Jenner & Block

"A Smear By Any Other Name," Legal Times, Vol. XXX, No. 47

In this article, Partner Andrew Weissmann addresses a problematic practice by the Department of Justice's Antitrust Division that goes against the longstanding and admirable DOJ policy of not naming uncharged parties in charging documents.  The article discusses that when the Antitrust Division settles a case with a company, it routinely identifies in the filed plea agreement the names of the company employees who are “carved out” from the protections of the plea agreement.  According to Mr. Weissmann, the implication of the “carve out” is unambiguous:  the government suspects that the “carved out” employees are guilty of criminal wrongdoing.  Among other things, the article addresses the Antitrust Division's defense of its policy in two recent cases and why it is nevertheless an anachronism unworthy of the DOJ.