ANTITRUST CRIMES - TRADE REGULATION CRIMES
Top rated attorney Joe Griffith has a wealth of
experience in the legal areas of antitrust crimes and white collar
criminal law. Former federal
prosecutor Joseph P. Griffith, Jr., is
designated as an AV rated attorney by the prestigious
Martindale-Hubbell's attorney rating company, signifying the highest
possible ranking for legal ability and ethics as judged by peers in
the legal profession. The Joe Griffith Law Firm is dedicated to
providing outstanding legal service to each of its clients and will
fight to protect them to the fullest extent allowable under the law.
Client satisfaction is JGLF's 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 Joe Griffith. He works well with defense teams
and has 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 Originally enacted in 1890, the Sherman Act generally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
DOJ's Justice 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 DOJ's Justice 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
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- the person’s willingness to cooperate
- the person’s personal circumstances
- the probable sentence or punishment
- other considerations
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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. Justice 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.
Joe Griffith Law Firm represents 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. The firm represents those designated “witnesses,”
“subjects” or “targets” of grand jury criminal investigations, and
has the experience to know when to assert 5th Amendment rights,
make effective “proffer” statements, or demand immunity from
government prosecutors. Joe Griffith is 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. Joe Griffith has
been successful in having investigations declined pre-indictment. In
the event of an indictment or other criminal charge, JGLF stands ready to fight for its 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. |