By: Robert Connolly (Cartel Capers)
If you have been following the price-fixing trials against the chicken industry executives, you know that after failing to convict any of the ten defendants in two previous trials, the Antitrust Division narrowed its case by dismissing five defendants. A reportedly unprecedented third trial against the five remaining defendants ended last Friday when the jury acquitted each defendant. See, Chicken Industry Executives Found Not Guilty of Price Fixing, Bob Van Voris, Bloomberg, July 7, 2022.
After the verdict, the government issued a statement: “Although we are disappointed in the verdict, we will continue to vigorously enforce the antitrust laws, especially when it comes to price-fixing schemes that affect core staples. We will not be deterred from continuing to vigilantly pursue cases to protect the American people and our markets.” This is how it should be. But win or lose, and certainly in this case, the government should reflect on what it did right and what it did wrong. One thing it did very wrong was the failure to engage with any defense counsel in preindictment meetings. None of the individuals indicted received a target letter informing them of the government’s decision to seek their indictment and thus had no opportunity to seek a preindictment meeting. Preindictment meetings provide the staff with the opportunity to listen to defense counsel argue, both factually and/or legally, why the government’s case does not meet the Principles of Federal Prosecution standards for indictment. Also, at the government’s discretion, a preindictment meeting may be an opportunity for the government to put some of its evidence on the table in an attempt to induce a cooperation agreement with the target. The defendants who ended up being put on trial three times before finally being acquitted (as well as the five defendants who the government dropped after the second hung jury), never had this opportunity. The Antitrust Division’s decision to proceed to trial without the benefit of a preindictment meeting was mistake that I hope will not be repeated.
The Antitrust Division’s new policy on preindictment meetings is baffling and a pointless self-inflicted wound. In a July 21, 2021 speech (here), Assistant Attorney General Richard Powers warned that an individual about to be indicted may not receive notice via a target letter if the Division staff believes defense counsel has not been “interested in meaningful good-faith interactions.” While there have always been exceptions to sending a target letter based on the need for secrecy, it has, to my knowledge, never been the Antitrust Division’s policy to not issue a target letter based on what staff attorneys believe to be uncooperative conduct by defense counsel. This is too subjective a standard, improperly punishes an individual or corporation about to be indicted for the ‘sins’ of the defense attorney and is inconsistent with the Antitrust Division’s well-earned reputation for civility and fair play…
