Update on FCICE Results

Several candidates are receiving this letter which explains nothing. It can be interpreted as a way to gain time and appease. “…test scores will be delayed…” Is this news after 5 months? Some raters (who wish to remain anonymous) claim that several (perhaps all) of the freelancers who rated the renditions have not been paid for grading the exam. 

What is going on with the federal court interpreter certification test results?

Dear Colleagues,

The federal court interpreter certification is the highest credential a Spanish court interpreter can have in the United States.  Unfortunately, the exam is not available in other languages, but it has historically separated good court interpreters from mediocrity in the legal arena. Fortunately, the exam has been difficult and very demanding through the years, and the result has been a group of better prepared court interpreters who demonstrated they have the minimum knowledge and skill needed in a courtroom. A test this difficult will always have its detractors and there have been plenty of these disgruntled individuals who attribute their failure to pass the test to everything under the sun but their own lack of skills. This is acceptable, and it reinforces that the content of the exam is the right one.

Unfortunately, recent changes, not to the exam contents, but to the way it is administered and graded, have put into question the reliability of the results.

It started a few years ago when, undoubtedly for budgetary reasons, it was decided to reduce the number of exam graders from three to two. It is hard to understand why any deliberating group would ever go from an odd number of decision-makers to an even number, but that happened. Please notice I am not bringing up an earlier change on the administration of the exam when in-person examiners were substituted by a recording device because I believe that change was positive because all candidates listened to the same recordings, and it allow graders to rewind and listen an utterance as many times as needed. This change resulted in a fair exam.

The biggest irregularities happened last September when the exam was administered for the first time by Paradigm Testing, who presumably outbid the former test administrator. While this newcomer to the court interpreter testing arena brought changes and innovations designed to save money, it also imposed an undue burden on the examination candidates. We have all heard many complaints about practice/training exams arriving late, poorly given instructions on operating the testing equipment, proctors staying outside of the exam room making it impossible for candidates to ask questions or report problems on a time-sensitive examination. We all know about the faulty internet connections that took away precious time needed to complete the test; and we all know stories about the infamous click button during the consecutive rendition where examinees had to click a button twice in a small pop-up window for each utterance, and then quickly pick up the pen or pencil and sort papers to get ready for the next utterance. Even the ergonomics was a big concern since the candidates were forced to keep their writing materials to the side because the laptop was directly in front, sometimes taking over most of the space on the table. I always believe that proctors were not just there to police the examinee, but also to facilitate the process.

No doubt these irregularities resulted in some questionable test results for some, perhaps many, of the candidates. I wonder if this is the reason the results of a test taken in September have not been disclosed yet. The Federal Court Interpreter Certification Examination for Spanish/English Examinee Handbook states: “…C. Score Reporting Procedures and Timelines… Oral Examination: Scores will be available approximately three months after the administration of the oral examination, and will be sent to the e-mail address provided during registration. The Director of the AO will confer certification on candidates who pass the oral examination, usually within four months following the examination…” (Federal Court Interpreter Certification Examination for Spanish/English Examinee Handbook, updated June 1, 2017. Page 4)

Two very important deadlines were missed by Paradigm Testing: Results must be in the candidate’s e-mail box in approximately three months! The exam was in September 2017. It has been over five months. The Administrative Office of the United States Courts had to issue proof of certification to those who passed the test four months after the exam! The AO is in default also. This is very troubling as we all know that the exams were graded last year.

The grading of the exam is another issue that should concern us all. First the reduction from three to two graders, and now a tendency to bring in as graders more staff interpreters than freelancers. This is a matter to be considered as well.  Staff court interpreters are federally certified, and the ones invited to grade the test are very capable professionals. However, they bring to the table certain perspective and limited experience in many areas of the law when compared to freelancers. Most staff interpreters do a magnificent job interpreting those issues that involve federal legislation. Freelancers contribute a broader knowledge and a different perspective. Does this matter? Are they going to test the examinee on non-federal matters? Of course not, but unlike the staff interpreter, the freelancer may tell if a candidate did not know the subject, or just made the mistake of treating it like a local matter. The real issue is, freelancers are more expensive because they must be paid; staffers are getting the same paycheck they would get anyway. Reality shows that many interpreters are not finding grading the exam attractive anymore because they get paid little for the amount of work.

I hope that last September test results are published soon, and they better be free of controversy for the sake of those who took the exam, and for the future of the once very reliable federal certification program. I now invite you to share your stories and thoughts on this very serious matter.

The confusing list of holidays in the United States.

Dear colleagues:

Many colleagues who live abroad, and others who live in the United States but grew up somewhere else, have asked me about the holidays in the United States.  Many visitors to the U.S. are often confused when they see holidays where everything is closed, holidays where some things are closed, and holidays where everything is closed in one place and open somewhere else. I thought this was a good time to explain our unique holiday schedule because on the third Monday in February, we observe Presidents’ Day, our third federal holiday of the year.  This apparent chaos is really a manifestation of the fifty states’ sovereign powers, and the result of the different history, culture, origins, interests, and values of each one.

The United States is a federation of fifty states and each state has its own legislation and decision-making process.  Because of this system Americans have two types of holidays: Those determined by the United States Congress, and observed in all fifty states, are called federal holidays; and those that have been declared by state and local governments, and are only observed in a specific state, county, or city.  The latter ones are state or local holidays.  By comparison with other countries the United States has very few federal holidays, but the states are a different story.

All federal government offices close on federal holidays but the state and local governments remain open unless the federal holiday is also a state holiday.  Federal government offices continue to work on state holidays, and sometimes, only city or county offices may close for the day in observance of a local holiday to honor a local hero or commemorate an event of great importance at the city level. Unless they are government workers, Americans go to work on many holidays. To the foreign observer, a good rule to remember is that on federal holidays, all federal government offices, banks, and the post office will be closed. On state holidays, all state government offices and public schools will be closed. The rest of the American people will have the day off during major federal holidays, and the citizens of a particular state will not have to work on a local holiday, even if the rest of the country does. It is only on major holidays, which are observed at the state and federal level, that everybody enjoys a day away from the workplace.

On January 1, 1971 Congress passed the “Uniform Monday Holiday Act” which shifted most holidays to a Monday in the month where the original holiday was observed.  The states followed the same system shortly after.  There are 11 federal holidays in the United States:

New Year’s Day. January 1*

Martin Luther King Jr. Day. Third Monday in January

Presidents’ Day. Third Monday in February

Memorial Day. Last Monday in May*

Juneteenth. June 19 (Starting in 2021)

Independence Day. July 4*

Labor Day. First Monday in September*

Columbus Day. Second Monday in October

Veterans Day. November 11

Thanksgiving Day. Fourth Thursday in November*

Christmas Day. December 25*

*Major federal holidays.

All government offices are closed on them all.

Except for Presidents Day, Veterans Day, and Juneteenth National Independence Day, all 50 states observe the rest of the federal holidays as state holidays. The states that do not observe Presidents Day as a state holiday are:

Delaware

Georgia

Indiana

Iowa

Kansas

Kentucky

Louisiana

North Carolina

Rhode Island

Wisconsin

Some states opted out of this holiday because they honor Washington and Lincoln on a different date.

The only state not to observe Veterans Day is Wisconsin. At the inception of Martin Luther King Jr. Day, some counties in Arizona considered not observing the holiday.

As of June 2021, Juneteenth is not observed in Hawaii, North Dakota, and South Dakota.

There are many reasons for the states’ holidays, some are historical, like Mississippi’s Robert E. Lee’s Birthday in January, Hawaii’s King Kamehameha Day in June, or Massachusetts’ Patriots Day in April. Other are cultural, like California’s Cesar Chavez Day in May, or Maryland’s American Indian Heritage Day in November. Other holidays have a practical reason to exist, like Indiana’s Primary Election Day in May, and General Election Day in November; some are for convenience like designating the fourth Friday in November as a holiday, under different names, in many states, and some are religious, like Kansas’ Christmas Eve in December, or Delaware’s Good Friday. There are also local holidays observed in a particular city or county, not the rest of the state. To honor Casimir Pulaski (Kazimierz Pulaski), a War of Independence hero born in Poland, the City of Chicago, and Cook County, Illinois, observe Pulaski Day on the first Monday of every March. On that day, Chicago and Cook County government offices are closed, and children leaving in Chicago do not go to school.

Some states have no state holidays. The following States have no State holidays, only federal:

Arizona

Colorado

Florida

Idaho

Oregon

Wyoming

Also keep in mind there are certain “celebrations in the United States” that are treated like holidays even though they are not: Super Bowl Sunday in February, Cinco de Mayo in May, and St. Patrick’s Day in March are not official holidays and everybody works on those dates.

This is the complete list of all state holidays in the United States by state:

Alabama

Mon Jan 15 Robert E. Lee’s Birthday

Tue Feb 13 Mardi Grass Day

Mon Apr 23 Confederate Memorial Day

Mon Jun 4 Jefferson Davis Birthday

Alaska

Mon Mar 26 Seward’s Day

Thu Oct 18 Alaska Day

Arkansas

Mon Jan 15 Robert E. Lee’s Birthday

Mon Feb 19 Daisy Gatson Bates Day

Mon Dec 24 Christmas Eve

California

Sun Feb 4 Rosa Parks Day

Sat Mar 31 Cesar Chavez Day

Fri Nov 23 Thanksgiving Friday

Connecticut

Mon Feb 12 Lincoln’s Birthday

Fri Mar 31 Good Friday

Delaware

*Does not observe Presidents Day

Fri Mar 30 Good Friday

Tue Nov 6 General Election Day

Thu Nov 8 Return Day

Fri Nov 23 Thanksgiving Friday

District of Columbia

Mon Apr 16 DC Emancipation Day

Georgia

*Does not observe Presidents Day

Mon Apr 23 Confederate Memorial Day

Fri Nov 23 Georgia State Holiday

Mon Dec 24 Washington’s Birthday Holiday (Following year on Dec 26)

Hawaii

Mon Mar 26 Prince Jonah Kuhio Kalanianaole Day

Fri Mar 30 Good Friday

Mon June 11 King Kamehameha Day

Fri Aug 17 Statehood Day

Tue Nov 6 General Election Day

Illinois

Mon Feb 12 Lincoln’s Birthday

Tue Nov 6 General Election Day

Fri Nov 23 Thanksgiving Friday

Indiana

*Does not observe Presidents Day

Fri Mar 30 Good Friday

Tue May 8 Primary Election Day

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

Fri Nov 23 Lincoln’s Birthday Holiday

Mon Dec 24 Washington’s Birthday Holiday (Following year on Dec 26)

Iowa

*Does not observe Presidents Day

Kansas

*Does not observe Presidents Day

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Kentucky

*Does not observe Presidents Day

Fri Mar 30 Good Friday

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Mon Dec 31 New Year’s Eve

Louisiana

*Does not observe Presidents Day

Tue Feb 13 Mardi Gras Day

Fri Mar 30 Good Friday

Tue Nov 6 General Election Day

Maine

Mon Apr 16 Patriots Day

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

Maryland

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

Fri Nov 23 American Indian Heritage Day

Massachusetts

Mon Apr 16 Patriots Day

Mon Oct 8 Columbus Day

Michigan

Tue Nov 6 General Election Day

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Mon Dec 31 New Year’s Eve

Minnesota

Fri Nov 23 Thanksgiving Friday

Mississippi

Mon Jan 15 Robert E. Lee’s Birthday

Mon Apr 30 Confederate Memorial Day

Fri Nov 23 Thanksgiving Friday

Missouri

Mon Feb 12 Lincoln’s Birthday

Tue May 8 Truman Day

Montana

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

Nebraska

Fri Apr 27 Arbor Day

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

Nevada

Fri Oct 26 Nevada Day

Fri Nov 23 Family Day

New Hampshire

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

New Jersey

Fri Mar 30 Good Friday

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

New Mexico

Mon Oct 8 Columbus Day

Fri Nov 23 Presidents Day Holiday

New York

Mon Feb 12 Lincoln’s Birthday

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

North Carolina

*Does not observe Presidents Day

Fri Mar 30 Good Friday

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Wed Dec 26 Christmas Holiday

North Dakota

Fri Mar 30 Good Friday

Ohio

Mon Oct 8 Columbus Day

Sat Dec 1 Rosa Parks Day

Oklahoma

Fri Nov 23 Thanksgiving Friday

Wed Dec 26 Christmas Holiday

Pennsylvania

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

Rhode Island

*Does not observe Presidents Day

Mon Aug 13 Victory Day

Mon Oct 8 Columbus Day

Tue Nov 6 General Election Day

South Carolina

Thu May 10 Confederate Memorial Day

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Wed Dec 26 Christmas Holiday

South Dakota

Mon Oct 8 Native American Day

Tennessee

Fri Mar 30 Good Friday

Fri Nov 23 Thanksgiving Friday

Wed Dec 26 Christmas Holiday

Texas

Fri Jan 19 Confederate Heroes Day

Fri Mar 2 Texas Independence Day

Fri Mar 30 Good Friday

Sat Mar 31 Cesar Chávez Day

Sat Apr 21 San Jacinto Day

Tue Jun 19 Juneteenth

Mon Aug 27 Lyndon B Johnson Day

Fri Nov 23 Thanksgiving Friday

Mon Dec 24 Christmas Eve

Wed Dec 26 Christmas Holiday

Utah

Tue Jul 24 Pioneer Day

Mon Oct 8 Columbus Day

Vermont

Tue Mar 6 Town Meeting Day

Thu Aug 16 Bennington Battle Day

Virginia

Fri Jan 12 Lee-Jackson Day

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

WashingtonFri Nov 23 Thanksgiving Friday

West VirginiaWed Jun 20 West Virginia Day

Mon Oct 8 Columbus Day

Fri Nov 23 Thanksgiving Friday

Wisconsin*Does not observe Presidents Day

*Does not observe Veterans Day

Mon Dec 24 Christmas Eve

Mon Dec 31 New Year’s Eve

I hope this brief explanation, and comprehensive holiday list, help you to understand better the holiday calendar of the United States. I now invite you to comment on this subject.

Interpreter fees and antitrust legislation and policy worldwide.

Dear friends and colleagues:

I am about to deal with a very touchy, delicate, dangerous, and polarizing issue. For this reason, I want to begin this post by clarifying that I have always observed all antitrust legislation, domestic, foreign, and international, everywhere I have worked, spoken, and in any other way practiced any professional activity. In no way I intend to encourage, suggest, hint, or in any other way provoke the desire to break any antitrust legislation anywhere in the world; and even though I may intellectually and philosophically disagree with part of the antitrust policy and legislation, I am firmly committed to fully obey the law if it remains as is.

Once the above is very clear, I would like to revisit this issue that most colleagues usually dodge, and perhaps for good reason. My intention here is to inform my colleagues about the legislation and policy about agreeing as professional service providers to set professional fees. There is a lot of misinformation, and urban legends around. I hope this piece contributes to dissipate some, and to raise awareness on the situation we have and what can be legally done to enact change, if you really want that.

My motivation to write about this issue came from some news I got about certain events in the Czech Republic, where apparently UOHS, the local Czech antitrust authority initiated proceedings against Jednota tlumocniku a prekladatelu (JTP) the main professional association of interpreters and translators in that country, because of the publication of recommended minimum rates for translation and interpreting professional services on their internal journal (reaching about 500 members) arguing there could be a potential violation of Czech antitrust legislation. Shortly after this happened, JTP settled with the authorities and withdrew said recommended rates with an agreement to abstain from publishing them again.

Czech legislation is very similar to prevailing legislation in the European Union, the United States and elsewhere, prohibiting “…agreements (including decisions of associations) containing provisions on direct or indirect price fixing or other business terms and conditions…” This legislation takes generally adopted terminology when it states on a later paragraph that: “… The prohibition… shall not apply to agreements (that) do not afford… the possibility of eliminating competition in respect to a substantial part of the market…”

I sympathize with all my interpreter and translator colleagues in the Czech Republic. I have often questioned the moral justification and ultimate purpose of all antitrust legislation. It comes to us as a gift from the past when legislation such as this was needed to protect regular citizens from colluded corporations and tolerant governments. We could argue those days are gone; that antitrust legislation is necessary in certain cases, but rarely when it comes to a regular individual trying to earn a living selling goods or providing a service as a freelancer.

Unfortunately, moral considerations also encompass our duty to respect and obey the law, in the understanding that if we dislike it, or disagree with it, we must pursue change by legal means such as lobbying for (in this case) more realistic legislation that reflects the reality of life in the 21^st century. Disregarding the law, even if we deem it wrong is not the best answer to solve a problem.

Let’s look at the pieces of legislation widely applied throughout the world, that serve as a model for practically all antitrust legislation.

First, a very important concept difficult to understand (and accept):

Long arm of the law:

In the United States, a Long Arm Statute is a statute allowing a state to exercise personal jurisdiction over a non-resident defendant with certain contacts with the state.

Black’s Law Dictionary: It is a term where a law of a state gives its courts jurisdiction over people and property outside the state.

The United States subscribes to this legal theory and constantly exercises it, and applies to acts and individuals throughout the world. To properly exercise long-arm jurisdiction over a non-resident defendant, the plaintiff’s cause of action must also arise out of one (or more) of the enumerated bases for jurisdiction set out by the state’s long-arm statute. Some of the most common instances include buying, selling, producing, or transporting goods to, from, or through U.S. territory; dealing with people or corporations with some contact with the United States (even if minimum). If country “A” sells a product to country “B”, and the product is transported on a plane or vessel in possession of a registration under country “C”, but the vessel uses American fuel to transport the goods, all parties from countries “A”, “B”, and “C” are under U.S. jurisdiction because of “the long arm of the law” theory. The same happens when a translator from the Czech Republic or elsewhere translates a document used in the United States, even if the direct client is from a third country, and according to more recent tendencies, even if the only contact with the U.S. was that said product was advertised on line using an American internet provider or a platform such as Google, Microsoft or Apple.

Even if a non-resident defendant is subject to personal jurisdiction under a state’s long arm statute, a court within the forum state may not exercise jurisdiction over that defendant if doing so would violate the Due Process Clause of the US Constitution. To satisfy the Due Process Clause, the defendant’s contacts with the state must be so it would “not offend traditional notions of fair play and substantial justice” to require the defendant to litigate in the forum. Courts in the U.S., the European Union and elsewhere have determined that satisfying the requirements on the examples above, and affording the defendant a court hearing will comply with such legal requirements.

The Sherman Act

The main antitrust legislation in the United States, and the oldest (still current) antitrust legislation worldwide is the Sherman Act from the United States. It describes what conduct “Involves” import commerce, and gives the FTAIA and Justice Department main authority to deal with antitrust investigations and prosecution. It does not bar Sherman Act claims that “involve import commerce.” Several courts have recently been asked to consider what sort of “involvement” with import commerce is sufficient. The Third Circuit in Animal Science Products rejected the notion that the “import commerce” exception is limited to physical importers of goods, thus, it applies to service providers like interpreters and translators. The court defined conduct “involving import commerce” as conduct “directed at” or “targeted at” the U.S. import market. Although the original Minn-Chem Seventh Circuit panel agreed with this approach, neither court gave clear guidance on how to apply this standard.

Is a subjective intent to harm the U.S. import market required? Or is it sufficient to allege a global conspiracy to fix prices or set production limits that had as a consequence (as opposed to its focus or target) higher U.S. import prices? The DOJ’s view is that the FTAIA requires no subjective intent to harm U.S. import commerce and that a price-fixing conspiracy involves U.S. import commerce even “if the conspirators set prices for products sold around the world (so long as the agreement includes products sold into the United States) and even if only a relatively small proportion or dollar amount of the price fixed goods were sold into the United States.”  [Minn-Chem Inc. v. Agrium Inc., No. 10-1712, Brief for the United States and the Federal Trade Commission as amici curiae in support of neither party on rehearing en banc (Jan. 12, 2012), at pp. 19] Remember the example of the vessel above.

We can conclude that in the current environment, foreign companies involved in the manufacture or distribution of products (goods and services) outside the United States can no longer assume that the U.S. antitrust laws do not apply to their activities. This is an evolving area of the law with substantial uncertainty. It will take time for these issues to be sorted out in the courts and for clarity to emerge regarding the extraterritorial reach of the U.S. antitrust laws. Until then, a case-by-case analysis will be required to properly assess foreign companies’ potential exposure to criminal penalties (significant fines and jail sentences) and civil damages for violations of the U.S. antitrust laws. Because litigation before American courts is very costly, and the losing party is not required, as a matter of law, to pay for the legal expenses of the prevailing party, defendants often settle their cases and abstain from violating antitrust legislation before reaching a final resolution. This was the case of the American Translators Association (ATA) an association incorporated in the United States. ATA had a “Rate Guidelines Committee” (RGC) that once a year published a list of fees it recommended translators consider. It is possible that said rates (or fees) were reprinted by other professional associations of translators. In 1990 some interpreter and translator professional associations in the United States became the target of antitrust investigation by the Federal Trade Commission (FTC). By 1994 at least two of the organizations: “The American Association of Language Specialists” (TAALS) and the “American Society of Interpreters” (ASI) had signed consent decrees in which the press reported they agreed, among other points, to halt any meetings at which two of those present mentioned rates or fees. After two years of investigation, and significant money spent in defending the association, ATA was notified by the FTC in March 1994 that the investigation had been closed. ATA had approved an strict antitrust policy seven months before the FTC investigation, and this probably contributed to the decision to close the inquiry.  In closing the case, the FTC issued a statement indicating that the closure did not mean that a violation had not occurred. The Commission also reserved the right to “…take such further action as the public interest may require…” Three years later, the FTC issued a cease-and-desist order to the International Association of Conference Interpreters (AIIC) after finding AIIC in violation of U.S. antitrust law. The association also chose a settlement obligating them to abstain from discussing fees (or rates) in public.

US versus EU Antitrust Law

Regarding Antitrust Law, the similarities on both sides of the Atlantic outweigh the remaining differences by far. This holds true, at any rate, today, after more than 100 years of legal development.

The central difference was initially that the relevant U.S.-American law is much older. The Sherman Act dates from 1890, the Clayton Act, which introduced merger control, from 1914 (with a significant improvement by the Celler-Kefauver Act in 1950). These laws were not only existent on paper. They were rigorously enforced in practice. National competition laws in Europe developed mainly after the Second World War. Their development was triggered by introducing the rules on competition in the European Community in 1958. The latter induced many of the Member States, e.g. Italy, to introduce laws against restraints of competition for the first time.

A difference between the legal systems lies in the role of the state. In the USA, antitrust is a matter for private actors. In Europe, the role of the state was inevitably involved. This was due to the extensive involvement of the state in the economy

A common feature of the competition law regimes on both sides of the Atlantic is that they claim for themselves a wide international reach (long arm of the law). It suffices that a restraint of competition has effects within their own territory, regardless of where and by what enterprise it is effected (“effects doctrine” or “extraterritorial application of competition law”). A difference lies in the U.S. Antitrust Law’s better ability to assert itself: Uncle Sam has a very long arm. This is due to the USA usually making up half of the “world-wide market”. No globally acting enterprise can afford not to be present on the U.S.-American market. This inexorably leads to the result it can be caught by the American jurisdiction with no strain. Translators, interpreters, and professional interpreter and translator associations must know of this before taking any action.

Regarding the procedure, both legal systems build upon a rule of law, which is more pronounced in the United States than in Europe. A remarkable difference consists in the fact that in the USA, approximately 75% of all antitrust cases are brought by way of private enforcement

Under American civil procedure law, the American rule prevails. I.e., a defendant wrongly sued has to bear his own legal costs. The unsuccessful plaintiff need not reimburse them. This creates a significant potential for threat in the hands of an economically strong plaintiff. The civil procedure can mutate into an instrument for restraining competition. Just imagine a case between IAPTI and the U.S. Department of Justice. The deepest pockets will prevail.

European Union

Czech Republic and all members of the EU must comply with EU antitrust policy and legislation.

European antitrust policy is developed from two central rules set out in the Treaty on the Functioning of the European Union:

First, Article 101 of the Treaty prohibits agreements between two or more independent market operators which restrict competition. This provision covers both horizontal agreements (between actual or potential competitors operating at the same level of the supply chain) and vertical agreements (between firms operating at different levels, i.e. agreement between a manufacturer and its distributor). Only limited exceptions are provided for in the general prohibition. The most flagrant example of illegal conduct infringing Article 101 is the creation of a cartel between competitors, which may involve price-fixing and/or market sharing.

Second, Article 102 of the Treaty prohibits firms that hold a dominant position on a given market to abuse that position, for example by charging unfair prices, by limiting production, or by refusing to innovate to the prejudice of consumers.

The Commission is empowered by the Treaty to apply these rules and has several investigative powers (e.g. inspection at business and non-business premises, written requests for information, etc.). The Commission may impose fines on undertakings which violate the EU antitrust rules.

National Competition Authorities (NCAs) are empowered to apply Articles 101 and 102 of the Treaty fully, to ensure that competition is not distorted or restricted. National courts may also apply these provisions to protect the individual rights conferred on citizens by the Treaty. Building on these achievements, the communication on ten years of antitrust enforcement identified further areas to create a common competition enforcement area in the EU.

As part of the overall enforcement of EU competition law, the Commission has also developed and implemented a policy on applying EU competition law to actions for damages before national courts. It also cooperates with national courts to ensure that EU competition rules are applied coherently throughout the EU.

Best Practices on Cooperation in Merger Investigations

The revised Best Practices include an expanded section on remedies and settlements that details cooperation throughout the remedial process, emphasizing that early and frequent cooperation in this phase is important to avoid inconsistent or conflicting remedies, especially when remedies may include an up-front buyer and/or Phase I remedy in the EU. The revised Best Practices also underscore the critical role that the parties play in ensuring effective cooperation in this phase, including timely coordination of their remedy proposals with the reviewing agencies to allow for meaningful cooperation before either agency decides. Besides avoiding the risk of inconsistent or conflicting remedies, such meaningful cooperation in the remedial phase can cause the acceptance of common remedy proposals or even the appointment of common trustees or monitors, which is in both the agencies’ and the parties’ interest.

Recognizing that legal professional privileges differ between the U.S. and the EU, how are in-house counsel communications protections maintained once waivers of confidentiality are granted? The Best Practices note that the agencies will accept a stipulation in parties’ waivers given to DG Competition that excludes from the scope of the waiver evidence properly identified by the parties as and qualifies for the in-house counsel privilege under U.S. law. This is only an example of the European Union accommodating U.S. legislation in antitrust matters. There are other instances.

Antitrust legislation in Latin America

There has been antitrust law in some of the Latin American countries for many years. Brazil was the first to have such a law, but for many years enforcement was desultory. Then in the 1980s and 1990s scores of other countries around the world enacted or strengthened their antitrust laws, and this included Latin American jurisdictions such as Argentina, Chile, Colombia, Costa Rica, Mexico and others.

A few jurisdictions had become fairly consistent in enforcing their antitrust laws, including Brazil and Mexico.

Continuing with the reforms, the new authorities of the Argentine Antitrust Commission (the “Antitrust Commission“) released a draft of the new Antitrust Law, which seeks to bring Argentina into line with the international experience in this matter: The Ley de Defensa de la Competencia (As far as I know) passed in the lower chamber when the diputados voted for it, and it is pending approval by the Senate. Among the reforms envisaged are:

Tougher sanctions, increasing fines up to 30% of turnover associated with products or services involved in the anti-competitive act; The creation of a National Antitrust Authority as a decentralized and self-governing body within the national executive branch, in replacement of the Antitrust Commission and of the Secretary of Commerce; The facilitation of private actions for damages against violators of the law; and the creation of a National Antitrust Court of Appeals to replace the uncertainty on which Court of Appeals is competent regarding antitrust matters.

The long arm of the law theory, and current practices and cooperation of all major international players, including the United States, European Union, and others will make it almost impossible to go against current policy and legislation. There is a great likelihood that many complaints will go to the U.S. courts because of the high cost of litigation and the absence of any legal basis for the losing party to pay for prevailing party’s legal fees and costs.

A Private Citizen’s Freedom of Speech.

Individuals may exercise their freedom of speech and speak, write, publish, and in any other way disseminate their opposition to legislation and policy. It will take a change of heart by the authorities, and current cultural values, to change this legislation and bring it to the reality of solo practitioners trying to make a living in the 21^st. century. I now invite you to share your thoughts on this issue, remembering that no comment suggesting fees or rates will be included in this blog.