Program Insights - Disclosure of Leniency Documents: Implications of the ECJ’s Pfleiderer Decision in the U.S.


The European Court of Justice’s (“ECJ”) recent decision in Pfleiderer AG v. Bundeskartellamt (“Pfleiderer”) introduced uncertainty regarding the ability of leniency applicants to maintain the confidentiality of documents. The decision could have wide-ranging implications for the EC and U.S. private antitrust litigation. Historically, the European Commission (“Commission” or “EC”) has strongly protected leniency materials from disclosure in Europe and the U.S. The Pfleiderer decision, however, may provide U.S. plaintiffs with a new tool to obtain evidence of cartel activities by influencing the comity analysis employed by U.S. courts. Alternatively, Pfleiderer is likely to strengthen Department of Justice (“DOJ”) and Commission efforts to vigilantly safeguard these confidential documents.

On November 21, 2011, the International, Joint Conduct, and Cartel and Criminal Practice Committees of the American Bar Association Section of Antitrust Law hosted a panel discussion on the “Disclosure of Leniency Documents to Private Litigants: Implications of the ECJ’s Pfleiderer decision.” The program was moderated by Anu Bradford (Columbia Law School) and featured panelists Katharina Krauss (Head of the Special Unit for Combating Cartels, Bundeskartellamt); Lisa Phelan (Chief of the National Criminal Enforcement Section of the United States Department of Justice Antitrust Division); Thomas G. Funke (Partner, Osborne Clarke); and John Taladay (Partner, Baker Botts). The following article addresses some of the key issues relating to the U.S. implications of the Pfleiderer decision and highlighted during the panel discussion.

Excerpted from ABA Antitrust Section Joint Conduct Committee E-Bulletin, Vol. 9, No. 1, Fall 2011. To read the full article, click here.

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