to bring
their merger notification and review systems into greater conformity
with the recommended practices.

One goal of each antitrust enforcement agency in merger review should be
to cull out of the review process as quickly as possible those
transactions that are not likely to harm competition within the
agency\'s jurisdiction. An important first step is to limit merger
notification requirements---whether pre-merger or post-merger---to those
transactions that have an appropriate \"nexus\" with the jurisdiction.
The ICN recommends that this can be done by requiring that at least two
parties to a transaction, or at least the acquired party, have material
sales or assets within the jurisdiction. I suggest that if no more than
one of the parties to a transaction has assets in, or sales into, the
jurisdiction, the possibility of harm to competition in that
jurisdiction is remote and the burdens of a merger notification
requirement are not justified.

Globally, there have been some issues that have developed on this front.
For example, as I mentioned before, after thirteen years of drafting,
China enacted an Antimonopoly Law on August 30 that goes into effect
next year. The new law prohibits agreements that restrain competition,
abuses of a dominant market position and concentrations that may have
the effect of eliminating or restraining competition, as well as abuses
of administrative powers to restrain competition. The law provides for a
pre-merger notification system, but leaves the notification thresholds
to be determined by subsequent regulation. The waiting periods appear to
be generally consistent with the ICN\'s *Recommended Practices for
Merger Notification and Review Procedures* (that is, an initial
thirty-day waiting period, followed by a ninety-day waiting period if a
second stage review is undertaken, with a possible sixty-day extension).
The parties are free to consummate the transaction when the waiting
periods have expired without a decision. The Antitrust Division has been
working with the Chinese Ministry of Commerce---the agency that
currently reviews mergers and acquisitions by foreign companies---to
educate them on how our merger notifications and substantive reviews
work in practice. In July 2007 the Antitrust Division and the Federal
Trade Commission convened a merger workshop in China to train Ministry
of Commerce staff on good merger review practices.

China may have grabbed most of the headlines this year, but there have
been important developments in India as well. The Indian parliament has
adopted amendments to India\'s competition law that attempt to cure some
of the constitutional issues that the Indian Supreme Court identified
several years ago. In the process, the amendments also change the
pre-merger notification filing system from voluntary to mandatory, alter
the filing thresholds for foreign firms, and impose a long, 210-day
waiting period on mergers. A number of these changes pose practical
issues, and through our technical assistance program we will continue to
work with the Indian competition officials on substantive merger
analysis and merger process, emphasizing the importance of quickly
identifying and clearing transactions that are not competitively
problematic.

For those transactions that are subject to a notification requirement,
antitrust enforcement agencies should seek to identify as quickly and as
efficiently as possible those transactions that are not likely to harm
competition and promptly close any investigation or terminate any
waiting period. Recognizing that we should always strive to improve what
we are doing here in the United States, last year the Antitrust Division
amended our *2001 Merger Review Process Initiative*. In so doing, we
sought to further streamline the merger investigation process to improve
the efficiency of our investigations while reducing the cost, time and
burdens faced by parties to transactions that we review.

**Second**, we can improve the efficiency of multijurisdictional merger
review by fostering convergence on substantive analysis. Following on
the success of its efforts to develop convergence on procedural aspects
of the merger review process, the ICN is now working on developing
convergence on substantive merger analysis. The ICN *Merger Guidelines
Workbook* is a comprehensive, practical presentation of the basic
framework that many antitrust enforcement agencies use in the
substantive assessment of mergers.

Building on the success of the *Merger Guidelines Workbook*, the ICN is
currently focusing on three topics for initial consideration during the
coming year.

(1) ***The efficacy of an agency\'s legal framework for addressing
    anticompetitive mergers***. This topic, which is more focused than
    it may sound, encompasses a jurisdiction\'s general merger review
    powers---essentially, that an effective merger law needs to enable
    the agency to intervene to remedy the competitive concerns arising
    from a particular transaction and that remedies should be limited to
    merger-specific harms. For example, in the United States we amended
    our merger law in 1950 to close jurisdictional gaps that had allowed
    firms to circumvent merger law based upon how transactions were
    structured. This legislative change helped focus our merger reviews
    on substance rather than form.

(2) ***The use and role of presumptions and safe harbors or
    thresholds***. Many jurisdictions use intervention thresholds or
    presumptions, often based on market shares, to provide a basic
    indication of how a merger will be evaluated. Such presumptions can
    be useful starting points in providing guidance, or even certainty,
    to firms and streamlining the process for identifying those
    relatively few mergers that may be harmful. This topic will require
    a look at how presumptions are used in the merger context, both in
    guidelines and in practice.

(3) ***The analysis of entry and expansion***. This topic will explore
    two areas that commonly factor into merger guidelines and that can
    play a decisive role in many instances.

In general, there has been great cooperation and growing consensus in
both the procedure and substance of merger review globally, and we are
beginning to see the benefits of antitrust convergence resulting from
the work of the ICN. In trying to develop enhanced convergence on
substantive merger analysis, antitrust enforcement agencies are working
toward more efficient merger review and better consistency and
transparency so that they can provide better guidance to the business
community, refine their own practices, and offer recommended practices
to fledgling antitrust enforcement agencies.

There will always be differences in markets, local effects, procedures
and laws that may lead to reasonable differences in outcomes for some
transactions. I doubt we will ever completely eliminate all possible
sources of potential substantive divergence. Nevertheless, the very
exercise of identifying common ground and articulating the extent of
analytical convergence will bolster transparency, leading to a better
understanding of how our respective merger laws are enforced. By
addressing the burdens of initial filings, stressing the early
identification and subsequent investigation of only those mergers that
raise potential anticompetitive concerns, discussing common analytical
approaches, and promoting interagency coordination, we help to improve
the odds that agency decision-making outcomes will not conflict. And,
because of the frequency with which antitrust enforcement agencies deal
with mergers, any incremental improvements to merger analysis that we
take away from the project can generate significant benefits.

**IV. Unilateral Conduct**

Finally, some challenging news: around the world unilateral conduct
continues to raise complex and difficult issues and be the subject of
vigorous debate in the antitrust community today. Let me make the
following observations generally about unilateral conduct.

**First**, unilateral conduct is an important part of antitrust
enforcement. You hear a lot of people, me included, talking about the
importance of not enforcing the antitrust laws against unilateral
conduct in ways that can be more harmful than helpful. You hear that
because we are coming from a history in the United States where, in
hindsight, we did not fully appreciate the potential competitive
benefits of many activities. Unduly restrictive standards, rather than
helping consumers, can have the unfortunate consequence of harming
consumers by chilling innovation and discouraging competition.

**Second**, we have less consensus on unilateral conduct issues in the
United States and abroad than we do in other areas of antitrust
enforcement. I do not want to overstate the differences because there
are many areas of consensus. To this end, the Antitrust Division and the
Federal Trade Commission held a series of hearings this year with a view
toward improving the state of our knowledge in this area. Globally,
antitrust enforcement agencies agree that we need more dialogue and more
careful thought in an area where it is often difficult to differentiate
between vigorous competition and anticompetitive conduct.

Generally, there is agreement that unilateral conduct should be
condemned only if it is shown to harm competition (not just competitors)
based on the application of sound economic principles. But efforts to
determine clear and objective standards that will apply in all
unilateral conduct matters continue to generate significant debate, and
no test proposed thus far has achieved consensus support.

**Third**, in an increasingly globalized economy, antitrust authorities
must be careful to consider the geographic scope of their actions. As
the Antitrust Division advocated and the Supreme Court recognized in its
*Empagran* decision, antitrust enforcement that reaches alleged harm
outside a country\'s own borders \"creates a serious risk of
interference with a foreign nation\'s ability independently to regulate
its own commercial affairs.\"[^9] It is important that antitrust
enforcement agencies work cooperatively to minimize this concern.

**Fourth**, the Supreme Court\'s most frequently cited recitation of the
elements of a Sherman Act Section 2 claim is the following: \"(1) the
possession of monopoly power in the relevant market and (2) the willful
acquisition or maintenance of that power as distinguished from growth or
development as a consequence of a superior product, business acumen, or
historic accident.\"[^10] Translating this general principle into
operational rules and guidance for the business community is difficult.
In this regard I offer five broad principles to inform our enforcement
policy and to guide our discussions.

(1) ***Individual firms with monopoly power can act anticompetitively
    and harm consumer welfare***, and we should seek to identify and
    prosecute such conduct.

(2) ***Mere size does not demonstrate harm to competition or a violation
    of the antitrust laws***. The proper focus of antitrust law is on
    anticompetitive conduct and effect, not just size or market share.

(3) ***Mere injury to a firm does not itself show that competition has
    suffered***. Indeed, a firm\'s inability to garner sales may
    indicate no more than the superiority of its competitors\' products.
    A successful firm should not be penalized for creating a product
    that is preferred by consumers and is widely available at a low
    cost. Further, the loss of sales can be an important incentive to
    other firms to redouble their efforts to offer new and better
    products at the lowest possible price.

(4) ***Both consumers and the business community benefit from clear,
    administrable and objective rules*** that both allow businesses to
    assess the legality of a practice before acting and enable enforcers
    and courts to judge challenged conduct predictably and correctly.
    This is particularly true in the context of unilateral conduct. It
    is important to remember that every time a firm is kept from
    engaging in aggressive conduct because it fears an unnecessarily
    expansive interpretation of the antitrust laws, competition is
    harmed.

(5) ***A remedy that harms competition is worse than no remedy at
    all***. A remedy needs to be effective and administrable by courts
    and agencies without restricting competition.

As a final consideration in this regard, firms in the marketplace
generally can choose between a strategy of competing on the merits or a
strategy of seeking government intervention to slow down their
competitors. If it is predictable that losers in the marketplace can
become winners because antitrust enforcement agencies and courts will
compel access to a competitor\'s property or prohibit the competitive
actions of a big firm, then competitors who cannot win on the merits
will find it more desirable to seek government help rather than do the
hard work of competing in the marketplace. On the other hand, for firms
that do choose to compete, intervention can deter broad categories of
vigorous competitive behavior.

**V. Conclusion**

Given the increasingly international nature of antitrust enforcement,
cooperation among antitrust enforcers and convergence in our principles
and practices has become imperative. Though antitrust enforcement
agencies may have some differing views and practices when it comes to
addressing anticompetitive conduct, it is important that we not lose
sight of our successes.

In the area of anti-cartel enforcement, we are united in our commitment
to detect, deter and prosecute hard core anticompetitive conduct. With
respect to unilateral conduct, though we still need more dialogue and
careful thought, there are significant areas of agreement among
antitrust enforcers. And finally, for merger enforcement one might say
that we are somewhere in between. While there remains work to be done,
there has been great cooperation and growing consensus in both the
substance and procedure of merger review.

Thank you for the opportunity to speak to you today.

[^1]: *Verizon Communications v. Law Offices of Curtis V. Trinko*, 540
    U.S. 398, 408 (2004).

[^2]: OECD Competition Committee, *Hard Core Cartels: Third Report on
    the Implementation of the 1998 Recommendation* (December 15, 2005),
    *available at* http://www.oecd.org/dataoecd/58/1/35863307.pdf.

[^3]: Press Release, U.S. Department of Justice, Eight Executives
    Arrested On Charges Of Conspiring To Rig Bids, Fix Prices, And
    Allocate Markets For Sales of Marine Hose (May 2, 2007), *available
    at* http://www.usdoj.gov/atr/public/press_releases/2007/223037.htm.

[^4]: Press Release, U.S. Department of Justice, British Airways Plc.
    and Korean Airlines Ltd. Agree to Plead Guilty and Pay Fines
    Totaling \$600 Million For Fixing Prices on Passenger and Cargo
    Flights (August 1, 2007), *available at*
    http://www.usdoj.gov/atr/public/press_releases/2007/224928.htm. I am
    recused from the British Airways matter.

[^5]: Press Release, British Airways to Pay Record £121.5m Penalty in
    Price Fixing Investigation (August 1, 2007), *available at*
    http://www.oft.gov.uk/news/press/2007/113-07.

[^6]: *The Government of the United States of America v. Norris* (Bow
    St. Magis. Ct. 2005). In June 2005 a British magistrates\' court
    found Norris extraditable to the United States on an antitrust
    charge. In September 2005 the British Home Secretary ordered the
    defendant\'s extradition. In January 2007 High Court of Justice
    dismissed appeals filed by Norris. The appeals included challenges
    based on the dual criminality requirement for extradition, a claim
    that obstruction of foreign investigators is not an extradition
    offense, human rights arguments, and the passage of time since the
    dates of the charged offenses. In June 2007 the House of Lords
    granted Norris leave to appeal, in part, the High Court\'s ruling.
    The appeal is scheduled to be heard in January 2008.

[^7]: *See* Press Release, Sixth Samsung Executive Agrees to Plead
    Guilty to Participating in Dram Price-Fixing Cartel (April 19,
    2007), *available at*
    http://www.usdoj.gov/atr/public/press_releases/2007/222770.htm.

[^8]: The ICN was created in October 2001 by sixteen competition
    agencies from around the world, and now includes one hundred member
    antitrust enforcement agencies from nearly ninety jurisdictions. Its
    mission is to provide antitrust enforcement agencies with a focused
    network for addressing practical antitrust enforcement and policy
    issues of common concern, and to formulate proposals for procedural
    and substantive convergence on competition policy issues.

[^9]: *F. Hoffmann-La Roche Ltd. v. Empagran S.A.*, 542 U.S. 155, 165
    (2004).

[^10]: *United States v. Grinnell Corp.*, 384 U.S. 563, 570-71 (1966).