USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines In the United States, investigatory agencies have the authority to bring enforcement actions against companies and individuals engaged in cartel conduct. However, they do not have the authority to impose sanctions directly. Instead, they must bring their cases before a court. The court then has the authority to impose penalties and sanctions if liability is established. The limitations on the authority of the investiga - tory agencies include the requirement to follow established procedures for bringing cases to court and proving their case through the pres - entation of evidence. Additionally, the agencies must adhere to statutory limitations on the types of penalties and sanctions that may be imposed in antitrust cases. 5.2 Plea Bargaining/Settlement Plea bargaining and settlements are common in United States antitrust enforcement proceed - ings, including those involving cartel conduct. The plea bargaining or settlement process can occur at any stage of the proceeding, from the initial investigation through trial. Defence coun - sel can start laying the groundwork for a plea bargain informally through proffers and pres - entations to the DOJ early in an investigation. More formal plea bargaining occurs later in an investigation after both sides indicate openness to a negotiated, pretrial resolution. A plea bargain in a DOJ criminal cartel investi - gation will ultimately result in a plea agreement, whereby the defendant usually agrees to plead guilty in exchange for a specifically negotiated sentence or a set of sentencing parameters that
DOJ and the defendant may retain accountants to analyse the defendant’s finances. In all cases, the experts are expected to provide impartial and objective analysis based on sound methodology and principles of their respective fields. The rules of evidence and admissibility standards also apply to the expert reports and testimony, and the experts are subject to cross- examination by opposing counsel. 4.9 Possibility of Multiple Proceedings In the United States, evidence obtained in one proceeding can generally be used in other pro - ceedings, subject to certain limitations. These can include demonstrating authenticity, rele - vance, admissibility and providing an opportu - nity to challenge the evidence. For example, a defendant can seek to exclude deposition testimony from another proceeding if it was not involved in that proceeding and did not have an opportunity to object and ask ques - tions during the deposition. Moreover, evidence obtained through illegal means, such as wiretaps conducted without proper authorisation, is gen - erally not admissible in court. Evidence proffered by an applicant for leniency or obtained from another jurisdiction can also be used in other proceedings, again subject to certain limitations. However, the DOJ must fol - low strict rules for evidence used in criminal pro - ceedings and generally cannot obtain evidence from other jurisdictions.
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