ANTITRUST GUIDELINES FOR

INTERNATIONAL ENFORCEMENT 

AND COOPERATION

Issued by the:

U.S. DEPARTMENT OF JUSTICE

and

FEDERAL TRADE COMMISSION

January 13, 2017
i

TABLE OF CONTENTS

1. Introduction......................................................................................................... 1

2. Relevant Antitrust and Related Statutes ...................................................... 4

2.1 Sherman Antitrust Act .................................................................................... 4

2.2 Federal Trade Commission Act ..................................................................... 5

2.3 Clayton Antitrust Act ...................................................................................... 6

2.4 Hart-Scott-Rodino Antitrust Improvements Act of 1976 ......................... 7

2.5 Antitrust Criminal Penalty Enhancement 

 and Reform Act of 2004 ................................................................................... 9

2.6 International Antitrust Enforcement Assistance Act ............................10

2.7 National Cooperative Research and Production Act .............................11

2.8 Webb-Pomerene Act .......................................................................................12

2.9 Export Trading Company Act of 1982........................................................12

2.10 Wilson Tariff Act...........................................................................................15

2.11 Trade Act of 1974, Section 301 ...................................................................15

2.12 Tariff Act of 1930...........................................................................................15

3. Agencies’ Application of U.S. Antitrust Law to Conduct Involving 

Foreign Commerce...................................................................................................16

3.1 Conduct Involving Import Commerce .......................................................19

3.2 Conduct Involving Non-Import Foreign Commerce...............................21

3.3 Conduct Involving U.S. Government Financing or Purchasing..........26

4. Agencies’ Consideration of Foreign Jurisdictions .......................................27

4.1 Comity...............................................................................................................27
ii

4.2 Consideration of Foreign Government Involvement .............................29

4.2.1 Foreign Sovereign Immunity....................................................................... 30

4.2.2 Foreign Sovereign Compulsion.................................................................... 32

4.2.3 Act of State Doctrine .................................................................................... 35

4.2.4 Petitioning of Sovereigns ............................................................................. 36

5. International Cooperation.................................................................................37

5.1 Investigations and Cooperation..................................................................38

5.1.1 Investigative Tools ....................................................................................... 38

5.1.2 Confidentiality ............................................................................................. 40

5.1.3 Legal Bases for Cooperation ........................................................................ 42

5.1.4 Types of Information Exchanged and Waivers of Confidentiality ............. 44

5.1.5 Remedies ...................................................................................................... 47

5.2 Special Considerations in Criminal Investigations................................49

Annex 1. Defined Terms......................................................................................... A1
1

1. Introduction

“The heart of our national economic policy long has been faith in the value of 

competition,”1 and the U.S. antitrust laws have stood as the ultimate protector of 

competition in our free market economy. That policy and these laws rest “on the 

premise that the unrestrained interaction of competitive forces will yield the best 

allocation of our economic resources, the lowest prices, the highest quality and the 

greatest material progress.”2 To protect U.S. consumers and businesses from 

anticompetitive conduct in foreign commerce, the federal antitrust laws have 

applied to “commerce with foreign nations” since their inception.3

Since the 1995 release of the Antitrust Enforcement Guidelines for International 

Operations, trade between the United States and other countries has expanded at a 

tremendous rate. With this expansion, the federal antitrust laws have played an 

increasingly important role in protecting consumers and businesses purchasing in 

U.S. import commerce and exporters selling in U.S. export commerce from 

anticompetitive conduct. In addition, anticompetitive conduct—from price-fixing 

cartels to competition-reducing mergers and monopolization—increasingly is subject 

to investigation and, in some cases, remedial action by foreign authorities. 

The Department of Justice (the “Department”) and the Federal Trade Commission 

(the “Commission” or “FTC”) (collectively the “Agencies”) are charged with 

enforcement of the federal antitrust laws, an essential component of which is the 

application of these laws to foreign commerce. Moreover, the Agencies cooperate on 

their antitrust enforcement with foreign authorities wherever appropriate. 

In furtherance of that enforcement and in recognition of the role of international 

cooperation, the Agencies issue these Antitrust Guidelines for International 

Enforcement and Cooperation (“International Guidelines”), which replace the 

1995 Antitrust Enforcement Guidelines for International Operations. The 

International Guidelines provide updated guidance to businesses engaged in 

international activities on questions that concern the Agencies’ international 

enforcement policy as well as the Agencies’ related investigative tools and 

cooperation with foreign authorities.

 1 Standard Oil Co. v. Fed. Trade Comm’n, 340 U.S. 231, 248 (1951).

2 N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958).

3 See infra Sections 3.1 and 3.2 for a discussion of the meaning of “commerce with 

foreign nations.”
2

Many nations share our faith in the value of competition, and as of 2017, over

130 jurisdictions have enacted antitrust laws as a means to ensure open and free 

markets, promote consumer welfare, and prevent conduct that impedes competition. 

Accordingly, the Agencies have expanded their efforts and committed greater 

resources to building and maintaining strong relationships with foreign authorities 

to promote greater policy engagement. This engagement with foreign authorities 

has multiple goals, notably: increasing global understanding of different 

jurisdictions’ respective antitrust laws, policies, and procedures; contributing to 

procedural and substantive convergence toward best practices; and facilitating 

enforcement cooperation internationally. The Agencies have championed and 

continue to promote this engagement, focusing on substantive enforcement 

standards that seek to advance consumer welfare based on sound economics,

procedural fairness, transparency, and non-discriminatory treatment of parties. 

In furtherance of these goals, the Agencies raise important policy and practical 

antitrust issues with foreign authorities bilaterally and through multilateral 

organizations such as the Competition Committee of the Organisation for Economic 

Co-operation and Development (“OECD”), the International Competition Network 

(“ICN”), the United Nations Conference on Trade and Development (“UNCTAD”), 

and the Asia-Pacific Economic Cooperation (“APEC”) forum. These efforts have 

resulted in the development and implementation of standards of international best 

practice and consensus guidance on substantive antitrust and procedural fairness.4

Consistent approaches to competition law, policy, and procedures across 

jurisdictions facilitate cooperation among competition agencies, and increase the 

effectiveness and predictability of enforcement, which benefits the Agencies, 

consumers, and the business community.

In the United States, the Agencies are responsible for international antitrust policy 

engagement and cooperation. The Agencies also work within the U.S. government to 

 4 See, e.g., Int’l Competition Network, Guidance on Investigative Process, 

http://www.internationalcompetitionnetwork.org/uploads/library/doc1028.pdf; Org. 

for Econ. Co-Operation & Dev., Recommendation Concerning International Cooperation on Competition Investigations and Proceedings (2014), http://www.oecd. 

org/daf/competition/2014-rec-internat-coop-competition.pdf; Int’l Competition 

Network, Recommended Practices on the Assessment of Dominance/Substantial 

Market Power; http://www.internationalcompetitionnetwork.org/uploads/library/ 

doc317.pdf; Int’l Competition Network, Recommended Practices for Merger 

Notification and Review Procedures, http://www.internationalcompetitionnetwork. 

org/uploads/library/doc588.pdf; Org. for Econ. Co-Operation & Dev., 

Recommendation Concerning Effective Action Against Hard Core Cartels (1998),

https://www.oecd.org/daf/competition/2350130.pdf.
3

ensure that broader U.S. policy and engagement appropriately reflects an 

understanding of complex international antitrust issues and accepted principles of 

competition law, economics, and policy. Consumers and businesses are welcome to 

contact the Agencies concerning the application and enforcement of antitrust law 

and policy internationally.

In addition to this introductory chapter, the International Guidelines are divided 

into four other chapters. Chapter 2 provides a brief summary of the antitrust and 

related laws that are likely to have the greatest significance for businesses engaged 

in international activities. Chapter 3 describes what connections to the United 

States are sufficient for the Agencies to investigate or bring enforcement actions 

challenging conduct occurring abroad or involving or affecting foreign commerce. 

Chapter 4 describes the Agencies’ consideration of international comity concerns 

and the role of foreign government involvement in determining whether to open an 

investigation or bring an enforcement action. Chapter 5 provides guidance on the 

Agencies’ pertinent investigatory tools and their enforcement cooperation with 

foreign authorities. These International Guidelines also include a number of 

examples that are intended to illustrate how the principles and policies discussed 

may operate in certain contexts.5

As is the case with all guidelines issued by the Agencies, users should rely on 

qualified counsel to assist them in evaluating the antitrust risk associated with any 

contemplated transaction or activity.6 No set of guidelines could possibly indicate 

how the Agencies will assess the particular facts of every case. Persons seeking 

more specific advance statements of enforcement intentions with respect to the 

issues discussed in the International Guidelines should use other procedures, which 

may include the Department’s Business Review procedure7 and the Commission’s 

Advisory Opinion procedure.8 Other existing Department and Commission 

guidelines and statements are not qualified, modified, or otherwise amended by the 

 5 The ultimate outcome of the analysis in a particular case, i.e., in determining 

whether or not a violation of the federal antitrust laws has occurred, or the manner 

in which the Agencies may cooperate with foreign authorities, depends on the 

specific facts and circumstances of the case.

6 Users also should evaluate separately the risk of private litigation by competitors, 

consumers, and suppliers, as well as the risk of enforcement by state prosecutors 

under state and federal antitrust laws.

7 28 C.F.R. § 50.6.

8 16 C.F.R. §§ 1.1-1.4.
4

issuance of these International Guidelines. The International Guidelines are not 

intended to, do not, and may not be relied upon to create any rights, substantive or 

procedural, enforceable at law by any party in any matter, civil or criminal. Nor are 

any limitations hereby placed on otherwise lawful litigative prerogatives of the 

Department or Commission.

2. Relevant Antitrust and Related Statutes

Cases involving foreign commerce or foreign conduct can involve almost any 

provision of the federal antitrust laws. The Agencies do not discriminate in the 

enforcement of the antitrust laws based on the nationality of the parties. Nor do the 

Agencies employ their statutory authority to further non-antitrust goals. When the 

Agencies determine that a sufficient nexus to the United States exists to apply the 

antitrust laws9 and that neither international comity nor the involvement of a 

foreign jurisdiction precludes investigation or enforcement,10 the Agencies apply the 

same substantive rules to all cases. The following is a brief summary of the 

antitrust and related statutes that are likely to have the greatest significance for 

businesses engaged in international activities.

2.1 Sherman Antitrust Act

The Sherman Antitrust Act (“Sherman Act”) sets forth general antitrust 

prohibitions.11 Section 1 of the Sherman Act outlaws contracts, combinations, and 

conspiracies that unreasonably restrain “trade or commerce among the several 

States, or with foreign nations.”12 Section 2 outlaws monopolization, attempts to 

monopolize, and conspiracies to monopolize “any part of the trade or commerce 

among the several States, or with foreign nations.”13 Section 6a, added by the 

Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”), clarifies the 

Sherman Act’s application to conduct involving only non-import foreign commerce.14

 9 See infra Sections 3.1-3.3. 

10 See infra Sections 4.1-4.2. 

11 15 U.S.C. §§ 1-7.

12 Id. § 1.

13 Id. § 2.

14 Id. § 6a; see infra Sections 2.9, 3.1, and 3.2. 
5

Violations of the Sherman Act may be prosecuted as civil or criminal offenses. The 

Department has sole responsibility for the criminal enforcement of the Sherman Act 

and criminally prosecutes traditional per se offenses of the law, which typically 

involve price fixing, customer allocation, bid rigging, or other cartel activities that 

would also be violations of the law in many countries. Criminal violations of the Act 

are punishable by fines and imprisonment. The Sherman Act provides that 

corporate defendants may be fined up to $100 million and individual defendants 

may be fined up to $1 million and sentenced to up to 10 years imprisonment.15

In a civil proceeding, the Department may obtain equitable relief to prevent and 

restrain violations of the Sherman Act.16 It may also obtain treble damages if the 

U.S. government is injured in its business or property by a violation, for example as 

a purchaser of affected goods or services.17 Private plaintiffs may also obtain 

injunctive and treble damage relief for violations of the Sherman Act.18

2.2 Federal Trade Commission Act

Section 5 of the Federal Trade Commission Act (“FTC Act”) declares unlawful 

“unfair methods of competition in or affecting commerce, and unfair or deceptive 

acts or practices in or affecting commerce.”19 Pursuant to its authority to prevent 

unfair methods of competition, the Commission may take administrative action 

against conduct that violates the Sherman Act or the Clayton Antitrust Act 

(“Clayton Act”), as well as anticompetitive practices that do not fall within the scope 

 15 15 U.S.C. §§ 1-3. Defendants may be fined up to twice the gross pecuniary gain or 

loss caused by their offense in lieu of the Sherman Act fines, pursuant to 18 U.S.C. 

§ 3571(d). Defendants may also be placed on probation for up to five years. The U.S. 

Sentencing Commission Guidelines provide advisory sentences or sentencing ranges 

for antitrust offenses. See U.S.S.G. § 2R1.1 & ch. 8. In determining the appropriate 

sentence, the court must consider the Guidelines’ advisory sentence or sentencing 

range, as well as the other factors in 18 U.S.C. § 3553(a) and also, for fines, the 

factors in 18 U.S.C. § 3572(a). The Department generally seeks sentences consistent 

with the Guidelines.

16 15 U.S.C. § 4.

17 Id. § 15a.

18 See id. §§ 15, 26. 

19Id. § 45.
6

of the Sherman or Clayton Acts.20 The Commission may also seek injunctive relief 

in federal court under Section 13(b) of the FTC Act.21 These International 

Guidelines pertain only to the Commission’s antitrust enforcement authority under 

Section 5’s prohibition of unfair methods of competition. Section 5(a)(3) of the FTC 

Act, added by the Foreign Trade Antitrust Improvements Act of 1982, clarifies the 

FTC Act’s application to conduct involving only non-import foreign commerce.22

2.3 Clayton Antitrust Act

The Clayton Act expands on the general prohibitions of the Sherman Act and 

addresses anticompetitive problems in their incipiency.23 Section 7 of the Clayton 

Act prohibits any merger or acquisition of stock or assets “where in any line of 

commerce or in any activity affecting commerce in any section of the country, the 

effect of such acquisition may be substantially to lessen competition, or to tend to 

create a monopoly.”24 The Agency reviewing a transaction that would violate 

Section 7 can seek a federal court order enjoining its consummation.25 In addition, 

 20 Id. § 45(b). See Fed. Trade Comm’n, Statement of Enforcement Principles 

Regarding “Unfair methods of Competition” Under Section 5 of the FTC Act, 

https://www.ftc.gov/public-statements/2015/08/statement-enforcement-principlesregarding-unfair-methods-competition. 

21 15 U.S.C. § 53(b). 

22 Id. § 45(a)(3).

23 Id. §§ 12-27. Under the Clayton Act, “commerce” includes “trade or commerce 

among the several States and with foreign nations,” and “person” includes 

corporations or associations existing under or authorized either by the laws of the 

United States or any of its states or territories, or by the laws of any foreign 

country. Id. § 12.

24 Id. § 18. The asset acquisition clause applies to “person[s] subject to the 

jurisdiction of the Federal Trade Commission” under the Clayton Act.

25 Id. § 25 (Clayton Act); id. § 53(b) (FTC Act). On August 19, 2010, the Agencies 

issued revised Horizontal Merger Guidelines, which outline their principal 

analytical techniques, practices, and enforcement policy with respect to mergers 

and acquisitions involving actual or potential competitors under the federal 

antitrust laws. U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger 

Guidelines (2010), https://www.justice.gov/sites/default/files/atr/legacy/2010/08/19/ 

hmg-2010.pdf. 
7

the Commission may seek a cease and desist order in an administrative proceeding 

against a merger under Section 11 of the Clayton Act, Section 5 of the FTC Act, or 

both.26 Private parties and state Attorneys General may also seek injunctive relief 

under the Clayton Act.27

Section 3 of the Clayton Act prohibits any person engaged in commerce from 

conditioning the lease or sale of goods or commodities upon the purchaser’s 

agreement not to use the products of a competitor, if the effect may be “to 

substantially lessen competition or tend to create a monopoly in any line of 

commerce.”28 In evaluating transactions, courts use the same analysis employed in 

the evaluation of tying under Section 1 of the Sherman Act to assess a defendant’s 

liability under Section 3 of the Clayton Act.29

Section 2 of the Clayton Act, as amended by the Robinson-Patman Act,30 prohibits 

price discrimination in certain circumstances. In practice, the Commission has 

exercised principal responsibility for enforcing this provision.

2.4 Hart-Scott-Rodino Antitrust Improvements Act of 1976

Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) 

facilitates the Agencies’ enforcement of the antitrust laws with respect to 

anticompetitive mergers and acquisitions. It requires that persons provide notice to 

the Agencies of certain proposed mergers or acquisitions and imposes a waiting 

 26 15 U.S.C. § 21 (Clayton Act); id. § 45 (FTC Act). 

27 Id. §§ 15c, 26.

28 Id. § 14.

29 See, e.g., Sheridan v. Marathon Petroleum Co., 530 F.3d 590, 592 (7th Cir. 2008) 

(“Though some old cases say otherwise, the standards for adjudicating tying under 

the two statutes are now recognized to be the same.”).

30 15 U.S.C. §§ 13-13b, 21a. The Robinson-Patman Act applies only to purchases 

involving commodities “for use, consumption, or resale within the United States.” 

Id. § 13(a). It has been construed not to apply to sales for export. See, e.g., Gen. 

Chem., Inc. v. Exxon Chem. Co., 625 F.2d 1231, 1234 (5th Cir. 1980). Intervening 

domestic sales, however, would be subject to the Act. See Raul Int‘l Corp. v. Sealed 

Power Corp., 586 F. Supp. 349, 351-55 (D.N.J. 1984).
8

period on these mergers or acquisitions.31 Transactions are subject to these 

requirements only if they meet certain conditions, including minimum size 

thresholds.32 Some transactions are explicitly exempted from these requirements by 

the statute’s text.33 The HSR Act and the Hart-Scott-Rodino Premerger Notification 

Rules (“HSR Rules”)34 exempt from the notification requirements certain 

international transactions (typically those having little nexus to U.S. commerce) 

that otherwise meet the statutory thresholds.35 Transactions not subject to the HSR 

Act’s notification and waiting period requirements may still be subject to the 

Sherman Act, the FTC Act, or the Clayton Act, and the Agencies may seek to block 

or undo an anticompetitive merger or acquisition or seek other equitable relief when

any of those statutes applies.

If a transaction is subject to the HSR Act’s requirements, the parties must typically 

wait 30 days after providing notice to the Agencies before they may consummate it; 

the parties to cash tender offers must wait only 15 days.36 The Agency reviewing 

the transaction may request additional documents or information concerning a 

transaction, known as a “Second Request,” during this waiting period. Issuing a 

Second Request extends the waiting period until a certain number of days after the 

 31 15 U.S.C. § 18a. The scope of the Agencies’ jurisdiction under Section 7 of the 

Clayton Act, id. § 18, exceeds the scope of those transactions subject to the 

premerger notification requirements of the HSR Act. Enforcement responsibility in 

particular cases is allocated to either the Department or the Commission typically 

based on prior agency expertise in the relevant product market at issue. 

32 Id. § 18a(a). As a result of a 2000 amendment to the HSR Act, all minimum 

thresholds in the Act are adjusted annually based on changes in the gross national 

product. Id. § 18a(a)(2). The adjusted annual thresholds are announced in January 

of each year in the Federal Register, and are effective 30 days after publication. The 

current adjusted annual thresholds are available on the Commission’s website at

https://www.ftc.gov/enforcement/premerger-notification-program/currentthresholds.

33 15 U.S.C.§ 18a(c).

34 16 C.F.R. pt. 801-03. 

35 16 C.F.R. §§ 801.1(e), (k) & 802.50-53.

36 15 U.S.C. § 18a(b); 16 C.F.R. § 803.1; see also 11 U.S.C. § 363 (b)(2) (regarding 

certain transactions involving parties in bankruptcy). 
9

Agency has received the requested material and the party certifies substantial 

compliance; typically 30 days, but only 10 days for cash tender offers.37

Failure to comply with the HSR Act is punishable by court-imposed and potentially 

substantial civil monetary penalties.38 A court also may order injunctive relief to 

remedy a substantial failure to comply with the HSR Act.39

The HSR Act and the HSR Rules are necessarily technical and should be consulted

directly. Businesses may seek an interpretation of their obligations under the HSR 

Act and the HSR Rules from the Commission’s Premerger Notification Office.40

2.5 Antitrust Criminal Penalty Enhancement and Reform Act of 2004

The Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (“ACPERA”)

limits the liability for civil damages claims in private state or federal antitrust 

actions of a qualifying person cooperating with a criminal antitrust investigation by 

the Department.41 Specifically, for claims against a corporation that enters into an 

antitrust leniency agreement with the Department pursuant to its Corporate 

Leniency Policy42 or a cooperating individual covered by such an agreement, a 

claimant cannot recover damages exceeding the “portion of the actual damages 

sustained by such claimant which is attributable to the commerce done by the 

applicant in the goods or services affected by the violation.”43 To qualify for this 

 37 15 U.S.C. § 18a(e).

38 Id. § 18a(g)(1). In August 2016, the limit on these penalties was adjusted upward 

to $40,000 for each day a violation continues. That limit adjusts periodically based 

on inflation. 28 U.S.C. § 2461 note; 16 C.F.R. § 1.98(a).

39 15 U.S.C. § 18a(g)(2).

40 See 16 C.F.R. § 803.30.

41 Pub. L. 108-237, 118 Stat. 661 (codified as 15 U.S.C. § 1 note). Originally set to 

expire in 2009, the provision has been twice extended. Pub. L. 111-190, 124 Stat. 

1275 (2010); Pub. L. 111-30, 123 Stat. 1775 (2009). It is currently set to expire, 

absent further extension by Congress, on June 22, 2020. 

42 For information on the Department’s Antitrust Corporate Leniency Policy, see

https://www.justice.gov/atr/leniency-program.

43 15 U.S.C. § 1 note.
10

limitation, the corporation or cooperating individuals must meet the conditions of 

the Corporate Leniency Policy, including cooperating fully with the Department’s 

investigation, and must meet certain requirements in connection with the 

claimant’s civil action. These requirements include providing the claimant with a 

full account of all facts known to the corporation or cooperating individual that are 

potentially relevant to the civil action, furnishing the claimant with potentially 

relevant documents and other items wherever located, and, in the case of 

cooperating individuals, making himself or herself available for interviews, 

depositions, or testimony in connection with the civil action as the claimant may 

reasonably require.

2.6 International Antitrust Enforcement Assistance Act

The International Antitrust Enforcement Assistance Act (“IAEAA”)44 authorizes the 

Agencies to enter into antitrust-specific mutual assistance agreements with foreign 

authorities.45 Under such agreements, U.S. and foreign authorities may share 

evidence relating to antitrust violations already in their possession and provide 

each other with investigatory assistance in obtaining evidence, including statutorily 

protected confidential information.46 The IAEAA does not apply to materials 

submitted pursuant to the HSR Act.47 The Agencies entered into an IAEAA 

agreement with Australia in 1999.48

 44 15 U.S.C. § 6201 et seq.

45 Information relevant to antitrust enforcement may also be provided under 

generalized legal assistance treaties in force between the United States and a wide 

range of foreign partners. See infra Sections 5.1.3 and 5.2.

46 15 U.S.C. § 6201. Agreements entered into under the IAEAA’s authority must 

include, among other requirements, assurances that the foreign authority will 

protect the confidentiality of the information exchanged, id. § 6211(2)(A)-(C), and 

provisions addressing the permitted use of the evidence exchanged, id.

§ 6211(2)(E)(i), (ii).

47 Id. § 6204(1). 

48 Agreement Between the Government of the United States of America and The 

Government of Australia on Mutual Antitrust Enforcement Assistance, U.S.-Aus. 

(1999), reprinted in 4 Trade Rep. Reg. (CCH) ¶ 13,502A, available at

https://www.ftc.gov/policy/cooperation-agreements/usaaustralia-mutual-antitrustenforcement-assistance-agreement. 
11

2.7 National Cooperative Research and Production Act

The National Cooperative Research and Production Act (“NCRPA”), as amended by 

the Standards Development Organization Advancement Act of 2004,49 clarifies the 

substantive application of the state and federal antitrust laws to joint ventures and 

standards development organizations (“SDOs”) while engaged in standards 

development activity. It requires U.S. courts to judge the competitive effects of a 

challenged joint venture or SDO covered by the Act under a rule-of-reason 

standard.50 This approach is consistent with the Agencies’ general analysis of joint 

ventures.51 The Act further provides for the possible recovery of attorney’s fees by 

joint ventures and SDOs that are prevailing parties in damage actions brought 

against them under the antitrust laws.

The NCRPA also establishes a voluntary procedure pursuant to which parties to a 

joint venture or an SDO that meet certain criteria may notify the Agencies of their 

intention to engage in standards development activity. Under the statute, if 

participants provide notice to the Agencies, the amount of monetary relief 

obtainable in a private civil suit challenging the standards-development activity is 

limited to actual, rather than treble, damages so long as the challenged conduct is 

within the scope of the notification. This benefit is not available to joint production 

ventures, unless “(1) the principal facilities for such production are located in the 

 49 15 U.S.C. §§ 4301-06. 

50 Id. § 4302.

51 See, e.g., U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for the 

Licensing of Intellectual Property 5 (2017), https://www.justice.gov/atr/IPguidelines/ 

download; Fed. Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines for 

Collaborations Among Competitors, (2000), available at 

https://www.ftc.gov/sites/default/files/documents/public_events/ joint-venturehearings-antitrust-guidelines-collaboration-among-competitors/ ftcdojguidelines2.pdf; Fed. Trade Comm’n & U.S. Dep’t of Justice, Statements of Antitrust 

Enforcement Policy in Health Care, Stmt. 2 (1996), available at 

https://www.ftc.gov/sites/default/files/attachments/competition-policy-guidance/ 

statements_of_antitrust_enforcement_policy_in_health_care_august_1996.pdf

(outlining a four-step approach for joint venture analysis). See generally Am. Needle, 

Inc. v. Nat’l Football League, 560 U.S. 183 (2010); Texaco, Inc. v. Dagher, 547 U.S. 1 

(2006); Fed. Trade Comm’n v. Ind. Fed’n of Dentists, 476 U.S. 447 (1986); Nat’l 

Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85 (1984). See 

generally also In re Mass. Board of Registration in Optometry, 110 F.T.C. 549 

(1988).
12

United States or its territories, and (2) each person who controls any party to such 

venture (including such party itself) is a United States person, or a foreign person 

from a country whose law accords antitrust treatment no less favorable to United 

States persons than to such country’s domestic persons with respect to participation 

in joint ventures for production.”52

2.8 Webb-Pomerene Act

The Webb-Pomerene Act provides a limited antitrust exemption for the formation 

and operation of associations of otherwise competing businesses to engage 

collectively in export sales.53 The exemption applies only to the export of “goods, 

wares, or merchandise.”54 It does not apply to conduct that has an anticompetitive 

effect in the United States or that injures domestic competitors of the members of 

an export association. Nor does it provide any immunity from prosecution under 

foreign antitrust laws.55 Associations seeking an exemption under the WebbPomerene Act must file their articles of agreement and annual reports with the 

Commission, but pre-formation approval from the Commission is not required. Few 

associations file reports with the FTC; those reports are available on the 

Commission’s website.56

2.9 Export Trading Company Act of 1982

The Export Trading Company Act of 1982 (“ETC Act”)57 is designed to increase U.S. 

exports of goods and services in several ways.58 In Title II, it encourages more 

 52 15 U.S.C. § 4306(2). 

53 Id. §§ 61-65.

54Id. § 61.

55 See, e.g., Case C-89/85, Ahlström v. Comm’n, 1988 E.C.R. 5193 (finding WebbPomerene association was not exempt from violations of European antitrust law); 

Commission Decision of 19 December 1990 Relating to a Proceeding Under Article 

85 of the EEC Treaty, 1991 O.J. (L 152) 16-20 (denying antitrust exemption to soda 

ash Webb-Pomerene association); Competition Comm’n v. Am. Nat. Soda Ash Corp., 

2008 ZACT 92 (South Africa) (settlement by Webb-Pomerene association with 

Competition Tribunal South Africa for violations of antitrust laws). 

56 Webb-Pomerene Act filings are available at https://www.ftc.gov/policy/reports/ 

webb-pomerene-act-filings. Two associations filed reports with the FTC for 2015.

57 Pub L. No. 97-290, 96 Stat. 1233 (codified in scattered sections of 15 U.S.C.).
13

efficient provision of export trade services to U.S. producers and suppliers by 

reducing restrictions on trade financing provided by financial institutions.59 In Title 

III, it reduces uncertainty concerning the application of the U.S. antitrust laws to 

export trade through the creation of a procedure by which persons engaging in U.S. 

export trade may obtain an export trade certificate of review (“ETCR”).60 In Title IV, 

also known as the Foreign Trade Antitrust Improvement Act of 1982 or FTAIA, it 

clarifies the application of the Sherman Act and the FTC Act to conduct involving 

only non-import foreign commerce.61 The Title III certificates are discussed briefly 

here; the application of the Sherman Act and FTC Act is treated below in Chapter 3. 

Export trade certificates of review are issued by the Secretary of Commerce with 

the concurrence of the Department. Persons named in the ETCR obtain limited 

immunity from suit under both federal and state antitrust laws for activities that 

are specified in the certificate and that comply with the terms of the certificate.62 To 

obtain an ETCR, an applicant must show that proposed export conduct will: 

1. result in neither a substantial lessening of competition or restraint of trade 

within the United States nor a substantial restraint of the export trade of any 

competitor of the applicant; 

2. not unreasonably enhance, stabilize, or depress prices in the United States of 

the class of goods or services covered by the application; 

3. not constitute unfair methods of competition against competitors engaged in 

the export of the class of goods or services exported by the applicant; and 

4. not include any act that may reasonably be expected to result in the sale for 

consumption or resale in the United States of such goods or services.63

Congress intended that these standards “encompass the full range of the antitrust 

laws,” as defined in the ETC Act.64

 58 15 U.S.C. § 4001(b).

59 See 12 U.S.C. §§ 372, 635 a-4, 1841, 1843. Because Title II does not implicate the 

antitrust laws, it is not discussed further in these Guidelines.

60 15 U.S.C. §§ 4011-21.

61 Id. § 6a (Sherman Act); id. § 45(a)(3) (FTC Act); see infra Sections 3.1-3.3.

62 H.R. REP. NO. 97-924, at 26 (1982); see 15 U.S.C. § 4021(6).

63 15 U.S.C. § 4013(a).
14

The protections provided by an ETCR from the federal and state antitrust laws are 

not unlimited. First, conduct that falls outside the scope of a certificate remains 

fully subject to private and governmental enforcement actions. Second, an ETCR 

that is obtained by fraud is void from the outset and thus offers no protection under 

the antitrust laws. Third, any person that has been injured by certified conduct may 

recover actual (though not treble) damages if that conduct is found to violate any of 

the statutory criteria described above.65 In any such action, certified conduct enjoys 

a presumption of legality, and the prevailing party is entitled to recover costs and 

attorneys’ fees.66 Fourth, an ETCR does not constitute, explicitly or implicitly, an 

endorsement or opinion by the Secretary of Commerce or by the Department 

concerning the legality of such business plans under the laws of any foreign country. 

Finally, an ETCR does not insulate conduct from investigation or enforcement by a 

foreign antitrust authority. 

The Secretary of Commerce may revoke or modify an ETCR if the Secretary or the 

Department determines that the applicant’s export activities have ceased to comply 

with the statutory criteria for obtaining a certificate.67 The Department may also 

bring suit under Section 15 of the Clayton Act to enjoin conduct that threatens a 

“clear and irreparable harm to the national interest,”68 even if the conduct has been 

pre-approved as part of an ETCR. 

The Commerce Department, in consultation with the Department, has issued 

guidelines setting forth the standards used in reviewing ETCR applications.69

 64 H.R. REP. NO. 97-924, at 26(1982); see 15 U.S.C. § 4021(6). 

65 15 U.S.C. § 4016(b)(1).

66 See id. § 4016(b)(3), (b)(4). 

67 Id. § 4014(b).

68 Id. § 4016(b)(5); see also id. § 25.

69 See Int’l Trade Admin. (U.S. Dep’t of Commerce), The Export Trade Certificate of 

Review Program - The Competitive Edge for U.S. Exporters: Guidelines (2015), 

http://trade.gov/mas/ian/etca/tg_ian_002140.asp. The Commerce Department’s 

Export Trading Company Guidebook provides information on establishing and 

using an export trading company, including factors to consider when applying for an 

ETCR. Int’l Trade Admin. (U.S. Dep’t of Commerce), The Export Trading Company 

Guidebook (1987). As of the date of these Guidelines, there are approximately 

80 active certificates. 
15

2.10 Wilson Tariff Act

The Wilson Tariff Act70 prohibits “every combination, conspiracy, trust, agreement, 

or contract” made by or between two or more persons or corporations, either of 

whom is engaged in importing any article from a foreign country into the United 

States, where the agreement is intended to restrain trade or increase the market 

price in any part of the United States of the imported articles, or of “any 

manufacture into which such imported article enters or is intended to enter.” 

Violation of the Wilson Tariff Act is a misdemeanor, punishable by a maximum fine 

of $5,000 or one year in prison. This Act also provides for seizure of the imported 

articles.71

2.11 Trade Act of 1974, Section 301

Section 301 of the Trade Act of 1974 provides that the U.S. Trade Representative 

(“USTR”), subject to the specific direction, if any, of the President, may take action, 

including restricting imports, to enforce rights of the United States under any trade 

agreement, to address acts inconsistent with the international legal rights of the 

United States, or to respond to unjustifiable, unreasonable or discriminatory 

practices of foreign governments that burden or restrict U.S. commerce.72 Interested 

parties may initiate such actions through petitions to the USTR, or the USTR may 

itself initiate proceedings. Section 301(d)(3)(B)(i)(IV) includes the “toleration by a 

foreign government of systematic anticompetitive activities by enterprises or among 

enterprises in the foreign country that have the effect of restricting . . . access of 

United States goods or services to a foreign market” as one of the “unreasonable” 

practices that might justify such a proceeding.73 The Department participates in the 

interagency committee that makes recommendations to the President on what 

actions, if any, should be taken.

2.12 Tariff Act of 1930

The Tariff Act of 193074 provides remedies for certain violations of the trade laws 

with antitrust implications, including violations of the laws regarding 

 70 15 U.S.C. §§ 8-11.

71 Id. § 11.

72 19 U.S.C. § 2411.

73 Id.

74 Id.§§ 1202 et seq.
16

countervailing and anti-dumping duties.75 Significant for purposes of the Agencies’ 

enforcement of the federal antitrust laws, certain settlements of trade disputes 

entered under specific procedures set forth in the U.S. trade laws are granted 

implied immunity under this Act, even if the settlement involves price and quantity 

agreements or otherwise implicates the antitrust laws.76 Agreements among 

competitors that do not comply with specific procedures in the U.S. trade laws or go 

beyond the measures authorized by such laws, however, are subject to the antitrust 

laws to the same extent as conduct unrelated to the settlement of a trade dispute. 

In the absence of legal authority, the fact, without more, that U.S. or foreign 

government officials were involved in or encouraged measures that would otherwise 

violate the antitrust laws does not immunize such arrangements.77

3. Agencies’ Application of U.S. Antitrust Law to Conduct 

Involving Foreign Commerce

In making investigative and enforcement decisions, the Agencies focus on whether 

there is a sufficient connection between the anticompetitive conduct and the United 

States such that the federal antitrust laws apply and the Agencies’ enforcement 

would redress harm or threatened harm to U.S. commerce and consumers. This 

Chapter describes circumstances under which a sufficient connection exists. If the 

Agencies determine that a sufficient connection exists, the Agencies generally will 

 75 Id. §§ 1671, 1673. 

76 See, e.g., Letter from Charles F. Rule, Acting Assistant Attorney General, 

Antitrust Division, Department of Justice, to Mr. Makoto Kuroda, Vice-Minister for 

International Affairs, Japanese Ministry of International Trade and Industry, July 

30, 1986 (concluding that a suspension agreement did not violate the antitrust laws 

on the basis of factual representations that the agreement applied only to products 

under investigation, that it did not require pricing above levels needed to eliminate 

sales below foreign market value, and that assigning weighted-average foreign 

market values to exporters who were not respondents in the investigation was 

necessary to achieve the purpose of the anti-dumping law).

77 Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 226 (1940) (“Though 

employees of the government may have known of those programs and winked at 

them or tacitly approved them, no immunity would have thereby been obtained. For 

Congress had specified the precise manner and method of securing immunity [in the 

National Industrial Recovery Act]. None other would suffice. . . .”); see also Otter 

Tail Power Co. v. United States, 410 U.S. 366, 378-79 (1973).
17

proceed in the normal course, subject to the considerations described in Chapter 4 

and principles of prosecutorial discretion.

It is well established that the federal antitrust laws apply to foreign conduct that 

has a substantial and intended effect in the United States.78 In 1982, Congress 

reaffirmed the applicability of the antitrust laws to conduct involving foreign 

commerce when it passed the FTAIA, which added Section 6a to the Sherman Act 

and Section 5(a)(3) to the FTC Act.79 These provisions clarify whether the antitrust 

laws reach conduct—regardless of where it takes place—that involves trade or 

commerce with foreign nations.80 Specifically, Section 6a provides:

Sections 1 to 7 of [the Sherman Act] shall not apply to conduct involving 

trade or commerce (other than import trade or import commerce) with foreign 

nations unless—

(1) such conduct has a direct, substantial, and reasonably foreseeable 

effect—

(A) on trade or commerce which is not trade or commerce with 

foreign nations, or on import trade or import commerce with 

foreign nations; or

 78 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796 (1993); United States v. 

Nippon Paper Indus. Co., 109 F.3d 1, 9 (1st Cir. 1997); United States v. Aluminum 

Co. of Am., 148 F.2d 416, 444 (2d Cir. 1945).

79 15 U.S.C. § 6a (Sherman Act); id. § 45(a)(3) (FTC Act).

80 The Supreme Court and other courts have declined to consider whether 

Section 6a amended existing law or merely codified it. Hartford Fire, 509 U.S. 

at 796 n.23; Nippon Paper, 109 F.3d at 4. Other courts have held that Section 6a 

supplanted the prior standard for the extraterritorial reach of the Sherman Act. 

McGlinchy v. Shell Chem. Co., 845 F.2d 802, 813 n.8 (9th Cir. 1988); The In 

Porters, S.A. v. Hanes Printables, Inc., 663 F. Supp. 494, 497 (M.D.N.C. 1987). If 

both the prior precedent and Section 6a apply in a single case, their requirements 

likely yield the same results. Conduct that either involves U.S. import commerce, 

see infra Section 3.1, or has a direct, substantial, and reasonably foreseeable effect 

on U.S. commerce, see infra Section 3.2, likely has a substantial and intended effect 

in the United States. In the Agencies’ view, however, a separate showing of 

substantial and intended effects is unnecessary when some of the challenged 

conduct takes place in the United States because such a case would involve 

application, at least in part, of the U.S. antitrust law to territorial conduct.
18

(B) on export trade or export commerce with foreign nations, of a 

person engaged in such trade or commerce in the United States; 

and

(2) such effect gives rise to a claim under the provisions of sections 1 to 

7 of this title, other than this section.

If sections 1 to 7 of this title apply to such conduct only because of the 

operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to 

such conduct only for injury to export business in the United States.81

Section 5(a)(3) of the FTC Act closely parallels this provision.82

Although the FTAIA clarified the reach of the Sherman Act and the FTC Act, it did 

not address the reach of the Clayton Act. Nevertheless, the Agencies would apply 

the principles outlined below when making enforcement decisions regarding 

mergers and acquisitions involving trade or commerce with foreign nations.

 81 15 U.S.C. § 6a.

82 See 15 U.S.C § 45(a)(3). The federal courts of appeals have expressed differing 

views as to whether the FTAIA goes to a claim’s merits or a court’s subject-matter 

jurisdiction. Compare In re Monosodium Glutamate Antitrust Litig., 477 F.3d 535, 

537 (8th Cir. 2007) (treating FTAIA as a question of subject-matter jurisdiction), 

Empagran S.A. v. F. Hoffmann-LaRoche, Ltd., 417 F.3d 1267, 1269 (D.C. Cir. 2005) 

(same), United States v. Anderson, 326 F.3d 1319, 1329-30 (11th Cir. 2003) (same), 

and Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424-25 (5th 

Cir. 2001) (same), with Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 852 (7th Cir. 

2012) (en banc) (FTAIA relates to merits of a claim), overruling United Phosphorus, 

Ltd. v. Angus Chem. Co., 322 F.3d 942, 951-52 (7th Cir. 2003) (en banc) (FTAIA 

relates to court’s subject-matter jurisdiction), United States v. Hsiung, 778 F.3d 738 

(9th Cir. 2015) (merits), overruling United States v. LSL Biotechs., 379 F.3d 672, 

677 (9th Cir. 2004) (subject-matter jurisdiction), Lotes Co., Ltd. v. Hon Hai Precision 

Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014) (merits), overruling Filetech S.A. v. 

France Telecom S.A., 157 F.3d 922, 929-32 (2d Cir. 1998) (subject-matter 

jurisdiction), and Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 

467–68 (3d Cir. 2011) (merits), overruling Carpet Grp. Int’l v. Oriental Rug 

Importers Ass’n, Inc., 227 F.3d 62, 69-70 (3d Cir. 2000) (subject-matter jurisdiction). 

This difference will not affect the Agencies’ decisions about whether to proceed with 

an investigation or an enforcement action because the Agencies will not proceed 

when the FTAIA precludes the claim on the merits or strips the court of jurisdiction.
19

3.1 Conduct Involving Import Commerce

In general, the proscriptions in the Sherman Act and the FTC Act apply to conduct 

subject to Congress’ constitutional power “to regulate commerce with foreign 

nations,” among other things.83 The FTAIA places “conduct involving trade or 

commerce (other than import trade or import commerce) with foreign nations” 

beyond the reach of these statutes, unless the conduct satisfies the FTAIA’s effects 

exception described below.84 The parenthetical language, however, excludes from 

the FTAIA’s operation conduct involving import trade and import commerce. This 

provision is commonly referred to as the “import commerce exclusion.”85 As a result 

of this exclusion, conduct involving U.S. import commerce, like conduct involving 

commerce within the United States, is “subject to the Sherman Act’s [or FTC Act’s] 

general requirements for effects on commerce, not to the special requirements 

spelled out in the FTAIA.”86

The import commerce exclusion does not apply to conduct merely because those 

participating in the conduct are also engaged in import commerce. Rather the 

conduct being challenged must itself involve import commerce.87 Conversely, the 

import commerce exclusion may apply to conduct even if the participants 

themselves do not act as importers. For example, a firm cannot escape liability for 

unreasonably restraining or monopolizing import commerce by outsourcing the 

delivery of its product to the United States. 

Conduct may “involve” import commerce even if it is not directed specifically or 

exclusively at import commerce and even if the import commerce involved 

 83 U.S. Const. art. I, § 8, cl. 3; see, e.g., 15 U.S.C. § 1 (outlawing conspiracies in 

unreasonably restraint of “trade or commerce . . . with foreign nations”); id. §§ 44, 

45(a)(1) (outlawing “unfair methods of competition in or affecting” “commerce . . . 

with foreign nations”); see generally United States v. Se. Underwriters Ass’n, 

322 U.S. 533, 588 (1944); Fed. Trade Comm’n v. Klesner, 274 U.S. 145, 151 (1927). 

84 See infra Section 3.2.

85 See, e.g., Minn-Chem, 683 F.3d at 855.

86 Id. at 854; see Hsiung, 778 F.3d at 754; cf. H.R. REP. NO. 97-686, at 9 (1982) 

(explaining that “import restraints, which can be damaging to American consumers, 

remain covered by the law”).

87 Carpet Grp., 227 F.3d at 71.
20

constitutes a relatively small portion of the worldwide commerce involved in the 

anticompetitive conduct. 

Illustrative Example A

Situation: Corporation 1 and Corporation 2 have factories in Country 

Alpha where they manufacture Widget X. Corporation 1 and 

Corporation 2 agree to charge higher prices for Widget X. They sell 

Widget X to customers around the world, including in the United 

States. 

Discussion: Corporation 1 and Corporation 2 manufacture Widget X 

outside the United States and sell Widget X in or for delivery to the 

United States. Thus their conspiracy to fix the price of Widget X is 

conduct involving U.S. import commerce. Accordingly, the conduct is 

prohibited by Section 1 of the Sherman Act as a conspiracy in restraint 

of “trade . . . with foreign nations,” and Section 6a would not exempt 

this conspiracy from the antitrust laws. The circumstance that the 

price-fixing agreement concerned worldwide sales and did not 

specifically identify sales into the United States would not change the 

analysis. Likewise, even if the sales of Widget X in import commerce 

were a relatively small proportion or dollar amount of the price-fixed 

goods sold worldwide, the analysis would remain unchanged.88

Illustrative Example B

Situation: Shipping Corporation 1 and Shipping Corporation 2 are 

located in Country Alpha and provide international shipping services 

on various routes to the United States. Shipping Corporation 1 and 

Shipping Corporation 2 agree to charge higher prices for shipping 

services on select routes, including some routes to the United States.

Discussion: Shipping Corporation 1 and Shipping Corporation 2’s 

conspiracy to fix the price of shipping services, which are closely 

connected to the importation of goods into the United States, is conduct 

involving import commerce. Moreover, the conduct would also involve 

 88 See generally Hsiung, 778 F.3d at 754-56 (affirming Sherman Act convictions on 

ground that evidence that conspirators sold price-fixed components in or for delivery 

to the United States satisfied Section 6a’s import commerce exclusion).
21

import commerce if Shipping Corporation 1 and Shipping Corporation 

2 sold shipping services to customers in the United States for the 

transport of goods to the United States. In either case, the conduct is 

prohibited by Section 1 of the Sherman Act as a conspiracy in restraint 

of “trade . . . with foreign nations,” and Section 6a would not exempt 

this conspiracy from the antitrust laws. The conduct also likely has a 

direct, substantial, and reasonably foreseeable effect on import 

commerce by raising the price of importing goods into the United 

States or of the imported goods themselves, in which case it would also 

satisfy the FTAIA’s effects exception, described below.89

3.2 Conduct Involving Non-Import Foreign Commerce

The FTAIA initially places conduct involving non-import foreign commerce, which 

means U.S. export commerce and wholly foreign commerce, outside the reach of the 

Sherman Act and FTC Act.90 What is commonly referred to as the FTAIA’s “effects 

exception”91 brings such conduct back within the reach of the Acts if the conduct has 

a direct, substantial, and reasonably foreseeable effect on commerce within the 

United States, U.S. import commerce, or the export commerce of a U.S. exporter, 

and that effect gives rise to a claim.92

Whether an alleged effect on such commerce is direct, substantial, and reasonably 

foreseeable is a question of fact. An effect on commerce is “direct” if there is a 

reasonably proximate causal nexus, that is, if the effect is proximately caused by 

the alleged anticompetitive conduct.93 In other words, an effect is direct if, in the 

 89 See infra Section 3.2.

90 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 162-63 (2004).

91 See, e.g., Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 471 

(3d Cir. 2011).

92 Empagran, 542 U.S. at 162.

93 See Minn-Chem, 683 F.3d at 857; Lotes Co. v. Hon Hai Precision Indus. Co., 

753 F.3d 395, 409-13 (2d Cir. 2014). Although one court of appeals has held that an 

effect on U.S. commerce is “direct” for purposes of Section 6a only if it follows “as an 

immediate consequence” of the defendant’s activity, United States v. LSL Biotechs., 

379 F.3d 672, 680 (9th Cir. 2004), the proximate cause standard is more consistent 

with the language of the statute. As the Seventh Circuit explained “[s]uperimposing 
22

natural or ordinary course of events, the alleged anticompetitive conduct would 

produce an effect on commerce. The substantiality requirement does not provide a 

minimum pecuniary threshold, nor does it require that the effects be quantified.94

Finally, the “reasonable foreseeability” requirement is an objective test, requiring 

that the effect be foreseeable to “a reasonable person making practical business 

judgments.”95

Illustrative Example C

Situation: Corporation 1 and Corporation 2 have factories in Country 

Alpha where they manufacture Component X, a piece of high-tech 

hardware used in electronic products. Corporation 1 and Corporation 2 

agree to raise prices for Component X sold to finished product 

integrators. These integrators have factories in Country Beta where 

they incorporate Component X into finished electronic products sold in 

the United States.

Discussion: Assuming Corporation 1 and Corporation 2 do not sell 

Component X in or for delivery to the United States, their conspiracy 

to fix the prices of Component X is conduct involving wholly foreign 

commerce, that is, commerce between Countries Alpha and Beta, and 

thus would not fall within the FTAIA’s import commerce exclusion. 

The conduct would still fall within the reach of the Sherman Act if it 

has a (1) direct, (2) substantial, and (3) reasonably foreseeable effect on 

 

the idea of ‘immediate consequence’ on top of the full [integrated] phrase [‘direct, 

substantial, and reasonably foreseeable’] results in a stricter test than the complete 

text of the statute can bear” and “comes close to ignoring the fact that 

straightforward import commerce has already been excluded from the FTAIA’s 

coverage.” Minn-Chem, 683 F.3d at 857. Nevertheless, any difference between these 

two tests is unlikely to yield different results in the vast majority of cases. 

94 Cf. McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 243 (1980) (“Nor 

is jurisdiction defeated in a case relying on anticompetitive effects by plaintiff’s 

failure to quantify the adverse impact of defendant’s conduct.”); Goldfarb v. Va. 

State Bar, 421 U.S. 773, 785 (1975) (“[O]nce an effect is shown, no specific 

magnitude need be proved”).

95 Animal Sci., 654 F.3d at 471.
23

U.S. import commerce in finished electronic products that incorporate 

Component X. 

Assessing the conduct’s effects can be a fact-intensive inquiry. Here the 

Agencies would collect and analyze evidence to determine whether the 

price fixing of the component had an effect on U.S. import commerce. If 

it does, the Agencies would further analyze the evidence and collect 

additional evidence, as necessary, to determine: (1) whether the price 

fixing was the proximate cause of that effect, (2) whether the effect was 

substantial, and (3) whether that effect was a result of the price fixing 

that was foreseeable to a reasonable person making practical business 

judgments.

The fact that the price-fixed component was first sold to integrators in 

Country Beta, where it was incorporated into finished electronic 

products which were then sold in, or for delivery to, the United States 

would not render indirect an effect on import commerce in those 

products. Nor would the fact that the finished products were sold 

around the world or that Corporation 1 and Corporation 2 were 

unaware or indifferent to whether the finished products were sold in 

the United States render insubstantial or not reasonably foreseeable 

the effect on import commerce. In this context, substantiality is not a 

question of proportion. So long as the effect on import commerce is 

substantial, it does not matter if that effect is smaller than the 

conduct’s effect outside the United States. Reasonable foreseeability is 

an objective standard, which asks not whether the conspirators 

actually foresaw the effect, but rather whether a reasonable person 

would foresee the effect on import commerce.

The relative size of Component X as a cost component of the finished 

electronic products may be relevant to determining whether the pricefixing conduct has the requisite effect, but it is not dispositive. For 

example, Component X may account for a large portion of the cost of 

the finished product, but competition from substitutes for the finished 

electronic products that do not incorporate Component X makes it 

unlikely that a price increase on Component X will affect import 

commerce in the finished products. Conversely, Component X may 

account for a small fraction of the cost of the finished product but the 

finished electronic product pricing is closely tied to input costs due to 

market conditions or contractual arrangements, or for other reasons. 

Thus, any price increase on Component X could, as a practical matter, 

have the requisite effect on import commerce in the finished electronic 

product. 
24

Evidence that the conspirators actually expected their conduct to cause 

an effect on import commerce in the finished products would help to 

show that a direct, substantial, and reasonably foreseeable effect 

existed. Such evidence might include Corporation 1 and Corporation 

2’s contacts with purchasers in the United States, including 

negotiations regarding Component X pricing, as well as Corporation 1 

and Corporation 2’s discussing market conditions and tracking sales of 

the finished products in the United States. But the presence or absence 

of such evidence would not fundamentally alter the Agencies’ 

analysis.96

Illustrative Example D

Situation: Company 1 and Company 2 are located in Country Alpha, 

where they extract Mineral X. Company 3 is located in the United 

States, where it extracts Mineral X. Company 3 is able to meet the 

entire U.S. demand for Mineral X and does so. Company 1 and 

Company 2 supply the rest of the world with Mineral X, but not the 

United States. By mutual agreement, Company 1 and Company 2 

reduce their sales of Mineral X, significantly driving up the price of 

Mineral X outside the United States. Because of the increased price for 

Mineral X outside the United States, Company 3 begins to export 

much of the U.S. supply of Mineral X. No other firms replace Company 

3’s diverted sales, and the price of Mineral X rises inside the United 

States.

Discussion: Company 1 and Company 2’s conspiracy to reduce their 

sales of Mineral X outside the United States is conduct involving 

wholly foreign commerce. Such conduct would fall within the reach of 

the Sherman Act if it has a direct, substantial, and reasonably 

foreseeable effect on U.S. interstate commerce in Mineral X. Here, the 

conspiracy had the effect of raising prices on interstate sales of Mineral 

 96 See generally Hsiung, 778 F.3d at 756-60 (affirming Sherman Act convictions on 

alternate ground that evidence that price fixing of components sold abroad had a 

direct effect on U.S. import commerce in finished products containing price-fixed 

components satisfied Section 6a’s effects exception).
25

X. That effect appears to be direct, substantial, and reasonably 

foreseeable.97

The FTAIA’s effects exception also requires that the effect on commerce within the 

United States, U.S. import commerce, or the export commerce of a U.S. exporter 

“gives rise to” a claim under the antitrust laws. In a damages action brought under 

the antitrust laws, this provision requires that the effect on U.S. commerce be an 

adverse one and that the effect proximately cause the plaintiff’s antitrust injury.98

It is therefore appropriate for courts to distinguish among damages claims based 

upon the underlying transaction that forms the basis of the injury to ensure that 

each claim redresses injury consistent with the requirements of the antitrust laws, 

including the FTAIA. For example, when anticompetitive conduct affects commerce 

around the world, a plaintiff whose antitrust injury arises from that conduct’s effect 

on U.S. import commerce may recover damages for that injury, but a plaintiff that 

suffers a foreign injury that is independent of, and not proximately caused by, the 

conduct’s effect on U.S. commerce cannot recover damages under the U.S. antitrust 

laws.99

Similarly, when the United States is a plaintiff seeking damages under Section 4A 

of the Clayton Act for injury to its business or property, the United States must 

establish that the alleged conduct’s effect on U.S. commerce proximately caused the 

injury to the United States’ business or property.

 97 Cf. H.R. REP. NO. 97-686, at 13 (1982) (“For example, if a domestic export cartel 

were so strong as to have a ‘spillover’ effect on commerce within this country—by 

creating a world-wide shortage or artificially inflated world-wide price that had the 

effect of raising domestic prices—the cartel's conduct would fall within the reach of 

our antitrust laws. Such an impact would, at least over time, meet the test of a 

direct, substantial and reasonably foreseeable effect on domestic commerce.”). 

98 F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 173 (2004); Lotes 

Co., Ltd. v. Hon Hai Precision Industry Co., 753 F.3d 395, 414 (2d Cir. 2014); In re 

Dynamic Random Access Memory Antitrust Litig., 546 F.3d 981, 987 (9th Cir. 2008); 

In re Monosodium Glutamate Antitrust Litig., 477 F.3d 535, 538 (8th Cir. 2007);

Empagran S.A. v. F. Hoffmann-La Roche Ltd., 417 F.3d 1267, 1271 (D.C. Cir. 2005).

99 Empagran, 542 U.S. at 165, 169-73 (the federal antitrust laws “reflect a 

legislative effort to redress domestic antitrust injury that foreign anticompetitive 

conduct has caused”) (emphasis added)); see also Lotes, 753 F.3d at 413-15.
26

Civil actions for equitable relief brought by the Agencies or criminal enforcement 

actions brought by the Department, on behalf of the United States, do not seek to 

redress a pecuniary injury to the government. Instead, such actions are brought by 

the sovereign to enjoin or prosecute a violation of its laws. In such cases, a direct, 

substantial, and reasonably foreseeable effect on U.S. commerce would give rise to 

the sovereign’s claim.100

Thus, as a result of the effects exception’s “gives rise to” provision, the Sherman Act 

can apply and not apply to the same conduct, depending upon the circumstances, 

including the plaintiff bringing the claim, the nature of the claim, and the injury 

underlying the claim.101

3.3 Conduct Involving U.S. Government Financing or Purchasing

The Agencies may, in appropriate cases, take enforcement action when the U.S. 

government is a purchaser, or substantially funds the purchase, of goods or services 

for consumption or use abroad. Cases in which the effect of anticompetitive conduct 

with respect to the sale of these goods or services falls primarily on U.S. taxpayers 

may qualify for redress under the federal antitrust laws.102 The requisite U.S. 

 100 The Department’s Antitrust Corporate Leniency Policy requires applicants to 

make restitution to the victims of their offense. See supra n.42. Consistent with the 

Supreme Court’s and courts of appeals’ interpretation of the “gives rise to” provision 

that damages for violations of the Sherman Act are not available for foreign injuries 

independent of and not proximately caused by any adverse effect on U.S. commerce, 

supra n.98, the Department construes the leniency policy to not require restitution 

to victims whose antitrust injuries are independent of and not proximately caused 

by an adverse effect on (i) trade or commerce within the United States, (ii) import 

trade or commerce, or (iii) the export trade or commerce of a person engaged in such 

trade or commerce in the United States, which effect was proximately caused by the 

anticompetitive activity being reported. 

101 Empagran, 542 U.S. at 174; see also Motorola Mobility LLC v. AU Optronics 

Corp., 775 F.3d 816, 820, 825 (7th Cir. 2014) (noting that the FTAIA “would not 

block the Department of Justice from seeking criminal or injunctive remedies” for 

price fixing that had the requisite effect on U.S. commerce, while holding private 

plaintiff could not recover damages because the injury did not arise from that 

effect).

102 See United States v. Anderson, 326 F.3d 1319 (11th Cir. 2003) (applying 

Sherman Act to bid rigging on USAID-funded construction projects in Egypt). 

Cf. United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 208 (1968) 

(“[A]lthough the fertilizer shipments were consigned to Korea and although in most 
27

government involvement could include an actual purchase of goods by the U.S. 

government for shipment abroad, a U.S. government grant to a foreign government 

that is specifically earmarked for the transaction, or a U.S. government loan 

specifically earmarked for the transaction that is made on such generous terms that 

it amounts to a grant. The Agencies consider U.S. government interests to be 

sufficiently affected when, as a result of its payment or financing, the U.S. 

government bears a substantial portion of the cost of the transaction. U.S. 

government interests would not be considered to be sufficiently implicated with 

respect to a transaction that is merely funded by an international agency, or a 

transaction in which the foreign government received non-earmarked funds from 

the United States as part of a general government-to-government aid program.

4. Agencies’ Consideration of Foreign Jurisdictions

4.1 Comity

In enforcing the federal antitrust laws, the Agencies consider international comity. 

Comity itself reflects the broad concept of respect among co-equal sovereign nations 

and plays a role in determining “the recognition which one nation allows within its 

territory to the legislative, executive or judicial acts of another nation.”103 In 

determining whether to investigate or bring an action, or to seek particular 

remedies in a given case, the Agencies take into account whether significant 

interests of any foreign sovereign would be affected.104

 

cases Korea formally let the contracts, American participation was the 

overwhelmingly dominant feature. The burden of noncompetitive pricing fell, not on 

any foreign purchaser, but on the American taxpayer. The United States was, in 

essence, furnishing fertilizer to Korea. . . . The foreign elements in the transaction 

were, by comparison, insignificant.”); United States v. Standard Tallow Corp., 

No. 85-cv-2062, 1988 WL 72620 (S.D.N.Y. Jan. 28, 1988) (consent decree) (barring 

suppliers from fixing prices or rigging bids for the sale of tallow financed in whole or 

in part through grants or loans by the U.S. Government to the Government of 

Egypt); United States v. Anthracite Exp. Ass’n, No. 70-cv-9171, 1970 WL 540 (M.D. 

Pa. Nov. 12, 1970) (consent decree) (barring price-fixing, bid- rigging, and market 

allocation in Army foreign aid program).

103 Hilton v. Guyot, 159 U.S. 113, 164 (1895).

104 The Agencies, like other competition authorities around the world, consider the 

legitimate interests of foreign sovereigns in accordance with the recommendations 
28

A decision to take an investigative step or to prosecute an antitrust action under the 

federal antitrust laws represents a determination that the importance of antitrust 

enforcement outweighs any relevant foreign policy concerns. That determination is 

entitled to deference.105 Some courts have undertaken a comity analysis in disputes 

between private parties.106

In performing this comity analysis, the Agencies consider a number of relevant 

factors. The relative weight given to each factor depends on the facts and 

circumstances of each case. Among other things, the Agencies weigh: the existence 

of a purpose to affect or an actual effect on U.S. commerce; the significance and 

foreseeability of the effects of the anticompetitive conduct on the United States; the 

degree of conflict with a foreign jurisdiction’s law or articulated policy; the extent to 

which the enforcement activities of another jurisdiction, including remedies 

resulting from those enforcement activities, may be affected; and the effectiveness of 

foreign enforcement as compared to U.S. enforcement. 

An investigation or enforcement action by a foreign authority will not preclude an 

investigation or enforcement action by either the Department or the Commission. 

Rather, the Agency will determine whether, in light of actions by the foreign 

authority, investigation or enforcement is warranted to address harm or threatened 

harm to U.S. commerce and consumers from anticompetitive conduct. In cases in 

which an Agency opens an investigation or brings an enforcement action concerning 

conduct under investigation by a foreign authority, it may coordinate with that

authority.107

Several of the comity factors considered by the Agencies warrant further discussion. 

First, when considering the degree of conflict with foreign laws, the Agencies review 

the relevant laws of the interested foreign sovereigns. In the context of the Agencies’ 

enforcement, conflicts of law are rare. As more jurisdictions have adopted and 

enforce antitrust laws that are compatible with those of the United States, it has 

 

of the OECD and various bilateral agreements, and may, as appropriate, discuss 

these issues with foreign counterparts. See infra Chapter 5. 

105 See, e.g., United States v. Baker Hughes, Inc., 731 F. Supp. 3, 6 n.5 (D.D.C.), 

aff’d, 908 F.2d 981 (D.C. Cir. 1990). 

106 See, e.g., Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 614-16 (9th Cir. 

1976).

107 See infra Chapter 5.
29

become increasingly common that no conflict exists between U.S. antitrust 

enforcement interests and the laws or policies of a foreign sovereign. Further, no 

conflict of law exists if a person subject to the laws of two sovereigns can comply 

with both.108 Moreover, no conflict exists in cases where foreign law is neutral as to 

particular conduct, because it remains possible for the parties in question to comply 

with the U.S. antitrust laws without violating foreign law. In situations where a 

conflict of law exists, however, comity may counsel in favor of declining 

enforcement. 

Second, the Agencies will assess the articulated interests and policies of a foreign 

sovereign beyond whether there is a conflict with foreign law. In determining 

whether to investigate or bring an enforcement action regarding an alleged 

antitrust violation, the Agencies consider the extent to which a foreign sovereign 

encourages or discourages certain courses of conduct or leaves parties free to choose 

among different courses of conduct. 

Third, the Agencies consider whether the objectives sought to be obtained by U.S. 

enforcement could be achieved by foreign enforcement. The Agencies may consult 

with interested foreign authorities with the purpose of working to understand and

address harm or threatened harm to U.S. commerce and consumers from 

anticompetitive conduct. 

4.2 Consideration of Foreign Government Involvement

In some instances, a foreign government may be involved in anticompetitive 

conduct that involves or affects U.S. commerce. In determining whether to conduct 

an investigation or to file an enforcement action in cases in which foreign 

government involvement is known or suspected, the Agencies consider four legal 

doctrines that lie at the intersection of government action and the antitrust laws: 

(1) foreign sovereign immunity; (2) foreign sovereign compulsion; (3) act of state; 

and (4) petitioning of sovereigns.109

 108 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798-99 (1993). 

109 In some cases, investigation may be necessary to assess the nature of foreign 

government involvement and the applicability of the principles discussed below, 

even where an Agency ultimately refrains from enforcement. 
30

4.2.1 Foreign Sovereign Immunity

In civil cases, the Foreign Sovereign Immunities Act of 1976 (“FSIA”)110 provides 

the “sole basis for obtaining jurisdiction over a foreign state in the courts of this 

country.”111 The FSIA shields foreign states112 from the civil jurisdiction of the 

courts of the United States, subject to certain enumerated exceptions and to treaties 

in place at the time of the FSIA’s enactment.113 Under the FSIA, federal courts have 

jurisdiction over foreign states in certain cases in which the foreign state has: 

a. waived immunity explicitly or by implication;

b. engaged in commercial activity; 

c. expropriated property in violation of international law; 

d. acquired rights to property in the United States; 

e. committed certain torts within the United States; or

f. agreed to arbitration of the dispute.114

The “commercial activity” exception is the most relevant exception for antitrust 

purposes.115 The FSIA provides that a foreign state is not immune from jurisdiction 

of U.S. courts when:

 110 28 U.S.C. § 1330 et seq.

111 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989).

112 The FSIA defines “foreign state” to include a “political subdivision of a foreign 

state or an agency or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). It 

further defines an “agency or instrumentality of a foreign state” to mean any entity 

“(1) which is a separate legal person, corporate or otherwise; and (2) which is an 

organ of a foreign state or political subdivision thereof, or a majority of whose 

shares or other ownership interest is owned by a foreign state or political 

subdivision thereof; and (3) which is neither a citizen of a State of the United States 

[as defined elsewhere in Title 28 of the U.S. Code], nor created under the laws of 

any third country.” Id. § 1603(b). The majority-ownership prong of this definition 

encompasses state-owned corporations, so long as the “foreign state itself owns a 

majority of the corporation’s shares.” Dole Food Co. v. Patrickson, 538 U.S. 468, 477 

(2003). The Act does not, however, apply to cases brought against individual foreign 

officials, whose immunity is governed instead by the common law. Samantar v. 

Yousuf, 560 U.S. 305, 319 (2010). 

113 28 U.S.C. § 1604. 

114 See generally id. § 1605.
31

the action is based upon a commercial activity carried on in the United States 

by the foreign state; or upon an act performed in the United States in 

connection with a commercial activity of the foreign state elsewhere; or upon 

an act outside the territory of the United States in connection with a 

commercial activity of the foreign state elsewhere and that act causes a direct 

effect in the United States.116

“Commercial activity” is defined to include “either a regular course of commercial 

conduct or a particular commercial transaction or act,” and the FSIA provides that 

“the commercial character of an activity shall be determined by reference to the 

nature of the course of conduct or particular transaction or act, rather than by 

reference to its purpose.”117 Commercial activity is distinct from sovereign activity 

inasmuch as the former is understood to include “those powers that can also be 

exercised by private citizens,” while the latter is understood to include “powers 

peculiar to sovereigns.”118 In other words, the principal question is whether the 

government is acting “not as a regulator of a market, but in the manner of a private 

player within it.”119

To determine whether an action is “based upon” a commercial activity, a court must 

focus on “the particular conduct on which the plaintiff’s action is based,” i.e., “those 

 115 Id. § 1605(a)(2); see also id. § 1603(e) (defining “commercial activity carried on in 

the United States by a foreign state” as “commercial activity carried on by such 

state and having substantial contact with the United States”).

116 Id. § 1605(a)(2). 

117 Id. § 1603(d). 

118 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 704 (1976). 

119 Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 614 (1992); see also Saudi Arabia 

v. Nelson, 507 U.S. 349, 360 (1993); Universal Trading & Inv. Co. v. Bureau for 

Representing Ukrainian Interests in Int’l & Foreign Courts, 727 F.3d 10, 19-20 

(1st Cir. 2013); Cmty. Fin. Grp., Inc. v. Republic of Kenya, 663 F.3d 977, 980 (8th 

Cir. 2011); Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on 

H.R. 11315 Before Subcomm. on Admin. Law & Governmental Relations of the 

House Comm. on the Judiciary, 94th Cong. 53 (1976) (statement of Monroe Leigh, 

Legal Advisor, U.S. Dep’t of State) (courts should “inquire whether the activity in 

question is one which private parties ordinarily perform or whether it is peculiarly 

within the realm of governments”). 
32

elements that, if proven, would entitle a plaintiff to relief and the gravamen of the 

complaint.”120

As a practical matter, most activities of foreign state-owned enterprises operating in 

the commercial marketplace are “commercial” and, therefore, such enterprises are 

not immune from the jurisdiction of the U.S. courts in actions to enforce the

antitrust laws by virtue of the FSIA. The commercial activities of these enterprises 

are subject to the U.S. antitrust laws to the same extent as the activities of 

privately owned foreign firms.

4.2.2 Foreign Sovereign Compulsion

Because U.S. antitrust laws can extend to foreign persons and conduct with a 

sufficient connection to the United States, some persons may find themselves 

subject to foreign legal requirements that conflict with the laws of the United 

States. In these circumstances, courts have recognized a limited defense against 

application of the U.S. antitrust laws when a foreign sovereign compels the very 

conduct that the U.S. antitrust law would prohibit.121 If it is possible, however, for a 

party to comply with both the foreign law and the U.S. antitrust laws, the existence 

of the foreign law does not provide any legal excuse for actions that do not comply 

with U.S. law.122 Similarly, that conduct may be lawful, approved, or encouraged in 

a foreign jurisdiction does not, in and of itself, bar application of the U.S. antitrust 

 120 OBB Personenverkher AG v. Sachs, 136 S. Ct. 390, 395 (2015) (citing Saudi 

Arabia v. Nelson, 507 U.S. 349, 356-57 (1993)) (internal quotation marks and 

alterations omitted). 

121 See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1293-94 

(3d Cir. 1979); Trugman-Nash, Inc. v. N.Z. Dairy Bd., 954 F. Supp. 733, 736 

(S.D.N.Y. 1997); Interamerican Refining Corp. v. Texaco Maracaibo, Inc., 307 F. 

Supp. 1291, 1304 (D. Del. 1970). 

The defense of foreign sovereign compulsion is distinct from the state action 

doctrine articulated in Parker v. Brown, 317 U.S. 341 (1943). The state action 

doctrine applies to the actions of U.S. states and their subdivisions, and also to 

private anticompetitive conduct that is both: (1) undertaken pursuant to clearly 

articulated state policies and (2) actively supervised by the state. See N.C. State Bd. 

of Dental Exam’rs v. Fed. Trade Comm’n, 135 S. Ct. 1101 (2015).

122 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798-99 (1993). 
33

laws—even when the foreign jurisdiction has a strong policy in favor of the conduct 

in question.123

Two rationales underlie the limited defense of foreign sovereign compulsion. First, 

Congress enacted the U.S. antitrust laws against the background of well-recognized 

principles of international law and comity, pursuant to which U.S. authorities give 

due deference to the official acts of foreign governments. A defense for actions 

compelled by foreign sovereigns under certain circumstances serves to accommodate 

equal sovereigns. Second, fairness considerations require a mechanism to provide a 

predictable rule of decision for those seeking to conform their behavior to all 

applicable laws. 

The Agencies recognize and consider this foreign sovereign compulsion defense 

when determining whether to bring an enforcement action. Because of the limited 

scope of the defense, however, the Agencies will refrain from bringing an 

enforcement action based on considerations of foreign sovereign compulsion only 

when certain criteria are satisfied.

First, the foreign government must have compelled the anticompetitive conduct 

under circumstances in which a refusal to comply with the foreign government’s 

command would give rise to the imposition of penal or other severe sanctions. As a 

general matter, the Agencies regard the foreign government’s formal representation 

that refusal to comply with its command would have such a result as being 

sufficient to establish that the conduct in question has been compelled. To be 

sufficient, however, the representation must contain enough detail to enable the 

Agencies to see precisely how the compulsion would be accomplished under foreign 

law.124 Foreign government measures short of compulsion do not suffice for this 

defense, although they may be a relevant comity consideration if, for example, the 

measures reflect an articulated policy of the foreign government. 

Second, the defense generally applies only when the compelled conduct can be 

accomplished entirely within the foreign sovereign’s own territory. If the compelled 

 123 Id. Discretionary conduct is also outside the protections afforded by this defense. 

See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 706-07 

(1962).

124 For example, the Agencies may not regard as dispositive a statement that is 

unsupported or ambiguous, or that, on its face, appears to be internally 

inconsistent. The Agencies may inquire into the circumstances underlying the 

statement and may request further information if the source of the power to compel 

is unclear.
34

conduct occurs in the United States, the Agencies will not recognize the defense.125

For example, the defense would not apply if a foreign government required the U.S. 

subsidiaries of several firms to organize a cartel in the United States to fix the price 

at which products would be sold in the United States. 

Third, the order must come from the foreign government acting in its governmental 

capacity.126 The defense does not arise from conduct that would fall within the FSIA 

commercial activity exception. 

Illustrative Example E

Situation: Increased quantities of Commodity X have flooded the 

world market over the last several years, including substantial 

amounts coming into the United States. The officials of Countries 

Alpha, Beta, and Gamma meet with their respective domestic firms 

and urge them to “rationalize” production of Commodity X by 

cooperatively cutting back. Going one step further, the government of 

Country Gamma orders cutbacks from its domestic firms, subject to 

substantial penalties for non-compliance. Producers from Countries 

Alpha and Beta agree among themselves to institute comparable 

cutbacks, but their governments do not require them to do so. The 

overseas production cutbacks have sufficient effects on U.S. commerce 

for the antitrust laws to apply. 

Discussion: The Agencies would not find that foreign sovereign 

compulsion precludes prosecution of the agreement in restraint of 

trade entered into by the participants from Countries Alpha and 

Beta.127 The Agencies would acknowledge a defense of sovereign 

compulsion, however, for the participants from Country Gamma. 

 125 See Linseman v. World Hockey Ass’n, 439 F. Supp. 1315, 1324-25 (D. Conn. 

1977). 

126 See supra Section 4.2.1.

127 As in all such cases, the Agencies would also consider whether comity factors 

counsel against bringing an enforcement action for the conduct. See supra

Section 4.1.
35

4.2.3 Act of State Doctrine

The act of state doctrine prevents courts from “declar[ing] invalid the official act of a 

foreign sovereign performed within its own territory.”128 Applying this doctrine, 

courts decline to adjudicate claims or issues that would require the court to judge 

the validity of the sovereign act of a foreign state in its own territory.129 This 

doctrine is rooted in considerations of international comity and the separation of 

powers.130

The doctrine does not apply to every act taken by an individual or entity affiliated 

with a sovereign state. For instance, it does not apply to the acts of individual 

government officials acting outside their official capacity.131 Nor does it apply to 

private actors, even when those acts are approved or condoned by the foreign 

government in question.132

Accordingly, when a restraint on competition arises directly from the act of a foreign 

sovereign, such as the grant of a license, award of a contract, or expropriation of 

property, the Agencies may refrain from bringing an enforcement action based on 

the principles animating the act of state doctrine. More specifically, the Agencies 

may exercise enforcement discretion and decline to challenge foreign acts of state if 

 128 W.S. Kirkpatrick & Co. v. Envt’l Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990); 

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964); Underhill v. 

Hernandez, 168 U.S. 250, 252 (1897) (“Every sovereign state is bound to respect the 

independence of every other sovereign state, and the courts of one country will not 

sit in judgment on the acts of the government of another, done within its own 

territory. Redress of grievances by reason of such acts must be obtained through the 

means open to be availed of by sovereign powers as between themselves.”).

129 See W.S. Kirkpatrick, 493 U.S. at 406 (“Act of state issues only arise when a 

court must decide—that is, when the outcome of the case turns upon—the effect of 

official action by a foreign sovereign. When that question is not in the case, neither 

is the act of state doctrine.”).

130 Id. at 404; Sabbatino, 376 U.S. at 423 (the doctrine “express[es] the strong sense 

of the Judicial Branch that its engagement in the task of passing on the validity of 

foreign acts of state may hinder rather than further this country’s pursuit of goals 

. . . in the international sphere”).

131 Republic of Iraq v. ABB AG, 768 F.3d 145, 165 (2d Cir. 2014).

132 See, e.g., In re Potash Antitrust Litig., 686 F. Supp. 2d 816, 825 (N.D. Ill. 2010).
36

the facts and circumstances indicate that: (1) the specific conduct complained of is a 

public act of the sovereign, (2) the act was taken within the territorial jurisdiction of 

the sovereign, and (3) the conduct relates to a matter that is governmental, rather 

than commercial.133

4.2.4 Petitioning of Sovereigns 

Under the Noerr-Pennington doctrine, a genuine effort to obtain or influence action 

by governmental entities in the United States falls outside the scope of the 

Sherman Act, even if the intent or effect of that effort is to restrain or monopolize 

trade.134 It is the view of the Agencies that the principles undergirding this doctrine 

apply to the petitioning of foreign governments. The Agencies, therefore, will not 

challenge under the antitrust laws genuine efforts to obtain or influence action by 

foreign government entities.135 But as with Noerr-Pennington, the Agencies will not 

exercise this discretion when faced with “sham” activities, in which petitioning 

“ostensibly directed toward influencing governmental action, is a mere sham to 

cover . . . an attempt to interfere directly with the business relationships of a 

competitor,”136 or when Noerr-Pennington would otherwise not apply.137

Illustrative Example F

Situation: Corporation 1 and Corporation 2 have mines in Country 

Alpha where they extract Mineral X. Corporation 1 and Corporation 2 

 133 See Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 704 (1976) 

(plurality op. of White, J.). Cf. supra Section 4.2.1.

134 See United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); E.R.R. 

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); see also 

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972) (extending 

protection to petitioning before “all departments of Government,” including the 

courts). 

135 Cf. Amarel v. Connell, 102 F.3d 1494, 1520 (9th Cir. 1996).

136 Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 56 

(1993) (internal quotations omitted).

137 See, e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988); 

Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965). 
37

use different techniques to extract Mineral X. Corporation 1 launches a 

campaign designed to foster the adoption and retention of regulations 

that would effectively outlaw Corporation 2’s mining technique. As 

part of this broader campaign, Corporation 1 files a complaint with 

Country Alpha’s Ministry of Mines alleging severe health and safety 

concerns stemming from Corporation 2’s mining technique and 

demanding the permanent closure of Corporation 2’s mine. If 

successful, Corporation 1 would have an effective monopoly on the U.S. 

market for Mineral X. The Country Alpha Ministry of Mines decides to 

investigate the complaint, leading to the temporary shutdown of 

Corporation 2’s operations. 

Discussion: Had Corporation 1’s activities been directed at a U.S. 

government entity and the Noerr-Pennington doctrine applied, the 

Agencies would not take action against Corporation 1. Applying like 

principles here, the Agencies would not institute enforcement action 

against Corporation 1 for lodging a complaint with the Country Alpha 

Ministry of Mines. 

 

5. International Cooperation

Effective enforcement of the U.S. antitrust laws in a global economy benefits from 

cooperation with foreign authorities. The Agencies are committed to cooperating 

with foreign authorities on both policy and investigative matters. This cooperation 

contributes to convergence on substantive enforcement standards that seek to 

advance consumer welfare, based on sound economics, procedural fairness, 

transparency, and non-discriminatory treatment of parties. The Agencies’ 

international policy work and case cooperation are closely connected. As noted

above, consistent approaches to competition law, policy, and procedures across 

jurisdictions facilitate case cooperation among competition authorities. Moreover, 

through case cooperation, the Agencies and cooperating authorities often raise 

important substantive and procedural issues as they arise in practice, which can 

lead to greater convergence in substantive analysis and procedures. In keeping with 

these Guidelines’ focus on international enforcement and practice, this Chapter 

focuses on investigations and case cooperation.

International case cooperation helps agencies investigating a particular matter to 

identify issues of common interest, gain a better understanding of relevant facts, 

and achieve consistent outcomes. Cooperation can yield better results for 

competition and promote efficiency for both cooperating agencies and subjects of an 

investigation. It can improve substantive analyses and procedures, and ensure that 

investigations and remedies are as consistent and predictable as possible, which 
38

improves outcomes, and reduces uncertainty and expense to firms doing business 

across borders. When either Agency reviews a case that raises possible competitive 

concerns in jurisdictions outside of the United States, it may consult with the 

relevant foreign authorities about the matter and coordinate and cooperate with 

those authorities conducting parallel investigations.138 As described in greater 

detail throughout this chapter, cooperation can include a broad range of practices, 

from initiating informal discussions and informing cooperating authorities of the

different stages of their investigations, to engaging in detailed discussions of 

substantive issues, exchanging information, conducting interviews at which two or 

more agencies may be present, and coordinating remedy design and 

implementation, as relevant and appropriate.139

5.1 Investigations and Cooperation 

Increasingly, the Agencies’ investigations involve conduct, entities, individuals, 

and information located outside the United States. The Agencies employ a 

combination of their own investigative tools and cooperation with foreign 

authorities in investigating and seeking appropriate remedies in certain 

international matters.

5.1.1 Investigative Tools

When practical and consistent with enforcement objectives, the Agencies may 

request that parties and third parties voluntarily: provide documents; submit to 

interviews; or provide other information related to an investigation. These requests 

may seek documents or information located outside the United States. 

The Agencies also may use compulsory measures to obtain documents and 

information. Specifically, the Agencies may compel production of documents or 

 138 An Agency may continue that cooperation when either it or the foreign authority 

has closed its investigation. The Agencies may also engage in general discussions 

with foreign authorities on matters in which only one authority has an open 

investigation.

139 The Agencies do not conduct “joint investigations” with foreign authorities; 

neither Agency exercises control over foreign authorities regarding their 

investigations, nor accepts direction from foreign authorities regarding its own 

investigations. The Agencies, however, do cooperate with foreign authorities 

conducting parallel investigations. “[R]obust information-sharing and cooperation 

across parallel investigations” do not transform multiple parallel investigations into 

a joint investigation. United States v. Getto, 729 F.3d 221, 231 (2d Cir. 2013). 
39

information via civil investigative demand (“CID”) or subpoena.140 U.S. law provides 

authority for such compulsory measures directed to persons over whom the courts 

have personal jurisdiction.141 The Agencies may compel the production of 

documents or information, including documents or information located outside the 

United States, when the documents or information sought are within the 

“possession, custody, or control” of an individual or entity subject to the jurisdiction 

of the United States and are not protected by the attorney-client privilege or the 

work-product doctrine.142

When one of the Agencies investigates a transaction notified under the HSR Act, it 

may issue a request for additional documents or information, typically called a 

“Second Request.”143 Compliance with a Second Request requires production of all 

responsive documents and information, no matter where located.

Conflicts can arise where foreign statutes purport to prevent individuals or entities 

from disclosing documents or information for use in U.S. proceedings. The mere 

existence of such statutes, however, does not excuse noncompliance with a request 

for documents or information from one of the Agencies.144

 140 The Department may issue CIDs pursuant to the Antitrust Civil Process Act, 15 

U.S.C.§ 1312, and the FTC may issue CIDs and subpoenas pursuant to the FTC 

Act. Id. §§ 49, 57b-1(c). In merger investigations, the Agencies utilize the 

mechanisms of the HSR Act to gather information from parties. Id. § 18(a). See also 

U.S. Dep’t of Justice, Crim. Resource Manual § 279 (discussing availability of 

subpoenas reaching individuals and evidence located abroad), https://www.justice. 

gov/usam/criminal-resource-manual-279-subpoenas. 

141 In re Grand Jury Proceedings (Bank of Nova Scotia), 740 F.2d 817, 828-29 (11th 

Cir. 1984); United States v. First Nat’l City Bank, 396 F.2d 897, 900-901 (2d Cir. 

1968); see also, e.g., 28 U.S.C. § 1783(a) (authorizing a U.S. court to order the 

issuance of a subpoena “requiring the appearance as a witness before it, or before a 

person or body designated by it, of a national or resident of the United States who is 

in a foreign country, or requiring the production of a specified document or other 

thing by him,” under circumstances identified in the statute). 

142 15 U.S.C. § 57b-1(c)(1) (FTC Act); id. § 1312(a) (Antitrust Civil Process Act).

143 See Section 2.2.4, supra, regarding the HSR Act. 

144 The Agencies do not view the mere existence of blocking statutes as creating a 

conflict of law for purposes of the comity analysis. Cf. Société Nationale Industrielle 
40

Because unilaterally collecting documents or information from individuals or 

entities located abroad can adversely affect law enforcement relationships with 

foreign countries, the Agencies use compulsory measures after carefully considering 

the importance of the documents or information to the investigation or prosecution 

and the availability of other means to obtain them.145 When such compulsory 

measures are warranted, the Agencies may seek to work with the foreign authority 

involved as appropriate. 

5.1.2 Confidentiality

The Agencies’ enforcement activities benefit greatly from access to sensitive, 

nonpublic information from businesses and consumers. The Agencies recognize the 

importance of protecting the confidentiality of sensitive, nonpublic information 

received from parties and foreign authorities. The Agencies protect the 

confidentiality of all such information received, be it from businesses or consumers 

located domestically or abroad, or from foreign authorities, under applicable 

provisions of U.S. law.

Several statutes require the Agencies to treat as confidential certain information 

obtained in the course of an investigation. The HSR Act prohibits the Agencies from 

disclosing information obtained pursuant to the act, including the fact that the 

parties filed notice of a proposed transaction and confidential business information 

provided in a filing or in response to a document or information request.146 The FTC 

Act restricts disclosure of information that the Commission receives pursuant to 

compulsory process, or produced voluntarily in lieu of process, in a law enforcement 

investigation.147 The FTC Act also prohibits the Commission from making public 

any trade secret or any commercial or financial information it obtains that is 

 

Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 542-44 & n. 29 (1987). Comity is 

addressed in Section 4.1.

145 U.S. Dep’t of Justice, Crim. Resource Manual § 279, https://www.justice.gov/ 

usam/criminal-resource-manual-279-subpoenas. 

146 See 15 U.S.C. § 18a(h). 

147 15 U.S.C. §§ 57b-2(b), 57b-2(f). Section 21(f) of the FTC Act also explicitly 

protects from disclosure any materials received from a non-U.S. competition 

authority when “the foreign law enforcement agency or other foreign government 

agency has requested confidential treatment, or has precluded such disclosure 

under other use limitations, as a condition of providing the material.” Id. § 57b-2(f).
41

privileged or confidential, except in limited circumstances.148 The Antitrust Civil 

Process Act prohibits the Department from disclosing documents or testimony 

obtained pursuant to a CID without the consent of the person that produced the 

materials, except in limited circumstances.149 Other federal laws also require the 

Agencies to treat specific types of information as confidential, without regard to the 

manner in which the information is obtained. For example, laws governing privacy, 

national security information, and trade secrets require that the Agencies treat 

certain information as confidential.150

There are certain, discrete circumstances in which the Agencies may disclose a 

person’s confidential information for a specific use. The HSR Act, the FTC Act, and 

the Antitrust Civil Process Act do not bar the Agencies’ use of a person’s confidential 

information in judicial and administrative proceedings.151 However, the Federal 

Rules of Civil Procedure and FTC Rules of Practice include procedures to protect 

confidential information used in judicial proceedings or FTC administrative 

proceedings.152

The Agencies also are subject to the Freedom of Information Act (“FOIA”), which 

provides the public with a right of access to certain agency records.153 This statute, 

however, contains several exemptions that protect information provided to the 

Agencies. It permits the Agencies to withhold certain categories of documents from 

 148 Id. § 46(f).

149 See 15 U.S.C. § 1313(c)(2), (d).

150 For example, U.S. law imposes confidentiality obligations regarding certain 

classes of information, including personally identifiable information. See, e.g. 

5 U.S.C. § 552a (Privacy Act of 1974).

151 In addition, the FTC Act, with regard to the Commission, and HSR Act do not 

prevent the Agencies from complying with information requests from Congress. In 

the event of such a request, however, the Agency receiving the request must notify 

the submitter of the information, and the Agency can request confidential treatment 

of any information that may be shared.

152 For instance, the person providing information may seek a protective order to 

prevent confidential information from being made public or from being used outside 

the court proceeding. See Fed. R. Civ. P. 26(c); 16 C.F.R. § 3.31(d) (requiring 

Administrative Law Judge in FTC proceeding to issue a specific protective order). 

153 5 U.S.C. § 552.
42

requesters, including information protected by statute (such as the HSR Act or FTC 

Act), “commercial or financial information obtained from a person [that is] 

privileged or confidential,” inter- or intra-agency memoranda or letters that would 

be routinely privileged in civil discovery, and “files the disclosure of which would 

constitute a clearly unwarranted invasion of personal privacy.”154 In addition, an 

exemption from FOIA’s disclosure regime applies to certain information compiled 

for law enforcement purposes, including when disclosure could interfere with 

enforcement proceedings or disclose the identity of a confidential source.155

5.1.3 Legal Bases for Cooperation

The Agencies’ authority to cooperate with foreign authorities is inherent in their 

ability to act in furtherance of their mandates. The Department and FTC, therefore, 

each has the discretion to cooperate, including when it furthers its enforcement 

interests. Cooperation can be facilitated by bilateral and multilateral 

arrangements.156 The Agencies have also developed best practices and guidance

documents on cooperation for specific types of investigations.157 These 

 154 Id. § 552(b)(3)-(6). 

155 Id. § 552(b)(7). 

156 For example, the United States or the Agencies have bilateral cooperation 

agreements with eleven jurisdictions or competition agencies: Germany (1976); 

Australia (1982); the European Union (1991); Canada (1995); Brazil, Israel, and 

Japan (1999); Mexico (2000); Chile (2011); Colombia (2014); and Peru (2016). The 

Agencies also have entered into memoranda of understanding with the Russian 

Federal Antimonopoly Service (2009), the three Chinese antimonopoly enforcement 

agencies (2011), the Indian competition authorities (2012), and the Korea Fair 

Trade Commission (2015). These arrangements are available at https://www. 

justice.gov/atr/antitrust-cooperation-agreements and https://www.ftc.gov/policy/ 

international/international-cooperation-agreements. Multilateral arrangements 

include the Recommendation of the OECD Council Concerning Co-Operation on 

Competition Investigations and Proceedings, and the ICN Framework for Merger 

Cooperation. Org. for Econ. Co-Operation & Dev., Recommendation of the OECD 

Council Concerning Co-Operation on Competition Investigations and Proceedings 

(2014), http://www.oecd.org/competition/international-coop-competition-2014-

recommendation.htm; Int’l Competition Network, Framework for Merger 

Cooperation (2012), http://www.internationalcompetitionnetwork.org/uploads/ 

library/doc803.pdf. 

157 See, e.g., US-EU Merger Working Grp., Best Practices on Cooperation in Merger 

Investigations (2011), https://www.justice.gov/atr/best-practices-cooperation-merger-
43

arrangements and guidance documents can serve as a catalyst for cooperation and 

provide useful guidance to coordinate and facilitate enforcement activities. They are 

not necessary for cooperation to take place, and the Agencies may cooperate with 

relevant foreign authorities in the absence of any formal arrangement. These 

bilateral and multilateral arrangements do not change the signatories’ laws, 

including laws concerning the treatment of confidential information.

The IAEAA authorizes the Agencies to enter into antitrust-specific mutual 

assistance agreements with foreign authorities that allow the Agencies to share 

evidence relating to antitrust violations already in their possession and provide 

each other with investigatory assistance in obtaining evidence, subject to certain 

limitations.158 As noted in Section 2.6, the IAEAA does not apply to materials 

submitted pursuant to the HSR Act.159

 

investigations; China Ministry of Comm., Fed. Trade Comm’n, U.S. Dep’t of Justice, 

Guidance for Case Cooperation between the Ministry of Commerce and the 

Department of Justice and Federal Trade Commission on Concentration of 

Undertakings (Merger) Cases (2011), https://www.ftc.gov/system/files/ 

attachments/press-releases/federal-trade-commission-department-justice-meetchinese-ministry-commerce-merger-enforcement/111129mofcom.pdf; U.S.- Can. 

Working Grp., Best Practices on Cooperation in Merger Investigations (2014), 

https://www.justice.gov/sites/default/files/atr/legacy/2014/03/25/304654.pdf; Int’l 

Competition Network, Anti-Cartel Enforcement Manual, http://www.international 

competitionnetwork.org/working-groups/current/cartel/manual.aspx; Int’l 

Competition Network, Recommended Practices for Merger Notification and Review 

Procedures, http://www.internationalcompetitionnetwork.org/uploads/library/ 

doc588.pdf; Int’l Competition Network, Recommended Practices for Merger Analysis, 

http://www.internationalcompetitionnetwork.org/uploads/library/doc316.pdf; Int’l 

Competition Network, Practical Guide to Enforcement Cooperation in Mergers, 

http://www.internationalcompetitionnetwork.org/uploads/library/doc1031.pdf; Org. 

for Econ. Co-Operation & Development, Best Practices for Formal Exchange of 

Information Between Competition Authorities in Hard Core Cartel Investigations

(2005), http://www.oecd.org/competition/cartels/35590548.pdf. 

158 15 U.S.C. § 6201 et seq., discussed supra Section 2.6. Mutual Legal Assistance 

Treaties may be used in the criminal context, discussed infra Section 5.2.

159 Id. § 6204(1).
44

5.1.4 Types of Information Exchanged and Waivers of Confidentiality 

If a transaction or conduct under antitrust investigation in the United States is also 

being investigated by a foreign authority, the Department or the Commission may 

contact the authority. The Agencies may share with these foreign authorities 

relevant publicly available information.160 Similarly, it remains in the Agencies’ 

discretion whether to share with cooperating foreign authorities agency non-public 

information, which is information that the Agencies are not statutorily prohibited 

from disclosing, but that the Agencies normally treat as non-public and withhold 

from public disclosure.161 Examples of agency non-public information include the 

existence of an open investigation and the Agencies’ staff views as to the merits of a 

case, market definition, competitive effects, substantive theories of harm, and 

remedies. Before exchanging agency non-public information, the Agencies will have 

reached an understanding that the foreign authority will maintain the information 

in confidence and in accordance with that authority’s laws and rules. This may be 

through bilateral or multilateral cooperation agreements or arrangements, or other 

means.

While confidentiality obligations generally prohibit the Agencies from disclosing to 

foreign authorities confidential information submitted by a person,162 that person 

can enable the Agencies to engage in more meaningful cooperation with foreign 

authorities by granting the Agencies a waiver of confidentiality as to information 

that may be otherwise protected from disclosure. The Agencies issued a joint model 

waiver of confidentiality for use in civil matters, which serves to streamline the 

waiver process163 and published explanatory materials that provide further details 

on waivers of confidentiality, applicable confidentiality rules, and the process for 

providing a waiver of confidentiality.164

 160 The types of relevant publicly available information that the Agencies may share 

with foreign authorities include background information regarding a particular 

industry or company and public records, such as court or securities filings.

161 See, e.g., 5 U.S.C. § 552(b)(5). 

162 See supra Section 5.1.2. 

163 Fed. Trade Comm’n & Dep’t of Justice, Model Waiver of Confidentiality (2013), 

https://www.ftc.gov/sites/default/files/attachments/international-waiversconfidentiality-ftc-antitrust-investigations/model_waiver.pdf. 

164 U.S. Dep’t of Justice & Fed. Trade Comm’n, Model Waiver of Confidentiality for 

Use in Civil Matters Involving Non-U.S. Competition Auths. Frequently Asked 
45

A waiver identifies the terms under which a person agrees to waive statutory 

confidentiality protections vis-à-vis the agency that originally received the person’s 

confidential information. A waiver also describes an agency’s policy regarding how 

it will treat the information it receives from another agency pursuant to a waiver, 

although it is not an agreement signed by the agency. Waivers are limited in scope 

to a specific, named matter and designate the agencies that may share the waiving 

person’s confidential information. Waivers generally allow the cooperating 

authorities to share documents, statements, data, and other information. 

Waivers enable deeper communication, cooperation, and coordination among 

competition authorities concurrently reviewing a matter. They can lead to more 

effective, efficient investigations and better-informed, more consistent enforcement 

decisions based on the Agencies’ increased ability to share information.

The Agencies will protect information received from a foreign authority pursuant to 

a waiver under applicable provisions of U.S. law. The Agencies will not seek 

information that is privileged under U.S. law from foreign authorities through 

waivers or other cooperative activities.165

Similarly, the Agencies will provide information to foreign authorities pursuant to a 

waiver when they have reached an understanding with the recipient agency that it 

will maintain the confidentiality of such information consistent with its laws and 

rules. Generally, a person that has waived the confidentiality of its information as 

to one of the Agencies also will provide a separate waiver of confidentiality to the 

relevant foreign authority, based on the waiving person’s understanding of the 

foreign authority’s confidentiality protections.

The Agencies may request a waiver of confidentiality, but the decision whether to 

provide one rests solely with the producing person. Refusal to provide a waiver will 

not prejudice the outcome of an investigation, though, in some cases, the absence of 

a waiver may have practical effects such as increasing the risk of inconsistent 

outcomes between jurisdictions. Further, declining to grant a waiver will not 

preclude the Agencies from sharing publicly available or agency non-public 

information with foreign authorities.

 

Questions (2015), www.justice.gov/sites/default/files/atr/legacy/2015/05/11/ 

300916.pdf. 

165 Id.
46

Illustrative Example G

Situation: Corporation 1 and Corporation 2 each manufacture 

Product X and Product Y. Corporation 1 and Corporation 2 enter into 

an agreement to merge. The proposed merger meets the threshold for 

premerger notification in the United States under the HSR Act and the 

thresholds for premerger notification in several other jurisdictions. 

Corporation 1 and Corporation 2 inform the U.S. Agency reviewing the 

merger as well as reviewing foreign authorities that the merger will be 

notified or reviewed in multiple jurisdictions. Pre-notification 

consultations and pre-merger filings are timed to facilitate 

communication and cooperation among reviewing authorities at key 

decision-making stages of their respective investigations. 

Discussion: After learning that the merger will be notified or 

reviewed in more than one jurisdiction, the U.S. Agency contacts the 

foreign reviewing authorities to discuss review timetables and assess 

the potential for cooperation. The extent of cooperation with each 

foreign authority reviewing the matter will vary depending on factors 

including the depth of that authority’s investigation, the competitive 

conditions in that authority’s jurisdiction, and the scope of potential 

remedies likely to be considered. The U.S. Agency requests a waiver of 

confidentiality from Corporation 1 and Corporation 2 to allow for the 

exchange of confidential information with the reviewing authorities in 

Countries Alpha, Beta, and Gamma, given the nature of the 

competitive concerns raised by the merger in these jurisdictions. 

Corporation 1 and Corporation 2 voluntarily grant these waivers, as 

well as the waivers of confidentiality requested by each of these 

reviewing authorities. The U.S. Agency cooperates with the reviewing 

authorities in Countries Delta and Epsilon on the basis of publicly 

available and agency non-public information, without exchanging 

confidential business information. 

As reviews of the merger proceed, the U.S. Agency and the other 

reviewing authorities arrange communications between and among 

themselves as appropriate to their investigations. The U.S. Agency and 

authorities of Alpha, Beta, and Gamma each arrange regular, bilateral 

calls and, in some instances, certain of these agencies conduct 

interviews together, facilitated by waivers. These reviewing agencies, 

as well as the reviewing authorities of Delta and Epsilon, also conduct 

status calls, based on publicly available and agency non-public 
47

information to update each other on the timing of reviews and theories 

of harm. The reviewing authorities of Delta and Epsilon identify that 

the merger’s effects in their jurisdictions are likely to be insignificant, 

and that they will close their investigations accordingly. 

5.1.5 Remedies 

The Agencies seek remedies that effectively address harm or threatened harm to 

U.S. commerce and consumers, while attempting to avoid conflicts with remedies 

contemplated by their foreign counterparts.166 An Agency will seek a remedy that 

includes conduct or assets outside the United States only to the extent that 

including them is needed to effectively redress harm or threatened harm to U.S. 

commerce and consumers167 and is consistent with the Agency’s international 

comity analysis.168

When multiple authorities are investigating the same transaction or same conduct, 

the Agencies may cooperate with other authorities, to the extent permitted under 

 166 United States v. General Elec. Co. et al., No. 15-cv-1460 (D.D.C. 2015); In re 

Panasonic Corp. et al, Dkt. No. C-4274 (FTC Jan. 8, 2010) (allowed for extension of 

divestiture deadline if necessary to obtain approval for divestiture from the 

European Commission).

167 Polypore Int’l, Inc. v. Fed. Trade Comm’n, 686 F.3d 1208, 1219 (11th Cir. 2012)

(affirming Commission decision in a merger matter with remedy including assets 

located outside the United States); United States. v. Cont’l AG & Veyance 

Technologies, No. 14-cv-2087 (D.D.C. 2014) (facilities in Mexico divested); U.S. v. 

Anheuser-Busch InBev SA/NV & Grupo Modelo S.A.B. DE C.V., No. 13-cv-127 

(D.D.C 2013) (brewery in Mexico divested); In re Victrex, plc, Dkt. No. C–4586 

(FTC July 14, 2016) (remedy prohibiting contract provisions that could result in 

exclusivity, including when products are manufactured or sold abroad for use in 

products sold or cleared for use in the United States); In re Intel Corp., Dkt. 

No. 9341 (FTC Nov. 2, 2010) (remedy including requirements regarding licensing 

with foreign CPU maker that potentially competed with Intel in order to restore 

competition in United States). These remedies are often entered into voluntarily 

pursuant to consent decrees. 

168 See supra Section 4.1.
48

U.S. law, to facilitate obtaining effective and non-conflicting remedies.169

Cooperation also may facilitate the development of a proposed remedies package 

that comprehensively addresses the concerns of multiple authorities.170 In some 

circumstances, cooperation may result in one authority closing an investigation 

without remedies after taking another authority’s remedies into account.171

Illustrative Example H

Situation: After investigating the merger as outlined in Illustrative 

Example G, the U.S. Agency finds that the merger is likely to 

substantially lessen competition in the U.S. market for Product X, and 

therefore that the merger would violate Section 7 of the Clayton Act. 

The U.S. Agency determines that these competitive concerns likely can 

be addressed through a divestiture of Corporation 1’s assets related to 

Product X. Countries Alpha, Beta, and Gamma also find that the 

merger will harm competition in their markets for Product X, and 

Country Gamma has additional concerns about a reduction of 

competition in Gamma’s market for Product Y. 

Discussion: The U.S. Agency and the authorities in Alpha, Beta, and 

Gamma discuss, among themselves and with Corporation 1 and 

Corporation 2, a proposed remedy for the competitive concerns 

regarding Product X, in an effort to identify a package of assets for 

divesture that addresses the reviewing agencies’ competitive concerns. 

 169 As with other aspects of cooperation, a person’s grant of waivers can enhance the 

efficacy of such discussions between the Agencies and foreign authorities.

170 See U.S.- Can. Working Grp., Best Practices on Cooperation in Merger 

Investigations (2014), https://www.ftc.gov/system/files/attachments/internationalcompetition-consumer-protection-cooperation-agreements/canada-us_merger_ 

cooperation_best_practices.pdf; US-EU Merger Working Grp., Best Practices on 

Cooperation in Merger Investigations (2011), https://www.justice.gov/sites/default/ 

files/atr/legacy/2011/10/27/276276.pdf. 

171 See United States Submission to OECD Competition Committee regarding 

Remedies in Cross-Border Merger Cases, DAF/COMP/WP3/WD(2013) (discussing 

cooperation and remedies in: In the Matter of Agilent Technologies; In the Matter of 

Panasonic Corporation/Sanyo Electric Co., Ltd.; UTC/Goodrich; Cisco/Tandberg; 

and other matters). 
49

In this instance, the U.S. Agency and the foreign reviewing authorities 

agree that the same divestiture remedy for Product X will effectively 

address the competitive concerns in their respective jurisdictions. 

Corporation 1 and Corporation 2 enter into a consent decree in the 

United States that includes divestiture of specified assets of 

Corporation 1’s related to Product X, and the authority in Alpha seeks 

the same divestiture remedy to ensure enforceability of the remedy in 

its jurisdiction. Country Beta concludes that the remedies secured in 

the United States and in Country Alpha are sufficient to address its 

competitive concerns and closes its investigation. Country Gamma 

seeks a remedy identical to that entered into in the United States and 

Country Alpha regarding Product X, coupled with an additional 

remedy to address the competitive harm in its jurisdiction regarding 

Product Y. 

 

5.2 Special Considerations in Criminal Investigations

Among the Department’s top priorities is the criminal investigation and prosecution 

of international price-fixing cartels. Because these cartels often involve foreignlocated defendants, witnesses, and evidence, antitrust enforcement in this context 

can present not only an investigatory challenge but also a special need for 

international cooperation and coordination. Mutual Legal Assistance Treaties 

(“MLATs”) are an important basis for international cooperation in the Department’s 

criminal antitrust enforcement. MLATs are used often in criminal investigations to 

gather evidence located outside the United States. Parties to these agreements have 

agreed to assist one another in criminal law enforcement matters.172 The specific 

provisions of MLATs vary, but they generally provide for assistance in obtaining 

evidence and in serving documents in one jurisdiction at the request of the other. 

The Department also coordinates with foreign authorities when they are conducting 

cartel investigations parallel with the Department’s own. The Department 

sometimes shares information to coordinate investigative steps. For example, to 

minimize the risk of document destruction, the Department and foreign authorities 

can time dawn raids and searches to coincide in multiple jurisdictions. And the 

 172 The United States’ MLAT with Germany is unique in that it also provides for 

U.S. assistance to Germany in administrative cartel matters. See Mutual Legal 

Assistance Treaty, U.S.-Ger., S. Treaty Doc. 108-27 (2003), available at

https://www.congress.gov/108/cdoc/tdoc27/CDOC-108tdoc27.pdf. 
50

Department and foreign authorities may also coordinate on logistical aspects of 

their parallel investigations to help minimize overlapping and inconsistent 

demands placed on cooperating individuals and firms. The Department recognizes 

that such coordination has the benefit of decreasing the costs to cooperators and 

increasing the pace of the investigations and is committed to engaging in such 

coordination where practicable.

The Department’s ability to share information with foreign authorities is not 

unlimited, however. An essential component in the investigation and enforcement of 

the criminal antitrust laws is the grand jury, which is subject to the grand jury 

secrecy rule. Through its subpoenas, a grand jury can “compel the production of 

evidence or the testimony of witnesses as it considers appropriate, and its operation 

generally is unrestrained by the technical procedural and evidentiary rules 

governing the conduct of criminal trials.”173 The Department is prohibited, however, 

from disclosing matters occurring before the grand jury absent an applicable 

exception.174 This prohibition cannot be waived by a subject of the investigation, a 

grand jury witness, or a recipient of a grand jury subpoena. The prohibition, 

however, does not apply to these persons and therefore does not generally prohibit 

disclosures by them.

In addition, a criminal investigation can gather information through the assistance 

of an applicant under the Department’s Corporate and Individual Leniency Policies 

for antitrust crimes.175 To qualify for leniency under those policies, the applicant is 

required, among other things, to report the wrongdoing with candor and 

completeness and provide full, continuing, and complete cooperation. That required 

cooperation includes the production of all documents, information, or other 

materials in the applicant’s possession, custody, or control, wherever located, that 

are requested by the Department in connection with the criminal antitrust 

investigation and are not protected by the attorney-client privilege or the workproduct doctrine.

 173 United States v. Calandra, 414 U.S. 338, 343 (1974); see also Branzburg v. Hayes, 

408 U.S. 665, 688 (1972). The “powers of the grand jury are not unlimited,” id.; for 

example, a grand jury subpoena does not override a valid privilege and may be 

quashed or modified by a court if compliance would be “unreasonable or oppressive.” 

Fed. R. Crim. P. 17(c)(2).

174 Fed. R. Crim. P. 6(e).

175 For information on these policies, see https://www.justice.gov/atr/leniencyprogram. 
51

The Department holds the identity of leniency applicants and the information they 

provide in strict confidence. The Department does not publicly disclose the identity 

of an applicant or information provided by the applicant, absent prior disclosure by 

the applicant, unless required to do so by a court order in connection with litigation. 

A leniency applicant can agree to waive this confidentiality assurance and allow the 

Department to share the applicant’s identity and information with a foreign 

authority. Such waivers of confidentiality for information sharing with a foreign

authority are common when the applicant has also applied for leniency under the 

foreign authority’s leniency policy.

Lastly, the Department sometimes seeks the cooperation of foreign jurisdictions to 

obtain indicted fugitives. It can seek the issuance of an INTERPOL “Red Notice,” 

which operates as an international “wanted” notice that, in some INTERPOL 

member countries, serves as a request, should the fugitive enter their jurisdiction, 

to arrest the subject, with a view toward extradition. And the Department can 

request that a foreign jurisdiction extradite a fugitive defendant located in that 

jurisdiction to the United States.176

 176 Extradition ordinarily depends on the presence and terms of an extradition 

treaty with the foreign jurisdiction. 
A1

Annex 1. Defined Terms

ACPERA........................... Antitrust Criminal Penalty Enhancement and Reform

Act of 2004

Agencies............................ The Department of Justice and Federal Trade 

Commission

APEC............................... Asia-Pacific Economic Cooperation

CID.................................. Civil Investigative Demand 

Clayton Act........................ Clayton Antitrust Act 

Commission....................... Federal Trade Commission 

Department....................... The Department of Justice 

ETC Act............................ Export Trading Company Act of 1982 

ETCR................................ Export Trade Certificate of Review 

FTC.................................. Federal Trade Commission

FTC Act............................. Federal Trade Commission Act 

FSIA................................. Foreign Sovereign Immunities Act of 1976 

FTAIA............................... Foreign Trade Antitrust Improvements Act of 1982 

FOIA................................. Freedom of Information Act 

HSR Act............................ Hart-Scott-Rodino Antitrust Improvements Act of 

1976 

HSR Rules......................... Hart-Scott-Rodino Premerger Notification Rules 

IAEAA.............................. International Antitrust Enforcement Assistance Act 

ICN................................... International Competition Network 

International 

Guidelines.........................

Antitrust Guidelines for International Enforcement 

and Cooperation

MLATs.............................. Mutual Legal Assistance Treaties 

NCRPA............................. National Cooperative Research and Production Act 

OECD................................ Organisation for Economic Co-operation and 

Development

Sherman Act...................... Sherman Antitrust Act 

SDOs................................ Standards Development Organizations 

UNCTAD........................... United Nations Conference on Trade and Development

USTR................................ U.S. Trade Representative