Sunday, July 10, 2011
It is hard to move businesses in different directions. I like to use the analogy of turning a ship around -- it takes time, dedication and a steady hand.
Corporate governance is shifting again. We had the revolution of Sarbanes-Oxley in the early 2000s and now we have a new movement afoot. It is no coincidence that aggressive changes in white collar enforcement coincide with significant changes in the corporate governance landscape.
The newest trend -- which I fully endorse -- is the creation of corporate compliance committees. For most businesses, a separate compliance committee is an effective means to focus on difficult compliance issues, demonstrate a management commitment to compliance, and facilitate communications on compliance issues within an organization. By establishing such a committee, a company sends a very clear message. But the committee has to be more than just window dressing -- it has to have the support, the resources, and dedicated members with real expertise in the compliance area.
I like to use another analogy -- a compliance committee is like your dashboard on your car, telling you how fast you are going, how much fuel you have, and allowing you to signal others on the road.
A compliance committee should help your company navigate your legal obligations by empowering your decision makers with the right information. It serves a proactive role, separate from the audit committee which has a number of critical obligations related to Sarbanes-Oxley enforcement.
The compliance committee is responsible for ensuring that the company is complying with key legal and regulatory obligations. It is your primary vehicle by which to manage risk.
The compliance committee must actively gather and disseminate information reporting on overall compliance efforts. It must also communicate compliance issues and business risks to the right people. The right people include responsible managers, who are directly responsible for significant day-to-day business decisions.
The compliance committee must include one or more independent members who understand the regulatory environment, as well as the principles of good governance. This has a number of advantages. The independent member can test reports and statements, and mine discussions for issues that may otherwise go uncovered; may be able to share broad industry information and trends; and is likely to be less susceptible to a company’s internal culture (which might be reluctant to discuss certain risks and violations).
A well-structured compliance committee is your ultimate protection against potential legal and regulatory violations. I encourage others to look at such committees as part of an overall compliance program.
Tuesday, May 31, 2011
A DOJ Press Releasereports that "EVA Airways Corporation has agreed to plead guilty and to pay a $13.2 million criminal fine for its role in a conspiracy to fix prices in the air cargo industry." The press release states that "[u]nder the plea agreement, which is subject to court approval, EVA has agreed to cooperate with the department’s antitrust investigation." This sometimes means that indictments will follow against some individuals in the corporation.
Tuesday, March 15, 2011
As noted here (KTUU.com, Weyhrauch Gets Fine, Probation in Corruption Case Plea) and also Becky Bohrer, Anchorage Daily News (AP),Weyrauch Gets Suspended Jail Sentence, $1,000 Fine , the Weyhrauch case is finally being resolved. But lets look at what is happening here -
Weyhrauch was initially charged with an individual named Kott, who is now awaiting a ruling on whether his case will be dismissed for discovery violations. Perhaps we have a preview of the reasoning of the Ninth Circuit Court of Appeals by the decision last week in the Kohring case that found that the government had failed to provide Brady material to the defense. (see here, here, and here).
Weyhrauch's case went to the Supreme Court as one of three cases being examined as part of the "honest services" doctrine that prosecutors stretched to a point that the Court decided to place new limits upon -- requiring a showing of "bribery and kickbacks." In its ruling in Skilling, the Court did not directly address the question raised in the Weyhrauch case as to whether you needed a violation of state law for a mail fraud charge that uses honest services. Rather the Court reframed the question with a new test of "bribery or kickbacks." (see also here)
Now Weyhrauch is back in court pleading to the charge noted in the articles above. In dismissing the federal case against him he filed a non-opposition to the motion to dismiss as follows:
"Weyhrauch non-opps the motion to dismiss for two reasons. First, this was a very weak case from the beginning and all the evidence the government ever really had was that Weyhrauch had participated in, aided, or abetted a lobbyist engaging as a lobbyist without being registered. See, attached Exhibit 1, Information and Plea Agreement. Now that Weyhrauch has pled to that crime in state court, there are no longer facts to support a federal indictment. Second, Weyhrauch believes there is evidence to support dismissal of the indictment because of "misconduct before the grand jury which returned the indictment against Weyhrauch." (reference to a letter filed under seal), which is filed under seal because it refers to grand jury testimony and other grand jury proceedings. If the standard is that dismissal is appropriate when the ends of justice are served, then this case qualifies by any measure."
The more important question is: Did the ends of justice warrant the federal government using the mail fraud statute to bring this alleged state case in the first place?
Friday, October 15, 2010
The Securities Exchange Commission is reporting here that Former Countrywide CEO Angelo Mozilo will pay the SEC $22.5 million to settle SEC charges "that he and two other former Countrywide executives misled investors as the subprime mortgage crisis emerged. The settlement also permanently bars Mozilo from ever again serving as an officer or director of a publicly traded company." The SEC notice also states:
"Former Countrywide chief operating officer David Sambol agreed to a settlement in which he is liable for $5 million in disgorgement and a $520,000 penalty, and a three-year officer and director bar. Former chief financial officer Eric Sieracki agreed to pay a $130,000 penalty and a one-year bar from practicing before the Commission. In settling the SEC’s charges, the former executives neither admit nor deny the allegations against them."
Some may ask - what about a criminal action?
1. Just because a civil case is proceeding with a resolution doesn’t mean that a criminal case might not be forthcoming. When the civil and criminal case are ongoing at the same time we call them parallel proceedings. But it doesn’t always mean that they have to start at the same time. In some instances, the criminal case will proceed after the civil has been ongoing for some time.
2.White collar criminal cases take a long time to investigate - they are document driven cases and as such require expertise that one doesn’t find when investigating a simple burglary or robbery case.
3. Civil cases have a different standard of proof - a much lower standard than criminal cases which require that prosecutors prove the case beyond a reasonable doubt. It is a more difficult burden and prosecutors need to assess whether they have accomplished what is needed with a civil enforcement action or if a criminal prosecution is needed. They also need to assess whether there is any criminal activity to warrant a criminal action.
4. The government needs to also determine if any conduct violates the law - or were the decisions that were made business decisions that may be wrong -- but ones that do not meet a level of criminality.
5. Hopefully prosecutors will also consider how best to spend our tax dollars.
Addendum, Gretchen Morgenson, NYTimes, How Countrywide Covered the Cracks
Monday, July 26, 2010
Mail Fraud Prosecutions Continue Despite Skilling Decision - Univision Services, Inc. to Pay One Million
Many believed that there would be difficulty in bringing mail fraud cases if the Supreme Court removed honest services from the statute. The Supreme Court did not provide that relief by its decision in Skilling, but did limit honest services to bribery or kickbacks. But what often goes unnoticed, is that most mail fraud cases are not prosecuted under section 1346, the honest services statute. Most involve a deprivation of money or property, and these cases continue to be allowed.
An example is seen in today's plea with Univision Services Inc., a wholly-owned subsidiary of Univision Communications Inc. The company agree to plead guilty to one count of conspiracy to commit mail fraud and to pay a fine or $500,000 and also $500,000 in a settlement that comes from a parallel investigation by the FCC. Implementation of a compliance plan was also required. A DOJ Press Release states:
"Univision Services admitted that executives, employees and agents of Univision Music Group conspired to commit and did commit mail fraud from approximately 2002 to September 2006. According to court documents, the mail fraud was related to a nationwide scheme in which Univision Music Group executives, employees and agents made illegal cash payments to radio station programmers and managers in exchange for increased radio broadcast time for Univision Music Group recordings. The cash payments were made without on-air acknowledgments or payment of broadcast fees to the radio stations, as required by law."
Saturday, July 17, 2010
I was thinking last night about the criminal law implications of the Goldman-SEC settlement. The settlement only confirms what has been fairly apparent from the get-go--this was never a strong fraud case. The SEC extorted a nuisance payment from Goldman and simultaneously sent a signal to the markets that it is serious about its new proactive role.
If the SEC thought that it had a winner, it never would have settled on these terms. Goldman essentially pays 14 days in first quarter profits, admits to a mistake, and agrees to strengthen some aspects of its corporate governance. Goldman avoids lengthy, costly, profit-threatening, and Pandora's Box-opening litigation. And no big shots are forced to resign. When you have to caution your employees not to whoop, holler and smirk in the wake of such a settlement, you know you have made a good deal.
Oh yeah. Goldman agrees to cooperate in the SEC's probe of Fabrice Tourre. All this means is that Goldman's people will come in and talk to SEC attorneys. Tourre has already done plenty of talking himself to Congress, in public and under oath. This was foolish, in my view, for somebody in his position. But it is unlikely that any prosecutor will go after Tourre alone. Goldman was a market-maker here, the parties were sophisticated, and Tourre was hardly off the reservation. Some player's misunderstanding of John Paulson's position, even if caused by a Goldman mistake, is not the same thing as an intentional effort to deceive and defraud.
A key early sign that this was not going to be some slam-dunk fraud action was the SEC's press conference statement, on the day it filed suit, effectively clearing Paulson & Co. of wrongdoing. The SEC, unlike private litigants, can sue, under Rule 10b-5, based on aider and abettor liability. According to the public record, Paulson & Co. took part in several key discussions between Goldman and ACA Capital Management during the time period that the Abacus 2007-ACI CDO deal was being structured. If the SEC seriously believed that big-time fraud was afoot in the Abacus 2007-ACI CDO transaction, it is hard to believe that Paulson & Co. would have been treated in this fashion. If I were a government attorney and thought I had the fraud of the century on my hands, I would want to rope in every potential aider and abettor, and would think very carefully before giving a significant player in an allegedly fraudulent transaction a publicly announced clean bill of health. This is not to say that Paulson & Co. engaged in any wrongdoing. It is instead to suggest exactly the opposite.
So, I do not expect any criminal cases to come out of Abacus 2007-ACI. Of course I have been wrong before. In 1972 I thought McGovern would kick Nixon's ass. But here I will go out on the limb.
Monday, July 5, 2010
A DOJ press release, tells that "[a] Taiwan thin-film transistor-liquid crystal display (TFT-LCD) panel producer and seller has agreed to plead guilty and to pay a $30 million criminal fine for its role in a global conspiracy to fix the prices of TFT-LCD panels. . ." The press release states:
"According to a one-count felony charge filed today in U.S. District Court in San Francisco, HannStar Display Corporation, based in Taipei, Taiwan, participated in a conspiracy from Sept. 14, 2001, to Jan. 31, 2006, to fix the prices of TFT-LCD panels sold worldwide. According to the plea agreement, which is subject to court approval, HannStar has agreed to cooperate with the department’s ongoing TFT-LCD investigation."
DOJ notes that this investigation so far has resulted in 17 executives being charged and "seven companies have pleaded guilty or have agreed to plead guilty and have been sentenced to pay or have agreed to pay criminal fines totaling more than $890 million."
Wednesday, February 24, 2010
Thursday, January 21, 2010
DOJ and General Re have entered into a non-prosecution agreement that provides for a monetary payment of $19,500,000 to the US Postal Inspection Service Consumer Fraud Fund, as well as other payments. The agreement and details of it can be found in Andrew Longstreth's article in AMLAW Litigation titled, General Re Resolves DOJ and SEC Claims Based on Fraudulent AIG Transactions. Background on the situation can be found in Amir Efrati's article in the, WSJ, GenRe Reaches Deal With Justice Department in AIG Case. The agreement itself has some of the typical provisions we have seen in deferred and non-prosecution agreements, but also has some that are not found in all of the agreements of the past.
- Like the typical non-prosecution agreement, the agreement is provided by a letter between the parties and is not part of a court document.
- Like the typical deferred and non-prosecution agreement, the DOJ has the "sole discretion" to determine if there is a failure to comply. I should note here that in a recent co-authored article on deferred prosecutions, written with Professor Candace Zierdt , we note the contractual problems with one party having the sole discretion to determine if there is a breach of the terms in the agreement. See Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing A court does not get to review the validity of whether there has in fact been a breach of the agreement.
- In the cooperation section of the agreement, there is a provision providing that this cooperation section does not apply if it's a prosecution because of a breach of the agreement. It is good to see DOJ recognizing that they can't ask a party to be their own prosecutors.
- The agreement includes an "internal corporate remediation measures" section. Although corporate monitors have often been seen in past agreements, this agreement has some peculiar aspects. For one the agreement has some very specific remediation statements. For example, the Berkshire Hathaway CFO and Director of Internal Audit will be attending the General Re Corporation's Audit Committee meetings. Additionally a Complex Transaction Committee "will maintain the power to reject any proposed transaction from being written by General Re or any of its insurance or reinsurance company affiliates within the Gen Re Group." The specifics here make one wonder to what extent the government is inserting itself within private corporate matters. They aren't just saying you have to comply with the law, they are providing an infrastructure to make them accountable.
- The agreement prohibits the company from making certain statements -
"General Re agrees that neither it nor its directors and executive officers, nor any person authorized to speak for them, will make, cause others to make, or acknowledge as true any factual statement inconsistent with the factual descriptions of the Agreed Statement of Facts in Attachment A. Any such public statement inconsistent with the Agreed Statement of Facts shall, subject to the cure rights below, constitute a breach of this Agreement."
- General Re also agreed to run press releases or other prepared public statement in connection with this agreement by the DOJ, and they need to receive the seal of approval from DOJ prior to its release. Can the government include an agreement that infringes on first amendment rights? It isn't the first time that we have seen such a provision.
Wednesday, September 2, 2009
Associate AG Tom Perrelli called it "the largest health care fraud settlement ever in the history of the Department of Justice." (see here) Pfizer, Inc. agreed to pay $2.3 billion to settle a case "arising out of civil and criminal allegations relating to Pfizer’s allegedly illegal promotion of certain drugs, most notably Bextra."
Its subsidiary, "Pharmacia & Upjohn Company [ ] agreed to plead guilty to a felony violation of the Food, Drug and Cosmetic Act for misbranding Bextra with the intent to defraud or mislead." (See DOJ Press Release) "Pharmacia & Upjohn will also forfeit $105 million, for a total criminal resolution of $1.3 billion." "In addition, Pfizer has agreed to pay $1 billion to resolve allegations under the civil False Claims Act that the company illegally promoted four drugs . . . ." The DOJ Press Release notes that "[a]s part of the settlement, Pfizer also has agreed to enter into an expansive corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services. That agreement provides for procedures and reviews to be put in place to avoid and promptly detect conduct similar to that which gave rise to this matter." On the Pfizer website one finds the press release of the company. It states in part:
"... A portion of the civil payments will be distributed to 49 states and the District of Columbia pursuant to agreements with each state’s Medicaid division.
"The terms of the DOJ settlement require Pfizer to pay approximately $503 million to resolve civil allegations concerning past promotional practices related to Bextra. In addition, the company will make payments to resolve other civil allegations involving past promotional practices as follows: approximately $301 million for Geodon, approximately $98 million for Zyvox, and approximately $50 million for Lyrica. The settlement also includes a civil payment of approximately $48 million to resolve allegations relating to certain payments to healthcare professionals involving nine other Pfizer medicines."
See also Devlin Barrett (AP), law.com, Pfizer to Pay Record $2.3 Billion Penalty Over Off-Label Promotions
Saturday, August 15, 2009
UBS entered into a deferred prosecution agreement with the government (see here). The agreement included that UBS would provide the U.S. government "with the identities of, and account information for, certain United States customers of UBS’s cross-border business." Things initially moved slowly as an agreement needed to be reached regarding the release of information in light of privacy laws (see here). But with these two steps apparently settled according to press reports, it is not surprising to see an individual reaching a plea agreement with the government for failure to disclose UBS Swiss bank accounts to the IRS. A DOJ Press Release reports that this individual "admitted that he failed to pay at least $200,000 in federal income taxes and that he now owes the government interest and penalties."
One has to wonder if the government action of proceeding against individuals with Swiss accounts that were not properly reported to the IRS, will assist the US economy. Eileen C. Mayer, Chief of IRS-Criminal Investigation, called this prosecution "the tip of the iceberg."
Sunday, July 12, 2009
From opposite sides of the U.S., two U.S. Attorneys Offices are actively involved in white collar cases. Obviously many other offices have white collar investigations, prosecutions, guilty pleas, and sentencings -- but for the past week these two offices have been in the news a good bit.
In the Southern District of New York a press release tells that there was a plea by "a former tax partner at the BDO Seidman accounting firm, [who] pleaded guilty . . . to three counts of a Superseding Indictment that charge[d] him with conspiracy to defraud the United States in connection with tax shelter transactions involving clients of his firm and of the law firm Jenkens & Gilchrist ("J&G"); tax evasion in connection with a multimillion-dollar tax shelter that [he] helped sell to a client of his firm; and a corrupt endeavor to obstruct and impede the due administration of the internal revenue laws."
The Southern District of New York also had a press release telling about charges against six in an alleged 140 million dollar investment fraud and stock manipulation scheme, a press release telling about a Connecticut investor who was "found guilty in [a] scheme to bribe government officials in Azerbaijan," and a press release telling of a "Smart Online CEO and two others [who were] found guilty of manipulation of company stock."
On the opposite coast, in the Central District of California, a press release tells of a major indictment in the medical arena. The press release states that "Federal and State authorities . . . arrested 20 defendants accused of being part of [a] ring that defrauded Medi-Cal out of nearly $4.6 million by using unlicensed individuals to provide in-home care to scores of disabled patients, many of them children with cerebral palsy or developmental disabilities. " The press release says that the 41 count indictment included "42 defendants" and that it was "part of an investigation called Operation License Integrity, a two-year investigation conducted by the Federal Bureau of Investigation, the U.S. Department of Health and Human Services Office of Inspector General, and the Office of the California Attorney General-Bureau of Medi-Cal Fraud and Elder Abuse."
(esp)(blogging from The Hague, Netherlands)
Wednesday, July 8, 2009
John Harris, who served as Blagojevich's chief of staff, entered into a plea agreement that includes cooperation. The agreement states:
Defendant agrees he will fully and truthfully cooperate in any matter in which he is called upon to cooperate by a representative of the United States Attorney's Office for the Northern District of Illinois. This cooperation shall include providing complete and truthful information in any investigation and pre-trial preparation and complete and truthful testimony in any criminal, civil or administrative proceeding. Defendant agrees to the postponement of his sentencing until after the conclusion of his cooperation.
See Jeff Coen & Dan Mihalopoulos, Chicago Breaking News, Ex-Blagojevich aide pleads guilty, will testify
(esp)(w/ a hat tip to Mark Johnson)
Addendum, NYTimes, (AP) Blagojevich Aide Pleads Guilty in Corruption Case
Tuesday, May 12, 2009
A DOJ Press Releasereports on a deferred prosecution agreement entered into by "Novo Nordisk A/S (Novo), a Danish corporation based in Bagsvaerd, Denmark." The agreement calls for the company to pay a penalty of "$9 million penalty for illegal kickbacks paid to the former Iraqi government." This case is part of the DOJ's investigation "into the UN Oil-for-Food program." The DOJ filed "one count of conspiracy to commit wire fraud and to violate the books and records provisions of the Foreign Corrupt Practices Act (FCPA)." The DOJ Press Release states:
"According to the agreement and the information filed today, between 2001 and 2003, Novo paid approximately $1.4 million to the former Iraqi government by inflating the price of contracts by 10 percent before submitting the contracts to the United Nations for approval and concealed from the United Nations the fact that the price contained a kickback to the former Iraqi government. Novo also admitted it inaccurately recorded the kickback payments as "commissions" in its books and records."
Sunday, March 15, 2009
It was mentioned here, that a DOJ Press Release reported that Hitachi Displays Ltd would be entering a guilty plea to "fixing prices for LCD panels sold to Dell, Inc." The plea would include a 31 million dollar fine. Business Week offers this "snapshot" of the company here. The DOJ posted the Information in the case which states that "[v]arious corporations and individuals, not made defendants in this Information, participated as coconspirators in the offense charged in this Information and performed acts and made statements in furtherance of it." The Information also alleges that "[d]uring the period covered by this Information, the defendant and its coconspirators sold and distributed TFT-LCD in a continuous and uninterrupted flow of interstate and foreign trade and commerce to customers located in states or countries other than the states or countries in which the defendant and its coconspirators produced TFT-LCD."
Thursday, March 12, 2009
There were no surprises in Bernie Madoff entering a guilty plea today as the indications of this had been broadcast for several days. (see here and here) To read a transcript of the proceedings see here. He admits his guilt and explains how he concealed his fraud. He also states that "other business [his] firm engaged in, proprietary trading and market making, were legitimate, profitable, and successful in all respects. Those businesses were managed by [his] brother and two sons." Perhaps some were surprised that he was taken immediately into custody. In many white collar cases the accused remains free on bail while the case is pending. Individuals have remained free in some cases after conviction while the case is pending on appeal (see here). The applause in the courtroom upon sending Madoff to jail says it all - the victims wanted retribution and they wanted it now.
See Chad Bray & Amir Efrati, WSJ, Madoff Pleads Guilty to Massive Fraud; Diana B. Henriques & Jack Healy, Madoff Goes to Jail After Guilty Pleas to All Charges
(esp) (w/ thanks to Whitney Curtis)
Thursday, December 4, 2008
Many people are glued to the news watching to see who will receive the holiday pardons, and the commutations of sentences too, as President Bush leaves office. Many have their hopes up that their names will appear on the list. Will it be names that have appeared in the news like: Conrad Black, former Governor Ryan, Michael Milken, Bernie Ebbers, or Former Rep. Randy "Duke" Cunningham?
President Bush should not be ashamed to grant pardons and commute sentences as he leaves office. But which cases deserve this treatment is the question. Picking out friends and political cronies is just plain wrong.
Good candidates for a reduction of sentence are those who received harsher sentences because they were victims of a public cry for retribution in a time when people were reacting to extraordinary surrounding events. CEOs who received long prison sentences when the business took a downturn, those receiving astronomically high sentences in the mortgage fraud crisis, John Walker Lindh (one has to wonder what tactics were used when he was brought to the US), and others may fit this category as deserving of a reduction in sentence. But equally persuasive are those who have no constituency and remain in prison because of sentencing guidelines that did not account for their motive, or failed to notice that they received no benefit. The women who were carrying drugs out of a misguided love for someone who was using them as a mule, are among the cases that need examination.
It may be easy for President Bush to say, I don't need this hassle, and just leave without pardoning folks. But, hopefully, he will use his power wisely to correct injustices that remain on the books.
Check out this interview with Margy Love in the National L.J., See Marcia Coyle, A leading legal authority on pardons talks about the need for transparency — and how to get to the top of the list
Addendum, Yahoo News (Reuters) Martha Graybow & Randall Mikkelsen, Ex-WorldCom chief Ebbers seeks clemency from Bush
Thursday, September 4, 2008
The media is reporting that Detroit Mayor Kwame Kilpatrick will plead guilty (see below). Looking at the plea reported by the press, one can understand why he would plead guilty. The risk of trial can be enormous, both in possible punishment, cost of legal counsel fees, and personal family and psychological costs. This plea offers finality to the situation - something that will probably help the mayor and those around him move on with their lives. It removes the uncertainly that has probably been hanging over his head for some time now. For the government, the resolution allows them to move onto the next case and report a statistic of conviction.
Some will likely claim the sentence is too light, and others will argue that the conviction he now bears is too heavy. But even when the judicial system offers some precision, such as the cases operating under the federal sentencing guidelines, many are unhappy.
Here, this state case provides a resolution that demonstrates that a state can investigate and prosecute state officials. The federal government should take note of this, as they are often quick to step in and prosecute state corruption.
The case also demonstrates the importance of the press and investigative reporting. Without the press, one has to wonder the extent to which this case would have happened. With a diminishing press nationwide, it raises concerns about the future of the ability of the people to have a watchdog on certain government conduct.
Cory Williams & Ed White, Atlanta Jrl Constitution, Detroit mayor agrees to plead guilty, resign
M. L. Elrick, Jim Schaefer, Joe Swickward, Ben Schmitt, Detroit Free Press, Mayor: 'I Lied Under Oath' - He'll resign, serve 120 days in jail, pay $ 1 M restitution
Addendum - Susan Saulny, New York Times, Detroit Mayor Pleads Guilty, Agrees to Resign
Monday, August 11, 2008
A press release of the U.S. Attorney's Office in the Southern District of Texas reveals that a broker plead guilty earlier this month to conspiracy to commit mail fraud and securities fraud. The release states that the defendant was involved in "the promotion and marketing" as part of a "mortgage investment program." The defendant "admitted he made false representations to investors when he promised 12 percent interest, 1st liens on real estate, 72-hour liquidity and 70 percent loan to value ratio."
Mary Flood of the Houston Chronicle now reports that the government has secured a second plea in this case. In an article titled, "2nd Houston broker in fraud case pleads to conspiracy" she tells of the recent plea entered by this individual to the crime of conspiracy.
(esp) (w/ a hat tip to Bill Olis)
Sunday, June 22, 2008
A DOJ Press Release reports on the Cincinnati packaged-ice manufacturer, The Home City Ice Company (Home City Ice), pleading guilty to a one-count information under the Sherman Act, charging the company with conspiracy. (The Plea Agreement). The press release states that "Home City Ice and co-conspirators carried out the conspiracy by:
- Participating in meetings and conversations to discuss packaged-ice customers and territories in southeastern Michigan and the Detroit metropolitan area;
- Agreeing during those meetings and conversations to allocate packaged-ice customers and territories in southeastern Michigan and the Detroit metropolitan area;
- Exchanging information during those meetings and conversations, for the purpose of monitoring and enforcing adherence to the agreements to allocate customers and territories in southeastern Michigan and the Detroit metropolitan area; and
- Refraining from competing for packaged-ice customers and territories that were so allocated."
The Agreement has a cooperation section that calls for the company to cooperate with the government. In this regard, the Agreement also provides for a reduction of the fine if the cooperation is satisfactory to them. It states:
"If the United States determines that the defendant has provided substantial assistance in any investigation or prosecution, and has otherwise fully complied with all of the terms of this Plea Agreement, it will file a motion, pursuant to U.S.S.G. §8C4.1, advising the sentencing judge of all relevant facts pertaining to that determination and requesting the Court to impose a fine departing from the lower end of the guideline range of $24 million to $48 million in light of the factors set forth in U.S.S.G. §8C4.1(b)(1)-(3). The defendant acknowledges that the decision whether it has provided substantial assistance in any investigation or prosecution is within the sole discretion of the United States. It is understood that, should the United States determine that the defendant has not provided substantial assistance in any investigation or prosecution, or should the United States determine that the defendant has violated any provision of this Plea Agreement, such a determination will release the United States from any obligation to file a motion pursuant to U.S.S.G. §8C4.1, but will not entitle the defendant to withdraw its guilty plea once it has been entered. The defendant further understands that, whether or not the United States files a motion pursuant to U.S.S.G. §8C4.1, the sentence to be imposed on it remains within the sole discretion of the sentencing judge."
This case may be the start of more-to-come as there is "an ongoing investigation into the packaged-ice industry."