About Michael O'Kane
Michael O’Kane is a partner and Head of the Business Crime team at leading UK firm Peters & Peters. Described as ‘first-rate’ (Legal 500 2012), he “draws glowing praise from commentators” (Chambers 2013) for handling the international aspects of business crime, including sanctions, extradition and mutual legal assistance.
Called to the Bar in 1992 and prior to joining Peters & Peters he was a senior specialist prosecutor at the Crown Prosecution Service Headquarters(CPS). At CPS HQ he was a key member of a small specialist unit responsible for the prosecution of serious and high profile fraud, terrorist and special interest criminal matters including the Stansted Airport Afghan hijacking and the prosecution of Paul Burrell (Princess Diana’s butler). Michael joined Peters & Peters in 2002. He became a partner in May 2004, and Head of the Business Crime team in May 2009.
Since joining Peters & Peters, Michael has dealt with a wide range of business crime matters. He has particular expertise in international sanctions, criminal cartels, extradition, corruption, mutual legal assistance, and FSA investigations. Described as“ an influential practitioner in fraud and regulatory work, so much so that he is top of the referral lists of many City firms for independent advice for directors” (The Lawyer’s Hot 100 2009), he was recognised as one of the UK’s most innovative lawyers in the 2011 FT Innovative Lawyer Awards and included in the list of the UK's leading lawyers in 'The International Who's Who of Asset Recovery 2012. In 2012 he was the winner of the Global Competition Review Article of the Year.
Michael regularly appears on television and radio to discuss his specialist areas and he is the author of the leading textbook on the UK Criminal Cartel Offence “The Law of Criminal Cartels-Practice and Procedure” (Oxford University Press 2009).
Recent/Current Sanctions Work
• Representing 109 individuals and 12 companies subject to designation by the European Council under targeted measures imposed against Zimbabwe. This is the largest and most complex collective challenge to a sanctions listing ever brought before the European Court.
• Acting for a former Egyptian Minister and his UK resident wife, challenging their designation by the European Council of Ministers under targeted measures brought against former members of the Egyptian Government.
• Advising a company accused in a UN investigation report to have breached UN sanctions imposed in relation to Somalia.
• Advising a UK company in relation to ongoing commercial relationships with an Iranian company listed under both EU and UN sanctions.
• Advising an individual in relation to a UK investigation for alleging breaching nuclear export controls.
On 19 March 2014, the European Commission announced the imposition of fines totalling € 953 306 000 on two European companies (SKF and Schaeffler) and four Japanese companies (JTEKT, NSK, NFC and NTN with its French subsidiary NTN-SNR) for participating in a cartel in automotive bearings market from April 2004 until July 2011.
The Commission found that the companies coordinated the passing-on of steel price increases to their customers, colluded on Requests for Quotations and for Annual Price Reductions from customers and exchanged commercially sensitive information. This occurred through multi-, tri- and bilateral contacts. The size of the EU market for automotive bearings is estimated to be at least € 2 billion a year.
Japanese company JTEKT was not fined as it benefited from immunity under the Commission’s 2006 Leniency Notice for revealing the existence of the cartel to the Commission. NSK, NFC, SKF and Schaeffler received reductions of their fines for their co-operation in the investigation under the Commission’s leniency programme. Since all companies agreed to settle the case with the Commission, their fines were further reduced by 10%.
Commission Vice President in charge of competition policy, Joaquín Almunia, said: “Today’s decision is a further milestone in the Commission’s ongoing effort to bust cartels in the markets for car parts, after the sanctions we imposed on producers of electric wires and of foam used in car seats. It is incredible to see that one more car component was cartelised. I hope the fines imposed will deter companies from engaging in such illegal behaviour and help restore competition in this industry.”
The decision is part of a major investigative effort into suspected cartels in the automotive parts industry. The Commission has pursued cartel activity in several sectors of the industry, including wire harnesses in cars (IP/13/673) and flexible foam used in car seats (IP/14/88).
The Commission announced on 19 March 2014 that it is investigating more products, such as airbags, safety belts and steering wheels (see MEMO/11/395), air conditioning and engine cooling products (see MEMO/12/563) and lighting systems.
On 23rd December 2013, the Korean antitrust regulator, the Korea Fair Trade Commission (“KFTC”), imposed fines of 114.6 billion won (approximately US$108 million) on a number of auto parts suppliers, including Japan’s Denso Corporation and Germany’s Bosch and Continental AG. The charges related to the fixing of prices for car instrument panels and wipers, in particular those sold to Hyundai and its affiliate, Kia Motors. The FTC has estimated that price collusion has affected the cost of around 11 million units. The parts in question account for approximately 0.5% of the price of the car.
The largest fine, 63 billion won, was imposed on the Denso Corporation, which was accused of fixing prices between January 2008 and March 2012, initially with Continental AG and then with Bosch. The FTC found that price collusion led to a sharp increase in price estimates provided by the suppliers. Continental AG and Bosch have been fined 46 billion and 5.6 billion won respectively.
Shin Dong-kwon, Head of the Cartel Investigation Bureau at the KFTC, said, “We collaborated with antitrust regulators from the US and the EU to crack down on price collusion among auto parts makers. And we will closely monitor international cartels targeting the Korean market in the future.”
The U.S. Justice Department and antitrust enforcers worldwide have been investigating price-fixing by around 20 companies and 21 executives in the automotive industry. To date, the corporations in question have agreed to pay $1.6 billion in fines.
On Friday 6th December 2013 Judge Daniel R. Dominguez of the US District Court of Puerto Rico in San Juan handed down the longest sentence in US history for a single antitrust charge. Frank Peake, the former president of Sea Star Line LLC, was sentenced to serve five years in prison and to pay a $25,000 criminal fine for his participation in what the indictment described as a conspiracy to fix rates and surcharges for freight transported by water between the continental United States and Puerto Rico.
The prison sentence was far shorter than the 87 months sought by prosecutors from the Antitrust Division of the US Department of Justice. The prosecuting attorney in the case was reported to have said that the record sentence was intended to “get the attention of companies and executives around the world.”
Reports have quoted the Department of Justice as asserting that Peake and his co-conspirators conspired to fix, stabilise and maintain rates and surcharges for Puerto Rico freight services, to allocate customers between them and to rig bids submitted to customers. Peake was involved in the conspiracy from at least late 2005 until at least April 2008.
As a result of an ongoing Department of Justice investigation, the three largest water freight carriers serving routes between the continental United States and Puerto Rico, including Peake’s former employer Sea Star, have pleaded guilty and been ordered to pay more than $46 million in criminal fines for their roles in the conspiracy. Sea Star pleaded guilty on 20th December 2011, and was sentenced by Judge Dominguez to pay a $14.2 million criminal fine. Sea Star transports a variety of cargo shipments, such as heavy equipment, perishable food items, medicines and consumer goods, on scheduled ocean voyages between the continental United States and Puerto Rico.
Custodial sentences have been handed down to five other individuals. Additionally, Thomas Farmer, the former vice president of price and yield management of Crowley Liner Services, was indicted in March 2013 for his role in the conspiracy and is scheduled to go to trial in May 2014.
On 4th November 2013, the US Senate unanimously passed legislation to extend whistleblower protection for employees providing information to the Department of Justice relating to criminal antitrust violations.
The Criminal Antitrust Anti-Retaliation Act was jointly introduced by Senator Patrick Leahy (Democrat, Vermont) and Senator Chuck Grassley (Republican, Iowa), chairman and ranking member of the Senate Judiciary Committee. The Senators were the authors of previous whistleblower provisions within the 2002 Sarbanes-Oxley Act, passed in the aftermath of the collapse of Enron. Senator Grassley was reported as commenting that “Too often whistleblowers who risk their careers to expose waste, fraud and abuse are treated like second-class citizens.”
The recent Bill was based on a report released in July 2011 by the US Government Accountability Office. It adds a civil remedy for those who have been fired, or otherwise discriminated against, after blowing the whistle on criminal antitrust activity. Employees who believe they are victims of retaliation may file complaints with the Secretary of Labor. The new Act provides for those employees to be reinstated to their former status if the Secretary of Labor finds in their favor. Senator Leahy commented that “The Criminal Antitrust Anti-Retaliation Act does not provide employees with an economic incentive to report violations. The legislation simply makes whole employees who have been fired or discriminated against for blowing the whistle on criminal conduct.” Critics of the measure have pointed to the absence of an economic incentive as an obstacle to the effectiveness of the legislation.
Commentators have pointed to the case of Marty McNulty as exemplifying the kind of injustice that Leahy and Grassley’s Bill is intended to eliminate. In 2005, McNulty claimed to have discovered that his employer, Arctic Glacier International, had agreed with Home City Ice to keep the prices of its packaged ice artificially high. He repeated the allegation to the FBI. Both companies were ordered to pay $9 million in fines. McNulty was fired and claimed to have been blackballed within the industry. Supporters of the new measure point out that McNulty would have both kept his job and been able to claim for damages suffered in the process.
On 10th October 2013, a jury in San Francisco acquitted former AU Optronics executive Richard Bai of criminal price fixing charges. After a two-and-a-half week trial in the Northern District of California, the jury reached its verdict after just over a day’s deliberation.
In 2009, the US Department of Justice Antitrust Division indicted Mr Bai and five other AU Optronics executives for allegedly conspiring with LG, Samsung, Chi Mei Optoelectronics and Chunghwa Picture Tubes to fix and stablilise the price of LCD panels to customers such as Hewlett-Packard, Dell and Apple. As reported here on 30th April 2013 (see below blog post), AU Optronics executive Shiu Lung Leung was sentenced in California to two years imprisonment and a fine of $50,000 for his involvement in a criminal conspiracy to fix the prices of liquid crystal displays used in computer screens and televisions.
Against Bai, a former head of the company’s Notebook Sales division, the Department of Justice alleged that he had implemented the price fixing conspiracy through his own conduct and by directing his subordinates to co-ordinate pricing with competitors. Prosecutors further alleged that Bai had acted as the company’s point of contact for co-conspirators seeking to fix the price of screens for notebook computers.
Persuaded by Bai’s legal representatives Shearman & Sterling and trial lawyer Brian Getz, the jury rejected the Department of Justice’s allegations, concluding that, although Bai took part in a meeting with LCD rivals, there was insufficient evidence that he conspired at those meetings. Getz commented that “No-one who came to testify could say that they price-fixed with him. They admitted that they colluded with executives above him, but not with Bai himself, and I think this is what swayed the jury.”
The Competition and Markets Authority (CMA) has published a consultation document setting out its draft Guidance and Rules of Procedure for investigation procedures under the Competition Act 1998 (the Guidance and Rules of Procedure). The document is part of a wider consultation about how the CMA will work in practice and how it will interact with businesses and individuals when it takes over the functions of the OFT on 1 May 2014. A previous blog post discussed the draft prosecution guidance on the criminal cartel offence.
The Guidance and Rules of Procedure largely mirrors the current OFT guide to investigation procedures in competition cases, but in addition covers a series of new powers granted to the CMA under the Enterprise and Regulatory Reform Act 2013. These include:
- Giving the CMA the power to interview individuals;
- Replacing the current criminal sanctions for failing to comply with investigations with civil financial sanctions;
- Giving the CMA the express power to publish a notice of investigation, which may name a party or parties to an investigation;
- Lowering the threshold for the CMA to impose interim measures; and
- Introducing new statutory factors to be taken into account in fixing a penalty.
The most controversial of these powers is the new power under section 26A of the Competition Act 1998 to require any individual who has a connection with a business which is a party to an investigation to answer questions on any matter relevant to the investigation. The OFT has said that the new power is designed to make the CMA’s investigations more robust and efficient by enabling it to obtain information orally that it would otherwise either not be able to obtain or only be able to obtain through written requests. However, concerns have been raised that it will be used to carry out ‘fishing expeditions’ for information during investigations and that individuals’ rights may not be adequately protected.
The CMA must provide both the person and the undertaking with a formal notice which will ordinarily state the time and place at which the person must be available for questioning. However, the Guidance and Rules of Procedure state that in certain circumstances the CMA may interview an individual using its formal powers immediately after giving the notice. This is likely to be during a dawn raid where the CMA is of the view that a delay in conducting the interview may compromise the investigation.
A person being formally questioned may request that a lawyer be present. The CMA will only permit a legal adviser who is also acting for the undertaking under investigation to attend the interview if it is satisfied that this will not risk prejudicing the investigation (for example because it would increase the risk of destruction of evidence or reduce the incentive for individuals being questioned to speak openly and honestly). If this is the case, then the person can request another lawyer and the CMA will delay questioning for a reasonable time to allow a legal adviser to attend. However, the Guidance and Rules of Procedure define “a reasonable time” as such period of time as the officer considers is reasonable in the circumstances. The wide discretion granted to the relevant CMA officer raises the possibility that people may be formally interviewed without a lawyer present or without being fully aware of their rights.
The definition of connected individuals is also very wide, covering not only directors and employees, but also consultants, volunteers, contract staff and professional advisers.
The consultation closes on 11 November
The US Justice Department announced on 26 September 2013 that nine Japanese companies and two executives have agreed to plead guilty and pay more than USD 740 million in criminal fines for their roles in a number of conspiracies to fix prices in the car manufacturing sector.
The companies and executives engaged in various price-fixing schemes in relation to more than 30 different car components which affected more than USD 5 billion in auto parts used in more than 25 million cars sold in the US market. The companies and executives have admitted to attending meetings and making telephone calls in the US and Japan to rig bids, set prices and allocate the supply of parts sold to car manufacturers. Those involved took measures to keep their cartel conduct secret by using code names and meeting in remote locations.
The largest fines have been imposed on Hitachi Automotive Systems Ltd., Jtekt Corporation, Mitsuba Corporation and Mitsubishi Electric Corporation (MELCO) who have all agreed to pay in excess of USD 100 million. The two executives, US citizen Gary Walker and Japanese citizen Tetsuya Kunida, will serve 14 and 12 month prison sentences respectively and will each pay a USD 20,000 fine. All parties have admitted to violations of the Sherman Act and agreed to cooperate with the ongoing investigation
The fines are the latest in the Department of Justice’s ongoing investigation into the automotive sector (see previous blog post). The investigation has so far seen 20 companies and 17 executives plead guilty and has cost the auto industry more than USD 1.6 billion in fines and resulted in prison sentences of between a year and a day and two years.
What is now the largest cartel investigation in US history in terms of criminal fines and number of companies and executives under investigation looks set to continue. Eric Holder, the US Attorney General said at a press conference to announce the plea deals “The Department of Justice will continue to crack down on cartel behviour that causes American consumers and businesses to pay higher prices for the products and services they rely upon in their everyday lives”
The US Justice Department announced on 19 September 2013 that a federal grand jury had returned indictments against two executives at Fujikura Ltd, for their role in a conspiracy to fix prices in the car manufacturing sector.
Ryoji Fukudome and Toshihiko Nagashima, both Japanese citizens, are accused of attending meetings to agree to rig bids and allocate the supply of automotive wire harnesses sold to Fuji Heavy Industries for use in electrical systems in its Subaru cars sold in the US, in violation of the Sherman Act. It is alleged that these meetings were followed up with further communications to monitor and enforce the collusive agreements. Fujikara pleaded guilty to its role in the conspiracy in June 2012 and paid a USD20 million criminal fine.
The charges are the latest in the Department of Justice’s ongoing investigation into the automotive sector and follow the indictment entered against G. S Electech executive Shingo Okuda earlier in September 2013 (see previous blog post). The investigation has so far seen 12 companies and 15 executives plead guilty and has cost the auto industry more than USD874 million in fines and resulted in prison sentences of between a year and a day and two years. Substantial fines have also been imposed in parallel investigations in Europe, Australia, Korea, Japan and Canada. An investigation in China is expected to be opened in the coming months.
Scott Hammond, the deputy assistant attorney general of the antitrust division’s criminal enforcement programme, pledged that the Department of Justice would continue to protect US businesses and consumers by “working closely with competition enforcers abroad to ensure that there are no safe harbors for executives who engage in international cartel crimes.”
The Competition and Markets Authority (CMA), which will take over the functions of the OFT on 1 April 2014, has launched a consultation about how the CMA will work in practice and how it will interact with businesses and individuals.
This includes the publication of draft prosecution guidance on the criminal cartel offence. The guidance sets out some of the considerations that the CMA will take into account when deciding whether to prosecute the cartel offence, in particular in relation to the new exclusions in section 188A and defences in section 188B of the Enterprise Act 2002 (as amended by section 47 of the Enterprise and Regulatory Reform Act 2013). It is worth noting that the CMA takes the view that the term ‘professional legal advisers’ in the legal advice defence in subsection 188B(3) refers to both external and in-house legal advisers. The guidance states that an individual must show that they have made a genuine attempt to seek legal advice about the arrangement, but there is no mention of whether the advice needs to be followed.
The guidance also sets out a number of considerations that the CMA will take into account when deciding whether it is in the public interest to prosecute:
- The seriousness of the offence;
- The level of culpability of the suspects;
- The impact on the community; and
- Whether prosecution is a proportionate response.
In parallel, the Department for Business, Innovation and Skills has published draft secondary legislation in relation to the UK’s competition regime. This includes a draft Order for the publishing of relevant information under section 188A of the Enterprise Act 2002. The draft Order specifies that relevant information is published if it is advertised once in any of the London Gazette, the Edinburgh Gazette and the Belfast Gazette.
The consultations close on 11 November 2013.
John Pecman, the recently appointed Commissioner of Canada’s Competition Bureau, has announced a new Criminal Cartel Whistleblowing Initiative to encourage members of the public to provide information to the Competition Bureau about possible violations of sections 45 to 49 of the Competition Act. These provisions criminalise a wide range of cartel conduct including price fixing, allocation of markets, restricting outputs and bid rigging.
The new programme is in addition to the general protection for whistleblowers already provided for in Canadian legislation, and demonstrates the Competition Bureau’s increasing focus on tackling violations of the criminal cartel offence. The Competition Act provides that any person who has reasonable grounds to believe that a person has committed (or intends to commit) an offence under the Act and notifies the Commission as such may request that their identity be kept confidential, and also prohibits employers from taking action against whistleblowers who act in good faith and on the basis of reasonable belief. Canada’s Criminal Code provides a wider protection for anyone who provides information to law enforcement officers with respect to any kind of offence committed by someone in their organisation.
The details of the Criminal Cartel Whistleblowing Initiative show a high degree of protection for the identity of individuals who come forward, with an assurance that any information used to enforce the offence will not reveal the Whistleblower’s identity and a guarantee that while individuals may be asked to testify in court they will not be required to do so.
The Competition Bureau already has immunity and leniency programmes in place to encourage self-reporting, and Pecman said that the new initiative was designed to “support increased reporting of anti-competitive behaviour, while ensuring the protection of individuals who come forward with such information.”