Monday, October 9, 2006

The Latest on Stolt-Nielsen, S.A

In January 14, 2005 a district court judge enjoined the Department of Justice from indicting Stolt-Nielsen S.A., a foreign freight carrier, and a company executive vice-president, for antitrust violations for allegedly fixing prices. The company had received immunity under DOJ's Antitrust Corporate Leniency Program (see here). Fast forward to September 2006 and we saw here Stolt-Nielsen S.A. and two of its subsidiaries, along with two individuals, indicted for alleged antitrust violations. Noteworthy here was that this was the first time the Department of Justice had indicted a company that had participated in the Antitrust Division's Corporate Leniency Policy. 

Lyle Denniston at Scotus Blog here notes that before the Supreme Court on October 27th is "the mootness question . . .[that] turns on whether a criminal indictment of a company that is trying to head off any such charges is enough to moot the company's case, when company executives are still at risk of new but not yet filed charges." The blogger notes that "this case also provides the first test of the Justice Department Antitrust Division's freedom to withdraw a promise of immunity to a company, and then seek to end the controversy over that authority by bringing an indictment and suggesting mootness."   

With the increase of deferred prosecution agreements that provide exclusive power to the government to determine breaches of the agreements, this case provides a review of how much power should the government have when it comes to possible breaches of agreements.  When a company performs its side of the bargain, by cooperating, should the government be allowed to come back and re-litigate the matter? How much money can the government cause a company to have to spend in re-litigation?  And yes, how much taxpayer money is the government spending here?

(esp)  (w/ a hat tip to Peter Goldberger)

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