USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
would be presented to the court. The court must approve a plea agreement in a criminal matter. For strictly civil matters, court approval is not required. 5.3 Effect of Liability Being Established There can be collateral effects in other litigation or government contracting if liability or responsi - bility is established in cartel cases in the United States. For example, a criminal sentence for a cartel violation, whether pursuant to a plea agreement or verdict at trial is prima facie, evi - dence of a violation in subsequent civil proceed - ings. Additionally, a company or its officers may be debarred from government contracting if they are found to have violated antitrust laws. Plea bargaining or settlement can potentially mitigate these collateral effects, depending on the terms of the agreement. For example, a set - tlement agreement may include provisions that allow the company to avoid debarment from government contracting. However, the avail - ability and scope of such provisions will depend on the specific circumstances of each case and the negotiating positions of the parties involved. The primary way to limit the evidentiary value of a plea agreement in subsequent civil cases is to limit the scope of the conduct to which the defendant pleads guilty (eg, the time period of the offence or the products or customers cov - ered). 5.4 Sanctions and Penalties in Criminal Proceedings In the United States, the range of available sanc - tions and penalties in criminal proceedings for cartel conduct can be severe. Companies and individuals can face fines, imprisonment and other penalties. The fines can be significant and may be calculated on a formula based on the value of commerce affected by the cartel con -
duct or statutory maximum of USD100 million per violation for companies, and USD1 million for individuals. Corporate fines based on the volume of affected commerce (twice the loss or gain from the conduct) can often exceed USD100 million. The United States Sentencing Guidelines pro - vide guidance for judges in determining the appropriate penalties for companies and individ - uals convicted of cartel conduct. The guidelines consider factors such as the nature and serious - ness of the offence, the level of culpability of the defendant and the defendant’s co-operation with the government’s investigation. However, the guidelines are not mandatory, and judges have discretion in determining the appropriate sentence. In addition to fines and imprisonment, compa - nies and individuals can face other sanctions and penalties, such as probation, asset forfei - ture and restitution. In criminal matters, the DOJ will typically propose a fine and/or penalty to be imposed, but the ultimate decision rests with the judge presiding over the case. There are also special circumstances under which more severe penalties can be imposed when additional charges are brought. For exam - ple, if a company or individual is found to have obstructed justice or committed perjury dur - ing the investigation or trial, penalties can be enhanced. 5.5 History of Criminal Sanctions Total annual criminal penalties exceeded USD1 billion for four years in a row from 2012 to 2015 and exceeded USD3.6 billion in 2015 alone. Since 2015, total criminal fines and penalties have decreased drastically exceeding USD500 million only in 2020 and reaching an all-time
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