I’ve posted recently on my concerns with the Antitrust Sentencing Guidelines (2R1.1) as they relate to individual defendants (here). Other submissions have been made to the Commission by people/institutions with great insight and influence in the cartel arena. I’ve summarized a few of these below.
In an earlier post, I explained why I think the antitrust sentencing guidelines for individuals are in need of serious reform (here). The main defect in the current guidelines is that the primary driver of an individuals’ sentence is the volume of commerce of the conspiracy. As discussed in the previous post, under this formulation, the President of a successful bid-rigging scheme is likely to be found less culpable than a salesperson in an international company who is directed by his boss to attend cartel meetings and report back. Also, there is very little difference in culpability under the guidelines between the CEO who initiates and commits his company to a cartel and one of his employees who he directs to go to meetings or talk to a competitor. Both are tagged with the same volume of commerce (if their temporal participation in the cartel was the same).
Besides being unfair, or rather because of this, the individual sentencing guidelines are routinely ignored by the Courts. The guidelines have been advisory since the decision in United States v.Booker. To date, in antitrust cases, courts sentencing a defendant under the current guidelines have (I believe) always departed downward from the government’s sentencing guidelines recommendations—at least after conviction at trial. Courts have rejected the guidelines and instead focused on the factors set forth in 18 U.S.C. Section 3553 (Imposition of Sentence)(Factors to be Considered in Sentencing.) This statute directs the court to impose a “sentence sufficient, but not greater than necessary.” In determining the sentence, the court is directed to consider various factors including “the nature and circumstances of the offense and the history and characteristics of the defendant.” The sentence should “reflect the seriousness of the offense,” and “afford adequate deterrence.” Applying these factors, courts have found departure from the antitrust sentencing guidelines warranted.
Patricia Davis, a twenty-year veteran of the Department of Justice, has joined GeyerGorey LLP as of counsel. She previously served as Assistant Director, Fraud Section, Civil Division, U.S. Department of Justice, where she was responsible for investigating and prosecuting hundreds of cases involving fraud on government healthcare, procurement and grant/loan programs. Prior to joining the Department, Ms. Davis was Deputy Counsel to the Inspector General at the General Services Administration. She is the eleventh former DOJ prosecutor to join the boutique law firm in less than a year.
“The scope and breadth of Pat’s experience is unparalleled. Much of the Civil Division’s enforcement program focusing on Defense Department contracts and pharmaceuticals rested squarely on her shoulders,” said Brad Geyer, one of the firm’s founding partners. “We are delighted that Pat has decided to join us.”
Robert Zastrow, who was Verizon’s Assistant General Counsel for 15 years before co-founding the firm in October 2012, added,“ Pat Davis is an excellent addition to our corporate compliance and white collar practice.”
“I believe that Pat brings our firm to a new level in terms of our ability to get cases placed appropriately and to enhance the chances that our qui tam (False Claims Act) cases will be adopted by the government,” said Hays Gorey, a firm co-founder. “With Pat’s terrific background and deep legal knowledge, we are uniquely positioned to develop cases so that they are ready, when filed, to be transitioned immediately to the appropriate U.S. Attorney’s Office or the Civil Division of the Department of Justice.”
Headquartered in Washington, D.C., with offices in New York, Boston, Philadelphia and Dallas, GeyerGorey LLP specializes in white collar criminal defense, particularly investigations and cases involving allegations of economic crimes, including violations of the federal antitrust laws (price fixing, bid rigging, territorial and customer allocation agreements), the procurement and grant fraud statutes, the securities laws, the Foreign Corrupt Practices Act, the False Claims Act and other whistleblower actions. The firm also conducts internal investigations of possible criminal conduct and provides advice regarding compliance with antitrust, anti-bribery and other laws and regulations, in addition to advising on voluntary and mandatory disclosure issues. For further information, please call Patricia Davis at (202) 559-1456 or email Patricia.Davis@GeyerGorey.com.