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Global cartel enforcement activity was steady in 2016, with a growing number of countries criminalizing cartel conduct and investigations becoming increasingly global in their scope. In the US, although the Antitrust Division of the Department of Justice (DOJ) is still carrying out its long-running investigation into automotive parts, there is now a sense in the legal market that the agency’s focus on this area is beginning to wind down. The DOJ has dedicated considerable resources to this area, which represents the largest-ever antitrust investigation in its history. In 2016, however, there was an increased focus on other areas, such as financial benchmark manipulation, generic drug price-fixing and alleged collusion among competitors in other sectors, such as packaged seafood and capacitors. The DOJ also announced that it was investigating ‘no-poaching’ and wage-fixing agreements. In addition, as made clear by the Yates memorandum, there has been a renewed focus on individuals’ misconduct in the context of corporate investigations.

Criminal investigations also invariably lead to associated civil follow-on actions. Complementing this trend, there are also indications that civil antitrust lawsuits are increasingly being filed against parties suspected of conspiring to commit the most serious anti-competitive practices, even where no government investigation has been initiated.

Elsewhere in the antitrust arena in 2016, in what was the final full year of the Obama administration, the DOJ and Federal Trade Commission became increasingly aggressive at enforcing antitrust rules and resisting what they deemed to be potentially anti-competitive industry-consolidating mega-deals. This led to proposed transactions being challenged, and either blocked outright or else abandoned by the parties involved. The health insurance industry is one area that has been in the regulatory crosshairs recently; two prospective deals, namely Anthem/Cigna and Aetna/Humana, were challenged. Outside of this space, other high-profile mega-deals that failed to complete included Staples/Office Depot (blocked by a federal judge) and Baker Hughes/Halliburton (abandoned by the parties due to US and EU regulators’ objections).

Notwithstanding all of the above, it remains to be seen the extent to which changes in the US political landscape will have an impact on antitrust enforcement in 2017 and beyond.

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