Criminal Antitrust Fines and Penalties

Reductions Based on Ability to Pay

Forensic & Litigation Consulting

April 26, 2017

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Criminal antitrust fines and penalties obtained by the Department of Justice have risen substantially in recent years, from USD$338 million in 2005 to over USD$3.6 billion in 2015.1 One reason for this increase is the focus on investigating and prosecuting international cartels. The largest such investigation involves the automotive part manufacturing industry which through November 2016 alone resulted in over USD$2.9 billion in fines from 47 companies that pleaded guilty or agreed to plead guilty.2 As large criminal antitrust fines have become common, more companies are finding themselves facing potential penalties that exceed their available resources.

The U.S. Sentencing Guidelines allow for reduction of a fine under certain circumstances, one of which involves the company’s Ability To Pay (ATP) the fine imposed. The Antitrust Division has recognised the legitimacy of ATP considerations in negotiated pleas.

FTI Consulting has experience in supporting clients on ATP cases and this article describes the methodology that has been used by FTI Consulting alongside Counsel to raise and support an argument for reducing a proposed fine through evaluation of the company’s ATP during the course of a company’s plea negotiations with the Division and where the argument has resulted in a fine reduction.

1 See DOJ Criminal Enforcement Trends Chart (Dec. 2015), https://www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts.
2 See U.S. Dep’t of Justice, Japanese Auto Parts Company Agrees to Plead Guilty to Antitrust Conspiracy Involving Steel Tubes (Nov. 8, 2016), https://www.justice.gov/opa/pr/japanese-auto-parts-company-agrees-plead-guilty-antitrust-conspiracy-involving-steel-tubes.

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