Last November, the Antitrust Division (Division) of the Department of Justice (DOJ) announced the creation of the Procurement Collusion Strike Force (PCSF) to “deter, detect, and prosecute antitrust crimes and related schemes in government procurements.” On Feb. 7, during the Global Competition Review’s 9th Annual Antitrust Law Leaders Forum, Deputy Assistant Attorney General Richard A. Powers further clarified the role of PCSF and the incentivization of corporate and individual cooperation within the broader ambit of antitrust investigations. Powers’ statements came on the heels of the Division’s Feb. 11 request for 55 more prosecutors (and $8.2 million to fund them) to address the Division’s increased activity in “protecting American consumers from anticompetitive merger deals, monopolization, and domestic and international cartels.” His statements regarding the PCSF combined with the Division’s expansion foreshadow a significant uptick in both criminal and civil enforcement actions and merger reviews.
Currently operating in 13 partner federal districts and comprising teams of prosecutors and agents, PCSF contingents have various budgets based on the needs of the particular district, allowing for tailored outreach and development of specific networks of contractors and trade associations. Powers noted that since its formation, PCSF has been contacted by over 30 federal, state and local government agencies for outreach training and guidance on maintaining competitive procurement processes. Additionally, these agencies and various Inspector General offices are ready to cooperate with the PCSF on investigations into potential antitrust violations. Combining this heightened focus on bid-rigging cases with the hiring of more prosecutors, PCSF’s work is likely to intensify, as already more than a third of the Division’s investigations relate to public procurement or other contracts involving the U.S. government.
Powers also provided updates on antitrust enforcement and discussed the expansive role of the Division in combating collusive conduct. He mentioned the DOJ’s successful prosecutions of Akshay Aiyer, found guilty of price fixing and bid rigging in the foreign exchange market, and Christopher Lischewski, found guilty of price fixing in the canned tuna market during his tenure as CEO and president of Bumble Bee Foods. He also mentioned continued investigations into various bid-rigging schemes involving hospitals and schools, particularly noting that the Division is well-rounded and equipped to charge multiple and related crimes unearthed during investigations of anti-competitive conduct. Specifically, he lauded the proficiency of the Division’s prosecutors, claiming that the Division would pursue all violative conduct arising out of bid-rigging schemes including fraud, false statements and money laundering. Indeed, in the weeks surrounding Powers’ statements, the Division announced bid-rigging and money laundering charges in the commercial flooring industry, price fixing and false statement charges in the pharmaceutical industry, and bid-rigging and fraud charges in the insulation industry. These prosecutions exemplify the Division’s commitment to bring antitrust and other charges against executives across an array of industries.
Finally, Powers explained the Division’s expectations for cooperation within the context of an ongoing investigation. In exchange for credit in the form of a reduced fine or a deferred prosecution, a cooperator, individual or corporate, must be ready to assist fully and continually in pursuing cases against other conspirators, which includes making early disclosures and extending cooperation throughout an investigation. Such cooperation may come in the form of covert techniques like consensual monitoring as well as comprehensive and candid reporting of all facts known to the company at the time it was involved in the conduct. Any delay in cooperation will be noted at sentencing by the government and form the basis of their recommendation for not granting full cooperation credit. Powers discussed the recently updated language in the government’s model plea agreements to make clear that corporate defendants are barred from making any statements inconsistent with the facts listed in an information or a plea agreement – that is, if they expect to receive any benefits from a settlement with the government.
The words and actions from the Division to kick off this year send a strong message to companies and individuals facing antitrust investigations. Our nationally recognized, diverse antitrust and competition team at BakerHostetler is well-equipped to shepherd clients through criminal or civil government investigations, civil antitrust actions by other federal and state agencies, government merger reviews, and class and individual actions initiated by follow-on private plaintiffs.
3 Press Release, U.S. Dep’t of Justice, “Former Trader for Major Multinational Bank Convicted for Price Fixing and Bid Rigging in FX Market” (Nov. 20, 2019), https://www.justice.gov/opa/pr/former-trader-major-multinational-bank-convicted-price-fixing-and-bid-rigging-fx-market.
4 Press Release, U.S. Dep’t of Justice, “Former CEO Convicted of Fixing Prices for Canned Tuna” (Dec. 3, 2019), https://www.justice.gov/opa/pr/former-ceo-convicted-fixing-prices-canned-tuna.
5 Press Release, U.S. Dep’t of Justice, “Flooring Executive Charged in Antitrust and Money Laundering Conspiracies” (Feb. 5, 2020), https://www.justice.gov/opa/pr/flooring-executive-charged-antitrust-and-money-laundering-conspiracies.
6 Press Release, U.S. Dep’t of Justice, “Generic Drug Executive Indicted on Antitrust and False Statement Charges” (Feb. 4, 2020), https://www.justice.gov/opa/pr/generic-drug-executive-indicted-antitrust-and-false-statement-charges.
7 Press Release, U.S. Dep’t of Justice, “Insulation Contracting Firm and CO-Owner Plead Guilty to Antitrust and Fraud Charges” (Feb. 3, 2020), https://www.justice.gov/opa/pr/insulation-contracting-firm-and-co-owner-plead-guilty-antitrust-and-fraud-charges.