Antitrust Magazine: Why Does the Antitrust Division Keep Losing Criminal Trials?
April 30, 2024
O’Melveny partners Michael Tubach and Anna Pletcher and counsel Kelse Moen co-authored an article for the American Bar Association’s Spring 2024 edition of Antitrust Magazine. The authors aim to explain why the US Department of Justice’s more aggressive approach to antitrust enforcement under the current administration has led to few wins within the criminal sphere, and in particular, a number of high-profile losses in cases brought for alleged violations of Section 1 of the Sherman Act.
The authors draw on their experience as trial counsel for Jayson Penn, an individual defendant in the government’s three unsuccessful trials for alleged price-fixing in the broiler chicken market. Additionally, they leverage input shared by former Antitrust Division prosecutors and defense attorneys involved in all of the trials discussed in the article. They conclude by offering suggestions that could help the Division avoid continued struggles, such as improved investigation, closer consultation with defense counsel, and a more measured assessment of which cases are worth pursuing.
Read the full article here.