Cartel Investigations and Litigation: Criminal and Civil
Companies facing international cartel investigations today must anticipate not only criminal enforcement by the U.S. Department of Justice, but also enforcement actions from antitrust authorities in the European Union, Canada, Brazil, Japan, and Australia, among others. In addition, the private litigation in federal and state courts and in an increasing number of non-U.S. jurisdictions that follows governmental enforcement proceedings can have enormous economic ramifications.
A significant portion of our Antitrust Practice is devoted to representing clients who find themselves facing these circumstances. We have defended corporations and their officials as counsel in criminal and civil matters in the United States and in European Commission proceedings, as well as serving as international coordinating counsel in multijurisdictional actions.
In the United States, Department of Justice criminal investigations involve high stakes for corporations and their employees, in both monetary and personal terms. Corporate criminal fines in large antitrust cases have reached $500 million, and more executives than ever before are receiving increasingly longer jail terms for antitrust crimes.
To minimize risk and achieve the best result for the client, our antitrust lawyers apply their experience in most of the major cartel cases of the past decade, as well as their experience as prosecutors and defense counsel in handling grand jury and complex criminal litigation. This experience is critical in dealing with search warrants, document production, leniency, immunity, and plea negotiations, as well as taking cases to trial. Our lawyers have obtained leniency and amnesty for clients and have defended against cases where leniency was the basis for the government’s case.
Our lawyers have represented many clients in the follow-on private treble damage actions—including actions by class plaintiffs, opt-out plaintiffs, indirect purchasers, and foreign plaintiffs—and damage actions in other countries. While such actions predictably follow U.S. criminal prosecutions, they are often filed as soon as the investigation is disclosed publicly.
The firm's lawyers have been involved in most of the high-profile international cartel investigations and private damage actions, including cases in the following industries:
- Air cargo
- Liquid crystal displays
- Citric acid
- Fine chemicals
- Sodium gluconate
- Graphite electrodes
- Auction houses
- USAID-funded international construction projects
We have developed particular experience representing non-U.S. corporations and their executives who have been investigated and prosecuted under U.S. criminal antitrust laws. These cases involve complex questions of jurisdiction, difficult immigration issues, and sensitive procedures involving the disclosure of information from abroad.
Regardless of whether the client is a U.S. or non-U.S. citizen, it has become increasingly important in recent years to develop a defense strategy that takes into consideration the likelihood of criminal enforcement not only by U.S. authorities, but also by the European Commission, Canada and many other countries.
Antitrust compliance programs—prepared and presented with a global legal perspective—are essential tools to assist the client in preventing such conduct in the future, as well as advising the client how to react to surprise government investigations. There are significant differences among the legal systems of those countries that can lead to major problems if not handled carefully. Our experience allows us to anticipate the complications of multijurisdictional investigations and view the proceeding as a single international investigation that must be planned and coordinated as a whole. The role of international coordinating counsel for antitrust litigation matters has become critical in navigating the still-uncharted waters of multijurisdictional investigations.