The U.S. Department of Justice (DOJ) continues to focus on criminal prosecution of companies and individuals engaged in cartel, price-fixing or bid-rigging behavior. In a recent Congressional hearing, Antitrust Division Assistant Attorney General William Baer testified that DOJ is aggressively pursuing criminal price fixers and bid riggers because enforcement in these areas benefits consumers and the US economy. Vigorous criminal antitrust enforcement helps to eliminate illegal conduct, put wrongdoers on notice of the consequences, deter potential criminal activity, and result in lower prices for goods and services.
DOJ’s cartel enforcement statistics for fiscal year 2013 illustrate the robust enforcement activity. In FY2013, the DOJ filed 50 criminal cases and obtained over $1 billion in criminal fines. In these cases, the DOJ charged 21 corporations and 34 individuals, and courts imposed 28 prison terms with an average sentence of over two years per defendant. As Baer emphasized, although total criminal fines for cartel activity have averaged about $850 million per year for since 2009, the threat of jail time also is a powerful deterrent. In recent years, criminal antitrust enforcement has resulted in more individuals being sent to jail for longer period of time than ever and increasingly both U.S. citizens and foreign nationals have been sentenced to jail for antitrust violations. In fact, on Dec. 6, 2013, the former president of Sea Star Line LLC was sentenced to five years in prison for participation in a price fixing conspiracy – the longest term ever levied for a single violation.
In his statement, Baer emphasized that DOJ’s enforcement activities in this area are implemented through coordinated resources and expertise from the Antitrust Division, Fraud Section, Civil Division, Public Integrity Section, Office of International Affairs, Asset Forfeiture and Money Laundering Section, various U.S. Attorneys’ Offices as well as the Federal Bureau of Investigation’s (FBI) International Corruption Unit. In addition, since cartel activity often involves actors in multinational companies, DOJ coordinates with foreign law enforcement and regulatory officials in numerous countries.
The cases that DOJ investigates and prosecutes arise from a variety of sources, including the Antitrust Division’s Corporate Leniency Program; FBI’s investigative efforts; complaints by customers, competitors, trade groups, auditors and citizens; documents uncovered in civil investigations; collaboration with federal and state government agencies; and coordination with foreign law enforcement and regulatory agencies.
The DOJ’s ongoing investigations and enforcement in the automobile parts industry has been described by U.S. Attorney General Eric Holder as the largest criminal investigation the Antitrust Division has ever pursued, both in terms of its scope and the potential volume of commerce affected by the alleged illegal conduct. The investigations into the auto parts industry have included multi-national coordinated raids and cooperation among the DOJ, FBI and antitrust/competition agencies in Japan, Canada, the Republic of Korea, Mexico, Australia and the European Commission. To date, over $1.6 billion in criminal fines has been levied, and 21 companies and 21 executives have been charged and have plead guilty to antitrust violations involving conduct affecting over $8 billion in auto parts sold to domestic and foreign car manufacturers in the US and used in more than 25 million cars purchased by US consumers. The DOJ’s investigations have led to criminal cartel or bid-rigging enforcement actions in a wide variety of other industries, including LCD panels ($1.39 billion in fines), shipping services (over $1.9 billion in fines), and municipal bonds ($745 million in restitution or disgorgement).
In addition to fines and jail time for executives, criminal antitrust violations often spur follow-on private class action lawsuits that can be expensive and time consuming for companies to defend. Further, publicity surrounding DOJ criminal enforcement actions can taint a company’s public reputation.
Antitrust compliance programs are an important tool for companies to prevent or detect antitrust violations. Effective antitrust compliance programs include developing an antitrust policy statement and compliance manual, instituting training for executives and key employees, and implementing an appropriate auditing system. If possible anticompetitive conduct is uncovered through compliance activities, the company should end the questionable conduct and consider whether to come forward to the DOJ seeking to take advantage of the corporate leniency program. The leniency program offers immunity to the first company to come forward and cooperate with the government, and a reduction in damages resulting from private follow-on lawsuits. Even if the leniency program is not an option, having a strong compliance program in place can be a factor leading to reduced fines because courts can take that it into account during the sentencing phase.
In addition to a compliance program, a company should have procedures in place to implement immediately if it becomes the target of a government raid. It is not uncommon for a criminal antitrust investigation conducted by the DOJ to utilize search warrants to obtain documents and information. In many instances the search warrants are effectuated through a raid – a surprise on-site search of corporate offices by the DOJ and FBI (and often concurrent raids in other countries). Accordingly, companies can be well served by having procedures in place for implementation in the event of a raid and contact information for experienced antitrust counsel who should be contacted immediately for “real time” advice on how to respond.