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In the United Kingdom there have been two recent significant
developments in respect of cartel activity. On Friday 11 July,
Mr Justice Pitchford quashed an indictment alleging price
fixing against five pharmaceutical companies and nine
executives. On the same date, Gallaher and five retailers
agreed to pay £132 million to settle charges brought by
the Office of Fair Trading ("OFT"). By any measure,
the developments represent a spectacular defeat for
Britain's Serious Fraud Office ("SFO") and a
significant achievement for the increasingly aggressive
OFT.
Serious Fraud Office Prosecution
The SFO began investigating allegations of price fixing in
the pharmaceutical industry in 2000. In April 2002 more than 30
premises were raided including the offices of pharmaceutical
companies and the homes of a number of executives. Civil
proceedings began in October 2002 against the pharmaceutical
companies. It has been suggested that the cost of the
investigation amounted to £25 million and was the largest
prosecution ever brought by the SFO. The companies Goldshield
Group, Norton Health Care, Generics UK, Ranbaxy and Kent
Pharmaceuticals were all indicted in April 2006 together with
nine executives. The allegation was simply that the companies,
through the indicted executives, had fixed the price of
pharmaceuticals supplied to the UK's National Health
Service and orchestrated planned price rises.
The charges brought against the companies and the
individuals were under the common law offence of conspiracy to
defraud. The decision by the trial judge to quash the
Indictment followed the decision by the House of Lords in April
2008 that price fixing in the absence of other aggravating
features was not a criminal offence in the UK prior to the
introduction of the Enterprise Act in 2002.
The SFO does have the right of appeal to the Court of Appeal
in this matter but most commentators think it is unlikely to
succeed. The question remains as to whether the SFO was wise in
bringing this prosecution when a civil settlement with the
defendant companies had already been reached.
In stark contrast to this very public failure on behalf of
the criminal prosecutors is the OFT's record £132
million settlement with six companies for fixing the price of
cigarettes.
The OFT identified Imperial Tobacco as the company at the
centre of the scheme. Imperial Tobacco owns brands such as
Embassy and Gallaher. These two companies control about 85% of
the UK's cigarette market. UK cigarette prices are
among the highest in Europe. It is alleged that the companies
shared details of future price rises with the effect that
competing grounds were kept at a comparable level across
supermarkets and certain petrol stations.
On 11 July, Gallaher agreed to pay £93 million to
settle the charges with the OFT. Retailers ASDA, First Quench,
One Stop Stores, Somerfield and TM Retail also signed early
resolution agreements with the OFT in exchange for a
significant reduction in fines. These companies will pay the
balance of the £132 million agreement. The discounts
given for the co-operation will reduce the maximum fine of
£173 million down to £132 million. This reduction
is dependant upon continued assistance with the
investigations.
J Sainsbury has received complete immunity from any
financial penalty as it was the first company to apply for
leniency. This position, again, rests upon continued
co-operation. Six further companies continue to contest the
allegations.
Under UK legislation, businesses involved in price fixing
can face fines of up to 10% of annual turnover, and reductions
are already given for co-operation. Settlement in return for
leniency was a key feature of the tobacco case and there have
been other signs that indicate both UK and European regulators
wish to further encourage such behaviour. Richard Alderman,
newly appointed head of the SFO, said in a statement to the
press last week that he was looking for US style plea
bargaining and sentence reductions as a way forward for the
SFO; and last month the European Commission adopted a new
settlement procedure for cartel cases whereby a defendant
acknowledging its participation in a cartel will receive a 10%
reduction in its fine. (See our earlier alert:
European Commission Adopts Cartel Settlement Procedure)
It remains to be seen whether the SFO will now renew its
efforts to prosecute cartels under the Enterprise Act, or
whether the OFT will now become top dog in the prosecution of
price fixing.
Because of the generality of this update, the
information provided herein may not be applicable in all
situations and should not be acted upon without specific legal
advice based on particular situations.
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