Implications for Companies with Antitrust Exposure

Importantly, what these trial outcomes do not reflect is that companies and individuals who engaged early and strategically obtained more favorable outcomes or avoided indictment and trial altogether. Those differences in outcomes are rarely accidental. In each of these matters, the Division’s investigation touched a broader universe of companies, executives, and employees than the few who ultimately faced indictment and trial. As is often the case, many subjects of these investigations were never charged at all, and many others reached more favorable resolutions through plea agreements that will afford them the opportunity for substantially reduced sentences and fines.

To be sure, the ability and willingness to take the Division to trial in the right cases remains a critical part of any defense strategy. But the Division’s earlier mixed trial record may have shifted the risk calculus for some companies considering whether and how to cooperate with Division investigations. The Division’s recent and consistent trial success suggests some of those assumptions deserve revisiting, because the current enforcement environment rewards the kind of early, strategic engagement that has historically distinguished favorable outcomes from adverse ones in Division investigations.

Key Takeaways

How a company and its counsel approach an antitrust investigation from its earliest stages can shape whether the company and its executives end up indicted and at trial, or with a favorable resolution or even avoiding charges altogether. Companies should consider:

• Timely Leniency Applications. The Antitrust Division’s longstanding Corporate Leniency Policy provides the opportunity for complete immunity from criminal prosecution for companies and employees that are first to self-report cartel activity and cooperate fully with the Division’s investigation. Unlike the Department’s recently announced Corporate Enforcement Policy—which does not apply to the Antitrust Division and does not protect individuals—the leniency program remains the primary avenue for companies and their individual employees seeking to avoid criminal antitrust liability. The window for leniency is narrow, and early assessment of potential exposure is critical.
• Proactive Cooperation. Even where leniency is unavailable, companies that voluntarily and meaningfully cooperate early with the Division by producing relevant evidence and making witnesses available for interviews and grand jury testimony can reduce a company’s exposure by tens of millions of dollars, avoid a conviction, and substantially reduce the risk of prison for individuals.
• Engagement with Division Staff and the Front Office. Early, thoughtful and strategic engagement with the Division’s career prosecutors and senior leadership can shape the scope of an investigation and influence charging decisions before they are made. This includes presenting mitigating evidence, clarifying the company’s role, and demonstrating compliance and remedial measures, all of which may factor into the Division’s exercise of prosecutorial discretion.

The Antitrust Division is winning trials and winning consistently. That reality makes avoiding indictment and trial more important than ever for companies and executives with potential antitrust exposure. For companies operating in industries subject to Division scrutiny, now is the time to evaluate and bolster compliance functions, assess areas of vulnerability, and engage experienced antitrust counsel who can interface with the Division early and strategically on these critical issues.