Plea Negotiations and Sentencing

• Pages: 213-249

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PLEA NEGOTIATIONS AND SENTENCING

Once a defendant is convicted of a criminal antitrust offense, either

following a guilty verdict in a jury trial or upon acceptance by the court of

a guilty plea, the court must impose a sentence. Individual defendants

convicted of an antitrust offense may face imprisonment, criminal fines,

an obligation to pay restitution, and other financial penalties. Corporate

defendants also face criminal fines and an obligation to pay restitution. In

addition, corporate defendants can face ongoing monitoring and other

obligations to the government after sentencing. This chapter addresses

plea negotiations and sentencing in international cartel cases.

A. Trends in U.S. Cartel Sentencing

In the past three decades, there has been significant increase in the size

of the corporate criminal fines imposed in criminal antitrust cases in the

United States. In the 1980s, fines totaling $188 million were imposed in

cases brought by the Antitrust Division of the U.S. Department of Justice

(DOJ).1 In the 1990s, that total rose to $1.6 billion, and the first decade of

this century saw the total jump to $4.75 billion.2 In FY 2014 and FY 2015,

1. See Scott D. Hammond, Deputy Assistant Att’y Gen., Antitrust Div., U.S.

Dep’t of Justice, The E volution of Criminal Antitrust Enfor cement Over

The Last Two Decades, presented to the ABA Criminal Justice Section,

National Institute On White Collar Crime at 5 (Feb. 25, 2010), available at

https://www.justice.gov/atr/file/518241/download.

2. Id; see also Carl Shapiro, Deputy Assistant Att’y Gen., Antitrust Div., U.S.

Dep’t of Justice, Update From The Antitrust Division, pr esented at the

ABA Section of Antitrust Law Fall Forum 1-2 (Nov. 18, 2010), available

at http://www.justice.gov/atr/public/speeches/2642 95.pdf (discussing

increase in the amount obtained from criminal antitrust fines between 2006

and 2010).

214 International Antitrust Cartel Handbook

$1.3 billion and $3.6 billion in fines were imposed in Antitrust Division

cases each year.3

A number of factors account for this increase in the size of corporate

fines in antitrust criminal cases, including the Antitrust Division’s focus

on investigating and prosecuting large international cartels, its increased

cooperation with foreign competition law enforcement agencies, and the

adoption of the 1993 Corporate Leniency Policy. The Antitrust Criminal

Penalty Enhancement and Reform Act of 2004 (ACPERA),4 the U.S.

Sentencing Guidelines, and the Alternative Fine Statute5 also play a

significant role in bringing about the recent trend of increasing fines

obtained by the Antitrust Division.

There has also be an upward trend in sentencing of individual

defendants, with the average jail sentence increasing from eight months in

the 1990s to twenty-four months during the period from 2010-2015.6

There are several factors that may account for this increase in average jail

sentence, including that the maximum sentence for an antitrust offense was

increased to ten years under ACPERA.7 The higher levels of commerce

involved in global investigations has also led to larger fines.8 In addition,

the number of defendants sentenced in criminal antitrust cases steadily

rose in the late 1990s through the 2000s, to eighty-two individual cases

charged in 2011.9 The longest sentence imposed in connection with a

criminal antitrust charge to date is five years.10

3. Antitrust Div., U.S. Dep’t of Justice, Criminal Enforce ment Trends Charts

Through Fiscal Year 2017 (updated Mar. 12, 2018), available at

https://www.justice.gov/atr/criminal-enforcement-fine-a nd-jail-charts.

4. Antitrust Criminal P enalty Enhancement and Reform A ct of 2004, Pub. L.

No. 108-237, § 215(a), 118 Stat. 661, 668 (2004).

5. 18 U.S.C. §3571(d).

6. Antitrust Div., U.S. Dep’t of Justice, Criminal Enforce ment Trends Charts

Through Fiscal Year 2017 (updated Mar. 12, 2018), available at

https://www.justice.gov/atr/criminal-enforcement-fine-a nd-jail-charts.

7. 118 Stat. at 668.

8. See Antitrust Div., U.S. Dep’t of Justice, Sherman Act Violat ions Yielding

a Corporate Fine of $10 Million or More (2018), available at

https://www.justice.gov/atr/sherman-act-violations-yiel ding-corporate-

fine-10-million-or-more.

9. See Antitrust Div., U.S. Dep’t of Justice, Antitrust Division Wor kload

Statistics FY 2007-2016, available at e file/788426/download.

10. See Press Release, U.S. Dep’t of Justice, Office of Public Affairs, Former

Sea Star Line President Sentenced to Serve Five Years in Prison for Role

in Price-Fixing Conspirac y Involving Coastal Fr eight Services Be tween

Plea Negotiations and Sentencing 215

A final recent trend is that the Antitrust Division may seek forward-

looking relief, for example corporate monitors or compliance programs, in

cases in which the corporate defendant’s conduct is deemed particularly

egregious. Historically, the DOJ has sought such provisions in other

federal criminal cases, but corporate monitors or compliance programs

have not been typical in criminal antitrust cases.

B. U.S. Sentencing Guidelines

1.

U.S. Sentencing Guidelines—Overview

Any discussion of plea negotiations and sentencing in a criminal

antitrust case begins with the potential criminal fine range and length of

incarceration for any individual defendant. The U.S. Sentencing

Guidelines promulgated by the U.S. Sentencing Commission are the

starting point for U.S. courts to assess appropriate sentences in federal

criminal cases. The Sentencing Guideli nes identify specific and detailed

factors that a court can consider in establishing ranges for the purposes of

imposing periods of imprisonment and criminal fines.

The legislative background to the Sentencing Reform Act of 1984

reflects several objectives that led to the development of the Sentencing

Guidelines:

• to enhance the ability of the criminal justice system to combat

crime through an effective, fair sentencing system;

• to achieve reasonable uniformity in sentencing by narrowing the

wide disparity in sentences imposed for similar criminal offenses

committed by similar offenders; and

• to seek proportionality in sentencing through a system that

imposes appropriately different sentences for criminal conduct of

differing severity.11

the Continental United States and Puerto Rico (Dec. 3, 2013), available at

https://www.justice.gov/opa/pr/former-sea-star -line-president-sentenced-

serve-five-years-prison-role-price-fixing-conspirac y.

11. See U.S. SENTENCING COMM’N, SENTENCING GUIDELINES MANUAL ch. 1

(2016) [hereinafter SENTENCING GUIDELINES].