AntitrustA company or individual targeted in an antitrust case faces a protracted and intrusive investigation at the hands of the Antitrust Division of the Department of Justice or, in the case of consumer protection laws and Clayton Act violations, the Federal Trade Commission. At the federal level, only the Antitrust Division is vested with criminal prosecution authority, and it prosecutes most cases under Sec. 1 of the Sherman Act. Generally the Division targets bid rigging, horizontal price fixing and market allocations. Most states have parallel antitrust statutes that are enforced through their Attorneys General.
Due to the structure of the Sherman Act, nearly all criminal antitrust cases are prosecuted as conspiracies. These are serious felony offenses in which the government holds the upper hand, since the proscribed practices, if proven, can be deemed illegal per se. But the Division’s traditional emphasis on domestic antitrust conspiracies has lately been discarded in favor of international enforcement; in the wake of a substantial consolidation of its regional offices the Division has quietly shifted most of its attention to prosecution of foreign-based anticompetitive practices, illustrated by the prolonged investigation of Japanese auto parts suppliers that has consumed much, if not most, of the Division’s resources over the past several years.
Effective defense of Division antitrust cases requires a recognition of the Division’s unique approaches to criminal investigations and prosecutions. Compared to their colleagues in the Criminal Division, antitrust prosecutors rarely take cases to trial, placing even greater reliance on negotiated settlements through plea agreements. Investigations often stretch over months and years, with the Division resolving many cases after substantial and serial proffers presented by defense counsel. The credibility of defense proffers is key to successful resolution, and for that the Division must recognize the trustworthiness of defense counsel and the integrity of the investigative work product.
We have considerable experience in the successful defense of criminal antitrust investigations across the country at both the federal and state levels. Leveraging our skills in marshaling evidence and constructing creative defensive theories as in other complex criminal investigations, we aggressively challenge the government's allegations to convince prosecutors that their case is untenable.