McDermott International Legal Highlights


LAWYERS’ CORNER: Obtaining Oral Evidence of Cartels: The Differences Between the European Union and The United States

Jacques Buhart

Detecting infringements of competition law, in particular the existence of cartels, is becoming an increasingly difficult task for competition authorities. Most of the time cartelists avoid discussing contact with competitors in their written communications. This lack of evidence is crucial: when there are question marks over the existence of the infringement, the benefit of the doubt must go to the company under investigation. The US Department of Justice (DOJ) must prove a company’s guilt “beyond reasonable doubt” and the European Commission must establish facts to the “requisite legal standard”, which is a slightly lower burden than that faced by DOJ. While DOJ and the Commission both tend to resort to the same type of written evidence to prove a cartel, there are major differences between the two systems with respect to oral evidence.

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Risk of Extradition to the United States for Cartel Violations May be Increasing

Christian Krohs

In the context of the largest-ever investigation into the automobile parts industry conducted by the US Department of Justice (DOJ), DOJ has secured more than 25 guilty pleas from Japanese citizens who have agreed to come to the United States to serve jail sentences. DOJ has also indicted more than 30 Japanese citizens who will, most likely, stay in Japan.

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The Implications of Upcoming EU Data Protection Reforms

Following the compromise agreed among the Council of the European Union (“Council”), the European Parliament (“Parliament”) and the European Commission in December 2015, on 8 April 2016, the Council adopted its position on the EU General Data Protection Regulation (“GDPR”) at first reading. On 14 April 2016, the Parliament approved this position without amendments.

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Enhanced Sharing of Antitrust Evidence: New EU/Japan Cooperation Agreement

On 15 March 2016, the Japan Fair Trade Commission (JFTC) and the European Commission (Commission) announced their intention to upgrade the current antitrust co-operation agreement between Japan and the European Union. The upgrade will have a number of practical and legal implications for companies involved in international antitrust investigations or considering making leniency applications.

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US Federal Circuit Precedents on Domestic and International Patent Exhaustion Principles Remain Unchanged

Paul Devinsky

In Lexmark Int’l, Inc., v Impression Products, Inc., Case Nos. 14-1617; -1619 (Fed Cir, Feb. 12, 2016) the en banc US Court of Appeals for the Federal Circuit has issued its long awaited (10-2) decision, reaffirming the Court’s prior rulings in Mallinckrodt and Jazz Photo that a seller using its patent rights to block the resale and reuse of a product, and authorized sales of a product abroad, does not exhaust the US patent rights associated with that product.

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