The U.S. Antitrust Division has made criminal enforcement of the antitrust laws a top priority over the last two decades. Their leniency policy has uncovered a diverse range of international and domestic conspiracies—both large and small—and resulted in numerous pleas, massive fines, jail time for top executives and a plethora of follow-on private litigation. During just the last ten years, average yearly criminal fines imposed by the Antitrust Division on price fixers have increased from approximately $100 million a year to well over $1 billion annually. The number of executives jailed also has increased dramatically—including many foreign nationals—and average jail terms now exceed two years. The Division also has made it a point to attempt to extradite non-American executives residing abroad for prosecution in the United States. Whatever political winds may blow in Washington, criminal antitrust enforcement has broad, bi-partisan support. Moreover, companies facing international cartel investigations must anticipate enforcement actions not only by the Antitrust Division and the European Commission, but also by other antitrust authorities around the world. Jurisdictions such as Canada, Australia, Brazil, Japan, Ireland, Israel and the UK can and will pursue criminal antitrust charges.
The Antitrust Division, the FTC, and state attorneys general also are active in civil investigations and enforcement. Each federal agency (often in conjunction with state enforcers) over the last decade has targeted civil collusion matters and unilateral conduct with particular focus on certain industries or business practices, such as the FTC’s now over one-decade long emphasis on so-called “reverse payments” in the pharmaceutical industry. The Antitrust Division has proven especially keen in the last few years to try cases and seek extraordinary relief, such as compliance monitors.
In addition to direct harm, the collateral damage from a government investigation or prosecution is often great. Companies must deal with reputational harm, an erosion of shareholder value and the practical costs of ongoing distraction or loss of senior executives. For criminal cases—and increasingly also for government-directed civil matters—there is an inevitable wave of follow-on litigation. Collateral costs of a felony indictment can range from financing effects to preclusion from government bidding to shareholder derivative suits.
We understand the stages and complexity of government investigations and are apt at managing them for our clients. Lawyers in Thompson Hine’s Antitrust, Competition & Trade Regulation practice regularly represent individuals and firms under investigation for, or charged with, civil or criminal violations of the antitrust laws. We understand the antitrust agencies and the written and unwritten aspects of their leniency and enforcements policies. We know and are known by the agencies’ management. From grand jury investigations to amnesty applications, extradition proceedings and litigating against the government, our team has the experience to navigate clients through all phases of criminal antitrust proceedings. We have defended companies and their employees against government allegations of price fixing, bid rigging, market allocation, customer allocation and related issues of fraud and corruption. Because U.S. criminal proceedings often involve global cartels, our representations extend to dealing with competition authorities including those in Canada, as well as in Europe and Asia.
In assessing and managing government investigations, we are always prepared to work with government authorities (or with claimants). Not every grand jury investigation or preliminary investigation leads to government action, and the most successful matters are those in which we convince the government prosecutors to take no action. When circumstances call for a stronger approach, however, we are ready to push back hard to ensure our clients’ best interests are served.
Coordination is also key to handling these matters. We work collaboratively with co-counsel, joint defenses groups, enforcers and private litigants. Minimizing the complexity of these cases, especially those that cover multiple fora, is essential. When a client’s interests are best served by a negotiated resolution, we formulate and implement strategies that factor in all aspects of exposure, whether as a direct result of the government plea or decree, appurtenant class actions or other collateral effects.
Listed below are representative antitrust matters in which our partners have participated.
This website provides general information about Thompson Hine LLP for the convenience of visitors to the site. The site and the content within it are not intended to establish and their use does not establish an attorney/client relationship between Thompson Hine and any visitor. Information on the website is not legal advice. Do not send confidential information to any of our lawyers without first obtaining specific authorization. This website includes photographs of our lawyers and staff. Some of the design images and photographs on our website may be of actors depicting fictional scenes. Statements on this website of prior results do not guarantee a similar outcome.