February 6, 2009 5:05 PM
Justice Department Finally Releases Antitrust Amnesty Agreements
Posted by Anthony Paonita
In an unprecedented move, the U.S. Department of Justice on Thursday released antitrust amnesty agreements that it has signed with some 100 corporations since August 1993. The release was part of a settlement of a Freedom of Information Act suit against the government, which also agreed to pay $40,000 in attorneys' fees to the law firm of White & Case.
Making the deals public won't help reporters or gossipmongers, since all the juicy details have been edited out--even the name of the company that's a party to the agreement. But it could help other corporations that want to negotiate an amnesty agreement with the Justice Department to avoid prosecution for violating federal antitrust law.
Until now, the government would only let companies see a "model letter" that discussed the provisions of an amnesty deal in general terms, rather than the specific details of actual deals.
J. Mark Gidley, the White & Case partner who won the settlement, insists that even the edited documents can be useful to companies, because "they show deviations from the model amnesty letter in terms of privilege waivers and coverage of subsidiaries." Gidley brought the FOIA suit on behalf of Stolt-Nielsen Transportation Group Ltd., the Connecticut-based shipping giant.
Not everyone is thrilled with the release, though. John Majoras, an antitrust expert and partner at Jones Day, says releasing the letters of agreement could "dampen or limit prosecutorial discretion."
From a public policy standpoint, Majoras says, it's "important for DOJ to be able to exercise its discretion to better fit the circumstances of a case. If DOJ now says, 'We're just using the model letter,' then that's unfortunate for a company." (Majoras is the husband of Deborah Platt Majoras, a former chairman of the Federal Trade Commission who is now general counsel at Procter & Gamble Company.)
In November 2008 Stolt-Nielsen won a five-year legal battle with the Justice Department's antitrust division, which had tried to revoke the company's amnesty agreement. During that fight, Gidley wanted to compare Stolt-Nielsen's agreement with other deals the government had signed, but the feds refused to release them.
So Stolt-Nielsen filed an FOIA request (as did Corporate Counsel). When the Justice Department rejected these requests, the company sued in October 2005. The parties finally reached a settlement signed this past January, with Justice agreeing to release the agreements within seven days. The department also redacted all references to any fact that might identify an individual or a corporation, including names, dates, types of industry, confidential sources, locations, and specific misconduct.
The Justice Department has posted the letters of agreements online. They can be found here.
--By Sue Reisinger, Corporate Counsel
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