This article appeared in The Corporate Counselor, an ALM publication covering the latest changes in business regulatory climates. For Corporate Counsel, In-House Counsel, Managing Partners. Visit the website to learn more.

Most companies under criminal investigation by the Antitrust Division, U.S. Department of Justice (DOJ), eventually resolve their liability with the government short of going to trial, either by entering into a corporate leniency agreement or, more commonly, by pleading guilty to criminal antitrust charges under a corporate plea agreement. Foremost on the minds of corporate counsel when negotiating these agreements is ensuring that the company pays no criminal fine under leniency or as small a fine as possible under a plea agreement. But it is often equally important for the company to maximize the number of its employees covered by the corporate disposition, thereby eliminating the possibility that those employees will be individually prosecuted. The stakes are enormous for a company trying to obtain non-prosecution or immunity protection for the broadest number of its employees involved in what is commonly referred to as antitrust “cartel” conduct, such as price fixing. Even if a company is able to resolve its own criminal liability, it still cannot put the criminal investigation behind it when some current employees remain under investigation for months or years. Even worse, for those employees taking their chances at trial, the government will inevitably parade cooperating witnesses before the jury and highlight inflammatory company documents, publicly demonstrating the scope of the company's wrongdoing.

This article provides critical background on DOJ policy and practice, and highlights some of the steps corporate counsel — as well as “spin-off” counsel for individual employees — can take during leniency or plea negotiations to secure non-prosecution protection for the company's employees as part of any antitrust corporate disposition.