Probation nation? What do the upcoming changes to sentencing rules mean for antitrust defendants – cartels, monopolies

The longstanding view of the Antitrust Division (the “Division”) is that “individual criminal penalties, including prison sentences, are the single most effective deterrent against antitrust crimes.” 1 Although the Division’s sentencing recommendations are based on an “individualized assessment,” that assessment—at least historically—”typically advises (recommends) in favor of incarceration.” 2

However, the US Sentencing Guidelines (“Guidelines”) are advisory and judges do not always agree with the Division’s recommended sentence. The average prison sentence in antitrust cases is falling, from 20 months in 2000-2009 to 15 months in 2020-2022.3 Additionally, in several recent cases, the Division has recommended probation (and in another case, pretrial diversion), including a case following the indictment of a company president whose company pleaded guilty and paid a $100 million fine. 4

Against the backdrop of shorter prison terms and a greater willingness to recommend probation for those accused of antitrust violations, proposed changes to the guidelines that will take effect in November will give many antitrust offenders a lower sentence range and thus an even greater chance of avoiding prison.

Penalty calculations result in an offense level that corresponds to the sentencing zone and the specific range of punishment. Criminal history also affects the range of punishments, which correspond to the specific level of the crime. First-time offenders with zero criminal records (so-called “zero-point offenders”) have a lower range of sentences, from 0 to 6 months for a level 1 to 8 offense in Zone A, to life for a level 43 offense in Zone A. upper part of the zone D. 5

The proposed amendments include a new two-point reduction in the offense level for certain first-time or zero-point offenders who — like the vast majority of those charged with antitrust violations — lack a criminal record. 6 To receive the new two-point reduction, defendants must be a zero-point offender and meet other eligibility criteria. 7 Of the other eligibility requirements, most will not be a problem for the typical antitrust objector. But depending on its interpretation, one potentially disqualifying factor is common in antitrust cases: defendants who receive an aggravating role modification, such as directing, organizing, or supervising a crime, may not be eligible for a new, zero-offender reduction. 8 However, as other commenters have noted, this criterion is likely to lead to litigation and should not apply to white-collar defendants because it should disqualify only those who receive an aggravating role modification. and was involved in a continuing criminal enterprise (ie, a criminal drug conspiracy).
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The benefits of reducing the number of offenders with zero points are significant. In addition to the two-point offense level reduction and a correspondingly lower sentencing range, the new guidance commentary explains that a non-custodial sentence is “generally appropriate” for defendants who receive a zero offender reduction and fall into zone A or B of the sentencing table. 10 The new guidelines also suggest that a non-custodial sentence may also be appropriate for defendants who fall into zones C or D of the sentencing table if they are eligible for a zero point offender reduction and the range of applicable guidelines “outweighs” the seriousness of their offences.
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If prison is the best deterrent, while prison sentences are less likely for average and lesser antitrust defendants, what does that mean for the division’s future priorities?

  • Admit the crime, but don’t hold back. Those who confess to a crime and tell a jury about an insider conspiracy can make the government compelling witnesses. A lack of leading witnesses has been a feature of a number of the Division’s recent court losses. The desire for witnesses to confess to a crime, along with guideline changes that reduce the likelihood of incarceration and a greater willingness to pursue probation pleas, may make probation pleas a more frequent feature of antitrust cases.

  • The use of an aggravating role of reinforcement may play a greater role in guilt and punishment deliberations. In November, if defendants who receive an aggravated role modification are deemed ineligible for the zero-point offender reduction, the hearing and defense of whether the defendant played an aggravating role in the crime will become even more critical.

  • The Division can target larger cartels and higher level participants. The change may also lead the division to focus its limited resources on larger cartels and offenders with a higher likelihood of a prison sentence, particularly defendants who (i) do not qualify for zero-point reduction or (ii) zero-point offenders point who still fall into Zones C or D. As aggravating roles and greater volume of business drive higher penalty ranges, the Division may also shift its prosecution focus to higher-dollar cartels, executives and cartel leaders.

  • Special impact on work? The most interesting impact may be on labor market cases. Higher affected business means higher penalty ranges, but labor cases tend to have lower business volume because the affected business is employees rather than sales. And unlike many selling cartels, the most attractive work cases (for both prosecutors and juries) can be bottom they affected business because they affected lower-wage workers. The combination of changes to the Directives, the nature of labor cartels and their novelty as criminal cases may mean that individuals accused of labor market violations are particularly likely to avoid prison.

  • There is no doubt that the Division remains committed to prosecuting labor market violations. 12 But given that juries (and in one case, judges) have so far been unwilling to convict individuals of labor collusion, and probation is the likely outcome if if there is a conviction, the division can immediately shift from prosecuting individuals to pursuing companies and continue its efforts to influence the law. 13

Footnotes

1. US Dep’t of Just., Just. Manual § 7-3.420 (2022).

2. Id. § 7-3 500. The Justice Manual in support cites the US Sentencing Guidelines, which note that “in very few cases, the Guidelines will not require that some limitation be imposed,” US Sent’g Guidelines § 2R1.1 cmt. background (US Sent’g Comm’n 2021), https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2021/GLMFull.pdf(hereinafter “USSG”), and that “(i)t is the intention of the Commission that alternatives such as community incarceration shall not be used to prevent the incarceration of antitrust offenders,”
id. cmt. No. 5.

3. Trends in Criminal Enforcement, US Dep’t of Just., Antitrust Div. (June 29, 2023), https://www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts.

4. See United States v. Harwin, 2:20-cr-00115 (MD Fla. Aug. 23, 2023), Dkt. No. 313-1 (granting Rule 11(c)(1)(C) noncustodial appeal); United States v. Pedrick, 4:20-cr-00081 (SD Ga. Sept. 19, 2023), Dkt. No. 384 (another 11(c)(1)(C) request for probation); United States v. Hee, 2:21-cr-00098 (D. Nev. Jan. 23, 2023), Dkt. No. 115 (pretrial diversion agreement).

5. USSG, above note 2, in ch. 5, pt. A, Criminal Table.

6. US Sent’g Comm’n, Amendments to the Sentencing Guidelines, as amended. 8, pt. B, Subpart 1, § 4C1.1 (effective November 1, 2023), https://www.ussc.gov/sites/default/files/pdf/amendment-process/official-text-amendments/202305_Amendments.pdf(hereinafter referred to as the “2023 USSG Amendments”).

7. Id.

8. See id.; see also ussg, abovenote 2, § 3B1.1 (modification of aggravating role); Mark Rosman and Jeff VanHooreweghe, What Goes Up Doesn’t Come Down: The Absence of Mitigating Role Adjustment in Antitrust SentencingAntitrust Resource (August 2012), https://www.wsgr.com/PDFSearch/rosman-august-12.pdf(finding that the Division sought an aggravating role modification in about half of its recent individual prosecutions).

9. See Alan Ellis, Mark Allenbaugh & Doug Passon, How will the change of offender with zero points work in perspectiveLaw360 (October 5, 2023). https://www.law360.com/whitecollar/articles/1729489/how-zero-point-offender-change-will-work-prospectively(“The final criterion for a zero-offender adjustment should only prevent supervisors and in criminal drug conspiracies from receiving a zero-offender adjustment, and not, for example, a supervisor of a wire fraud conspiracy.”).

10. 2023 USSG amendments, above note 6, in the amendment. 8, pt. B, subpart 2, cmt. No. 10 (“Offenders with zero points”).

11. Id.

12. Jonathan Kanter, Ass’t Att’y Gen., Antitrust Div., Remarks at the Fordham Competition Law Institute’s International Antitrust Law and Policy Conference (Sept. 22, 2023),
https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-remarks-fordham-competition-law(“Let me affirm: we are as committed as ever to use our congressionally-mandated authority to prosecute criminal violations of the Sherman Act in labor markets when appropriate.”).

13. Id. (I quote Deslandes v. McDonald’s USA, LLC— F.4th —, 2023 WL 5496957 (7th Cir. Aug. 25, 2023), as a “great opinion” and an example of the division’s “thriving” amicus program).

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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