DOJ Stops Naming Carveouts In Cartel Plea Agreements

On April 12, 2013, the U.S. Department of Justice announced that it would no longer publicly name the executives excluded from immunity granted as part of cartel plea agreements. The DOJ further said that it would limit those carveouts to individuals suspected of participation in illegal price-fixing. In the past, when signing plea agreements with companies in price-fixing cases, the DOJ included the names of employees not covered by the deal in publicly filed court documents. Now, according to Antitrust Division Chief Bill Baer, the DOJ will only list such names in a separate document filed under seal. Baer further explained that the DOJ will no longer carve out employees for refusal to cooperate with the investigation, or those who are thought to have potentially important information but cannot be located, unless the DOJ has reason to believe that the individuals participated in the illegal behavior. However, Baer cautioned that despite this change, the DOJ would “still demand the full cooperation of anyone who seeks to benefit” from immunity, and would retract immunity for those who do not “fully and truthfully cooperate with division investigations.” Exclusions from immunity will still be decided on a case-by-case basis. The DOJ’s former practice of publicly naming carveouts had faced criticism in the past for singling out employees who were ultimately never charged with wrongdoing. Baer noted that “as a general rule the department does not release the names of people who are potentially culpable until they’ve … decided whether to file an indictment or an information, so that’s how we’re going to approach [carveouts] going forward.”