Yesterday Attorney General Merrick B. Garland gave an important talk to the ABA Institute on White Collar Crime (here).  The 2022 White Collar Crime National Institute in San Francisco is just ending: March 2-4, 2022.

The talk was notable for several reasons–the first being that it is wonderful to see in-person conferences again.  More to the point, AG Garland made frequent mention of the work and mission of the Antitrust Division. It is a great boost for the morale of the Division team to see that they have the interest and support of the Attorney General.  That morale is particularly boosted when the words are followed by actions and AAG Garland announced a significant funding boost for the Division and its partner, the FBI’s White Collar Crime Program.

I suggest you read the short speech in its entirety because it dealt with a number of DOJ criminal enforcement priorities including pandemic fraud and enforcement of sanctions against Russian oligarchs. Below are a few highlights related to criminal antitrust enforcement:

  • Fraud, theft, corruption, bribery, environmental crime, market manipulation, and anticompetitive agreements threaten the free and fair markets upon which our economy is based.
  • We will, of course, continue to hold companies accountable for their criminal conduct. Today, I want to focus on individual defendants.  As the Deputy Attorney General noted, I have made it clear that the Department’s first priority in corporate criminal cases is to prosecute the individuals who commit and profit from corporate malfeasance.
  • But most important, the prosecution of individuals is our first priority because it is essential to Americans’ trust in the rule of law. As I said a moment ago: the rule of law requires that there not be one rule for the powerful and another for the powerless; one rule for the rich and another for the poor.  When people see individuals walk while their companies pay the fines, they cannot help  but think that essential principle has been violated.
  • As the Deputy Attorney General reported when she spoke with you last fall, we have restored prior Department guidance making clear that, to be eligible for any cooperation credit, companies must provide the Justice Department with all non-privileged information about individuals involved in or responsible for the misconduct at issue. This means all individuals, regardless of their position, status, or seniority, and regardless of whether a company deems their involvement as “substantial.”

The Attorney General noted the accomplishments and busy schedule of the Antitrust Division’s Criminal Enforcement Program:

  • The Department’s Antitrust Division has also been busy investigating and prosecuting price-fixing and other criminal violations of the antitrust laws. It ended the last fiscal year having brought 25 criminal cases against 29 individual and 14 corporate defendants, and with 146 open grand jury investigations — the most in 30 years.
  •  The Antitrust Division is now trying or preparing to try 18 indicted cases against 10 companies and 42 individuals, including 8 current or former CEOs or company presidents.

And the AG’s words were backed up by financial support:

  • In that regard, the President’s FY22 budget seeks increases for the Justice Department’s corporate criminal enforcement efforts. These increases extend to our 94 U.S. Attorneys’ Offices, as well as to the Criminal, Antitrust, Tax, and Environment Divisions.
  •  The FY22 budget also seeks $325 million to fund more than 900 FBI agents to support the FBI’s White Collar-Crime Program.

The Attorney General closed his remarks with this warning: “As a defense attorney, prosecutor, and judge, I have also seen the Justice Department’s interest in prosecuting corporate crime wax and wane over time. Today, it is waxing again.”

Besides all the exciting intellectual debate over the “consumer welfare standard” “post-Chicago School antitrust economics” and other civil enforcement challenges, there is still a DOJ/Antitrust Division focus on the nuts and bolts of deterring, uncovering and prosecuting white collar crime; and in particular, holding individuals accountable.

There’s never been a better time for defense counsel impress upon their clients the need of serious antitrust compliance training and when necessary, continue their efforts to defend those who believe they are wrongly accused.

Thanks for reading.

Bob Connolly

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