Chavez Beyond the Smoke-Filled Room

BEYOND THE SMOKE-FILLED ROOM: COMPLIANCE IN E-COMMUNICATIONS
HISTORICAL CONTEXT
J. Anthony Chavez
Counsel, Exxon Mobil Corporation

ii
PREFACE
Mr. Chavez is Counsel of Exxon Mobil Corporation and is a member of the bars of the states of
California, New York, and Texas. The views expressed in this article are those of the author and
do not necessarily reflect the views of Exxon Mobil Corporation. This material has developed
over the past fifteen years as a result of many helpful comments from: Sarah Andrews, Julian P.
Armstrong, Theodore Banks, David A. Balto, Donna Boehme, Janet Vianney Boiteau, Bolton,
Stephen Calkins, Terry Calvani, Steven J. Cernak, Mark A. Chavez, Yee Wah Chin, Eugenio da
Costa e Silva, Paul Crampton, Warren C. Dance, Eliot Disner, Jennifer Driscoll, Judi C. Glaubig,
Richard V. Hansum, Brian Henry, Roxann E. Henry, Walt Hryszko, Olivier Kaiser, Stephen
Kinsella, Donald C. Klawiter, Cecile T. Kohrs, Layne Kruse, Steven M. Kowal, Terry A. Leavitt,
Patrick O’Shaughnessy, Raul Montes, Angie Morris, Diane M. Morrow, Michael Osborne, Robert
Patton, Richard F. Phillips, Bruno L. Peixoto, Lisa Phelan, Steven Rosenbaum, Harvey Saferstein,
D. Daniel Sokol, Julie Soloway, Gregory Sullivan, and Dirk Van Erps.
Although I appreciate all the help that I have received, I take full responsibility for any errors or
omissions.

iii
TABLE OF CONTENTS
PREFACE.........................................................................................................................................................................II
I. INTRODUCTION.....................................................................................................................................................- 1 -
II. HISTORICAL BACKGROUND .................................................................................................................................- 2 -
A. ADM............................................................................................................................................................- 3 -
B. Penalties under the Sherman Act...............................................................................................................- 4 -
C. Corporate Leniency Policy and Individual Leniency Policy.........................................................................- 5 -
D. Efforts to instill fear of detection ...............................................................................................................- 6 -
E. Increased International Cooperation and Prosecution of Cartels..............................................................- 7 -
F. Larger stick, more carrots...........................................................................................................................- 8 -
III. A NEW WORLD....................................................................................................................................................- 9 -
A. Focus on International Cartels ...................................................................................................................- 9 -
B. New Enforcement Tools...........................................................................................................................- 10 -
C. Increased Corporate Fines........................................................................................................................- 12 -
D. Increased Punishment of Natural Persons ...............................................................................................- 13 -
E. Greater Total Annual Fines.......................................................................................................................- 15 -
F. More International Cooperation and Coordination.................................................................................- 15 -
IV. CORPORATE COMPLIANCE PROGRAMS...........................................................................................................- 17 -

- 1 -
I. Introduction
“With new e-communications platforms like chatrooms and social media, cartels
have expanded into the electronic world, where written records may be preserved
indefinitely.” Our program, Beyond the Smoke-Filled Room: Compliance in e-
Communications, will explore practical solutions for in-house counsel in designing
programs and training to effectively monitor the flow of commercially sensitive
information with competitors. See U.S. v. AU Optronics: Lessons for an “Effective”
Antitrust Compliance Program, by John Terzaken and David Ernst; The Compliance
Conundrum in the Electronic Age: A Canadian Perspective by Melanie L. Aitken and
Emrys Davis and The Challenge of Compliance: An Old-Fashioned Response to the
Ascent of Technology by D. Jarrett Arp and Greg Campbell.
This paper provides the historical context for the global challenge of creating an
effective compliance and ethics program and reviews the basic elements of an
effective program.
Antitrust compliance programs are designed to prevent and detect any violation of
the antitrust laws applicable to a company’s operations. Corporations design
antitrust compliance programs to manage the risks presented by their particular
activities. Risk assessment considers the probability that an event will occur, and
the consequences that would result if such an event occurs. The changes that have
occurred over the last twenty years have fundamentally altered the risks presented
by any antitrust violation. The grave consequences to individuals and corporations
that result from an antitrust violation are far more significant now than they were
just a few years ago. Because of corporate leniency programs, there is now a
greater likelihood that conduct violating the antitrust laws will be disclosed to law
enforcement authorities in the United States and an increasing number of other
jurisdictions. The consequences following any violation are far more severe.
For several years antitrust enforcement officials in the United States and Europe
have acknowledged using a carrot and stick approach to enforcement (Aesopian
image of a farmer using a carrot and a stick to motivate a stubborn donkey), with
leniency programs as the carrot and increasing penalties as the stick, and have
emphasized the importance of cooperation amongst enforcement officials on
investigations and sharing best enforcement practices. The proliferation of effective
leniency programs is the “single most important development in cartel

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enforcement.”1
The leniency programs also serve to instill “a genuine fear of
detection.”2
Cartel enforcers around the world are also using “an increasingly
robust arsenal of investigative tools to instill a genuine fear of detection among
executives.”3
Simply stated, the current position of the Antitrust Division of U.S. Department of
Justice with respect to compliance programs is that the “fact that the company
participated in a cartel, and did not detect it until after the investigation began,
makes it difficult for the company to establish that its compliance program was
effective.”4
The Division has also provided two hard truths: the “existence of a
compliance program almost never allows the company to avoid criminal antitrust
charges” and “the Division… almost never recommends that companies receive
credit at sentencing for a preexisting compliance program.”5
In the view of the Antitrust Division:
“Receiving leniency is the ultimate credit for having an effective
compliance program. No other company is likely to satisfy the
requirements of the Sentencing Guidelines for an effective
compliance program.”6
As a result, some have complained that the Antitrust Division’s “Division’s approach
to compliance programs is all stick and no carrot.”7
Section II provides the historical background for the current enforcement
environment. Section III outlines the significant changes that have occurred over the
last twenty years: (a) increased focus on international cartels, (b) use of new
enforcement tools, (c) increased corporate fines, (d) larger individual fines and
longer prison terms, (e) greater total annual fines, and (f) more international
cooperation. Section IV reviews the basic elements of compliance programs.
II. Historical Background
The current enforcement environment developed from the interaction of a number
of different factors, including corporate leniency programs, increased sanctions,
increased focus on the consequences of a violation, including agency advocacy and
growth of specialized antitrust press, increased international cooperation, and a
little serendipity relating to Archer Daniels Midland Co. (“ADM”) and the lysine

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cartel. The lysine cartel led to the first cartel daisy chain. The investigation and
prosecution of the lysine cartel led to the investigation and prosecution of the citric
acid cartel which, in turn, “led to the investigation and prosecution of the
international sodium gluconate cartel which resulted in the investigation and
prosecution of the international sodium erythorbate cartel which, in turn, led to the
investigation and prosecution of the maltol cartel.”8
The efforts of Gary R. Spratling,
former Deputy Assistant Attorney General, and his colleagues and successors, in
publicizing the ADM case and subsequent cases, record fines, prison terms, and the
Antitrust Division’s corporate leniency policy9
were significant factors. In a
workshop for enforcement officials, Scott Hammond candidly explained the
essential elements for detecting and deterring cartel activity through an effective
leniency program.10
Such programs are described as operating most efficiently
through the interaction of severe sanctions for violators (fines and the threat of
imprisonment), the ability of the first leniency applicant to avoid such sanctions
through a leniency application, and instilling a fear of detection that either deters
anticompetitive activity, or in the event of anticompetitive activity, leads cartel
participants to race to be the first leniency applicant. Or, as put a little more
colorfully, the “‘winner-take-all’ approach sets up a race, and this dynamic leads to
tension and mistrust among the cartel members.”11
The Antitrust Division has
repeatedly used excerpts of the video tapes of various cartel meetings from the
lysine to “around the world” dramatically portray cartels in action.12
A. ADM
The current chapter of international cartel enforcement starts in 1992 when ADM
contacted the Federal Bureau of Investigation in connection with a claim that a plant
had been sabotaged.13
During that investigation, an ADM employee named Mark E.
Whitacre disclosed the lysine cartel to the FBI in November 1992 and provided
covert assistance over the next thirty months. Mr. Whitacre assisted the FBI in
covertly videotaping and recording various cartel meetings and conferences. His
consent was necessary for the hidden surveillance of cartel meetings conducted by
the FBI. The cartel lasted from June 1992 until June 27, 1995. On that date,
investigators served search warrants at ADM and visited corporate executives at
their homes. On the next day, June 28, 1995, ADM announced in a press release
that it was the subject of a federal criminal investigation into possible antitrust
violations. A July 11, 1995 article on the front page of the Wall Street Journal

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dramatically disclosed that ADM director Mark E. Whitacre had been an informant
for the FBI. On October 15, 1996, ADM agreed to plead guilty and pay a $100 million
criminal fine for its role in the lysine cartel and the citric acid cartel markets
worldwide.14
$70 million of the fine was attributable to its participation on with the
lysine cartel and $30 million was attributable to its participation with the citric acid
cartel.15
In civil litigation, ADM was also alleged to have participated in
anticompetitive activity in the markets for high fructose corn syrup and
monosodium glutamate, a food additive. Mr. Whitacre was subsequently
prosecuted for embezzlement and tax fraud - he lost his non-prosecution protection
agreement with the government when the government learned that he had
embezzled funds while he was cooperating with the government.16
B. Penalties under the Sherman Act
When ADM was prosecuted, the maximum statutory fine for a criminal violation of
the Sherman Act was $10 million for corporations and $350,000 for individuals,
provided that the maximum fine for both corporations and individuals could be
increased up to an amount equal to twice the gain derived from the crime, or twice
the loss suffered by the victims of the crime, if either of those amounts is greater
than the statutory maximum fine.
Sherman Act offenses were originally classified as misdemeanors. From enactment
of the Sherman Act in 189017
until 1955, the maximum criminal fine was $5,000.
The maximum fine increased to $50,000 in 1955.18
In 1974, the maximum possible
criminal penalty increased to $1 million for corporations and $100,000 for
individuals.19
The 1974 amendments changed the criminal classification from
misdemeanor to felony and increased the maximum term of imprisonment to three
years. Then, in 1984, Congress enacted 18 U.S.C. § 3571(d), which specifies that the
maximum fine for both corporations and individuals may be increased to twice the
gain derived from the crime, or twice the loss suffered by the victims of the crime, if
either of those amounts is greater than the statutory maximum fine. Initially, this
alternate criminal fine provision was not applicable to antitrust violations. In 1987,
Congress amended the alternate criminal fine provision to permit such fines for
violations of the Sherman Act.20
Effective November 16, 1990, the maximum
criminal fine for violation of the Sherman Act increased to $10 million for
corporations and $350,000 for individuals.21
The Federal Sentencing Guidelines for
organizations were adopted effective November 1, 1991.22
Effective June 22,

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2004,23
the maximum statutory corporate fine was increased from $10 million to
$100 million, the maximum individual fine was increased from $350,000 to $1
million, and the maximum term of imprisonment was increased from three years to
ten years.
C. Corporate Leniency Policy and Individual Leniency Policy
During the lysine investigation, the Antitrust Division’s Corporate Leniency Policy
was revised in August 1993 to encourage the disclosure of anticompetitive activity.24
The Corporate Leniency Policy has been an essential factor in the enforcement
success in the United States. The Antitrust Division’s Corporate Leniency Policy was
originally adopted in October 1978. The original program “did not lead to the
detection of a single international cartel.”25
Under the original program, there were
seventeen applicants and “10 corporations received amnesty.”26
Under the original
policy, the grant of leniency was not automatic, but instead depended upon
prosecutorial discretion based on seven factors and was available only for applicants
who filed before the Antitrust Division had initiated an investigation.27
The Antitrust
Division initially reported a twenty-fold increase in applications under the revised
Corporate Leniency Program.28
Three major revisions were made to the program in 1993.29
First, leniency is
automatic for qualifying companies if there is no pre-existing investigation. Second,
leniency may still be available even if cooperation begins after the investigation is
underway. Third, if a corporation qualifies for leniency, all officers, directors, and
employees who come forward and cooperate are protected from criminal
prosecution.30
Simply stated, if an investigation is not currently underway, the
program generally allows the first corporation that decides to cooperate, along with
its officers, directors, and employees, to avoid prosecution.
On August 10, 1994, also during the lysine investigation, the Antitrust Division
implemented a Leniency Policy for Individuals31
to “encourage individuals to come
forth with evidence involving criminal antitrust violations."32
Although the Corporate Leniency Policy has not been revised since 1993, the
implementation of that policy has been modified.

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D. Efforts to instill fear of detection
The record settlements and the efforts undertaken by the Antitrust Division to
publicize the Corporate Leniency Policy, and encourage other jurisdictions to adopt
leniency programs and impose penalties for cartel activity, significantly contributed
to the increased prosecution of corporations and responsible managers. Speeches
by officials in the Antitrust Division33
helped instill a fear of detection34
that resulted
in the disclosure of additional cartels. Enforcement officials sought to cultivate a
fear of detection because “[t]he more anxious a company is about the fact that its
cartel participation may be discovered by the government, the more likely it is to
report its wrongdoing…” and that leniency programs “can build on that fear and
panic among cartel members.”35
The following are some of the more colorful titles
of speeches made by Antitrust Division officials:
Are The Recent Titanic Fines in Antitrust Cases The Tip of The Iceberg?
(March 6, 1998),36
Making Companies An Offer They Shouldn't Refuse, (February 16,
1999),37
When Calculating The Costs and Benefits of Applying For Corporate
Amnesty, How Do You Put a Price Tag On An Individual's Freedom?
(March 8, 2001),38
The Fly On The Wall Has Been Bugged --Catching An International
Cartel In The Act (May 15, 2001),39
From Hollywood to Hong Kong, Criminal Antitrust Enforcement is
Coming to a City Near You (November 9, 2001),40
and
Caught in the Act: Inside an International Cartel (October 18, 2005).41
A May 4, 1998 article in Forbes magazine titled Fix and tell is indicative of the
widespread coverage of the Antitrust Division’s Corporate Leniency Policy in the
mainstream press. That article contains the following advice:
If someone in your company has been conspiring with competitors to
fix prices, here’s some sound advice. Get to the Justice Department

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before your co-conspirators do. Confess and the U.S. Department of
Justice will let you off the hook. But hurry! Only one conspirator per
cartel.42
The increased press coverage seems to have led to additional companies coming
forward and disclosing other conspiracies. In addition to cooperating with the
Antitrust Division, a number of companies have issued press releases announcing
such cooperation, including companies involved with the vitamins cartel; graphite
electrodes cartel; fine art auctions cartel, and marine construction cartel.43
E. Increased International Cooperation and Prosecution of Cartels
After the lysine cartel, the Antitrust Division aggressively pursued cooperation
agreements and Mutual Legal Assistance Treaties with foreign authorities to
increase cooperation directed at cartels.
The Antitrust Division has also pursued cooperation through the Organisation for
Economic Co-operation and Development (“OECD”) and the International
Competition Network. OECD initiated an anti-cartel program following the adoption
on March 5, 1998 of a “Recommendation of the Council Concerning Effective Action
Against Hard Core Cartels.” This recommendation provided that “Member countries
should ensure that their competition laws effectively halt and deter hard core
cartels.”44
In the same way that a large number of countries followed the lead of the United
States and the European Union in instituting merger review procedures, cartel
investigations are resulting in more countries instituting investigations and revising
their antitrust laws. For example, in Australia some of the participants in the
vitamins cartel were fined,45
as were six participants in the air transportation
cartel,46
and proceeding were commenced against participations in the marine hose
cartel in June 2009.47
In addition, some of the participants in the citric acid cartel
were fined in Mexico,48
and participants in the graphite electrode cartel were fined in
South Korea.49
Even Switzerland, where “cartels were endemic”50
to the economy,
enacted a cartel law that allows for the imposition of fines up to ten percent of a
firm's total combined revenue for the prior three years and provides a leniency
program to encourage disclosure.51

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Officials from the Antitrust Division encouraged other countries to adopt corporate
leniency programs. When the Antitrust Division revised its Corporate Leniency
Policy in August 1993 only one other jurisdiction (Canada) had a leniency program
for antitrust violations.52
Now, at least fifty jurisdictions now provide for leniency
for cartel participants that report violations and provide assistance.53
F. Larger stick, more carrots
In its 2002 Report on the Nature and Impact of Hard Core Cartels and Sanctions
against Cartels under National Competition Laws, the OECD concluded that
“sanctions against enterprises and natural persons have not yet reached the optimal
level for deterrence.”54
The report was issued following a record $1.1 billion in
criminal antitrust fines in the United States during the 1999 fiscal year and the
assessment of fines totaling €1.8 billion in the European Union in 2001.55
In
discussing optimal sanctions for cartel cases, the report observed that “[t]he ‘carrot
and stick’ approach … requires that the ‘stick’ – the possible sanction – be
sufficiently severe to give effect to the ‘carrot’ – the opportunity to avoid the
sanction by co-operating.”56
Antitrust enforcement officials are increasingly using a carrot and stick approach in
dealing with international cartels. John Vickers, then the Director General of the
United Kingdom’s Office of Fair Trading, described the use of leniency arrangements
as “the carrot” and the threat of a prison sentence as a “substantial stick” that will
be used to encourage employees and directors to come forward and disclose the
existence of the cartel under the United Kingdom’s Enterprise Act to deal with
international cartels.57
He concluded by noting, “the success of US authorities in
uncovering cartels proved that leniency arrangements work.”58
As candidly acknowledged by Scott D. Hammond, then Deputy Assistant Attorney
General for Criminal Enforcement, Antitrust Division of the United States
Department of Justice, the Antitrust Division “has spent the last two decades
building and implementing a ‘carrot and stick’ enforcement strategy by coupling
rewards for voluntary disclosure and timely cooperation … with severe sanctions.”59
Although the carrot offered is for the most part the avoidance of punishment, the
analogy helps explain the relationship between leniency programs and punishment.

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One way of viewing the general trend of developments over the past two decades, is
to view enforcement officials as using more carrots and larger sticks.60
For example, the enactment of the Antitrust Criminal Penalty Enhancement and
Reform Act of 200461
adjusted the size of the stick by significantly increasing the
penalties for antitrust violations and adjusted the size of the carrot by enhancing the
incentives for participation in the Corporate Leniency Program. The Act increases
the maximum statutory corporate fine from $10 million to $100 million, the
maximum individual fine from $350,000 to $1 million, and the maximum term of
imprisonment from three years to ten years. The Act also serves to enhance the
incentive for a participant in an antitrust conspiracy to enter into the Antitrust
Division’s leniency program by placing a limitation on what could be recovered from
a leniency applicant in any federal or state civil litigation, except actions brought by
the state, to the actual damages sustained that are attributable to the commerce
done by the leniency applicant, as opposed to treble damages. To receive this
limitation on liability, the leniency applicant must fully cooperate in such civil
litigation as well as fulfill the obligations to the Antitrust Division under the leniency
program.
The enactment of Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley Act”)62
provided
another stick for prosecutors to use by increasing penalties for mail fraud, wire
fraud, document destruction and obstruction of federal investigations. The Act
increased the maximum term of imprisonment for mail and wire fraud from five
years to twenty years and added a new subsection (c) to 18 U.S.C. § 1512 providing
for imprisonment of up to twenty years for (1) document destruction, alteration, or
falsification with the intent to impede a federal investigation and (2) obstruction of
any official proceeding.63
These changes provide prosecutors with substantial
additional leverage.
III. A New World
A. Focus on International Cartels
Starting with the investigation of the lysine cartel, there has been increased
prosecution of international cartels in the United States, Canada, and the European

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Union. In the 1991 fiscal year, only 1% of the corporate defendants in the cases
brought by the Antitrust Division were foreign corporations, and in the four prior
years the Antitrust Division did not bring a single case against a foreign corporation
or a foreign individual.64
In cases with fines of $10 million or more, the defendant
was a foreign corporation or a subsidiary of a foreign corporation in 87%, and only 5
out the 122 fines involved domestic conspiracies.65
The top 22 fines were against
foreign corporations. Foreign individuals are paying fines and serving prison terms
in the United States.
B. New Enforcement Tools
Increasing numbers of corporations, their officers, directors, and employees have
experienced the overwhelming changes that have occurred in the past few years
with respect to cartel enforcement. This is a new world, complete with informants
(and now paid informants), hidden microphones, hidden cameras, wiretaps,
investigators interviewing corporate employees in their homes, border alerts, search
warrants, disqualifications of directors, prison terms for executives located in the
United States and an increasing number of other jurisdictions, and skyrocketing fines
and rising civil claims. In 2006, the Antitrust Division received an additional
investigatory power when Congress added antitrust crimes to the list of crimes for
which court ordered wiretaps can be obtained.66
In earlier investigations, wiretaps
were based on the consent provided by one of the participants, which is usually
referred to as consensual monitoring.
In a colorful speech entitled From Hollywood to Hong Kong, Criminal Antitrust
Enforcement is Coming to a City Near You, Scott D. Hammond, former Deputy
Assistant Attorney General for Criminal Enforcement of the Antitrust Division,
explained the message conveyed by the use of these new “tools”:
By using informers, tape recordings, and search warrants, the
message to the business community was clearly communicated -- we
will not pull any punches. These are the bare knuckle tools that the
Division will use to detect and crack antitrust crimes.67
Mr. Hammond subsequently explained that “[d]uring the last two decades, cartel
enforcers around the world have utilized an increasingly robust arsenal of
investigative tools to instill a genuine fear of detection among executives.”68

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The investigation and prosecution of the marine hose conspiracy highlights the use
of new enforcement tools. A Japanese manufacturer of marine hose (Yokohama)
admitted participating in the cartel from 1999 through 2006 and sought more
lenient treatment by cooperating with the Antitrust Division and other jurisdictions.
A press release from the European Commission states that Yokohama revealed the
existence of the cartel to the Commission and was not fined for its participation in
the cartel.69
The cartel used a paid consultant to coordinate the conspiracy. From
2001 to 2007, cartel activity was undertaken before, during or after the Offshore
Technology Conference. Following the scheduling of a cartel meeting on May 1,
2007 during the 2007 Offshore Technology Conference held in Houston, Texas, the
FBI undertook covert monitoring and court-authorized audio and video surveillance.
Members of the cartel met on May 1, 2007 and that meeting was videotaped by the
Federal Bureau of Investigation. The next morning, May 2, 2007, eight foreign
executives from the UK, France, Italy and Japan were arrested in connection with
this conspiracy.70
On the same date, UK, and European antitrust authorities
searched locations in France, Italy and the United Kingdom71
and the Japan Fair
Trade Commission later searched locations in Japan.72
As part of this investigation,
the European Commission also conducted its first inspection of a private home
under authority granted in 2004.73
On January 28, 2009, the European Commission
fined six marine hose producers a total of €131 million.74
Before the lysine cartel investigation, the Antitrust Division used Civil Investigative
Demands and subpoenas far more than search warrants in criminal antitrust
investigations. At that time, search warrants were used in limited situations where
there was a concern over the potential destruction of evidence. The European
Commission’s successful use in cartel investigations of surprise early morning
investigations, known as “dawn raids,” may have contributed to the increased use of
search warrants for antitrust investigations in the United States. International
cooperation is spreading the use of enforcement best practices.
The Antitrust Division’s successful use of search warrants to obtain records at the
homes of persons participating in cartel activity may have contributed to the
decision to expand the European Commission’s powers, effective May 1, 2004,75
to
allow dawn raids at the homes of directors, managers and employees.

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Any additional crimes that are committed during the investigation of an antitrust
violation, such as obstruction of justice and/or making false statements to
investigators, can also be used by prosecutors to encourage cooperation.76
C. Increased Corporate Fines
Perhaps the most dramatic change is the increasing size of corporate fines for each
violation. As of the 1991 fiscal year, no corporate fine for a criminal violation of
federal antitrust laws had exceeded $2 million.77
On August 22, 1995, ICI Explosives
USA Inc. agreed to cooperate with the government investigation of explosives and
pay a corporate fine of $10 million.78
Since ICI agreed to pay the then record
corporate fine of $10 million in 1995, fines of $10 million or more have been
imposed a total of 122 times in the United States.79
ICI’s record fine was surpassed by ADM's October 1996 agreement to pay $70
million for its participation in the lysine conspiracy and $30 million for participating
in the citric acid conspiracy.80
In April 1998, UCAR International, Inc., the largest
producer of graphite electrodes in the United States, agreed to plead guilty and pay
$110 million for participating in a graphite electrodes cartel. Another member of
the graphite electrodes cartel, SGL Carbon AG, established a new record with its
May 1999 agreement to pay a $135 million fine -- a record that would last less than
three weeks. On May 20, 1999, the DOJ announced that Hoffmann-La Roche agreed
to plead guilty and pay a record fine of $500 million for leading a worldwide
conspiracy to raise and fix prices and allocate market shares for certain vitamins sold
in the United States.81
BASF also agreed to plead guilty and pay a $225 million fine.
Rhone-Poulenc cooperated with the government in its investigation under the
Corporate Leniency Program and paid no criminal fine. The vitamin cartel resulted
in twenty-four separate federal criminal prosecutions in the United States.82
Subsequent significant fines include: Yazaki Corp. - $470 million (conspiracy to fix
prices of auto parts 2012); Bridgestone Corp. $425 anti-vibration rubber parts for
automobiles 2014); LG Display Co. Ltd. - $400 million (conspiracy to fix prices in the
sale of liquid crystal display panels 2008); Air France-KLM - $350 million (air cargo
cartel 2008); Korean Air Lines Co. Ltd. - $300 million (air cargo cartel 2007); British
Airways Plc - $300 million (air cargo cartel 2007); and Samsung Electronics C. Ltd.
and Samsung Semiconductor - $300 million (DRAM price fixing 2006).

- 13 -
Although the large corporate fines in the United States are primarily the result of
plea agreements, a $500 million fine was imposed on AU Optronics Corp. on
September 20, 2012 following its conviction for its role in the liquid crystal display
panel conspiracy 83
and a $134 million was imposed on Mitsubishi Corporation on
May 10, 2001 following its conviction for its role in the graphite electrodes cartel.84
Other jurisdictions have assessed increasingly large fines: in Australia a $36 million
(Aus.) fine was imposed on Visy Board Pty Ltd for price-fixing and market sharing in
the cardboard packaging industry85
a $20 million (Aus.) fine was imposed on Qantas
in connection with the air transportation cartel,86
in Canada, a $48 million (Can.) fine
was imposed on F. Hoffmann-La Roche Ltd. for its participation in the vitamin cartel
– the largest fine ever imposed under the conspiracy provisions of the Canadian
Competition Act;87
and in the European Union, a €462 million fine was imposed on F.
Hoffmann-La Roche AG for its participation in the vitamins cartel,88
which was
surpassed by the €479 million fine for Thyssen Krupp for its participation in the
Elevators & Escalators cartel, which in turn was surpassed by the €896 million fine
for Saint Gobain for its participation in the car glass cartel.89
D. Increased Punishment of Natural Persons
Over the past few years, increasing numbers of corporate executives in the United
States and other countries have entered plea agreements under which they agreed
to serve prison terms in the United States and pay large fines for participation in
international cartel activity.90
For example, the average prison sentence is now
twenty-five months,91
which was a significant increase from the 1990s when the
average jail sentence for defendants prosecuted by the Antitrust Division was eight
months and the average percentage of defendants sent to jail was thirty-seven
percent.92
The Antitrust Division is pushing for jail time for non-resident foreign
nationals on a regular basis and corporate plea agreements are carving out more
employees for possible prosecution.
There has been a dramatic shift in the Antitrust Division’s approach with respect to
the possible imprisonment of non-resident foreign nationals. Before a gradual
change in policy which started in March 1999, the Antitrust Division was more
willing to negotiate a resolution with such individuals based on an agreed fine
without requiring any prison sentence.93
The no-jail time sentencing
recommendations have become “a relic of the past.”94
Before this policy change, no

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foreign national had served any jail time in the United States as a result of his
participation in an international cartel.95
The handling of the graphite electrode
cartel represents the old paradigm. In September 1999, two former executives of
UCAR International Inc., who were U.S. citizens, agreed to plead guilty, serve nine
and seventeen-month jail terms respectively, and pay criminal fines of $1 and $1.25
million, respectively, for fixing the price and allocating the volume of graphite
electrodes.96
Robert J. Koehler, the CEO of SGL Carbon Aktiengesellschaft and a
German national, pled guilty for participation in the same cartel and paid a criminal
fine of $10 million, but avoided imprisonment.97
Since 2000, the Antitrust Division has charged a number of corporations and
individuals with obstruction of justice. For example, in connection with the
international electrical carbon products cartel, Morgan Crucible Company plc, the
British parent company of Morganite, Inc., agreed to plead guilty to obstruction of
the of the Antitrust Division’s investigation by attempting to influence the testimony
of witnesses before a grand jury (18 U.S.C. § 1512(b)(1)) and by corruptly persuading
a witness to destroy documents relevant to an official proceeding (18 U.S.C.
§1512(b)(2)(B)), provide full cooperation, and pay a one million dollar fine.98
Ian P.
Norris, the company’s former Chief Executive Officer and three employees of
Morgan and its subsidiaries have been charged in connection with this matter.99
The
most colorful charge concerns the preparation and distribution of a “script” which
was to be followed by anyone questioned by either the Antitrust Division or the
federal grand jury. The script falsely characterized Morgan’s price discussion
meetings with its competitors as joint venture discussions.100
Carve-out Policy
The administration of the Antitrust Division’s “carve-out policy” for corporations
seeking a plea agreement has also changed dramatically over the past two decades.
The carve-out policy refers to excluding culpable officers, directors, and employees
from the scope of the non-prosecution protection of a corporate plea agreement.101
Initially, the Antitrust Division insisted in carving out a single culpable individual from
the plea agreement.102
For the most part, only a single employee was carved-out of
the corporate plea agreements for the lysine, citric acid and sodium gluconate
cartels.103

- 15 -
In sum, in connection with any international cartel, more natural persons will be
subject to harsher punishment.
E. Greater Total Annual Fines
In the United States, the total amount of criminal fines assessed each fiscal year for
violations of federal antitrust laws has dramatically increased over the past twenty
years. For the fiscal years 1990 through 1996, total annual antitrust fines ranged
from $20.4 million for the 1990 fiscal year to a high of $42.3 million for the 1993
fiscal year.104
The total fines of $217 million for the 1990 -1996 fiscal years stands in
stark contrast to the $5.7 billion in total fines for the 2007 -2014 fiscal years.105
F. More International Cooperation and coordination
Antitrust enforcement officials are meeting on a regular basis to “exchange best
practices for fighting cartels.”106
Antitrust enforcement officials in the United States,
Canada, the European Union, Japan, and a number of other countries are
increasingly coordinating investigations, down to the very timing of dawn raids and
the execution of search warrants to give targeted subjects less time to consult with
foreign branches of their offices, or with legal counsel. For example, the
coordinated activity in connection with the air transportation cartel by competition
law authorities in Japan, Korea, the United States, Canada, the European Union and
its member states, “followed the Sun”107
and resulted in the commencement of
investigations around the world within an eighteen hour period. One airline sought
leniency in several jurisdictions and those jurisdictions coordinated activity around
the world to correspond to different time zones. The coordinated activity started
with early morning raids in Asia on February 14, 2006. At the same time, the
evening of February 13, 2006, the FBI visited the homes of executives in the United
States. This was followed by dawn raids in Europe on the morning of February 14,
2006 by the European Commission and national competition law authorities and the
subpoenas being served in the U.S.
The United States currently has cooperation agreements and Mutual Legal
Assistance Treaties with Australia, Brazil, Canada, Germany, Italy, Israel, Japan,
Mexico, and the United Kingdom to increase cooperation directed at cartels.108
The
United States also has a cooperation agreement with the European Union.

- 16 -
Organisation for Economic Co-operation and Development
The OECD initiated an anti-cartel program following the adoption on March 5, 1998
of a “Recommendation of the Council Concerning Effective Action Against Hard Core
Cartels.” This recommendation provided that “Member countries should ensure
that their competition laws effectively halt and deter hard core cartels.”109
The OECD’s anti-cartel program has included collecting information from member
countries and certain interested non-member countries, sponsoring roundtable
discussions, and publishing reports, policy briefs, and booklets directed to
encouraging the use of leniency programs, sanctions, and best practices to “crack”
hard core cartels. For example, following a February 2000 roundtable discussion, on
April 27, 2001, the OECD issued a Report on Leniency Programmes to Fight Hard
Core Cartels.110
That report was followed on September 10, 2001 with a policy brief
on using leniency to fight hard core cartels.111
The OECD then issued on April 9,
2002 a comprehensive Report on the Nature and Impact of Hard Core Cartels and
Sanctions against Cartels under National Competition Laws.112
That report was
followed by the publication later that year of a 102 page booklet on Fighting Hard-
core Cartels: Harm, Effective Sanctions and Leniency Programmes.113
In October
2005, the OECD published Best Practices for the Formal Exchange of Information
between Competition Authorities in Hard Core Cartel Investigations.114
The OECD
has also issued periodic reports on the implementation of the 1998
Recommendation.115
Following a roundtable discussion held in February 2006 as
part of the Global Forum on Competition, in September 2006 the OECD published a
211 page booklet on Prosecuting Cartels without Direct Evidence of Agreement.116
In
addition, following an October 2006 roundtable discussion, in 2007 the OECD
published a 229 page booklet on Plea Bargaining.117
International Competition Network
The increased international cooperation led to the formation on October 25, 2001 of
a new International Competition Network.118
The ICN’s “mission statement is to
advocate the adoption of superior standards and procedures in competition policy
around the world, formulate proposals for procedural and substantive convergence,
and seek to facilitate effective international cooperation to the benefit of member
agencies, consumers and economies worldwide.” The ICN is now composed of over
one hundred competition authorities from 94 jurisdictions.119
Cartel enforcement

- 17 -
has been a major part of the ICN’s activities and its documents library contains 120
documents relating to cartels.
European Competition Network
The European Competition Network was established in 2004 following the entry into
force of the new basic legislation covering antitrust (Regulation 1/2003) that
decentralized the application of EC Competition law. The European Commission
issued also a Notice on Cooperation within the Network of Competition
Authorities.120
The European Commission and the national competition law
authorities in the member states cooperate through the European Competition
Network.121
IV. Corporate Compliance Programs
A major theme of antitrust compliance programs has been the inherent risks created
by contacts among competitors. A major goal of corporate compliance programs is
to ensure that management understands the nature and the extent of the risk of
competitor contacts in order to institute appropriate systems of management
control to reduce these risks. Procedures and guidelines need to be carefully
designed for each business. The failure by executives to follow company guidelines
has been used to establish the conspiratorial nature of meetings among
competitors.
The investigations of a number of international cartels by the Antitrust Division and
the European Commission provide concrete examples of the grave consequences
that result when antitrust compliance programs are not followed.
Corporations should evaluate existing compliance programs against the definition of
Effective Compliance and Ethics Program122
in the Organizational Sentencing
Guidelines.123
Before November 1, 2004, the elements of an effective program to
prevent and detect violations of law, were defined in the commentary.124
The
revision, effective November 1, 2004, was undertaken in response to Section
805(a)(2)(5) of the Sarbanes-Oxley Act, which directed the Sentencing Commission
to review and amend the organizational guidelines and related policy statements to
ensure that they are sufficient to deter and punish organizational misconduct.
Under the amendment, the requirements of an “Effective Compliance and Ethics

- 18 -
Program” are provided in a new separate guideline.125
The use of the term
“Effective Compliance and Ethics Program” instead of the term “effective program
to prevent and detect violations of law” reflects the broader scope of the
amendment.
Before the amendment, there were seven steps to be undertaken to show due
diligence for an effective program to prevent and detect violations of law: (1)
establish compliance standards and procedures; (2) assign specific individuals and
high level personnel with overall responsibility to oversee compliance; (3) use care in
delegating substantial discretionary authority; (4) communicate effectively the
standards throughout the organization; (5) take reasonable steps to achieve
compliance by utilizing monitoring and auditing systems reasonably designed to
detect criminal conduct and having and publicizing a reporting system whereby
employees to report conduct without fear of retribution; (6) use consistent
enforcement of standards through the appropriate disciplinary mechanisms; and (7)
take reasonable steps after an offense has been detected, including any necessary
modifications to the program.
The two fundamental requirements of an Effective Compliance and Ethics Programs
highlight the broader scope: the “organization shall (1) exercise due diligence to
prevent and detect criminal conduct; and (2) otherwise promote an organizational
culture that encourages ethical conduct and a commitment to compliance with the
law.”126
After noting that such a program “shall be reasonably designed,
implemented, and enforced so that the program is generally effective,” Section
8B2.1(a.) notes that the “failure to prevent and detect the instant offense does not
necessarily mean that the program is not generally effective.”127
Unfortunately, a
review of the publicly available information on the fines assessed on corporate
defendants in the United States for participating in international cartels does not
indicate that any corporate defendant has actually received any reduction in the fine
due to the existence of an effective compliance and ethics program. This is due
primarily to fact that a corporate defendant is not entitled to a reduction in its
Culpability Score on the basis of an effective compliance and ethics program where
the corporation unreasonably delayed reporting the offense to appropriate
governmental authorities128
or where high-level personnel participated in,
condoned, or was willfully ignorant of the offense.129
If the organization was
required by law to have an effective compliance and ethics program, but the

- 19 -
organization did not have such a program, an upward departure may be
warranted.130
Section 8B2.1(b) sets forth the seven minimum requirements. These seven
requirements correspond to the seven steps previously identified as being necessary
for an effective program to prevent and detect criminal conduct. There is no
substantive change in first requirement: the “organization shall establish standards
and procedures to prevent and detect criminal conduct.”131
The second
requirement concerns of the assignment personnel with responsibility for
compliance, and has been considerably expanded.132
There are three subparts,
8B2.1(b)(2)A-C. Subpart (A), requires the organization’s governing authority, which
is the board of directors for corporations, to be “knowledgeable about the content
and operation” of the program and “exercise reasonable oversight with respect to
the implementation and effectiveness” of the program. Subpart (B) corresponds to
the second element of the prior version and requires that high-level personnel
ensure that the organization has an effective program and that specific individuals
are assigned overall responsibility for compliance. Subpart C requires that specific
individuals be delegated day-to-day operational responsibility and such individuals
report periodically to high-level personnel, and as appropriate, to the governing
authority, or an appropriate subgroup of the governing authority, on the
effectiveness of the program. Individuals given operational responsibility must be
“given adequate resources, appropriate authority, and direct access to the
governing authority, or an appropriate subgroup of the governing authority.”133
Under the third requirement, an organization must use reasonable efforts to ensure
no substantial authority personnel “has engaged in illegal activities or other conduct
inconsistent with an effective” program.134
The fourth requirement specifies that the organization must take reasonable steps
to periodically communicate in a practical manner its standards and procedures,
including conducting effective training programs and disseminating information to
appropriate personnel and agents.135
The fifth requirement is divided into three subparts.136
The organization must take
reasonable steps: (A) to ensure that the compliance program is followed, including
monitoring and auditing; (B) to evaluate periodically the effectiveness of the
program; and (C) to have and publicize a system, which may include mechanisms

- 20 -
that allow for anonymity or confidentiality, whereby employees and agents may
report or seek guidance without fear of retribution. Subparts (A) and (C) are
restatements of the prior version. Subpart (B) imposes an express ongoing
responsibility to evaluate the effectiveness of the program. That obligation may
have been implied under the former general requirement that the organization must
undertake reasonable steps to achieve compliance with its standards. In addition,
Subpart (C) now includes an express reference that the reporting system may
include mechanisms that allow for anonymity or confidentiality as well as including
seeking guidance.
The sixth requirement has been broadened to require the use of incentives to
perform in accordance with the program in addition to the use of appropriate
disciplinary measures.137
The seventh requirement contains no substantive change from the prior version:
“[a]fter criminal conduct has been detected, the organization shall take reasonable
steps to respond appropriately to the criminal conduct and to prevent further similar
criminal conduct, including making any necessary modifications to the organization’s
compliance and ethics program.”138
Finally, to avoid any doubt as to the nature of a corporation’s on-going responsibility
the guideline further requires the organization to “periodically assess the risk of
criminal conduct” and “take appropriate steps to design, implement, or modify”
each of the enumerated requirements to reduce the risk of criminal conduct.139
In designing compliance programs, corporations can use the information developed
by law enforcement officials. Over the past few years, the Antitrust Division has
periodically provided an overview on the common characteristics of international
cartels.140
William J. Kolasky, then Deputy Assistant Attorney General of the
Antitrust Division, expanded on the common characteristics of cartels as part of
assisting corporations with designing effective compliance programs.141
The
common characteristics of a cartel include: (i) avoidance of detection; (ii)
involvement of senior executives; (iii) fear of detection by competition law
authorities; (iv) use of trade associations as a cover; (v) global price fixing; (vi)
worldwide volume allocation agreements; (vii) mechanisms to police and audit
compliance with the volume allocation agreements; (vii) compensation schemes; (ix)

- 21 -
budget meetings; and (x) retaliatory measures to discourage cheating by
members.142
More significant than the common characteristics, antitrust enforcement officials
have discovered that a number of assumptions about cartels were not necessarily
always correct. Cartels are usually believed to involve few participants in
concentrated industries, be inherently unstable, last a short duration, involve
homogeneous products in markets where there are high entry barriers, and are
unlikely in markets with large purchasers. The Antitrust Division has “found that
cartels can involve a surprisingly large number of firms.”143
Cartels with five or six
members were not uncommon and cartels with ten or more members have been
uncovered. (The European Commission’s found that sixteen different companies
operated a cartel in the plastic industrial bags market.144
)
Cartels were often found to involve multiple forms of agreement. The vitamin cartel
included “price-fixing, big rigging, customer and territorial allocations, and
coordinated total sales.”145
The Antitrust Division found several cartels operated for
over ten years and the sorbates cartel lasted seventeen years. In addition, the
Antitrust Division found that “while product homogeneity and high entry banners
may facilitate cartel behavior, they are not essential to it.”146
The Antitrust Division
also found that cartels might exist in industries with large purchasers, as was the
case with the lysine cartel, the citric acid cartel, and the graphite electrodes cartel.147
Conclusion
In light of the promise of even more aggressive action to curb the growth of
international cartels, the crucial issue for corporations is what additional measures
should be undertaken to ensure antitrust compliance. That is the challenge for this
New World.

- 22 -
ENDNOTES
1
Scott D. Hammond, Deputy Assistant Attorney General for Criminal Enforcement,
Antitrust Div., U.S. Dep’t. of Justice, The Evolution of Criminal Antitrust Enforcement
Over the Last Two Decades, Address before the 24th Annual National Institute on
White Collar Crime (February 25, 2010) at 1, available at
http://www.justice.gov/atr/public/speeches/255515.pdf.
2
Scott D. Hammond, then Director of Criminal Enforcement, Antitrust Div., U.S.
Dep’t. of Justice, Cornerstones of an Effective Leniency Program, Address before the
ICN Workshop on Leniency Programs, Sydney, Australia (Nov. 22-23, 2004) at 9,
available at http://www.usdoj.gov/atr/public/speeches/206611.htm.
3
Scott D. Hammond, The Evolution of Criminal Antitrust Enforcement Over the Last
Two Decades (February 25, 2010) at 13.
4
Bill Baer, Assistant Attorney General, Antitrust Division, U.S. Dep’t. of Justice,
Prosecuting Antitrust Crimes, Remarks as Prepared for Georgetown Law Global
Antitrust Enforcement Symposium, Washington, DC (September 10, 2014) at 7,
available at http://www.justice.gov/atr/public/speeches/308499.pdf.
5
Brent Synder, Deputy Assistant Attorney General, Antitrust Div., U.S. Dep’t. of
Justice, Compliance is a Culture Not Just a Policy, Prepared Remarks for the
International Chamber of Commerce/ United States Council of International
Business Joint Antitrust Compliance Workshop, New York, NY (September 9, 2014) at
7-8, available at http://www.justice.gov/atr/public/speeches/308494.pdf.
6
Id. at 8.
7
Id. at 11.
8
Scott D. Hammond, Director of Criminal Enforcement, Antitrust Div., U.S. Dep’t. of
Justice, When Calculating The Costs and Benefits of Applying For Corporate Amnesty,
How Do You Put a Price Tag On An Individual's Freedom?, Address before The
Fifteenth Annual National Institute On White Collar Crime (March 8, 2001) at 5,
available at http://www.usdoj.gov/atr/public/speeches/7647.htm.
9
See Criminal Policy Speeches, available at
http://www.justice.gov/atr/public/international/int_arrangements.html.
10
Scott D. Hammond, Detecting and Deterring Cartel Activity Through An Effective
Leniency Program, presentation to International Workshop on Cartels (November
21-22, 2000), available at http://www.usdoj.gov/atr/public/speeches/9928.htm.
11
Id. at 5.

- 23 -
12
13
See generally, Kurt Eichenwald, The Informant (2000).
14
DOJ Press Release dated Oct. 15, 1996, available at
http://www.usdoj.gov/atr/public/press_releases/1996/0988.htm.
15
Gary R. Spratling, former Deputy Assistant Attorney General for Criminal
Enforcement, Antitrust Div., U.S. Dep’t. of Justice, Criminal Antitrust Enforcement
Against International Cartels, presentation to Advanced Criminal Antitrust
Workshop, The Phoenix Hilton, Phoenix, Arizona (February 21, 1997) at 3, available
at http://www.justice.gov/atr/public/speeches/1056.pdf.
16
See Scott D. Hammond, Caught in the Act: Inside an International Cartel,
Presentation before OECD Competition Committee, Working Party No. 3, Public
Prosecutors Program (October 18, 2005) at 8 n. 2, available at
http://www.usdoj.gov/atr/public/speeches/212266.htm.
17
26 Stat. 209 (1890).
18
69 Stat. 282 (1955).
19
88 Stat. 1708 (1974).
20
See Roxann E. Henry, Do You Know What Can Trigger A $100 Million Fine? (1999).
21
104 Stat. 2880 (1990).
22
United States Sentencing Commission, Guidelines Manual (U.S.S.G. M.), Chapter
Eight - Sentencing of Organizations (2014) § 8B2.1, available at
http://www.ussc.gov/sites/default/files/pdf/guidelines-
manual/2014/CHAPTER_8.pdf.
23
118 Stat.661 (2004).
24
Dep’t. of Justice Corporate Leniency Policy (August 10, 1993), available at
http://www.usdoj.gov/atr/public/guidelines/0091.htm.
25
Scott D. Hammond, Cornerstones of An Effective Leniency Program (November 22-
23, 2004) at 3.
26
Gary R. Spratling, Corporate Crime in America: Strengthening the "Goodcitizen”
Corporation (September 8, 1995) at 22.
27
Id at 2-21.
28
Gary R. Spratling, Making Companies An Offer They Shouldn't Refuse (February 16,
1999) at 2.
29

- 24 -
30
Id.
31
Dep’t. of Justice Leniency Policy For Individuals (August 10, 1994), available at
http://www.usdoj.gov/atr/public/guidelines/0092.htm.
32
DOJ Press Release dated August 10, 1994, available at
33
34
Scott D. Hammond, Cornerstones of an Effective Leniency Program at 9-10: “The
second prerequisite to building an effective amnesty program is instilling a genuine
fear of detection. If firms perceive the risk of being caught by antitrust authorities as
very small, then stiff maximum penalties will not be sufficient to deter cartel activity.
Likewise, if cartel members do not fear detection, they will not be inclined to report
their wrongdoing to authorities in exchange for amnesty. Therefore, antitrust
authorities must cultivate an environment in which business executives perceive a
significant risk of detection by antitrust authorities if they either enter into, or
continue to engage in, cartel activity.” (Emphasis added)
35
Id. at 10.
36
Enforcement, Antitrust Div., U.S. Dep’t. of Justice, Are The Recent Titanic Fines in
Antitrust Cases The Tip of The Iceberg?, Presentation to Twelfth Annual National
White Collar Crime Institute (March 6, 1998), available at
http://www.justice.gov/atr/public/speeches/212581.htm.
37
Enforcement, Antitrust Div., U.S. Dep’t. of Justice, Making Companies An Offer They
Shouldn't Refuse, Presentation to The Bar of the District of Colombia's 35th Annual
Symposium on Associations and Antitrust (February 16, 1999), available at
38
Justice, When Calculating The Costs and Benefits of Applying For Corporate Amnesty,
How Do You Put a Price Tag On An Individual's Freedom?, Address before The
Fifteenth Annual National Institute On White Collar Crime (March 8, 2001), available
at http://www.usdoj.gov/atr/public/speeches/7647.htm.
39
Justice, The Fly On The Wall Has Been Bugged --Catching An International Cartel In
The Act, Address before International Law Congress 2001 European Union

- 25 -
Competition Law (May 15, 2001), available at
40
Justice, From Hollywood to Hong Kong, Criminal Antitrust Enforcement is Coming to
a City Near You (November 9, 2001), available at
41
See Scott D. Hammond, former Deputy Assistant Attorney General, Antitrust Div.,
U.S. Dep’t. of Justice, Caught in the Act: Inside an International Cartel, Presentation
before OECD Competition Committee, Working Party No. 3, Public Prosecutors
Program (October 18, 2005), available at
http://www.usdoj.gov/atr/public/speeches/212266.htm
42
Janet Novack, Fix and tell, Forbes, May 4, 1998 at 46.
43
Gary R. Spratling, Making Companies An Offer They Shouldn't Refuse (February 16,
1999) at 3.
44
See Annex 1 to Hard Core Cartels, Third Report on Implementation of the 1998
Recommendation (2005), available at
http://www.oecd.org/dataoecd/30/2/36600303.pdf.
45
Australian Competition and Consumer Commission Press Release dated February
28, 2001, available at
http://www.accc.gov.au/content/index.phtml/itemId/87653/fromItemId/378012.
46
Australian Competition and Consumer Commission Press Releases dated Feb. 16,
2009 (available at http://www.accc.gov.au/content/index.phtml/itemId/861037), ,
Dec. 11, 2008 (available at
http://www.accc.gov.au/content/index.phtml/itemId/853210/fromItemId/810627),
Dec.11, 2008 (available at
http://www.accc.gov.au/content/index.phtml/itemId/853209/fromItemId/810627).
47
Australian Competition and Consumer Commission Press Releases dated Aug. 14,
2009, available at http://www.accc.gov.au/content/index.phtml/itemId/888187.
48
Hard Core Cartels, OCED Third Report on Implementation of the 1998
Recommendation (2005), at 12, available at
49
South Korea Times Apr. 2, 2002.
50
U.S. Dep’t. of State, 2005 Investment Climate Statement -- Switzerland, available
at http://www.state.gov/e/eb/ifd/2005/42129.htm.
51
Id.

- 26 -
52
53
Id.at 1.
54
OCED, Report on the Nature and Impact of Hard Core Cartels and Sanctions
against Cartels under National Competition Laws (2002), available at
55
European Commission December 20, 2001 Press Release, available at
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/01/18
92|0|RAPID&lg=EN.
56
OCED Report on the Nature and Impact of Hard Core Cartels and Sanctions against
Cartels under National Competition Laws (2002).
57
OFT to Offer Whistleblowers More Leniency, Fin. Times, Mar. 24, 2003, available at
http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=
StoryFT&cid=1048313076182.
58
Id.
59
Two Decades (February 25, 2010), at 1.
60
Id.
61
118 Stat.661 (2004).
62
116 Stat.745 (2002).
63
“(c) Whoever corruptly – (1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so with the intent to impair the objects
integrity or availability for use in an official proceeding; or (2) otherwise obstructs,
influences, or impedes any official proceeding or attempts to do so, shall be fined
under this title or imprisoned not more than 20 years, or both.”
64
Gary R. Spratling, Criminal Antitrust Enforcement Against International Cartels
(February 21, 1997) at 5.
65
DOJ Chart Sherman Act Violations Yielding A Corporate Fine of $10 million or
More, (February 4, 2015) available at
http://www.justice.gov/atr/public/criminal/sherman10.html.
66
18. U.S.C. § 2516 (r).
67
Scott D. Hammond, From Hollywood to Hong Kong, Criminal Antitrust Enforcement
is Coming to a City Near You (November 9, 2001) at 4.
68

- 27 -
69
Commission Jan. 28, 2009 Press Release Press Release, available at
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/137&format=HTM
L&aged=0&language=EN&guiLanguage=en.
70
DOJ May 2, 2007 Press Release, available at
71
Commission May 3, 2007 Press Release Press Release, available at
http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/163&format=
HTML&aged=0&language=EN&guiLanguage=en.
72
Scott D. Hammond, Recent Developments, Trends, and Milestones In The Antitrust’
Division's Criminal Enforcement Program.
73
See Commission Jan. 28, 2009 Press Release Press Release, available at
74
See Commission Jan. 28, 2009 Press Release Press Release, available at
75
Article 21 of Regulation No. 1/2003, O.J. (L) 1-25, available at
http://europa.eu.int/eur-
lex/pri/en/oj/dat/2003/l_001/l_00120030104en00010025.pdf.
76
See Section B of Chapter 2 of the Antitrust Division Manual (last Updated March
2014), available at http://www.usdoj.gov/atr/foia/divisionmanual/ch2.htm#b.
77
Gary R. Spratling, Criminal Antitrust Enforcement Against International Cartels
(February 21, 1997), at 5.
78
DOJ August 22, 1995 Press Release, available at
http://www.usdoj.gov/atr/public/press_releases/1995/451.txt.
79
DOJ Chart: Sherman Act Violations Yielding A Corporate Fine of $10 million or
More (revised February 4, 2015), available at
http://www.justice.gov/atr/public/criminal/sherman10.html.
80
DOJ October 15, 1996 Press Release, available at
81
82

- 28 -
83
DOJ Sept. 20, 2012 Press Release, available at
http://www.justice.gov/atr/public/press_releases/2012/287189.htm.
84
85
Australian Competition and Consumer Commission Nov. 2. 2007 Press Release,
available at
http://www.accc.gov.au/content/index.phtml/itemId/802635/fromItemId/776481.
86
Australian Competition and Consumer Commission Dec. 11. 2008 Press Release,
available at
http://www.accc.gov.au/content/index.phtml/itemId/853210/fromItemId/810627
87
Government of Canada Sept. 22, 1999 Press Release, available at
http://strategis.ic.gc.ca/SSG/ct01581e.html.
88
European Commission Nov. 21, 2001 Press Release, available at
http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/01/16
25|0|RAPID&lg=EN.
89
European Commission Nov. 12, 2008 Press Release, available at
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1685&format=HT
ML&aged=0&language=EN&guiLanguage=en.
90
Two Decades (February 25, 2010) at 7-8.
91
Bill Baer, Prosecuting Antitrust Crimes at 1.
92
Two Decades (February 25, 2010) at 8-9.
93
94
Id.
95
Id.
96
DOJ Sept. 29, 1999 Press Release, available at
http://www.usdoj.gov/atr/public/press_releases/1999/3724.htm and Sept. 23, 1999
Press Release, available at
97
98
November 4, 2002 Plea Agreement, available at
http://www.usdoj.gov/atr/cases/f200400/200430.htm, DOJ November 4, 2002 Press

- 29 -
Release, available at
99
See DOJ September 24, 2003 Press Release, available at
100
See DOJ September 24, 2003 Press Release, available at
http://www.usdoj.gov/atr/public/press_releases/2003/201287.htm, and Second
Superseding Indictment for Ian P. Norris, Criminal No.: 03-632 (E.D. Penn 9/28/04),
available at http://www.usdoj.gov/atr/cases/f206000/206064.htm.
101
Scott D. Hammond, When Calculating The Costs and Benefits of Applying For
Corporate Amnesty, How Do You Put a Price Tag On An Individual's Freedom?
102
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Id.
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U.S.S.G. M. (2014) § 8B2.1(b)(3).

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U.S.S.G. M. (2014) § 8B2.1(b)(5).
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U.S.S.G. M. (2014) § 8B2.1(b)(6).
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William J. Kolasky, Antitrust Compliance Programs: The Government Perspective.
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Id. at 4-11.
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Id. at 11.
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