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10 Common Mistakes When Dealing With DOJ Antitrust Criminal Prosecutors
A few months ago, I left the U.S. Department of Justice (DOJ) Antitrust Division (the Division) for private practice at Winston & Strawn. I spent nearly 10 years as a prosecutor and supervisor in the Division, where I prosecuted numerous international and domestic cartels. During my time at the Division, I met hundreds of defense attorneys, including solo practitioners, boutique litigators, large law firm lawyers, former public defenders, former assistant U.S. Attorneys and former Division prosecutors.
With so many seemingly well-credentialed attorneys, it can be difficult for corporate counsel to determine who is the correct attorney for a particular representation, especially because no attorney is perfect and every representation presents new and unique challenges for even the most seasoned practitioner. Corporate counsel therefore should be aware of the following 10 common mistakes that practitioners make when representing clients in criminal antitrust matters.
1. Failing to Ask Whether Leniency Is Available
Unlike reactive crime, in a criminal antitrust matter, your counsel's first conversation with the prosecutor is likely not going to be at arraignment — it will be shortly after the corporation or an executive received a subpoena or was visited by the FBI (e.g., for a search or an unanticipated interview). Very rarely does the Division charge an alleged antitrust offender without first interacting with counsel.
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