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ANTITRUST CRIMES - TRADE REGULATION CRIMES

Lawyers at the top rated Joe Griffith Law Firm have a wealth of experience in the legal areas of antitrust crimes and white collar criminal law. Our attorneys are located in Charleston and Mt. Pleasant, South Carolina, and devote 100% of their practices to litigation. White collar criminal defense and criminal antitrust litigation are a major focus of our practice. Lead by former federal prosecutor Joseph P. Griffith, Jr., the Joe Griffith Law Firm is designated as an AV rated firm by the prestigious Martindale-Hubbell® attorney rating company, signifying the highest possible ranking for legal ability and ethics as judged by peers in the legal profession. Every attorney at our firm is dedicated to providing outstanding legal service to each of our clients and will fight to protect them to the fullest extent allowable under the law. Client satisfaction is our number one goal.

A white collar crime is a serious offense in South Carolina and throughout the United States. A white collar federal antitrust criminal conviction can have life-altering consequences. If you and/or your company are being investigated for, or have been indicted or otherwise charged with, an antitrust crime, you should immediately contact the Joe Griffith Law Firm for a free consultation. If you represent a company under investigation for an antitrust crime, and need separate legal counsel for individual targets, subjects or witnesses, you should contact us. We work well with defense teams and have the experience you can count on to help mount a proper defense.

The foundation of federal criminal antitrust enforcement is the Sherman Act, 15 U.S.C. §§ 1-7, which is one of our country’s most powerful and most important pieces of legislation regulating trade practices. Originally enacted in 1890, the Sherman Act generally prohibits any agreement, combination or conspiracy among competitors to fix prices, rig bids, or engage in other anticompetitive activity. Criminal prosecution of Sherman Act violations is primarily the responsibility of the Antitrust Division of the United States Department of Justice (“DOJ”). A U.S. Attorney’s Office may be allowed to prosecute an antitrust violation, particularly those involving local price fixing or bid rigging conspiracies, but such prosecutions are subject to supervision by the Assistant Attorney General in charge of the Antitrust Division.

A Sherman Act criminal violation is a felony punishable by a fine of up to $10 million for corporations, and a fine of up to $350,000 or 3 years imprisonment (or both) for individuals, if the offense was committed before June 22, 2004. If the offense was committed on or after June 22, 2004, the maximum Sherman Act fine is $100 million for corporations and $1 million for individuals, and the maximum Sherman Act jail sentence is 10 years. Under some circumstances, the maximum potential fine may be increased above the Sherman Act maximums to twice the gain or loss involved. In addition, collusion among competitors may constitute violations of the mail or wire fraud statute, the false statements statute, or other federal felony statutes, all of which the Antitrust Divisions prosecutes.

In addition to receiving a criminal sentence, a corporation or individual convicted of a Sherman Act violation may be ordered to make restitution to the victims for all overcharges. Victims of bid rigging and price fixing conspiracies also may seek civil recovery of up to three times the amount of damages suffered.

15 U.S.C. § 1 provides as follows:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

15 U.S.C. § 2 provides as follows:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

ELEMENTS

Section 1 of the Sherman Act is the principal statute utilized by prosecutors, and criminal enforcement of a Section 2 violation of the Sherman Act is exceedingly rare. To prove a criminal violation of Section 1, the Government must prove the following elements beyond a reasonable doubt:

  • an agreement, combination or conspiracy (the “conspiracy”) formed by two or more persons;
  • the defendant knowingly joined the conspiracy;
  • the conspiracy unreasonably restrained trade or commerce; and,
  • the conspiracy concerned goods or services in interstate or foreign commerce.

United States v. Koppers Co., 652 F.2d 290, 295-96 (2d Cir.1981) , cert. denied, 454 U.S. 1083 (1981); United States v. U.S. Gypsum Co., 438 U.S. 422, 435-43 (1978); UCAR Intern., Inc. v. Union Carbide Corp., 2004 WL 137073, at * 16 (S.D.N.Y. 2004); Shaw v. U.S., 371 F. Supp. 2d 265 (E.D.N.Y 2005).Under the law, price fixing, bid rigging, customer allocation and market allocation schemes are per se violations of the Sherman Act. This means that where such a collusive combination, agreement or conspiracy has been established, it cannot be justified under the law by arguments or evidence that, for example, the agreed-upon prices were reasonable, the agreement was necessary to prevent or eliminate price cutting or ruinous competition, or the conspirators were merely trying to make sure that each got a fair share of the market. Such agreements, if proven, are automatically illegal because they “always or almost always tend to restrict competition and decrease output.” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 289 (1985). It is not necessary to prove an overt act to obtain a Section 1 conviction. The gist of the crime is the anticompetitive agreement. U.S. v. Gypsum Co., 438 U.S. 422 (1978).

STATUTE OF LIMITATIONS

The statute of limitations for criminal conspiracies, including antitrust conspiracies, is five years. 18 U.S.C. § 3282.

PRICE FIXING

Price fixing is an agreement among competitors to raise, fix, or otherwise maintain the price at which their goods or services are sold. It is not necessary that the competitors agree to charge exactly the same price, or that every competitor in a given industry join the conspiracy. Price fixing can take many forms, and any agreement that restricts price competition violates the law. Examples of price fixing agreements include, but are not limited to, those which:

  • Hold prices firm;
  • Establish or adhere to price discounts;
  • Eliminate or reduce discounts;
  • Adopt a standard formula for computing prices;
  • Maintain certain price differentials between different types, sizes, or quantities of products;
  • Adhere to a minimum fee or price schedule;
  • Fix credit terms; and,
  • Not advertise prices.

Participants in a collusive price fixing scheme may also establish some method of policing its members to ensure that they stick to the agreement.

BID RIGGING

Bid rigging is a method that conspiring competitors use to effectively raise prices where purchasers acquire goods or services by soliciting competing bids. Oftentimes, federal, state, county or municipal governments are the victims of bid rigging schemes. Competitors agree in advance who will submit the winning bid on a contract being let through the competitive bidding process. As with price fixing, it is not necessary that all bidders participate in the conspiracy. Bid rigging can take many different forms, including, but not limited to, the following:

Bid Suppression. In bid suppression schemes, one or more competitors who otherwise would be expected to bid, or who have previously bid, agree to refrain from bidding or withdraw a previously submitted bid so that the designated winning competitor’s bid will be accepted.

Complementary Bidding. Complementary bidding, also known as “cover” or “courtesy” bidding, occurs when some competitors agree to submit bids that they know will not be acceptable to the buyer, and are merely designed to give the appearance of genuine competitive bidding. Complementary bidding schemes are the most prevalent forms of bid rigging, and they defraud purchasers by creating the appearance of competition to conceal secretly inflated prices.

Bid Rotation. In bid rotation schemes, all conspirators submit bids but take turns being the low bidder. The terms of the rotation may vary; for example, competitors may take turns on contracts according to the size of the contract, allocating equal amounts to each conspirator or allocating volumes that correspond to the size of each conspirator company.

Subcontracting. Subcontracting agreements are often used as part of a bid rigging scheme. Competitors who agree not to bid or to submit a losing bid frequently receive a subcontract or supply contract as a quid pro quo from the successful low bidder. In some schemes, a low bidder will agree to withdraw its bid in favor of the next low bidder in exchange for a lucrative subcontract that divides the illegally obtained higher price between them.

Bid rigging schemes usually have a common thread – an agreement among some or all of the bidders which predetermines the winning bidder and limits or eliminates competition among the conspiring participants.

MARKET ALLOCATION

Market allocation or division schemes are agreements in which competitors divide markets or customers among themselves. Firms which normally compete against each other will allocate specific customers or types of customers, products, or territories among themselves. In a typical such scheme, one competitor agrees to sell to, or bid on contracts let by, certain customers or types of customers, and agrees to not sell to, or bid on contracts let by, customers allocated to the other competitors. In other schemes, competitors agree to sell only to customers in certain geographic areas and refuse to sell to, or quote intentionally high prices to, customers in geographic areas allocated to conspirator companies.

INITIATION OF AN ANTITRUST DIVISION CRIMINAL CASE

The Antitrust Division’s Manual (the “Antitrust Manual”) notes that antitrust investigations arise from a variety of sources including:

  • complaints received from citizens and businesses when they believe that companies or individuals are engaged in unlawful conduct;
  • analysis and evaluation of filings under the premerger notification provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976;
  • press reports of various practices that come to the Antitrust Division’s attention through the monitoring of newspapers, journals, and the trade press;
  • “inside” information obtained from informants, or individuals or corporations applying for amnesty;
  • complaints and information received from other government departments or agencies;
  • complaints and referrals received from United States Attorneys and state attorneys general;
  • analysis of particular industry conditions by Antitrust Division attorneys and economists, including systematic industry screenings; and,
  • monitoring of private antitrust litigation to determine whether the Antitrust Division should investigate the matter.

Once information is obtained that a potential antitrust violation has occurred, the Antitrust Division attorneys are advised to not communicate with other individuals within the industry, or individuals and corporations that may be implicated in the alleged violation for three reasons. First, the Antitrust Division does not begin a formal investigation until a policy and factual determination has been made that an investigation should proceed and the Antitrust Division’s resources should be committed. Second, the Antitrust Division and the Federal Trade Commission (“FTC”) clear proposed investigations with each other before they are opened. The purpose of this clearance procedure is to ensure that both agencies are not investigating the same conduct and to avoid burdening the parties under investigation and potential witnesses with duplicative requests. Third, contact may prematurely tip off the subject of the investigation that an inquiry has been or may be initiated.

Generally, a preliminary inquiry (“PI”) will be authorized by the Antitrust Division if:

  • there are sufficient indications of evidence of an antitrust violation;
  • the amount of commerce affected is substantial;
  • the investigation will not needlessly duplicate or interfere with other efforts of the Division, the Federal Trade Commission, a United States Attorney, or a state Attorney General; and,
  • resources are available to devote to the investigation.

In a matter where the suspected conduct appears to meet the Antitrust Division’s standard for a criminal investigation, the Antitrust Manual specifies that the decision whether to open an investigation will depend on three initial determinations. First, the allegations or suspicions of a criminal violation must be sufficiently credible or plausible to warrant a criminal investigation. This is a matter of prosecutorial discretion and is based on the experience of the approving officials; there is no legal standard. Second, the matter must be determined to be “significant,” which is judged on a flexible, case-by-case analysis that involves consideration of a number of factors, including:

  • volume of commerce affected;
  • geographic area impacted (including whether the matter is international);
  • the potential for expansion of the investigation or prosecution from a particular geographic area and industry to an investigation or prosecution in other areas or industries;
  • the deterrent impact and visibility of the investigation and/or prosecution;
  • the degree of culpability of conspirators (e.g., the duration of the conspiracy, the amount of overcharge, any acts of coercion or discipline of cheaters, etc.); and,
  • whether the scheme involved a fraud on the federal government.

Third, the resources that will be required to investigate and prosecute the matter must be determined. This third assessment is only considered when the matters have lesser significance, because the Antitrust Division has committed to prosecuting all matters of major significance as well as any criminal antitrust conspiracy that victimizes the federal government. Based on these general guidelines, once a staff attorney has developed a sufficient factual and legal basis to believe that a matter is appropriate for formal investigation, a “PI Request Memo” is submitted to the section, task force, or field office Chief and then reviewed by the appropriate Director of Enforcement. If the request is approved and FTC clearance is obtained, PI authority may then be granted.

Once a PI has been completed, a staff recommendation to proceed by grand jury investigation must be processed through the Criminal Director of Enforcement and the appropriate Deputy Assistant Attorney General, and such investigations require the approval of the Assistant Attorney General.

Once a matter becomes the subject of a grand jury investigation, the Antitrust Manual recommends that Antitrust Division staff should identify the targets of the investigation. A “target” is defined as a person “as to whom the prosecutor or the grand jury has substantial evidence linking him/her[/it] to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically to be considered as a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization, and the same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.” United States Attorney’s Manual § 9-11.150. A “subject” of an investigation is defined as a person or entity “whose conduct is within the scope of the grand jury's investigation.” Id. Normally the Antitrust Division will inform an individual that he is a target of a criminal investigation before the presentment of an indictment to the grand jury. In the event the individual nevertheless wishes to appear before the grand jury voluntarily, it is the Antitrust Division’s policy that he will be required to explicitly waive his privilege against self-incrimination. The individual may be examined regarding all relevant information and may not simply read a statement and then leave the grand jury room.

The Antitrust Division staff will ordinarily inform defense counsel of DOJ’s consideration of recommending a potential indictment against a client. The Antitrust Manual notes that counsel for both corporate and individual defendants should be afforded an opportunity to meet with the staff and Chief regarding the recommendation being considered and should be encouraged to present all arguments as to why it would be unwise or inappropriate--for factual, legal, or prosecutorial policy reasons--to recommend indictment of the client. If the staff, after listening to the views of defense counsel, believes a case is appropriate, a case recommendation is made to the Deputy Assistant Attorney General for criminal enforcement (“Criminal DAAG”) through the Director of Criminal Enforcement.

Defense counsel does not have any absolute right to be heard by the Director of Criminal Enforcement or the Criminal DAAG, although they will ordinarily give defense counsel an opportunity to be heard before recommending an indictment to the Assistant Attorney General, but only after defense counsel has already met and discussed the issues with the staff. Only in very unusual circumstances will defense counsel be granted a meeting with the Assistant Attorney General. Defense counsel should be aware that Antitrust Division lawyers may not be able to disclose all relevant factual details of the case to counsel due to the secrecy provisions of Rule 6(e) of the Federal Rules of Criminal Procedure. The final decision on whether to prosecute or decline a criminal case rests with the Assistant Attorney General.

In a speech on October 15, 1999 entitled “Transparency In Enforcement Maximizes Cooperation From Antitrust Offenders ,” Antitrust Division DAAG Gary R. Spratling noted the standards for deciding whether or not to file criminal charges in a particular case as follows:

The Department of Justice’s stated policy for commencing or recommending Federal prosecution is found in the Department of Justice’s Principles of Federal Prosecution. The Principles state that the attorney for the government should commence or recommend Federal prosecution if he/she believes that the person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction , unless, in his/her judgment, prosecution should be declined because (1) no substantial Federal interest would be served by the prosecution; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

Practically, the Principles require that, in order to file criminal charges, the Division must believe it has a better than 50/50 likelihood of obtaining a conviction by a jury under the beyond-a-reasonable-doubt standard (the standard of proof in the United States for all criminal cases).

The referenced “Principles of Federal Prosecution,” which are found in the United States Attorney’s Manual at Section 9-27, set forth the factors to be considered in determining whether a potential prosecution should be pursued or declined, including the following:

  • federal law enforcement priorities
  • the nature and seriousness of the offense
  • the deterrent effect of prosecution
  • the person’s culpability
  • the person’s criminal history
  • the person’s willingness to cooperate
  • the person’s personal circumstances
  • the probable sentence or punishment
  • other considerations
The foregoing Principles of Federal Prosecution are primarily focused upon an individual target as opposed to a putative corporate defendant. On December 12, 2006, Deputy Attorney General Paul J. McNulty issued a DOJ memorandum entitled “Principles of Federal Prosecution of Business Organizations” (the “McNulty Memo”) as a supplement to those principles of federal prosecution set forth in the U.S. Attorney’s Manual. The McNulty Memo generally provides that prosecutors should apply the same factors in determining whether to charge a corporation as they do with respect to individuals, and should weigh all of the factors normally considered in the sound exercise of prosecutorial judgment regarding the same. However, because of the nature of the corporate “person,” additional factors should be considered when conducting an investigation, determining whether to bring charges, and negotiating plea agreements. The McNulty Memo provides that prosecutors should consider the following factors in reaching a decision as to the proper treatment of a corporate target:

  • the nature and seriousness of the offense, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of corporations for particular categories of crime;
  • the pervasiveness of wrongdoing within the corporation, including the complicity in, or condonation of, the wrongdoing by corporate management;
  • the corporation’s history of similar conduct, including prior criminal, civil, and regulatory enforcement actions against it;
  • the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents;
  • the existence and adequacy of the corporation’s pre-existing compliance program;
  • the corporation’s remedial actions, including any efforts to implement an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with the relevant government agencies;
  • collateral consequences, including disproportionate harm to shareholders, pension holders and employees not proven personally culpable and impact on the public arising from the prosecution;
  • the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance; and,
  • the adequacy of remedies such as civil or regulatory enforcement actions.

DOJ policy shifts announced in the McNulty Memo were significant in two respects. First, federal prosecutors must now obtain written approval before seeking a waiver of corporate attorney-client privilege and work product protection. Prosecutors must first establish a legitimate need for privileged information, and then must seek approval before they can request it. When federal prosecutors seek privileged attorney-client communications or legal advice from a company, the U.S. Attorney must obtain written approval from the Deputy Attorney General. When prosecutors seek privileged factual information from a company, such as facts uncovered in a company’s internal investigation of corporate misconduct, prosecutors must seek the approval of their U.S. Attorney. The U.S. Attorney must then consult with the Assistant Attorney General of the Criminal Division before approving these requests. Attorney-client communications should be sought by prosecutors only in rare circumstances, and if a corporation chooses not to provide attorney-client communications after the government makes the request, prosecutors have been directed not to consider that declination against the corporation in their charging decisions. Second, prosecutors generally may not consider a corporation’s payment of legal fees to employees in determining a company’s cooperation, except in rare circumstances when it can be shown that such fees, combined with other significant facts, were part of a deliberate design to impede the government’s investigation.

While DOJ’s general policy is to proceed by criminal investigation and prosecution in cases involving hard-core, per se unlawful agreements such as price fixing, bid rigging and horizontal market allocation, the Antitrust Manual provides examples of several situations where, although the conduct may appear to be a hard-core, per se violation of the law, criminal investigations or prosecutions may not be considered appropriate. These situations may include cases in which: (1) there is confusion in the law; (2) there are truly novel issues of law or fact presented; (3) confusion reasonably may have been caused by past prosecutorial decisions; or (4) there is clear evidence that the subjects of the investigation were not aware of, or did not appreciate, the consequences of their action. See Antitrust Manual, Chapter III at C.5.

LENIENCY OR AMNESTY PROGRAMS

Corporate Leniency Policy. In August of 1993, the Antitrust Division revised its Corporate Leniency Policy, sometimes referenced as its Corporate Amnesty Program, to make it easier and more attractive for companies to come forward and cooperate with DOJ prosecutors. Three major revisions were made to the program: (1) amnesty is automatic if there is no pre-existing investigation; (2) amnesty may still be available even if cooperation begins after the investigation is underway; and (3) all officers, directors, and employees who cooperate are protected from criminal prosecution. Generally, the first qualifying company to contact the Antitrust Division with a mea culpa wins the race for automatic amnesty, which is sometimes referenced as “Type A Amnesty.” There are six conditions which must be met to qualify for Type A Amnesty:

  • At the time the corporation comes forward to report the illegal activity, the Division has not received information about the illegal activity being reported from any other source;
  • The corporation, upon its discovery of the illegal activity being reported, took prompt and effective action to terminate its part in the activity;
  • The corporation reports the wrongdoing with candor and completeness and provides full, continuing and complete cooperation to the Division throughout the investigation;
  • The confession of wrongdoing is truly a corporate act, as opposed to isolated confessions of individual executives or officials;
  • Where possible, the corporation makes restitution to injured parties; and
  • The corporation did not coerce another party to participate in the illegal activity and clearly was not the leader in, or originator of, the activity.

Even if a company self-reports illegal conduct about which the government already has knowledge, amnesty may still be available under certain circumstances under the Corporate Leniency Policy. This is sometimes referenced as “Type B Amnesty.” Obviously, the stakes can be extremely high when one is confronted with the decision to self-report an antitrust violation to the Antitrust Division. Knowledge of the risks and benefits of self-reporting a violation is imperative in order to make an informed business decision regarding the same. For a complete copy of the Antitrust Division’s Corporate Leniency Policy, see Corporate Leniency Policy.

Individual Leniency Policy. In August of 1994, the Antitrust Division revised its Individual Leniency Policy, sometimes referenced as its Individual Amnesty Program, to make it easier and more attractive for individuals to come forward and cooperate with DOJ prosecutors. An individual must generally self-report prior to DOJ undertaking an investigation, must not be associated with an application for corporate leniency involving the same conduct, and must not have coerced others to participate in, nor have lead, the conspiracy. Even if an individual does not qualify for amnesty, he or she may still receive statutory or informal immunity for cooperating with prosecutors. For a complete copy of the Antitrust Division’s Individual Leniency Policy, see Individual Leniency Policy.

AMNESTY PLUS PROGRAM

Amnesty Plus is an Antitrust Division program that allows a company which is currently negotiating a guilty plea regarding antitrust violations to obtain more lenient treatment by offering to disclose the existence of a second, unrelated conspiracy. Under these circumstances, a company that chooses to self-report and cooperate in a second matter can obtain “Amnesty Plus,” wherein the company will receive amnesty for the second offense, pay zero dollars in fines for its participation in the second offense, and none of its officers, directors, and employees who cooperate will be prosecuted criminally in connection with that second offense. The company will also receive a substantial additional discount by the Antitrust Division in calculating an appropriate fine for its participation in the first conspiracy.

PENALTY PLUS PROGRAM

Those companies that do not take advantage of the Amnesty Plus opportunity risk potentially harsh consequences. If a company participated in a second antitrust offense and does not report it, and the conduct is later discovered and successfully prosecuted, where appropriate, the Antitrust Division will urge the sentencing court to consider the company’s and any culpable executives’ failure to report the conduct voluntarily as an aggravating sentencing factor justifying a request for harsher fines, terms of probation and prison terms. When multiple convictions occur, Sentencing Guidelines calculations may be increased based on the prior criminal history. The failure to self-report under the Amnesty Plus program could mean the difference between a potential company fine as high as 80 percent or more of the volume of affected commerce versus no fine at all on the Amnesty Plus conduct. For an individual, it could mean the difference between a lengthy jail sentence and avoiding jail altogether.

AFFIRMATIVE AMNESTY PROGRAM

Sometimes, the second-in company detects another antitrust violation before the Antitrust Division does and by reporting the same qualifies for Amnesty Plus credit. Other times, the Antitrust Division may first discover the second antitrust activity, and it may elect to approach one of the subject companies with information about the suspected violation and provide it with an opportunity to cooperate in the covert investigation in return for amnesty. This strategy, known as "affirmative amnesty," gives the amnesty candidate a head start in the race for amnesty when its competitors will not even be aware that the gun has sounded. In return, the Antitrust Division seeks cooperation from an insider who will expose the inner-workings of the conspiracy.

DOWNWARD DEPARTURES, RULE 35 MOTIONS & IMMUNITY

For those who do not qualify for Amnesty, Amnesty Plus or Affirmative Amnesty programs, mitigating relief may still be available for those late-comers who nevertheless cooperate. The government may still reward a cooperating defendant with a downward departure motion at sentencing, or a Rule 35 motion after sentencing has occurred, for substantial assistance provided. Likewise, statutory or letter immunity may still be available for those otherwise culpable witnesses who cooperate with federal prosecutors. See Measuring the Value of Second-In Cooperation in Corporate Plea Negotiations.

CONFIDENTIALITY POLICY

The Antitrust Division treats as confidential the identity of amnesty applicants and any information obtained from the applicant, and will not disclose an amnesty applicant’s identity, without prior disclosure by or agreement with the applicant, unless authorized by court order. Waivers to share information with another jurisdiction are sought in cases where the applicant obtained leniency from another such jurisdiction. Oftentimes, publicly traded companies submit public filings announcing their conditional acceptance into the corporate amnesty program thereby eliminating the need for confidentiality.

PLEA NEGOTIATIONS

There are many different factors and considerations involved in the decision of whether or not to pursue a plea agreement. For an in-depth discussion of the plea agreement process, as well as the potential risks and benefits of pursuing a plea agreement, see the following:

The U.S. Model of Negotiated Plea Agreements: A Good Deal With Benefits For All

Measuring the Value of Second-In Cooperation in Corporate Plea Negotiations

Model Annotated Corporate Plea Agreement (Last Updated October 11, 2006)

Model Annotated Individual Plea Agreement (Last Updated October 11, 2006)

SENTENCING

Sentencing regarding federal antitrust criminal violations is generally governed by Part 2R of the United States Sentencing Guidelines, which are now advisory pursuant to United States v. Booker, 125 S.Ct. 738 (2005), and the factors set forth in 18 U.S.C. § 3553(a). There are no sentencing guidelines applicable in state court prosecutions involving antitrust activity in South Carolina.

For a summary of notable corporate criminal fines imposed pursuant to federal antitrust convictions from 1997 through 2005, see DAAG Scott D. Hammond’s November 16, 2005 speech entitled “An Update of the Antitrust Division’s Criminal Enforcement Program.

The Joe Griffith Law Firm is a Charleston, SC law firm that concentrates in white collar criminal litigation and antitrust and trade regulation crimes.

We represent those accused of criminal misdemeanors and/or felonies in a variety of state and federal proceedings including, but not limited to, initial appearances, preliminary hearings, bond hearings, trials, sentencing hearings, parole hearings, probation hearings, and appeals. We represent those designated “witnesses,” “subjects” or “targets” of grand jury criminal investigations, and have the experience to know when to assert 5th Amendment rights, make effective “proffer” statements, or demand immunity from government prosecutors. We are extremely effective in conducting pre-indictment investigations to gather and analyze evidence in order to make factual and legal presentations to prosecutors in an effort to persuade them to issue a declination whereby they agree to not indict a person or company under criminal investigation. We have been successful in having investigations declined pre-indictment. In the event of an indictment or other criminal charge, our attorneys stand ready to fight for our client and protect his or her legal rights to the fullest extent of the law.

If you or your company receive a subject letter or target letter naming you as a subject or target of an alleged antitrust crime, are served with a search warrant or grand jury subpoena, or are charged in a criminal complaint or an indictment with a Sherman antitrust crime, contact the Joe Griffith Law Firm immediately to discuss your legal rights.
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