Japanese Companies Face More and More Antitrust Scrutiny in U.S.

The U.S. Department of Justice’s Antitrust Division has been increasingly aggressive in enforcing U.S. antitrust laws against Japanese companies. In 2012, six Japanese companies — the highest number on record — received fines of more than $10 million each and $817 million in total.¹ Four Japanese companies have been fined to date in 2013, equaling the previous record numbers in 1999 and 2009. The international probes that have resulted in fines to Japanese companies include the DOJ’s antitrust investigations involving automobile parts, graphite electronics, air transportation (cargo and passenger), DRAM computer chips and LCD displays.

Dramatic Increases in Fines and Jail Sentences

In March 1999, the DOJ announced a new era of international anti-cartel enforcement, proclaiming that it had obtained nearly $440 million in fines in its international cartel prosecutions in the two years prior — an amount roughly equivalent to the total fines imposed in all of the DOJ’s prosecutions over the previous 20 years.² In the nearly 15 years since that announcement, the DOJ has sought to increase the criminal fines collected and sentences imposed through international enforcement, including enforcement efforts against Japanese companies.

Increased enforcement efforts have corresponded to increased collection of criminal antitrust fines. In both 2009 and 2012, the DOJ collected $1 billion or more in fines against corporations for antitrust violations.³ At least 10 Japanese companies have been fined over $50 million for antitrust violations, with the highest fine levied against a Japanese company being $470 million.

Criminal sentences for antitrust violations have also dramatically increased over the past 15 years. The DOJ has stated its belief that the most effective deterrent to cartel offenses is to impose jail sentences on corporate executives,⁴ and it has aggressively pursued increased sentences for executives. From 1990 through 1999, the average prison sentence for Sherman Act offenses was eight months; from 2000 to 2009, the average sentence rose to 20 months; and from 2010 to 2012, the average sentence rose again to 25 months.⁵ In the last several years, more than a dozen Japanese executives have agreed to plead guilty and serve jail time in the United States.

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1. Antitrust Division Sherman Act Violations Yielding a Corporate Fine of $10 Million or More, available at http://www.justice.gov/atr/public/criminal/sherman10.pdf.
2. “Negotiating The Waters of International Cartel Prosecutions,” Gary R. Spratling, Department of Justice, Mar. 4, 1999, at 1, available at http://www.justice.gov/atr/ public /speeches/2275.pdf.
3. Criminal Enforcement Fine and Jail Charts Through Fiscal Year 2012, available at http://www.justice.gov/atr/public/criminal/264101.html.
4. See “Charting New Waters in International Cartel Prosecutions,” Scott Hammond, Department of Justice, Mar. 2, 2006, at 13, available at http://www.justice.gov/atr/ public /speeches/214861.pdf.
5. Criminal Enforcement Fine and Jail Charts Through Fiscal Year 2012, supra note 2.