Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust Division’s criminal director talks enforcement priorities, (Jun 16, 2016)

By Jeffrey May, J.D.

Individual accountability for wrongdoers is the "number one priority" at the Department of Justice, Marvin Price, Criminal Enforcement Director at the Justice Department’s Antitrust Division, told attendees of the Chicago Forum on International Antitrust Issues at Northwestern University School of Law in Chicago today.

According to Price, the Antitrust Division, like all of the components of the Justice Department, is taking very seriously Deputy Attorney General Sally Q. Yates's directive to hold individuals accountable for corporate misconduct. In September 2015, Yates sent a memorandum to the heads of the agencies within the Justice Department, announcing a new policy of seeking individual accountability. The focus on individual accountability is intended to deter future illegal activity, incentivize changes in corporate behavior, ensure that the proper parties are held responsible for their actions, and promote the public’s confidence in the justice system.

"Companies commit offenses through individuals," Price remarked. The Justice Department is looking for facts about the individuals involved in a company’s misconduct. These facts are often disclosed by attorneys in a hypothetical proffer, it was noted. Suggesting that high level executives might use subordinates to insulate themselves from prosecution, Price said that the Justice Department is willing to take on the challenge of holding the highest level, most culpable individuals liable.

When individuals plead guilty or are found guilty, they can expect jail time. Fining individuals is of secondary importance, Price said. Jail time is considered the best deterrent.

Enforcement efforts. Price also reminded attendees that the Antitrust Division’s criminal enforcement efforts are not limited to global cartels. Much media attention has been paid to the government’s auto parts probe, which is largest investigation in Antitrust Division history. Sixty-four individuals and 44 companies have been charged and have agreed to pay more than $2.7 billion in criminal fines in that investigation. However, Price warned that more local investigations of anticompetitive conduct are an important part of the Antitrust Division’s enforcement efforts. In recent years, the Antitrust Division has conducted a number of local and regional probes. Among these were investigations of anticompetitive conduct at real estate foreclosure auctions around the country.

In addition, the Antitrust Division is not afraid of complex investigations and complex markets. Price pointed to probes of financial markets, including the London Interbank Offered Rate or LIBOR. Price noted the successful prosecution of two former derivatives traders in the LIBOR probe. The two were convicted at trial and were recently sentenced to prison terms.

Compliance programs. Price also discussed the importance of effective compliance programs. The Antitrust Division is rarely in a position to stop illegal conduct before it begins, Price noted. As a result, a company should work on a compliance program to avoid involvement in such conduct.

The hallmark of an effective compliance program is that it stops cartel behavior before it begins, according to Price. He noted, however, that once a company is facing a cartel investigation, it should think about working to prevent a recurrence of such activity.

News: Antitrust AntitrustDivisionNews