USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
low of USD2 million in 2022. Prison sentences in practice rarely approach the statutory maxi - mum of ten years because few individuals risk a criminal trial. The United States Sentencing Guidelines recommend ten to 16 months of imprisonment for a base offence level crime. During the first half of the 2010s, the average prison sentence started to creep up to the 22- to 25-month range. While there have been instances where the United States has sought to extradite alleged antitrust violations, these instances have been exceedingly rare. To date, only Germany and Italy have extradited individuals based solely on alleged antitrust violations. 5.6 Relevance of Effective Compliance Programmes Historically, the DOJ has not given credit to compliance programmes on the theory that a programme was ineffective if a company partici - pated in a cartel. Under recent policy changes, the DOJ will consider a company’s compli - ance programme as a factor in assessing how to proceed against a corporate defendant. In assessing the effectiveness of the compliance programme, the DOJ considers various factors, such as the company’s commitment to compli - ance, the resources allocated to the compli - ance programme, the quality of the programme, the experience and training of the individuals responsible for the programme, and the com - pany’s compliance culture. 5.7 Mandatory Consumer Redress In antitrust cartel cases, the court may order injunctive relief to prevent further antitrust viola - tions and may also order restitution to consum - ers who have suffered harm from the violation. However, the DOJ generally does not seek res -
titution in cartel cases because private plaintiffs generally seek damages in follow-on litigation. 5.8 Judicial Review or Appeal In the United States, both criminal and civil enforcement proceedings may be subject to judicial review or appeal. In criminal cases, a defendant can typically appeal a conviction and/or sentence to a higher court, such as a federal appellate court, and ultimately to the United States Supreme Court. The standard of review on appeal is typically whether the lower court made an error of law or abused its discretion. It is relatively common for criminal convictions to be appealed. Defend - ants that enter plea agreements waive their right to appeal. Courts will generally not disrupt this waiver, absent extraordinary circumstances. It is also relatively common for civil judgments to be appealed. The standard of review will depend on the nature of the decision being appealed and the legal issues involved. For example, a district court’s findings of fact will generally be reviewed for clear error, while its conclusions of law will be reviewed de novo. It is worth noting that, in some cases, parties may have the opportunity to seek interlocutory review, which allows for immediate review of a decision by a higher court before the case has concluded. However, such reviews are typically only available in limited circumstances, such as when the lower court’s decision involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the decision may materially advance the ultimate termination of the litigation.
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