USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
4.6 Issuing Criminal Indictments In the United States, criminal cases for cartel conduct are typically brought by the DOJ in federal court. The process of bringing a criminal case usually begins with an investigation by the Antitrust Division. If the Antitrust Division con - cludes that there is sufficient evidence of cartel conduct, it may bring criminal charges against the individuals and companies involved. The DOJ will typically seek an indictment from a grand jury, which is a group of citizens who are convened to hear evidence presented by the government and decide whether there is prob - able cause to believe that a crime has been com - mitted. If the grand jury returns an indictment, the case will proceed to trial in federal court. Defendants in criminal cases have the right to access information in the hands of the govern - ment through the discovery process, which allows them to request and review documents and other evidence that the government plans to use at trial. The DOJ is required to provide defendants exculpatory evidence in its posses - sion. This includes evidence that is favourable to the defendant, that may reduce the defendant’s exposure, or that may go against the credibil - ity of unfavourable witnesses. Defendants also have the right to request information from third parties that may be relevant to their defence. Before trial, there are several pretrial procedures that may apply, including motions to suppress evidence obtained in violation of the defendant’s rights, motions to dismiss the case for lack of evidence, motions to suppress irrelevant or prej - udicial evidence and plea negotiations. 4.7 Issuing Civil Complaints The DOJ has the option to pursue a cartel offence criminally, civilly or both. Civil proceed -
ings are governed by the Federal Rules of Civil Procedure. The DOJ can also issue civil subpoe - nas before proceedings with a complaint and federal court discovery. Unlike in criminal cases, the DOJ can also seek formal deposition testi - mony through civil discovery. In cartel matters, private civil litigation is more common than civil litigation against the gov - ernment, except where the government is the alleged victim. Civil litigation often involves extensive dual-discovery, including document productions, third-party subpoenas and depo - sitions. Civil cases can be tried in front of a judge or jury, although plaintiffs generally prefer juries and exercise their rights to jury trials more often than agreeing to proceed with bench trials. 4.8 The Role of Experts Retained experts, including economists, can play an important role in cartel investigations and related proceedings. Economists may be retained to analyse market structure, market power, pricing behaviour and damages. Other experts, such as accountants, may be retained to analyse financial records and other data. At times, parties will also retain industry experts. As a practical matter, experts (including econo - mists) are more often used in private litigation than in criminal proceedings. In private litigation, experts play a key role because their reports are used as key evidence on damages, and damag - es are a key issue in civil cases but not in crimi - nal cases. In criminal cases, the DOJ may seek to introduce experts where it seeks to base a fine on affected commerce rather than the statutory USD100 maximum. In cases where a defend - ant claims financial inability to pay a penalty, the
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