On May 9, 2018 Deputy Attorney General Rod Rosenstein delivered remarks to the New York City Bar White Collar Crime Institute. He announced a new Department policy that encourages coordination among Department components and other enforcement agencies when imposing multiple penalties for the same conduct.
Here is a link to the policy on Coordination of Corporate Resolution Penalties.
As the Deputy Attorney General stated, coordination is not new. The Antitrust Division routinely coordinates with other federal and state agencies on most investigations. And some coordination always occurs on international investigations. In the recent financial crimes investigations such as Libor and FOREX the amount of coordination was extensive among federal agencies such as the Antitrust Division, Criminal Division, FBI, SEC, CFTC, state AG office, as well as with many foreign jurisdictions. It is rumored that meetings were held in the Great Hall at the Department of Justice since no conference room could hold the throngs of participating enforcers.
Coordination by the Antitrust Division with enforcers from other federal, state and international enforcers is not new, but there is a continual debate about whether such coordination prevents “piling on.” Of course, what a defense attorney may call piling on, the prosecutors may deem to be a hard but fair hit. There is no referee or instant replay. The question of piling on or double counting is a subject of continuing debate in antitrust circles. It’s a tough question as foreign jurisdictions are injured by international cartels and they have stakeholders that want a significant penalty. Sorting out proportional penalties among sovereign nations is a particularly tough ongoing challenge. This new policy document is not going to end that debate but a written policy document (while creating no new rights) could enhance defendants’ power of persuasion with the Department of Justice if they have some credible numbers to back up a “piling on” argument.
PS. Several publications have reported that Richard Powers will become the next Deputy Assistant Attorney General for Criminal Enforcement in the Antitrust Division. The Antitrust Division has made no announcement yet. One of the many qualifications Mr. Powers will bring to the position, if he is named as the Criminal Deputy, is his experience in multi-agency, international prosecutions. He worked on both Libor and Forex while a member of the Antitrust Dvision’s New York Field Office.
The Antitrust Division and Compliance: A New Chapter?