Criminal Defense Lawyers

Federal Antitrust Defense Lawyer

The DOJ’s antitrust leniency program has created something unprecedented in federal criminal law: a race where the first company to confess gets complete immunity while everyone else goes to prison. Only one company can win. The rest face up to 10 years per Sherman Act violation. This isn’t mercy for cooperation – it’s a prisoner’s dilemma weaponized by prosecutors. The companies that participated in the same price-fixing conspiracy, attended the same meetings, sent the same emails, made the same profits from the same crime – some walk free and some serve years in federal prison based entirely on who called the DOJ first. When Archer Daniels Midland executives went to prison for 33 months each in the lysine price-fixing case, the company that reported the conspiracy first paid nothing. Same crime. Same meetings. Completely different outcomes.

The average prison sentence for antitrust violations has doubled since the 1990s. What was approximately 10 months has become nearly 19 months. In peak years, the average exceeds 24 months. Since 1999, more than 107 individuals have served prison sentences for antitrust crimes. Christopher Lischewski, the former CEO of Bumble Bee Foods, served 40 months for tuna price-fixing – the first CEO in the food industry sentenced for antitrust. Alfred Taubman of Sotheby’s went to prison for auction house price-fixing. Four major banks paid $2.5 billion in criminal fines for foreign exchange manipulation. The DOJ Antitrust Division has made clear that executives will go to prison for price-fixing, bid-rigging, and market allocation. The question isn’t whether they prosecute. The question is who they prosecute – and that depends almost entirely on who confessed first.

Here’s the trap that catches sophisticated business executives who think they’re too smart to get caught: your own emails will convict you. Not secretly recorded conversations. Not undercover agents. Your internal communications – the casual emails, the meeting notes, the text messages you thought nobody would ever see. Many antitrust investigations are fueled by poorly phrased or exaggerated statements in internal documents. Companies spend millions on antitrust compliance training, then employees send emails saying “we agreed on price” or “we split the market.” When prosecutors find those documents, intent becomes undeniable. The case essentially proves itself.

The Leniency Race – Why Being First To Confess Is Everything

Heres the system revelation that makes antitrust prosecution fundamentally different from every other federal crime. The DOJ’s Corporate Leniency Policy provides complete immunity from criminal prosecution for the first company to report a price-fixing conspiracy. Not reduced charges. Not a lighter sentence. Complete immunity – no criminal prosecution, no fines, no prison for cooperating executives. But only for the first company. Everyone who comes second gets nothing.

This creates a race among conspirators. The moment one company suspects an investigation might be coming, they have an overwhelming incentive to report immediately. If there competitors beat them to the DOJ, its to late. The immunity is gone. Now there facing prosecution while there former co-conspirators walk free. The leniency program has transformed antitrust from a crime where everyone stays quiet to a crime were everyone races to confess becuase the consequences of being second are catastrophic.

OK so look at how this actualy works:

• Type A leniency is automatic if three conditions are met: no DOJ investigation is pending, your the first company to report, and you fully cooperate. Thats it. If you meet those conditions, you get complete immunity. No discretion. No negotiation.
• Type B leniency applies when an investigation has already begun. Here, the DOJ has discretion – they consider whether your cooperation would have been available from other sources, wheather your company was the ringleader, and wheather executives were involved in coercion.

Heres what makes this race so dangerous. You dont know if your competitors are already talking to DOJ. You dont know if an investigation is pending. You dont know if someone inside one of the other companies has become an informant. Every day you wait is a day someone else might beat you to immunity. The companies that hesitate – that wait for lawyers to fully evaluate the situation, that debate internally about wheather to report – often arrive at DOJ to discover someone else got there first. Second place in the leniency race means full prosecution.

Your Emails Will Convict You – The Documentary Evidence Problem

Heres the irony that destroys sophisticated business executives who should know better. Companies spend millions on antitrust compliance programs. They train employees on what language to avoid. They implement document retention policies. And then employees send emails that explicitly describe the crimes there committing. “We agreed with [competitor] to fix prices.” “We split the market – we get East Coast, they get West.” “The meeting went well – everyone agreed to hold pricing.” These arent hypothetical examples. These are the kinds of documents that appear in actual antitrust prosecutions.

The problem is that antitrust conspiracies require communication between competitors. Prices dont get fixed in isolation. Markets dont get allocated without agreement. And those agreements leave trails:

• Meeting calendars show when competitors gathered
• Travel records show executives at the same hotels
• Phone records show calls between people who shouldnt be talking
• Emails – the emails are almost always the worst

Think about what this means for defendants. In most criminal cases, the prosecution has to piece together circumstantial evidence. In antitrust cases, defendants often hand prosecutors the evidence directly. An email saying “we agreed to raise prices 5%” is a confession. The prosecution dosent have to prove intent – the email proves intent. The prosecution dosent have to explain why competitors met – the email explains why. Your own documents become the governments primary evidence against you.

Heres the uncomfortable truth about document practices. Every antitrust lawyer tells clients to be careful about what they write. Every compliance training warns about problematic language. And companies keep producing exactly the kinds of documents that lead to convictions. Why? Becuase the people fixing prices dont think of themselves as criminals. There businesspeople solving a problem – “stabilizing the market” or “rationalizing competition.” There language reflects that mindset. And that language convicts them.

ADM and the Lysine Tapes – When Your Informant Is Also Your Defendant

Heres the named example that reveals the strange dynamics of antitrust prosecution. In the mid-1990s, Archer Daniels Midland was one of the worlds largest agricultural processors. Mark Whitacre, an ADM executive, became an FBI informant and secretly recorded years of price-fixing meetings involving lysine, an animal feed additive. The recordings captured ADM executives and there competitors explicitly agreeing to fix prices and allocate markets. The evidence was overwhelming. The case was called one of the best-documented corporate crimes in American history.

Three ADM executives, including vice chairman Michael Andreas, were sentenced to 33 months each – at the time, the longest antitrust sentences ever imposed. ADM paid a $100 million fine, then the largest antitrust fine in history. The case became the basis for Kurt Eichenwalds book “The Informant” and the 2009 film starring Matt Damon. It demonstrated that DOJ was serious about prison time for price-fixing. Executives – real executives, not just mid-level employees – would go to federal prison.

But heres the irony that made the case even more complicated. Mark Whitacre, the FBI informant who recorded years of incriminating conversations, was also committing crimes. While he was gathering evidence against ADM for price-fixing, he was simultaneosly embezzling millions from the company. He ended up serving more time for fraud then the executives he helped convict served for antitrust. The whistleblower became a defendant. The informant became an inmate.

OK so look at what this case reveals about antitrust prosecution. The evidence that convicted the ADM executives wasnt sophisticated forensic analysis. It was recordings of them saying exactly what they were doing. “The competitor is our friend and the customer is our enemy.” The executives were so comfortable in there conspiracy that they spoke freely about it on tape. This happens constantly in antitrust cases – defendants create the evidence that convicts them becuase they dont think of what there doing as a crime.

The 19-Month Average – Why Antitrust Criminals Serve Less Than Drug Dealers

Heres the specific number reality that surprises people who expect white-collar criminals to face serious prison time. The average prison sentence for antitrust violations has risen to approximately 19 months. Thats nearly double the average from the 1990s, when sentences averaged around 10 months. In peak years, the average has exceeded 24 months. These increases represent DOJ’s explicit policy of seeking substantial prison time for antitrust offenders.

But 19 months is still less then two years. Compare this to drug offenses, were mandatory minimums can produce sentences of 5, 10, or 20 years for nonviolent conduct. Compare it to fraud cases, were loss amounts can push sentences into double digits. Antitrust violations – price-fixing conspiracies that cost consumers billions of dollars, that raise the prices of food, medicine, auto parts, and countless other products – produce sentences that often mean serving 16-18 months in federal prison after good time credits.

The sentencing guidelines for antitrust under Section 2R1.1 start with a base offense level that produces relatively modest sentences compared to other economic crimes. The volume of commerce affected adds offense levels, but even large conspiracies often produce guideline ranges that allow sentences under 3 years. Substantial assistance departures – given to defendants who cooperate against others – can reduce sentences further. For many antitrust defendants, the final sentence is measured in months, not years.

Heres what this means for the deterrence calculation. An executive who participates in a price-fixing conspiracy that generates millions in profits for there company might face 18-24 months in federal prison if caught and convicted. Thats the worst case – assuming there not first in the leniency race, assuming they dont cooperate for a reduced sentence, assuming they actually go to trial and lose. For some executives, thats a calculation worth making. The expected value of the conspiracy exceeds the expected cost of punishment. The guidelines werent written to create that incentive structure, but thats what they produce.

Per Se Illegal – When Intent Doesn’t Matter and No Defense Is Allowed

Heres the system revelation that removes most defenses from antitrust defendants. Certain antitrust violations – price-fixing, bid-rigging, and market allocation – are classified as “per se” illegal. This means there automatically presumed to violate antitrust law. No analysis of competitive effects is required. No defense of “it didnt actually harm consumers” is permitted. If the government proves you agreed with competitors to fix prices, your guilty. Thats it.

Compare this to other antitrust conduct evaluated under the “rule of reason,” were courts analyze wheather the conduct actually harmed competition. Under rule of reason analysis, defendants can argue that there conduct had procompetitive benefits, that it didnt harm consumers, that market conditions justified there actions. None of these arguments work for per se violations. The agreement itself is the crime. The effects are irrelevant.

Think about what this means for defendants facing price-fixing charges:

• You cant argue that prices would have been the same anyway
• You cant argue that the conspiracy failed
• You cant argue that consumers werent actually harmed
• You cant argue that the agreement was necessary to survive in a competitive market

The only question is wheather you agreed with competitors to fix prices. If you did, your guilty of a federal felony punishable by up to 10 years in prison. The intent requirement has been reduced to simply intending to enter the agreement – not intending to harm competition.

And heres the consequence cascade that follows criminal conviction. A guilty verdict in criminal antitrust creates automatic liability in follow-on civil suits. Antitrust laws provide for treble damages – three times the actual harm caused. Private plaintiffs use the criminal conviction to establish that the violation occurred, then litigate only the amount of damages. A company convicted of price-fixing faces not just criminal fines and executive prison time, but civil judgments that can reach hundreds of millions or billions of dollars. The criminal case is just the beginning.

Why Juries Sometimes Acquit – The Recent Trial Problem

Heres the uncomfortable truth that DOJ dosent advertise about antitrust prosecution. Juries sometimes struggle to convict defendants of crimes that dont look like crimes. Price-fixing is an agreement between competitors to charge more money. Its harmful to consumers. Its illegal under the Sherman Act. But it dosent involve violence, drugs, or obvious victims. When prosecutors ask juries to send executives to prison for attending meetings and sending emails, some juries refuse. Recent acquittals have highlighted this challenge in antitrust prosecution.

The DOJ lost several high-profile trials in the early 2020s. Cases involving alleged labor market agreements – where companies allegedly agreed not to compete for employees – resulted in acquittals. Juries heard the evidence and concluded that the defendants hadnt committed crimes. These werent cases were the government lacked evidence. There were cases were juries didnt think the conduct warranted criminal punishment. The crimes were to abstract. The harm was to diffuse. The defendants looked like businesspeople, not criminals.

This creates a dynamic were prosecutors prefer cases with additional charges attached. Wire fraud, mail fraud, obstruction of justice – these charges help juries understand why the conduct is criminal. A case thats just about price-fixing requires jurors to appreciate why agreeing on prices is a serious crime. A case that includes fraud charges lets jurors focus on deception, which they understand intuitively. The strongest antitrust cases often arent pure antitrust cases at all – there antitrust plus fraud cases.

International Cartels – When US Conviction Is Just The Beginning

Heres the hidden connection that multiplies exposure for defendants in global conspiracies. International cartels – price-fixing conspiracies that span multiple countries – face prosecution not just in the United States but in every jurisdiction were the conspiracy operated. The same conduct that produces a US conviction can trigger investigations and prosecutions in Europe, Asia, and elsewhere. US cooperation with foreign authorities means evidence gathered here gets shared abroad. Executives who thought there exposure was limited to American courts discover there also facing extradition requests and foreign prison sentences.

The vitamins cartel of the late 1990s demonstrates this global exposure. Roche, BASF, and other pharmaceutical companies fixed prices on essential vitamins worldwide. The DOJ imposed $725 million in criminal fines – massive at the time. But the European Commission also prosecuted, imposing additional fines. Other countries followed. Executives faced prosecution in multiple jurisdictions for the same underlying conduct. The total exposure far exceeded what any single country’s prosecution would have produced.

OK so look at what this means for executives in multinational companies. A price-fixing meeting in one country can create criminal exposure in every country were the product is sold. Travel records, communication records, banking records – all of it crosses borders. Leniency in the US dosent automatically mean leniency in Europe or Asia. Defendants have to coordinate applications across multiple competition authorities simultaneously. Miss one jurisdiction and you might get immunity in America but prison in Germany.

The DOJ actively works with foreign authorities to apprehend fugitive defendants. Executives who think they can avoid US prosecution by staying overseas discover that extradition treaties reach most countries were there likely to travel or do business. The Antitrust Division has successfully extradited defendants from multiple countries. International cartels mean international exposure – and thats exposure that compounds with every jurisdiction that decides to prosecute.

What To Do If You’re Facing Antitrust Charges

If your facing federal antitrust charges under the Sherman Act – wheather for price-fixing, bid-rigging, or market allocation – heres what you need to understand immediatly.

Evaluate leniency eligibility immediately. If your company hasnt already applied for leniency, the window may still be open. But it closes the moment another conspirator applies first. The decision to seek leniency cant wait for full legal analysis – by the time that analysis is complete, someone else may have beaten you to DOJ. Time is literaly everything.

Understand the documentary evidence against you. Antitrust prosecutions are built on documents. Emails, meeting notes, travel records, phone logs – all of it will be produced and analyzed. Before making any decisions, you need to know what documents exist and what they say. The strength of the governments case depends almost entirely on what you and your co-conspirators wrote down.

Recognize that cooperation has complex dynamics. If your not first for leniency, cooperation can still reduce your sentence – but it means testifying against others. Your co-conspirators become co-defendants. Former colleagues become people your helping send to prison. This calculation isnt just legal – its personal and professional. Understand what cooperation actualy requires before committing to it.

Calculate the civil exposure separately. Criminal conviction triggers treble damages in private lawsuits. The financial exposure from civil suits can dwarf the criminal penalties. A plea that resolves criminal charges still leaves civil liability. Your strategy must account for both tracks simultaneously.

Consider the international dimensions. If the conspiracy crossed borders, US prosecution is just the beginning. You need counsel who understands not just US antitrust law but the enforcement landscape in every jurisdiction were you might face charges. Leniency in America dosent protect you in Europe.

Four major banks – Citi, JPMorgan, Barclays, and RBS – paid $2.5 billion in criminal fines for foreign exchange manipulation. ADM paid $100 million and executives served 33 months for lysine price-fixing. Christopher Lischewski served 40 months for tuna price-fixing. The average sentence has doubled to 19 months. Over 107 individuals have served prison time since 1999. The Antitrust Division prosecutes price-fixing as a serious crime – and the leniency program ensures that co-conspirators have every incentive to report each other. The companies that report first walk free. The executives who wait serve time. In antitrust, being second place in the race to confess means first place in the line for prison.