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On the 10th  anniversary of the Dodd-Frank  Act, which provided the SEC with a whistleblower reward, leading whistleblower attorneys Matt Stock and Jason Zuckerman published an opinion piece on Market Watch titled:  More than 33,000 tips, $2.5 billion in financial remedies and $500 million in awards to investors — the SEC’s whistleblower program turns 10 years old today.  After recounting the success of the program [“…we’ve learned during this time is that there’s strong consensus that the whistleblower-rewards provisions are effective in detecting and combatting fraud and conserving limited public resources”] the article persuasively explains “five ways in which the SEC whistleblower-reward program promotes the public interest:”

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3. It conserves precious enforcement resources.
4. Whistleblower rewards strengthen corporate compliance and deter fraud.
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The short article is well worth the read.

I’ve written and co-authored a number of articles explaining why I believe there should be a criminal antitrust whistleblower statute similar to the one enjoyed by the Securities Exchange Commission. Two such articles are:  It’s a Crime There Isn’t a Criminal Antitrust Whistleblower Statute; and Benefits of a Criminal Antitrust Whistleblower Statute, (Cartel Capers). A criminal antitrust whistleblower program would  produce all the same benefits derived from the SEC program. A whistleblower reward would not only generate new leads but the heightened risk of cartel detection will increase application for corporate leniency.  Think of your average price fixing/bid rigging cartel and we know there is no shortage of potential whistleblowers from sales staff, estimators, support staff and even customers.  Currently, it would take a strong sense of civic duty and a very large trust fund for an individual to seriously consider becoming a criminal antitrust whistleblower.  It’s all pain and no reward. But, someday I believe SEC-style criminal antitrust whistleblower legislation will reignite criminal antitrust enforcement the way the 1993 Corporate Leniency Program did.

PS.     While there is no general criminal antitrust whistleblower, individuals with information about bid rigging fraud against the government can consider bringing a False Claims Act case.  A successful whistleblower can receive a share of the damages recovered on behalf of the government. See Cartel Capers, DOD Bid Rigging Whistleblower and Related Antitrust Division Criminal Cases.

Thanks for reading.  Bob Connolly   bob@reconnollylaw.com

A.      The Broiler Chicken Civil Litigation/Criminal Indictment

 On June 3, 2020, a grand jury in Colorado returned an indictment charging executives from Pilgrim’s Pride Corporation and Claxton Poultry Farms with fixing prices and rigging bids nationwide for broiler chickens  [I wonder how the grand jury met? Zoom?] The case was filed in the District of Colorado, where Pilgrim’s Pride is headquartered. The individual defendants are Pilgrim’s President and CEO, Jayson Penn and former Vice President, Roger Austin. Claxton’s President, Mikell Fries, and Vice President, Scott Brady were also named in the indictment.

The DOJ Press Release [which did not use the companies’ names] stated:  “According to the indictment, from at least as early as 2012 until at least early 2017, Jayson Penn, Roger Austin, Mikell Fries, and Scott Brady conspired to fix prices and rig bids for broiler chickens across the United States.  Penn is the President and Chief Executive Officer, and Austin is a former Vice President, of a chicken supplier headquartered in Colorado [Claxton Poultry Farms. Pilgrim’s Pride].  Fries is the President and a member of the board, and Brady is a Vice President, of a broiler chicken producer headquartered in Georgia [Pilgrim’s Pride Claxton Poultry Farms].”  See also, Wall Street Journal, June 3, 2020, Chicken Industry Executives, Including Pilgrim’s Pride CEO, Indicted on Price-Fixing Charges

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On June 10, 2020, Tyson released a statement saying the company “has been fully cooperating with the DOJ as part of its application for leniency under the DOJ’s Corporate Leniency Program.”  Tyson noted that on April 26, 2019 the company was served with a grand jury subpoena from the Antitrust Division, and “Tyson uncovered information in connection with that investigation, which we immediately self-reported to the DOJ.” The statement added: “”Our swift and decisive actions demonstrate our steadfast commitment to treating suppliers, customers and partners with integrity and to fostering a free and fair competitive environment.” (emphasis mine).

A look at the instant replay might draw a flag for the use us the words “immediately” and “swift and decisive action.”   A civil price fixing action had been filed in September 2016 accusing chicken producers, including Tyson the ones referred to in the recent indictment, with a cartel spanning at least 8 years that fixed the price of broiler chickens by reducing output.  The civil litigation was far along when, on June 21, 2019, the government filed a motion to intervene and stay the discovery in the litigation because it was now conducting a grand jury investigation.  The stay motion acknowledged:

“The government recognizes the maturity of discovery in this well-publicized case and the court’s substantial investment of resources to keep the case moving forward in a timely fashion.  Nevertheless, the investigation has reached a point… where the government’s interests now warrant a temporary and tailored discovery stay.”  In re Broiler Chicken Antitrust Litigation 1:16-cv-08637 (ND Ill.),  The United States’ Motion to Intervene and Stay Discovery, Dkt. #2268. Filed 6/21/2019.

I have no information about this case other than what is public, but given the fact that Tyson sought leniency in what was a mature investigation, the company likely has Part  B conditional leniency under the Antitrust Division’s Corporate Leniency Policy.  Part A is available only as long as “At the time the corporation comes forward to report the illegal activity, the Division has not received information about the illegal activity being reported from any other source.”  The biggest difference between Part A and Part B is the treatment of individual.

Leniency for Corporate Directors, Officers, and Employees

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 If a corporation does not qualify for leniency under Part A, above, the directors, officers, and employees who come forward with the corporation will be considered for immunity from criminal prosecution on the same basis as if they had approached the Division individually.

B.     Some Thoughts on the Leniency Program

The Corporate Leniency Program is the most effective cartel busting tool in the Antitrust Division’s criminal enforcement arsenal. Nonetheless, in recent times there have been a plethora of ABA and other Bar Association programs and articles questioning whether leniency has lost is effectiveness as the number of cases, particularly international cartel cases, has dropped off.  There are a number of possible reasons for the drop off in leniency applications (if you agree there has been a drop off). Some attribute the drop off to the success of the program; perhaps, hopefully, deterrence has had an effect and there are fewer cartels to report.  Or, perhaps after years of prosecutions, extraditions, jail sentences etc., price-fixers are far more careful and don’t send the damming emails that may cause counsel to go running for leniency when they are discovered.  The cost of leniency has also increased significantly with the number of jurisdictions aggressively pursuing cases against cartels and the expansion around the globe of class action damages cases.  As a corollary, firms have complained that the ACPERA promise of single damages for a leniency applicant has been too difficult to obtain.  Some believe it has been more difficult to secure a leniency from the Antitrust Division.  For further reading see,  Some Theories on Why Antitrust Division Case Filings Are Down, Cartel Capers, October 9, 2018 express加速器 - 云+社区 - 腾讯云:在第二次迭代中，他们利用express数据路径（xdp）框架和新的bpf虚拟机（ebpf）让软件负载均衡器和其他服务运行在一起。 图2：两代l4lb之间的差别第一代l4lb：基于oss软件第一代l4lb使用了大量的开源组件来实现大部分功能，因此能够在几个月内取代基于硬件的解决方案。; Robert B. Bell and Kristin Millay, The Antitrust Division’s Corporate Leniency Program, Learn from the Past or Be Condemned to Repeat it, http://files.hugheshubbard.com/files/Antitrust-Division’s-Corporate-Leniency-Program.pdf;  Interview with Donald C. Klawiter, WhosWhoLegal: Thought Leaders, Competition 2020,  available at http://whoswholegal.com/donald-c-klawiter.

This is not an note about disincentives to leniency, but a reminder that leniency can still be the best deal in town.  Do disincentives exists? Sure, but do not forget what made leniency a great cartel busting tool in the first place.  The first firm to successfully apply and receive conditional leniency will receive a pass from criminal prosecution and its cooperating executives are also eligible for immunity from prosecution.  Moreover, while ACPERA has its critics, in theory it grants the winner of the “leniency race to the courthouse” the additional benefit [if conditions are met] of limiting liability in civil follow on cases to only single damages and damages caused by that company’s own conduct (rather than joint and several liability).

Unless you are Tyson Foods and any of its executives who might obtain leniency, you might think it is not a great result that the largest member of the alleged cartel will receive immunity from criminal prosecution.  And it is possible the plaintiffs in the civil case, which led to the criminal investigation, are not pleased that a deep pockets defendant has the ability to limit its civil exposure to single actual damages attributable to the applicant’s commerce in the affected market. Co-conspirators remain liable for treble damages on a joint and several basis for all damages caused by the cartel.  The hallmark of the Corporate Leniency program, however, and the policy that has made it so successful, is the transparency of the conditions and the certainty of obtaining leniency if these conditions are met.  The Corporate Leniency Policy has some conditions related to culpability an applicant must clear: “The corporation did not coerce another party to participate in the illegal activity and clearly was not the leader in, or originator of, the activity. [Part A, Condition 6]” or “The Division determines that granting leniency would not be unfair to others, considering the nature of the illegal activity, the confessing corporation’s role in it, and when the corporation comes forward. [Part B, Condition 7].   Given the fact that the civil litigation had been ongoing for years with extensive discovery already in the books, every defendant had the opportunity to seek leniency.  This equal opportunity likely contributed to the Division concluding that granting leniency to Tyson’s was not unfair.

Leniency in this case may have been attractive to Tyson despite the potential downsides of leniency for some/all of these reasons:

• Most importantly, conditional leniency provides Tyson executives with the opportunity to obtain immunity from prosecution. This should be the dominant consideration of any company in a position to seek leniency as noted in a Division speech: 【Express Zip下载】NCH Express Zip文件压缩文档解压软件 ...:2021-5-22 · Express Zip是目前最稳定、易用和全面的文件归档和压缩工具之一。轻松创建、管理和提取压缩文件和文件夹。在将大文件发送给家人、朋友、同事和客户之前，先压缩它们，以减少所需的文件空 …, Scott Hammond, March 8, 2001, Former Deputy Assistant Attorney General, Antitrust Division.  This calculus has only increased in favor of seeking leniency with the massive volume of commerce that could easily push convicted defendants into a sentencing guidelines range reaching the Sherman Act maximum of 10 years in prison.  See Upcoming Sentencing of Former Bumble Bee CEO Christopher Lischewski, Cartel Capers, June 4, 2020,
• As noted, Tyson’s has the opportunity under ACPERA to limit its civil damage to single damages–not joint and several liability (trebled) for the entire cartel.
• Another factor in play here is that the alleged cartel seems to be domestic in geographic scope. A deterrent to seeking leniency is the fact that for international cartels, leniency may have to be sought in numerous jurisdictions. Moreover, civil class action damages are now possible in many foreign jurisdictions–not just the United States.  If this is a purely domestic cartel, that removed one major downside to seeking leniency.

It would only be speculation as to why other companies did not apply for leniency, or did, but lost the race to Tyson’s.But one condition of leniency is that the applicant “confess” a per se violation of the Sherman Act. It may be that no other company (and its executives) was willing or able to confess a violation.  As the DOJ press release states: “An indictment alleges that crimes have been committed, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt.”  As a side note: One tool in the Division’s leniency arsenal is known as “affirmative leniency.”  Under certain conditions, the Division may approach an attractive leniency candidate, make a reverse proffer and offer a limited time to apply for the one leniency available in the investigation.  An attractive leniency candidate is generally a company that is involved enough in the cartel to provide indictable evidence, but reasonably far down the culpability scale to limit the credibility cross-examination concerns should immunized executives have to testify at trial.

Another aspect of DOJ’s leniency policy that may come into play as this investigation moves forward is “Leniency Plus.”  As described in the Antitrust Division’s  Frequently Asked Questions About the Antitrust Division Leniency Program and Model Leniency Letter, revised, January 26, 2017:

“Leniency Plus”

8. If a company is under investigation for one antitrust conspiracy but is too late to obtain leniency for that conspiracy, can it receive additional credit for substantial assistance in its plea agreement for that conspiracy by reporting its involvement in a separate antitrust conspiracy?

Yes. Many of the Division’s investigations result from evidence developed during an investigation of a completely separate conspiracy. This pattern has led the Division to take a proactive approach to attracting leniency applications by encouraging subjects and targets of investigations to consider whether they may qualify for leniency in other markets where they compete.

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C.  Conclusion

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Thanks for reading.

Bob Connolly  express加速软件.

US v. Lischewski, Case No. 3:18-cr-00203-EMC (N.D. Cal.)

Christopher Lischewski, the former CEO of Bumble Bee who was convicted of price fixing after a trial last December, is scheduled to be sentenced on June 16, 2020.  The government has requested a guidelines sentence of eight to ten years in prison and a $1 million  fine.  The sentencing guidelines range is  97 to 121 months, but the Sherman Act has a ten year maximum.  Lischewski has asked the Court for a sentence of one year of home detention and a $25,000 fine.  Lischewski argued incarceration was wrong because at age [nearly] 60 he shouldn’t be subjected to the high risk of contracting COVID-19.

There was a hearing [via Zoom] on June 3, 2020 wherein Judge Chen asked the parties for their views on the burden of proof the government bears to  obtain a sentencing guidelines upward departure.  The standards at issue are “clear and convincing evidence” or “preponderance of the evidence.”  I’m not sure it would make a difference (except possibly on appeal) as the defense claimed “Whatever the burden, the government hasn’t met it” while the government argued it has met its burden under either standard.

The enhancements the government seeks in the guidelines calculation are: “Role in the Offense–Organizer or Leader +4; Obstruction +2; and Volume of Commerce +12.  The Volume  of Commerce adjustment is huge and, in my humble opinion bears very little relationship to culpability.  In a Sherman Act criminal trial the jury is asked to find only whether the defendant at some point joined the charged conspiracy.  Findings of fact on these enhancements are left to the sentencing judge.

Background.

The indictment in the case charged Lischewski with fixing the price of tuna from November 2010 and continuing until December 2013. His trial lasted four weeks.  The jury heard from all the major players in the tuna industry.  Chicken of the Sea and its executives, including  former Chicken of the Sea CEO Shue Wing Chan who testified, received amnesty.  StarKist  pled guilty and was sentenced to pay a fine of $100 million.  StarKist Vice President of Sales Stephen Hodge pled guilty and is awaiting sentence under a 5K1 cooperation downward departure deal.  Bumble Bee pled guilty and was fined $25 million.  Bumble Bee’s former senior vice presidents Kenneth Worsham and Walter Scott Cameron, have also pled guilty and are also awaiting sentence pursuant to 5K1 downward departure plea agreements.  Both testified that Lischewski had directed them during the conspiracy.

Lischewski is requesting a massive departure from the voluntary sentencing guidelines that place his recommend sentence at up to the ten year Sherman Act maximum.  Lischewski has also raised and preserved for appeal his challenge to the per se rule.

A.      Ten Years in Prison Under the Sentencing Guidelines

Mr. Lischewski, a first time offender, has a recommended sentencing guidelines term of custody of 97-120 months.  The Guidelines imprisonment range is actually 97 to 121 months; however the Sherman Act maximum is ten years.

From the Government’s sentencing Memo:

Defendant’s Total Offense Level Is 30

Base Offense Level (§2R1.1(a))                                                                                   12

Volume of Affected Commerce (§2R1.1(b)(2)(F))                                                     +12

Total Adjusted Offense Level 24

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Obstructing or Impeding the Administration of Justice (§3C1.1)                             +2

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As the table illustrates, the main driver of the maximum guideline sentence is the volume of commerce.  I have written before that, in my opinion, the  volume of commerce is a poor proxy for culpability and should be greatly deemphasized, when sentencing antitrust offenders.  In 2014, I wrote to  the Sentencing Commission my opinion that the Sherman Act maximum should only be applied for the most egregious cases; perhaps recidivism; coercion of subordinates or other cartel members; or a particularly vulnerable victim.  In short, some kind of “culpability Plus” factor other than volume of commerce should be needed to approach the 10 year Sherman Act maximum.  Robert E. Connolly, Comments and Proposed Revisions Submitted to U.S. Sentencing Commission Regarding USSG 2R1.1 (Antitrust Offenses), July 29, 2014, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2474608.

Volume of commerce is an inappropriate measure of an individuals’ culpability in that it is only based on an estimate of the harm done by a conspiracy. “The purpose of specifying a percent of the volume of commerce is to avoid the time and expense that would be required for the court to determine the actual gain or loss.” express加速软件application note 3.  The background notes to the antitrust guideline reads: “The offense levels are not based directly on damage caused or profit made by the defendants because damages are difficult and time consuming to establish.” Id.  But, before sentencing anyone to 10 years in jail, some  time and expense should  be made examining the motives for and effectiveness of the cartel.  An individual’s commitment to the goal of the conspiracy–fixed prices–should be relevant to sentencing.  Interestingly, this volume of commerce short cut is not acceptable if the Government is relying on the alternative maximum fine provision of 18 U.S.C. § 3571(d) to impose a fine above the Sherman Act maximum of $100 million. See; 当下软件园 - HitFilm Express2021中文版|HitFilm Express V5 ...:2021-11-9 · HitFilm Express 是一款功能强大的视频后期处理软件，它拥有强大的CG效果引擎技术和多位元色彩控制提供专业级的效果和后期合成，而且操作简便！, 132 S. Ct2344 (2012).  In that situation the jury must make a gain or loss finding.  Perhaps in order to get a volume of commerce enhancement, jurors should  be asked to assess the impact  of  a cartel.

At least in this case, the defendant was the CEO of his company.  The volume of commerce enhancement, which can push the guidelines sentence to the Sherman Act maximum, can apply equally to the lowest level employee of a company who may have had a role in the conspiracy. To the extent the volume of commerce has any relation to culpability,  it is not the same for the CEO of a  company and a lower level sales  person who may have been directed to exchange prices with a competitor.

The relation between volume of commerce and culpability is further weakened by the fact that courts have taken an expansive view of what commerce should be included in the guidelines calculation. Courts have uniformly held that all sales made by a defendant during the price fixing conspiracy should be presumed affected by the conspiracy.  See United States v. Giordano, 261 F.3d 1134, 1146(11th Cir. 2001)(presuming all sales within conspiracy period were affected unless the conspiracy was a ‘non-­‐starter” or “ineffectual.”); express加速软件, 216 F.3d 645, 678 (7th Cir. 2000)(holding that “the presumption must be that all sales during the period of the conspiracy have been affected by the illegal agreement since few if any factors in the world of economics can be held in strict isolation; United States v. Hayter Oil. Co, 51 F.3d 1265, 1273 (6th Cir. 1995)(concluding that “the volume of commerce attributable to a particular defendants…includes all sales of the specific goods or services which were made by the defendant or his principal during the period of the conspiracy.).  The Sherman Act is a prosecutor friendly tool in that the government can argue to the  jury that they do not have to prove the conspiracy had any effect; cheating is no defense; the agreement is the crime, etc.  But, at sentencing it is presumed the cartel affected all sales.

A prison sentence for Mr. Lischewski seems highly approaching ten years seems highly unlikely.  Pursuant to 18 U.S.C. § 3553, a district court must strive to “impose a sentence sufficient, but not greater than necessary” to reflect the seriousness of the offense, promote respect for the law, and provide just punishment.  Several years ago, the government requested a sentence of up to ten years after the conviction at trial of AU Optronics CEO’s.  Judge Illston imposed 36-month sentences on the defendants in the case the government described as “the largest, most egregious antitrust conspiracy that the Department of Justice has ever prosecuted.” United States v. AU Optronics Corp., No. 09-cr- 00110-SI, ECF 948 at 51 (N.D. Cal. Sept. 11, 2012).

Even though the guidelines are voluntary, there is another negative consequence from the draconian nature of the volume of commerce enhancement. The government uses the Sentencing Guidelines when negotiating plea agreements. For the most part, the government can gain cooperation by avoiding the long recommended sentences the guidelines may call for by the volume of commerce enhancements by negotiating deals; amnesty, immunity, non-prosecution and 5K1 cooperation departures with conspirators.  The government identified 16 co-conspirators in the tuna price fixing scheme but made deals in return for cooperation with them.  But, Lischewski, as the “last man standing” so to speak–had no cooperation to offer.  A defendant facing an 8-10 year recommended  guidelines prison sentence has very  little to lose by going to trial.  In one sense, the trial can be viewed as a prolonged sentencing hearing, allowing the defendant to demonstrate how disproportionate his sentence is compared to other conspirators.   Other trial evidence may “humanize” the defendant or mitigate the conduct and result in a shorter sentence. On the other hand, if the defendant testifies untruthfully, as the government alleges Mr. Lischewski did, the trial may not sway the court in the defendant’s favor.  The government has requested a two point “obstruction of justice” enhancement for Mr. Lischewski in this case.

B.     JURY INSTRUCTION–PER SE RULE

 Defendant Lischewski preserved an objection to the Court giving a “per se rule” jury charge.  Over the defendant’s objection, the Court gave the following standard instruction on the per se rule:

                                    PER SE VIOLATION OF THE ANTITRUST LAWS

Section 1 of the Sherman Act makes unlawful certain agreements that, because of their harmful effect on competition and lack of any redeeming virtue, are unreasonable restraints of trade. Conspiracies to fix prices are deemed to be unreasonable restraints of trade and therefore illegal, without consideration of the precise harm they have caused or any business justification for their use.

Therefore, if you find that the government has met its burden with respect to each of the elements of the charged offense, you need not be concerned with whether the agreement was reasonable or unreasonable, the justifications for the agreement, or the harm, if any, done by it. It is not a defense that the parties may have acted with good motives, or may have thought that what they were doing was legal, or that the conspiracy may have had some good results. If there was, in fact, a conspiracy to fix the prices for canned tuna as alleged, it was illegal.

The Supreme Court recently denied cert. in a case challenging the constitutionality of the per se rule.  See, http://pccxk.102zp.com/blog/first-per-se-rule-assault-turned-away-the-battle-will-go-on/.  But the issue will continue to be raised until the high court does address the issue.  Perhaps this will be the case; especially if the defendant receives a very long prison sentence.

I’ve addressed my view of the unconstitutionality of the per se rule in “The End is Near For the Per Se Rule in Criminal Sherman Act Cases and more recently in IN THE CLASH BETWEEN THE VENERABLE PER SE RULE AND THE CONSTITUTION, THE CONSTITUTION SHALL PREVAIL (IN TIME).”  In a nutshell, the argument is that the Sherman Act requires the government to prove, beyond a reasonable doubt, that the agreement in question restrained trade.  In a price fixing case, the jury is instructed as it was here, that the agreement charged is illegal per se: “you need not be concerned with whether the agreement was reasonable or unreasonable.”   The jury never answers the question of whether the agreement restrained trade.

This is a brief excerpt from the “In the Clash Between the Per Se Rule and Constitution…,” the most recent article I have written on the per se rule:

The first problem with the per se rule is that it cannot be found in Section One of the Sherman Act. Section One condemns agreements in “restraint of trade.” From a textualist point of view, the very same words cannot create the per se rule and the rule of reason. The Supreme Court has created, and later reversed, most per se violations while the operative language of the Sherman Act, “restraint of trade,” has not changed.   The per se rule against horizontal price fixing is the last per se rule standing. The Antitrust Division argues that the per se rule is not an evidentiary presumption but an interpretation of the statute: “it is as if the Sherman Act reads price fixing and bid rigging are illegal.” But, it doesn’t. Textualism will prevail over the “it is as if the Sherman Act read” rule of statutory construction.

The second problem with the per se rule is that it clashes with constitutional protections enjoyed by a defendant in a criminal case. The Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Under the per se rule, however, once the court makes the factual determination that the per se rule applies, the jury is instructed that the government has proven a restraint of trade beyond a reasonable doubt because price fixing is per se illegal.

One last thought:  It is odd that the Volume of Commerce enhancement can so dramatically escalate the defendant’s potential sentence when the jury is charged: It is not a defense that the parties may have acted with good motives, or may have thought that what they were doing was legal, or that the conspiracy may have had some good results.”

 We will find out what Judge Chen thinks on June 16, 2020.  The sentencing hearing will be available  for watching on ZOOM.  I am glad I am not the judge.  These are tough cases.

Thanks for reading.

Bob Connolly  bob@reconnollylaw.com

As mentioned in a previous blog post (here), the ABA Antitrust Section is hosting the 68^th Antitrust Virtual Spring Meeting with programs in different formats—podcast, live stream, etc.  Full information from the ABA about the program which runs from April 17-May 1, 2020 is available here.  This is a wonderful way the Section has put its hard work in preparing for the Spring Meeting to good use, and we are the fortunate recipients.

I’ve posted a link below to the podcast “Whatever Happened to Global Cartel Enforcement?” which premiered Monday, April 20, 2020.  This is a tremendously experienced group of speakers covering North American, Europe and Asia.  The panelists have both present and former government experience, including outstanding DOJ Antitrust Division experience.  I enjoyed the program and I think you will too. SPOILER ALERT:  Global Cartel enforcement is not dead.

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ABA ANTITRUST SECTION SPRING MEETING PODCAST RELEASE: WHATEVER HAPPENED TO GLOBAL CARTEL ENFORCEMENT?

Presented by the Cartel & Criminal Practice Committee

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Session Chair/Moderator:

Brent Justus, McGuireWoods LLP, Richmond, VA

Speakers:

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Lisa M. Phelan, Morrison & Foerster LLP, Washington, DC

Marisa Tierno Centella, Deputy Head of Unit Cartels, European Commission, Brussels

Atsushi Yamada, Anderson Mori & Tomotsune, Tokyo

To listen to the podcast, click here.

**************************

I’d like to add one comment to the discussion.  On the question of “Why international cartel prosecutions are down,” it was suggested that years of tough enforcement by the Antitrust Division, USDOJ and other jurisdictions may well have increased deterrence to the point where fewer companies/individuals are willing to risk the consequences of being caught in a cartel.  The global business community has been educated about the illegality of cartels, probability of being caught and severe consequences of price fixing.  This deterrent effect is undoubtedly true…or at least we hope so.

I think, however, that strong deterrence has had another “educational” consequence. Those that do enter into a cartel, do so much more carefully.  Gone are the days when detection was not on the minds of anyone (except possibly Americans) and cartel agreements were freely discussed in memos, emails and files (electronic and otherwise) were full of hot documents.  Executives today that do enter into international cartels undoubtedly are quite familiar with the possibility of simultaneous dawn raids/search warrants being executed around the globe. “Cleaner” files reflect the realization that instead of writing “Delete after reading” at the end of a “hot document,” such documents should not be created in the first place.

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This brings me to my favorite subject—the benefit of a criminal antitrust whistleblower statute.  The United States needs an SEC style whistleblower statute to encourage individuals to self-report.  Individuals, of course, face their own set of negative collateral consequences if they become a whistleblower, so the need for some possible monetary award is crucial.  I won’t repeat the arguments laid out in previous blog posts (here) (here) about the benefits of a criminal antitrust whistleblower statue.  But the need for “insiders” becomes greater as cartels become more covert. With respect to leniency, one benefit is that fear of a potential whistleblower would go into a company’s decision of whether to seek leniency.  Even if there already has been a whistleblower to start an investigation, a corporate leniency is likely still available and companies are much more likely to see leniency when a credible investigation already exists. .

Note:   There currently is a form of whistleblower reward—if the victim of a price fixing/bid rigging scheme is the federal or state government.  See, “Whistleblowing and Criminal Antitrust Cartels: A Primer and Call for Reform.” And with over $2 TRILLION in federal aid being rushed into the economy, the possibility of criminal antitrust fraud seems likely.  A whistleblower can file a qui tam suit alleging the government has been defrauded of money and if successful, be rewarded with an award that can range from 15-30% of the government’s recovery.  See for example, DOD Bid Rigging Whistleblower and Related Antitrust Division Criminal Cases”

Thanks for reading.

Bob Connolly   bob@reconnollylaw.com

Starting April 17^th the Antitrust Section’s Spring Meeting will take place via Podcasts, videocasts, live streams, and virtual receptions.

No registration is required and it is free to the global competition, consumer protection, and data privacy communities regardless of whether a member of the Antitrust Law Section (but, of course, the Section would love to have non-members join and contribute to the global work of the Section).

The full agenda, and directions on how to access the program, are available in the Virtual Spring Meeting Brochure.  http://www.americanbar.org/groups/antitrust_law/

These are just a few of the programs that caught my eye for the first week (of two):

Monday April 20

• 加速WIN10——ExpressCache与PrimoCache的原理以及 ...:2021-5-15 · 为什么要使用expressCache不直接使用ssd做primocache的二级缓存来为机械硬盘加速？原理是一样的。而且primocache一个软件处理，更省资源，再且，primocache利用的热数据算法不是比盲目的软件全映射更加有效利用有限的ssd空间来加速真正经常 ...

Tuesday April 21

• PODCAST RELEASE: WHATEVER HAPPENED TO GLOBAL CARTEL ENFORCEMENT?

Wednesday April 22

• PODCAST RELEASE: BIG DATA AS AN ANTITRUST ISSUE

Thursday April 23  2:00 – 3:00 pm

• CELEBRATING SECTION DIVERSITY VIRTUAL RECEPTION

Friday April 24 Noon-1:15 pm

• LIVESTREAM: ENFORCERS ROUNDTABLE

The programs run through Friday May 1, 2020.  One of the last events is on Friday May 1, 2:00 pm, a livestream event:

• LIVESTREAM: MEMBERSHIP MATTERS!

We will miss our Spring Meeting in-person community this year.

Section community goes far beyond Spring. Our Section is deeply engaged throughout the year and offers extensive programming, committee engagement, leadership opportunities, mentorship, and networking. Please join us to hear first-hand the perspectives and experiences of Section leaders and why they are “all in”:

I have gone to the Antitrust Section’s Spring Meeting for as long as I can remember.  It has out grown several hotels (and I, many suits) since I first started going.  It used to be the big law firms had the best parties—until the economist took over.  It has changed.  Always great, and each year a little better.  I look forward to next year’s in person meeting.  To join the Antitrust Section of the American Bar Association, check out this link.   http://www.americanbar.org/groups/antitrust_law/membership/.

Thanks for reading.   Bob Connolly  bob@reconnollylaw.com

Antitrust Division DAAG Richard Powers gave opening remarks at the 13th International Cartel Worksop that has just begun in San Francisco, California.  While there was no new ground in Mr. Powers remarks, the remarks are extensive and provides insight into the Division’s thinking regarding mature policies like Corporate Leniency as well as the Division’s newer policies such as the change in how the Division treats corporate compliance programs.  I recommend reading this statement which can be found here.

To give you a flavor, I’ve bullet pointed the Title and Paragraph Headings:

• A Matter of Trust: Enduring Leniency Lessons for the Future of Cartel Enforcement
• Reaffirming Leniency’s Three Key “Cornerstones
• Sanctions on Individual
• Corporate Fines and Penalties
• Compliance Credit
• Heightened Fear of Detection
• Predictability and Transparency
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• Leniency’s Value
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• Treble Damages Private Litigation & ACPERA
• Leniency in the Broader Context of the Antitrust Division’s Cartel Enforcement Effort
• Conclusion

I have been to several International Cartel Conferences, including the first that was held in Washington, D.C. if I remember correctly.   It’s a great program bringing cartel defense lawyers and government prosecutors together from around the world.

Bob Connolly.   bob@reconnollylaw.com

I applaud the National Institute for the Defense of Competition and the Protection of Intellectual Property of Peru (Indecopi), (the Peruvian Competition Agency) for the publication of guidelines for an Antitrust Reward Program.  The Guidelines are the result of a continuous effort of the Peruvian Competition Agency to detect anticompetitive conducts and promote a free competition culture in the market.

The guidelines promote an effective award (i.e. whistleblower) program.  They apply to:

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• Output or sales restrictions, in particular, by establishing production quotas.
• Allocating costumers, providers or geographical areas.
• Bid rigging and other coordinations in public tenders and other public procurement processes.

As the guidelines note, these activities are not only the most harmful to consumers, they are also carried out in secret.  Inducing a cartel member (individuals—leniency is for corporations) to come forward is an effective policy to prevent cartel formation, destabilizing existing cartels and expose and prosecute those that are in existence.  A whistleblower has a heavy burden of possible retribution, legal fees and other adverse consequences from cooperating with authorities. A “reward” helps counterbalance the risks of coming forward.

The guidelines also draw a nice balance between excluding what might be called “ringleaders” of the cartel from a reward, but allowing lower level employees recruited into cartel activity to come forward and be eligible for a reward.

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A copy of the Rewards program can be viewed here: 4._the_antitrust_rewards_program.

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Benefits of a Criminal Antitrust Whistleblower Statute–Part 1

A Whistleblower Story (Hypothetical)

Some SEC Whistleblower News

The Indecopi Antitrust Reward Program came to my attention because their guidelines are up for a Concurrence Writing Award.  Voting for the Concurrences Awards is open in the following link: http://awards.concurrences.com/en/awards/2020/soft-law/the-antitrust-rewards-program.  Please consider voting for this program.

You can check out the many other fine articles up for award by Concurrences.  The Concurrences 2020 Antitrust Writing Awards contribute to competition scholarship by selecting the best antitrust writings published in 2019. The  Awards consist of:

• “Best Articles”: best academic, business, and student articles written by one or few individual authors.
• “Best Soft Law”: best non-enforcement tools written by competition agencies.
• “Best Newsletters”: ranking of best law firm antitrust newsletters.

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Thanks for reading and voting if you choose to.

Bob Connolly  bob@reconnollylaw.com

I am continuing my research and writing a paper for the Antitrust, Unfair Competition and Privacy Section of the California Bar Association.  Below is an excerpt on an issue I am trying to think through.

*************************************

Section 1 of the Sherman Act states, “[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce . . . is declared to be illegal.”[1]  The Supreme Court has said: “the problem presented by the language of Section 1 of the Sherman Act is that it cannot mean what it says.”^[2] I submit the Sherman Act can mean exactly what it says because a pro-competitive (or neutral) agreement does not restrain trade. To restrain is “to limit”; “to hold back.”[5]  If an agreement is procompetitive, it does not restrain trade in the most natural meaning of the word.  The “trade” the Sherman Act was concerned with was clearly not the trade such as a contract between Standard Oil Company and a customer buying a barrel of oil.  That contract restrains trade only when given a very literal meaning; that the customer is not free to buy that barrel from another vendor.  Today we would say that such contracts generally are pro-competitive, or at worst neutral—-i.e. they allow and expand trade.  There is no indication in the legislative history, or common sense, that the Sherman Act intended to literally outlaw every commercial contract.  So, no—not every contract restrains trade in the meaning of the Sherman Act.  Congress was concerned with the agreements/trusts that made Standard Oil the only oil company.   The great trusts of the day: the Sugar Trust, Oil Trust, Banking Trust[6] restrained trade.  It is clear that Congress used the term “trade” in the way current antitrust case use “market.”

Unfortunately, the Supreme Court took a wrong turn and dealt with the perceived drafting problem by amending the Sherman Act and adding “unreasonable.”  In the the famous Standard Oil^[3] case of 1911, the Supreme Court introduced the “rule of reason,” declaring that only unreasonable restraints of trade are illegal.  In a dissent, Justice Harlan objected that the Court, rather than Congress, amended the legislation. Justice Harlan wrote that the Court “has now done what it then said it could not constitutionally do. It has, by mere interpretation, modified the act of Congress.”^[4]

Adding “unreasonable” to the Sherman Act was, however, “harmless error” since the modification was redundant. The real mischief was the Supreme Courts’s precedent of rewriting the Section One of the Sherman Act because a literal interpretation was non-sensical.  The rule of reason was soon followed by the per se rule.  Over its history, the Supreme Court has created per se rules for vertical price fixing, maximum resale price maintenance, vertical non-price restraints, boycotts and tying.  The point is, there was no need, nor basis, for the Supreme Court to create and dissolve per se rules.  The text of the statute has not changed.  The inquiry under the Sherman Act Section 1 must always be whether an agreement (if one is proved) constitutes a restraint of trade because that is what the statute prohibits.

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express加速软件. bob@reconnollylaw.com

PS.  The comments tab on my blog is not working.  I do, however, really appreciate any comments and other perspectives.

******************

[1]  15 U.S.C Section 1.

[2] National Soc’y of Prof. Engineers v. United States, 435 U.S. 679, 687 (1978).

[3]  Standard Oil v. United States, 221 U.S. 1 (1911).

[4]  Id. at 99.  (Justice Harlan dissenting). For more detail and color, see, William Kolaksy, Chief Justice Edward Douglass White And the Birth of the Rule of Reason, Antitrust, Vol. 24, No. 3, p. 77, (On the bench, Harlan was even harsher. Those present in the courtroom reported that Harlan “[h]aving refreshed himself with whiskey . . . denounced his colleagues from the bench in impro- vised language that is said to have made them blush.”)

[5]   Merriam Webster Dictionary: 1a: an act of express加速软件 : the state of being restrained

b(1): a means of restraining : a restraining force or influence (2): a device that restricts movement., available at http://www.merriam-webster.com/dictionary/restraint.

[6]   “Technically, a trust is a legal device used to coordinate multiple property owners through a unified management structure. Business owners combine their interests into a single legal entity—the trust. The various owners appoint a trustee (or multiple trustees) to act in the interest of the collective owners, and the individual owners retain dividend shares in the trust. A trust can be established within a single firm—a form known as a voting trust—to unite majority shareholders for the purpose of controlling management decisions. Alternatively, a trust can be set up to coordinate multiple, separately owned firms, operating like a combination or cartel. In 1882 S. C. T. Dodd, an attorney for John Rockefeller’s Standard Oil Co., created a trust to facilitate a tight combination of oil refiners that could dictate price and supply while also avoiding state-level taxes and corporate regulations. The use of trusts for industrial consolidation multiplied throughout the 1880s, and in response, several states and the federal government passed antitrust laws to regulate business competition, focusing on coordination among firms and business tactics used to monopolize industries.” Laura Phillips Sawyer, US Antitrust Law and Policy in Historical Perspective, Harvard Business School Working Paper, 19-110 )2019) available at   http://www.hbs.edu/faculty/Publication%20Files/19-110_e21447ad-d98a-451f-8ef0-ba42209018e6.pdf.

I explained in an earlier blog post that a criminal antitrust case had reached the Supreme Court where defendants convicted of bid rigging at public real estate foreclosure auctions had challenged the constitutionality of the per se rule.  On Monday, the Supreme Court declined to review the criminal antitrust convictions, leaving in place the per se rule in criminal antitrust cases.

As usual, the Supreme Court offered no explanation for denying cert in this case.  There is a Law 360 article on the case by Anne Cullen, January 13, 2020, Justices Skip Case Over ‘Per Se’ Rule In Antitrust Convictions, (behind paywall).

The defendants were joined in seeking Supreme Court review by amicus briefs filed by the National Association of Criminal Defense Lawyers and the Due Process Institute.  All of the briefs, including the brief of the United States, can be found in this earlier post:  Cartel Capers: Supreme Court Review Sought For Per Se Rule in Criminal Cases, October 30, 2019.

My short argument for why the per se rule is unconstitutional in a criminal case is:

There are three elements to a Section 1 Sherman Act offense: 1) an agreement; 2) in restraint of trade, 3) that affects interstate or foreign trade or commerce.  In a rule of reason civil antitrust case the jury decides all three elements, including whether the agreement was in restraint of trade (i.e. procompetitive or anticompetitive).  In a criminal case, however, the jury is instructed by the court that the agreement [if proven] is a restraint of trade and their job is only to find whether the defendant knowingly joined the charged agreement.  The language of Section 1 of the Sherman Act, however, is the same for a civil or criminal violation; so it is odd, in an oddly unconstitutional way, that in a criminal Sherman Act case the jury does not decide the fundamental element of whether the agreement was “in restraint of trade.”

While the per se rule has been long established, the defendants, in their brief to the Supreme Court, make clear there is another constitutional rule that takes precedence: the jury must find the defendants guilty beyond a reasonable doubt on every element of the crime. As entrenched as the per se rule may be, it must give way to this constitutional requirement.

The per se rule snuck under the radar if you will because it was established at a time when there was no real chance of anyone going to jail for an antitrust crime and long predates the more recent Supreme Court recognition of the constitutional requirement that juries find every element of a crime beyond a reasonable doubt.  Times have changed, as evidenced by the Antitrust Division, DOJ January 13, 2020 press release:  Former Air Cargo Executive Extradited From Italy for Price-Fixing.

There is another issue in antitrust law that comes to my mind.  In the no-poach cases the litigants try to win the heart of the Judge as to whether the case will be tried as a per se case (plaintiffs win), or the rule of reason (defendants win).  If the question is “Did the agreement restrain trade?” (and that is the question in an antitrust case), it seems the jury should decide the question.  In a criminal antitrust case, the constitution demands it.

I don’t think this issue will go away.  My friend James Backstrom sent me this quote from the esteemed (to those of us of a certain generation) Soupy Sales: “The path to change rarely is a straight line.”

More fodder for the blog.  I am also working on a longer article on this issue for the Antitrust, UCL and Privacy section of the California Lawyers Association, journal express加速软件.”

Thanks for reading.

express加速软件             bob@reconnollylaw.com

My former DOJ colleague and whistleblowing writing partner, Kimberly Justice and I published an article in Competition, the official publication of the Antitrust, UCL and Privacy Section of the California Lawyers Association (CLA). CLA members can read the article online (here).  The article has information about handling False Claim Act cases and calls for the Antitrust Division to more actively encourage whistleblowers and stronger criminal antitrust whistleblower legislation. The article opens:

“In the two decades I was deeply involved in the Crazy Eddie fraud, the only threat made us lose sleep at night was the possibility of a whistleblower blowing the lid on our crimes. Consistent studies by the Association of Certified Fraud Examiners have shown that most frauds are exposed by whistleblowers, far ahead of frauds exposed by any other source.”

Sam E. Antar, Former Crazy Eddie CFO, former CPA, and a convicted felon[1]

[1]   Henry Cutter,  S加速WIN10（三）——ExpressCache与PrimoCache的原理 ...:2021-8-10 · PrimoCache这个软件相当于内存映射盘，每次读取和写入的文件都会先写入内存，然后再根据你设置的延迟时间写入硬盘，对于HDD硬盘可以可以明显改善4K读写速度，对于固态硬盘优化不明显，但是对固态硬盘来讲延时写入可以减少SSD写入次数，延长寿命。Bounties, Wall Street Journal, June 29, 2019, (comment by Sam E. Antar, Former Crazy Eddie CFO, former CPA, and a convicted felon).

PS.  If you’d like to join the CLA here is some information: “The membership year runs from January to December. Dues are not pro-rated. Non-California lawyers and law students can join as Affiliate Members.  For more information visit Join Us.”  If you like some information about why I think it’s a great organization for Antitrust and Privacy lawyers, give me call.

Thanks for reading

Bob Connolly.   bob@reconnollylaw.com. (215) 219-4418