The Department of Justice's Antitrust Division announced this week that it has amended the division's carve-out practices regarding corporate plea agreements.

“Over the years, the Antitrust Division's efforts to investigate and prosecute price-fixing and other cartel conduct have produced outstanding results in holding both corporations and individuals accountable for their wrongdoing," Assistant Attorney General Bill Baer said in a prepared statement. "We are committed to continuing these efforts and to build on the division's past successes."

Historically, the Antitrust Division's corporate plea agreements have, in appropriate circumstances, included a provision offering non-prosecution protection to employees who cooperated with investigations and whose conduct does not warrant prosecution. The division excluded, or "carved out," employees who were believed to be culpable.

In certain circumstances, employees who refused to cooperate in investigations were also excluded, "employees against whom the division was still developing evidence, and employees with potentially relevant information who could not be located," explained Baer. The names of all carved-out employees were included in the corporate plea agreements, which were publicly filed in the district courts where the charges were brought.

Following a thorough review of the Antitrust Division's approach to corporate plea agreements, Baer said it will be reforming its approaches in two ways. First, while the Antitrust Division will continue to carve out employees who are believed to have been involved in criminal wrongdoing and who are potential targets of an investigation, it will no longer carve out employees for reasons unrelated to culpability.

Secondly, the  Antitrust Division will no longer include the names of carved-out employees in the plea agreement itself. "Those names will instead be listed in an appendix, and we will ask the court for leave to file the appendix under seal," said Baer. "Absent some significant justification, it is ordinarily not appropriate to publicly identify uncharged third-party wrongdoers."

“The Antitrust Division will continue to exclude from the non-prosecution protections of corporate plea agreements any employees whose conduct may warrant prosecution," Baer added. "The division will continue to make these decisions on an employee-by-employee basis consistent with the evidence and the Principles of Federal Prosecution." 

Concluded Baer: "We will continue to demand the full cooperation of anyone who seeks to benefit from the non-prosecution protection of a corporate plea agreement, and will revoke that protection for anyone who does not fully and truthfully cooperate with division investigations.”