Yoshi is a founding partner of Ikeda & Someya, a Japanese antitrust boutique established in October 2018. He served as an investigator at the JFTC and was in charge of the implementation of the leniency programme. Before establishing Ikeda & Someya, Yoshi worked for Mori Hamada & Matsumoto. He graduated from Kyoto University (LLB) and the University of California, Berkeley, School of Law (LLM). He is admitted in Japan, New York and California.
What do you enjoy about working in your new competition boutique?
We started Ikeda & Someya, an antitrust boutique firm, in October 2018. The first year was much more successful than we expected. When we started, there were only two of us (namely, the two founding partners). Since then, we have already hired three associates, thanks to the increasing amount of work. Our firm is relocating to a new building as of May 2020, just a year-and-a-half since we opened, so that we can accommodate more attorneys for the future. Clients hope to work with us more efficiently and effectively, as well as less expensively, than with traditional big law firms. Moreover, our clients can take advantage of our responsiveness and accessibility. In fact, we enjoy working with our clients for their day-to-day consultation matters. At the same time, we are proud of being the first choice for many of our clients in their most important and complex antitrust cases, despite the fact that we are just a one-year-old law firm. Many of our clients are domestic and international blue-chip companies in various industries. We have multiple conduct and investigation cases. In addition, while we do not have corporate attorneys, we have a substantial number of merger and joint venture matters. In merger filing cases, we are often referred to by our friend law firms in and outside Japan. Unlike other antitrust boutiques or medium-sized law firms, we can take advantage of my first-hand experience in recent big merger cases I had worked on at my previous law firm. The Japan Fair Trade Commission (JFTC) has shifted its enforcement focus to new areas such as digital platforms and the labour market. These areas require deep understanding of, and insight into, antitrust theory, as well as an ability to analyse background facts – rather than labour-intensive work, which is typically required in big cartel investigations. As a boutique firm with a small number of attorneys, we are proud that each one of our selected attorneys is capable and experienced in analysing complicated dominance, vertical or unfair trade practice cases. In short, we have got off to a first-class start and been capable of offering a full service for any aspect of domestic and antitrust cases. One of the biggest management challenges we are facing now is hiring. As our workload has increased, we are always seeking talented people who are willing to dive into our start-up environment. Meeting new talent and developing our team is something I have been enjoying the most in our new boutique environment.
To what extent has your international experience shaped your practice?
We are proud of having a strong capability for handling international antitrust cases, despite the small size of our firm. Even though we do not have any new and vast international cartel investigations, such as the Auto Parts case, at this particular moment 30-40 per cent of our work has international aspects (inbound/ outbound). When I was with one of the Big Five law firms in Japan, I had the privilege of working on international cartel cases – not only in terms of government investigations, but also in private litigation. In addition, I had several occasions to handle global merger filings for Japanese clients with assistance from international colleagues. Aside from cases, I have served as the only officer of the IBA antitrust committee from Japan, as well as an NGA for the JFTC in many ICN meetings. Through my long-standing international experience, I have developed professional and personal friendships with top antitrust practitioners in many jurisdictions, ranging from major jurisdictions to emerging countries. I am confident that I have had more international exposure than many of my competitors, including those working for a big law firm with an international brand. Our clients can take advantage of our international experience and network at a lower cost than at most international law firms. As an independent boutique, we are flexible in working with different law firms outside Japan, depending on the size and complexity of a client’s case.
The Japanese antitrust field has been dominated by large firms for many years. How is it changing these days?
It is true that so-called Big Five law firms had dominated the Japanese antitrust market until recently. While the series of international cartel cases, such as the auto-parts case, took place in the early 2010s, the Big Five law firms were expanding their antitrust teams as those cases gave young attorneys plenty of work, such as document review. However, domestic antitrust cases in Japan do not always require such labour-intensive work, as the Japanese legal system does not have extensive discovery or document requests such as a grand jury subpoena. Even in international cartel cases, contract attorneys and document reviewers are easily available nowadays, and they are more efficient in reviewing documents. It means that even a small boutique such as ours can handle not only domestic investigation cases but also international cases, regardless of the size of the case. Moreover, today, the quality of lawyers is much more important than the quantity of lawyers. In fact, the focus of antitrust authorities worldwide has shifted to cutting-edge issues such as digital platform and antitrust application on labour issues, which require a deep understanding and abundant experience of antitrust law. As a boutique exclusively devoted to antitrust and consumer laws, our attorneys are not just document reviewers. Our boutique setting is a great venue for young attorneys to develop their abilities to handle antitrust cases by themselves initiatively. Having been operating our new boutique for little more than a year, I have found that sophisticated clients today are always seeking skilled and dedicated experts, regardless of the firm size. Therefore, I strongly believe that the 2020s will be a good time for law firms with competent individuals such as ours.
To what extent do conflicts of interest pose a challenge in competition practice?
Of course, conflicts of interest are an important aspect of antitrust practice in any jurisdiction. This will be even more the case for Japan in the near future. Historically, it was common for an antitrust lawyer to represent multiple companies in cartel investigations. When I was a JFTC investigator, I saw a case where one lawyer represented 85 cartelists. The situation has changed since the introduction of the leniency programme in 2006. The competition for market positions has created conflicts of interest during the leniency application period, which is 20 business days from a dawn raid. Nevertheless, there have been several occasions where the same law firm represented more than one alleged cartelist, as there may be no clear conflicts of interest after the leniency application period. However, the most recent amendment to the Japanese antitrust law could change the current situation drastically, because it enables the JFTC to give a discretionary (though limited) discount for leniency applicants depending on the degree of the cooperation. This means that conflicts of interest will continue until the end of the investigation. In addition, the recent introduction of a plea bargaining system in Japan in 2018 has created conflicts of interest between a corporation and its individuals, even in domestic cases. Needless to say, conflicts of interest are a challenge not only for competition lawyers, but also for clients who seek real experts in competition law. We believe that an independent antitrust boutique such as Ikeda & Someya will be a right and reasonable choice when Big Five firms are conflicted out. We are open to opportunities to work with any law firm that has a conflict problem, in addition to my previous firms.
How is increased collaboration with experts and academics affecting the work of competition lawyers?
I am proud of being a competition lawyer who has a more extensive working relationship with economic experts and academics than most others. Recently, I was invited to be a part of the study group at the Competition Policy Research Centre (a research function of the JFTC) together with leading economic experts and academic professors. I was one of only two practitioners in the study group, which eventually issued a report on antitrust application on joint ventures in July 2019. I believe that one of the reasons I was selected for this important study group is that I have written legal articles on cutting-edge issues, such as the hub-and-spoke and algorithm cartels – which were influential not only in legal practice, but also in the academic field. The close relationship, based on mutual respect, with many leading economic experts and academic professors benefits our legal practice a lot, especially for cutting-edge topics such as digital platforms. Indeed, it is more important than ever to work with the right expert when it comes to an unprecedented case. We can decide who is in the best position to work together on a particular case for our client based on our abundant experience – not just on someone’s title or position. Moreover, we are not just listening to what our expert says; we are also exchanging ideas and developing our thoughts to achieve the best result for our clients.
To what degree has the JFTC shifted its focus from traditional antitrust matters to tech-oriented fields and digital platforms?
It is clear that current JFTC chairman Sugimoto has repeatedly emphasised the importance of shifting the JFTC’s focus from traditional cartel enforcement to cutting-edge issues, such as digital platforms and antitrust law application on human resource issues. The JFTC has already investigated Amazon, Apple, Airbnb, Booking.com and Expedia, in addition to some domestic platforms. This trend will continue as the Japanese government plans to enact a new law on the transparency of digital platforms, in which the JFTC is expected to play a key role. Cutting-edge issues regarding digital platforms often involve privacy and consumer protection elements in addition to competition law aspects. Interdisciplinary expertise is thereby required to analyse unprecedented, complex cases. Coincidentally, our firm, Ikeda & Someya, is an antitrust and consumer law boutique, as my fellow name partner, Takaaki Someya, is a former official at the Consumer Affairs Agency in Japan. While our firm did not intend to focus on digital platform issues when it was established, we have had many domestic and international clients seek our expertise in this field. We are confident that we are best suited for this area overlapping competition and consumer laws, even when compared with bigger rivals. The JFTC has also opened a sector inquiry in the convenience store industry to see whether there is any abuse of a superior bargaining position over individual store owners. The JFTC reportedly also investigated a major talent agency and a sports association. This means that companies in industries that were not previously exposed to antitrust scrutiny now have to carefully monitor the enforcement trends of the JFTC. We are often asked by our clients to elaborate on recent developments in the legal theories of the JFTC, and how they affect the clients’ business. On top of that, one of the distinctive features of our practice at Ikeda & Someya is rule-making. There have been many occasions where we were hired for influence the rule-making process. Making a submission for a public consultation process of the JFTC is just one of the methods in our rule-making efforts, and is now an integral part of our practice.
What are the policy goals of Japanese antitrust law, and what are the challenges for practising lawyers?
While the JFTC is pursuing the international convergence of antitrust laws, I believe that Japanese antitrust law covers a much broader area than international standard competition laws in many other jurisdictions. For instance, the key tool the JFTC heavily relies on in cutting-edge issues, such as digital platforms, is abuse of a superior bargaining position. It is said to be a kind of equivalent to exploitative abuse of a dominant market position in EU competition law. But abuse of a superior bargaining position is stipulated as a form of unfair trade practice, which takes into account fairness considerations to a substantial extent. Even apart from abuse of a superior bargaining position, considerations other than consumer welfare are often important in antitrust enforcement in Japan. In particular, when we work with an international client who is not familiar with the uniqueness of Japanese antitrust law, it is important to carefully predict the possible theories of harm under the Japanese law and prepare the best possible argument to counter allegations by the JFTC. We are delighted to be one of the few firms that can provide adequate guidance to clients on this unique feature of Japanese antitrust law and practice.
Tsuyoshi Ikeda is singled out as “a leading practitioner in Japan” who is celebrated for his “practical approach” to merger filings and cartel investigations.
Tsuyoshi (Yoshi) Ikeda is a founding partner of Ikeda & Someya, an antitrust boutique which was just established in October 2018. Starting with two founding partners, Ikeda & Someya has marked a rapid growth by hiring three associates within the first seven months.
As a former official of the Investigation Bureau of the Japan Fair Trade Commission (JFTC), Yoshi has extensive experience in all aspects of antitrust/competition issues. At the JFTC, he engaged in, among others, the implementation of the leniency programme in Japan and as many as 20 dawn raids. Prior to establishing Ikeda & Someya, Yoshi worked for Mori Hamada & Matsumoto, one of the Big Four law firms in Japan, where he led a number of cutting-edge cases.
Yoshi has been representing multinational companies before the JFTC in international cartels and second phase review merger cases. Yoshi also advises on IP-related antitrust issues such as licensing and standard-essential patents (SEPs), making the best use of his experience in the IP/IT taskforce at the JFTC. He has additional expertise in consumer protection issues, such as false advertising, as well as anti-bribery issues.
He has been appointed as an officer of IBA’s antitrust committee since 2017. He frequently serves as a speaker at international conferences, such as the ICN (as a non-governmental adviser (NGA)) and IBA.
Yoshi is a graduate of Kyoto University (LLB, 2002) and University of California, Berkeley, School of Law (Boalt Hall) (LLM, 2008). He is admitted in Japan, New York and California. His comments have been quoted in the most popular financial newspaper in Japan, the Nikkei, more than 30 times.