The DOJ’s Cartel Enforcement Actions: What You Need to Know in 2017
With vigor that has spanned administrations, the United States Department of Justice's (DOJ’s) Antitrust Division has continued to strenuously pursue criminal cartel activities to dissuade corporate and individual offenders from committing future antitrust violations. In fiscal year (FY) 2016, the Antitrust Division brought charges against 19 corporate offenders in the major sectors of the economy, bringing in hundreds of millions (USD) in criminal fines and prosecuting dozens of individual executives.
In this LIVE Webcast, a notable panel of thought leaders and professionals brought together by The Knowledge Group will provide the audience with a comprehensive update on DOJ’s Cartel Enforcement Actions. Speakers will also help the audience understand all the important aspects of this significant topic and will offer helpful insights on how to ensure compliance with antitrust laws.
Key topics include:
- Personnel Update at the Antitrust Division
- Future Trends for the Leniency Program
- Corporate and Individual Defense Insights
- DOJ’s Cartel Enforcement: What Lies Ahead?
- Trends for Plaintiffs and Defense in Class Actions
Mary N. Strimel, Partner
McDermott Will & Emery
- DOJ Antitrust Division Personnel Update
- Makan Delrahim background
- Has DOJ history
- International coordination role
- 2004 speech – effective criminal program.
- Andrew Finch also has DOJ background
- Vacancy approaching for DAAG for Criminal Enforcement
- Makan Delrahim background
- Active investigations so far in 2017 include
- Canned seafood
- Generic drugs
- Approaching the end of Auto Parts
- Statistics for 2016
- $399 million in fines, off by a couple of billion from the year before.
- Statistics can be misleading as a measure of the vigor of prosecutions though.
- Non-leniency investigations
- Why do they matter
- How do they start
- Policy Changes to Anticipate in 2017
- Leniency – sensitivity to cost issues
- Coordination of witness interviews with other prosecuting authorities
- More flexibility with document productions – “point us to what’s important”
- Guilty pleas - keeping a “carrot” for cooperation, even after plea
- Do not expect a drop-off of enforcement, just a more nuanced approach to some issues of importance to the defense bar.
- Leniency – sensitivity to cost issues
Lisa Tenorio-Kutzkey, Partner
DLA Piper LLP (US)
- FAQs about the Division’s new FAQs
- Are the changes meaningful?
- Treatment of current employees
- Perfecting an amnesty application
- Penalty plus
- A call to revise the Division’s compliance program
- Forward vs. backwards looking programs
- Why leniency is not enough of a carrot
- What’s on the rise?
- Corporate monitors?
- Payouts for antitrust tipsters?
- Corporate counsel’s top 3 wish list
- Re-write the standard subpoena
- Clarify subpoena’s jurisdictional reach
- Make sentencing principled
Lauren Briggerman, Member
Miller & Chevalier Chartered
Trends in Prosecutions of Individuals in 2017
- Prosecutions of executives down from previous years
- Brief discussion of stats
- Focus on domestic investigations rather than global investigations
- Auto parts winding down with no big, global investigation to replace it
- Successful prosecutions have generally been in smaller, domestic investigations
- Real estate foreclosure auctions
- Puerto Rican bus routes
- Packaged seafood
- Remains to be seen whether the newer, larger domestic investigations will lead to significant prosecutions of individuals
- Generic drugs – so far, limited to the two Heritage GPs
- New ocean shipping investigation
- Foreign executives increasingly refusing to plead guilty (e.g., auto parts, capacitors, FOREX)
- Spotlight on stats from auto parts investigation
- Discussion of legal/jurisdictional challenges DOJ faces in prosecuting individuals abroad
Stuart Gasner, Partner
Keker & Van Nest
- Individual representations with a focus on Capacitors
Beatriz Mejia, Partner
- Proliferation of private global enforcement actions
- Until recently, most private damages actions were filed in the US
- EC’s 2014 Directive requires member states to standardize national laws providing for private damages actions
- UK’s Consumer Rights Act of 2015 goes even further, creating a class action mechanism
- Discovery challenges in the context of multijurisdictional antitrust enforcement and litigation
- Governmental investigations and amnesty applications can involve substantial document production
- Civil plaintiffs will seek documents produced to the government, as well as communications with the government
- Balancing comity concerns against the broad discovery rights allowed under U.S. law
- US courts are split as to whether to compel production
- The EC has written letters to US courts asking them to deny motions to compel
- Admissibility, privilege, and work product considerations
- In the US, some materials are discoverable but not admissible (e.g., hearsay, F.R.E. 408, F.R.E. 410)
- The fact of a defendant’s participation in an amnesty program is admissible in the US
- Production to government waives privilege and AWP protection in the US (i.e., “selective waiver” is generally not allowed)
Who Should Attend:
- Corporate Investigators
- C-Suite Professionals
- Top Level Management
- Compliance Officers
- Corporate Lawyers
Lisa Tenorio-Kutzkey (LT-K) focuses exclusively on white collar matters in all phases of US federal government prosecution and investigation, with a focus on criminal antitrust defense, FCPA, and complex internal investigations.
Lisa is a leader of DLA Piper's Global Cartel practice, a former trial attorney with the US Department of Justice, Antitrust Division, and a former Special Assistant US Attorney for the US Attorney's Office for the Northern District of California.
Fortune and Global Fortune 100, 200 and 500 companies and their executives routinely turn to Lisa for assistance in price-fixing, bid rigging, and market allocation conspiracy matters. For over a decade, she has successfully prosecuted or defended clients in nearly every major criminal cartel investigation by the US Department of Justice, Antitrust Division. Lisa has represented companies and individuals in a variety of sectors, including the automotive, aircraft, and ocean transportation, telecommunications, semi-conductors, pharmaceuticals, construction, chemicals, industrial products, real estate and technology, and other electronic components industries.
In addition, Lisa has extensive experience in all facets of the FCPA investigations, defense and compliance. She has directed and conducted cross-border investigations of FCPA and other anti-corruption and related compliance matters. Her practice is global in scope, with experience in Argentina, Belize, Brazil, Canada, Chile, China, Costa Rica, India, Ghana, Honduras, Hong Kong, Korea, Mexico, Philippines, Russia, Thailand, and Venezuela.
Lisa also defends clients and conducts internal investigations in a number of other substantive areas, including accounting manipulation, commercial bribery, foreign labor practices, healthcare, insider trading, off-label marketing, securities fraud, tax, and other federal and state regulatory matters.
Lisa Tenorio-Kutzkey (LT-K) focuses exclusively on white collar matters in all phases of US federal government prosecution and investigation, with …
Mary N. Strimel advises and represents companies and individuals in criminal cartel, white collar, and related matters including antitrust class actions. Before joining McDermott she was a prosecutor and founding chief of a criminal enforcement section with the Antitrust Division of the US Department of Justice. In that role she hired, trained, and supervised a team of prosecutors in the investigation and prosecution of antitrust, fraud, and other white-collar crimes.
Ms. Strimel also has deep civil experience that allows her to advise companies facing follow-on class actions in cartel or other civil matters. She spent 7 years in the DOJ’s civil antitrust program, investigating (among other matters) mergers and allegedly unlawful agreements. Before that, she was a partner at a law firm that specialized in complex multi-state and nationwide price-fixing class actions.
Mary N. Strimel advises and represents companies and individuals in criminal cartel, white collar, and related matters including antitrust class …
Lauren Briggerman focuses her practice on criminal and civil matters, including government and internal investigations, white collar criminal defense, global antitrust and competition and complex commercial litigation. In particular, she has developed expertise in global cartel investigations. She has a successful track record in defending several companies and numerous executives in some of the most notable international cartel investigations in recent years, including those involving the auto parts, air cargo, freight forwarding and pharmaceutical industries. In addition, she has experience in complex civil litigation. She served on the trial team defending two former executives of IndyMac Bank who were sued by the Federal Deposit Insurance Corporation for their alleged involvement in making negligent loans to homebuilders.
She also has experience litigating government contract disputes and has successfully challenged suspension and debarment decisions. She previously clerked for the United States Court of Federal Claims, the primary court with jurisdiction over bid protests and government contract cases.
Lauren Briggerman focuses her practice on criminal and civil matters, including government and internal investigations, white collar criminal defense, global …
Stuart Gasner centers his practice in the areas of white collar criminal and securities defense, intellectual property litigation and complex corporate disputes. A federal prosecutor before joining Keker & Van Nest, Mr. Gasner has tried more than 25 cases to verdict before juries across the United States.
In the field of white collar crime and fraud, Mr. Gasner has 30 years of experience handling criminal trials and investigations, as well as related civil litigation. His cases have spanned a wide range of subject areas, including securities fraud, banking-related crimes, economic espionage, tax shelters, mortgage-backed securities, accounting and revenue recognition fraud, insider trading, antitrust (including international cartels), industrial accidents, fire marshal investigations, computer crimes such as hacking, bribery, credit card fraud, mail and wire fraud, environmental crimes, conspiracy, and Food and Drug Administration crimes.
Stuart Gasner centers his practice in the areas of white collar criminal and securities defense, intellectual property litigation and complex …
Beatriz Mejia is a partner in Cooley’s litigation department. Beatriz’s practice focuses on complex business disputes and general business litigation. In recent years, Beatriz’s practice has focused on international cartel investigations and related litigation. Her experience includes representing both corporations and individuals in government investigations brought by antitrust authorities around the world, including the US, Europe, Korea and Japan, and in litigation brought in multi-district and related class actions. Beatriz also has represented clients in antitrust litigation involving a range of federal and state antitrust claims, including monopolization claims.
Beatriz Mejia is a partner in Cooley’s litigation department. Beatriz’s practice focuses on complex business disputes and general business litigation. …
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Method of Presentation:
Experience in antitrust law
NASBA Field of Study:
Business Law - Technical
NY Category of CLE Credit:
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About DLA Piper LLP (US)
DLA Piper is a global law firm with lawyers worldwide. It provides its clients with legal and business solutions locally, regionally and internationally using integrated teams of lawyers with experience that spans a broad range of disciplines. DLA Piper is widely recognized for its pioneering approach and extensive geographic reach, which enables the practice to look after the business issues that matter to its clients - whether they are large or small. Clients of DLA Piper include single-owner startups, local and household name companies, multinationals, financial institutions, FTSE and Fortune 500 enterprises and their subsidiaries, public bodies and governments.
About McDermott Will & Emery
McDermott Will & Emery is a leading international firm with a diversified business practice. Currently numbering more than 1,000 lawyers, we have 19 offices worldwide and a strategic alliance with MWE China Law Offices in Shanghai. Our Firm has more than 80 years of experience serving a broad range of client interests.
About Miller & Chevalier Chartered
Founded in 1920, Miller & Chevalier is a Washington, D.C. law firm with a global perspective and leading practices in Tax, Employee Benefits (including ERISA), International Law and Business, White Collar and Internal Investigations, Complex Litigation and Government Affairs. In an era of big law, Miller & Chevalier is a top-ranked firm sharply focused on targeted areas that interact with the federal government. Over the past three years, the firm's lawyers have represented more than 40 percent of the Fortune 100, one-quarter of the Fortune 500 and approximately 30 percent of the Global 100. Based in Washington, D.C., a significant number of firm lawyers have held senior positions in the U.S. government and have written many of the regulations they currently help clients navigate.
About Keker, Van Nest & Peters LLP
For more than thirty years, the attorneys of San Francisco Litigation firm Keker & Van Nest have tried and litigated complex, high-stakes civil and criminal cases throughout the nation, obtaining the best possible results for their clients. They take the tough cases, the make or break cases where companies, products, careers are riding on the result. It’s in the nature of tough cases to end up in court where their expertise and deep bench of trial lawyers shines. Indeed, They have found our eagerness to try cases often helps them settle.
They represent prominent individuals, as well as some of the world’s most successful companies, including Electronic Arts; Genentech; Comcast; Netflix; Lyft; and Taiwan Semiconductor Manufacturing Company.
Their areas of expertise include white collar, securities, intellectual property, class actions, contract and commercial litigation, antitrust, professional liability and appellate.
About Cooley LLP
Cooley’s attorneys solve legal issues for entrepreneurs, investors, financial institutions and established companies. Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and high-stakes litigation, where innovation meets the law. Cooley has 900 lawyers across 12 offices in the United States, China and Europe. Cooley's antitrust & competition team is recognized as one of the top-tier practices in the area of antitrust by Legal 500, Chambers USA and Global Competition Review. We handle all aspects of antitrust and competition law matters – including counseling, government investigations and litigation – for Fortune 500 corporations, as well as growing companies.