Antitrust Plea Deals Won’t Name Employees Excluded from Protection
By Jeffrey Benzing | April 12, 2022 2:10 pm

The Antitrust Division of the Justice Department announced today that it will no longer publicly name individuals not subject to non-prosecution protection in corporate plea agreements.

Assistant Attorney General Bill Baer

Some corporate plea agreements include provisions to give employees protection from prosecution if they cooperate in price-fixing and other cartel investigations. Some employees would not be subject to protection — for a variety of reasons — and the employees would have their names printed in the publicly available plea agreements.

In some cases, protection would be withheld if employees were considered culpable for the bad conduct. Sometimes protection would be withheld if the employees couldn’t be located or if the government was still trying to build a case against them.

The plea agreement wouldn’t say why employees weren’t given non-prosecution protection, though the possible reasons go beyond culpability.

In many cases, charges are never filed against the named employees.

A statement today by Assistant Attorney General Bill Baer said the division is changing its policy and will file the names of excluded employees under seal. The department will also no longer exclude employees from protection for reasons other than culpability.

In other words, only those considered culpable by the department will be excluded from protection.

“The division will continue to carve out employees who we have reason to believe were involved in criminal wrongdoing and who are potential targets of our investigation,” said Baer, who joined the division from Arnold and Porter LLP in January. “However, we will no longer carve out employees for reasons unrelated to culpability.”

More broadly, Justice Department policy instructs against naming third parties in cases if they aren’t charged. Baer said today that it is generally not appropriate for the government to publicly identify uncharged third-party wrongdoers without “significant justification.”

Wendy Waszmer, former assistant chief of the New York field office, now partner at King & Spalding LLP, said the department has been aware of requests from the antitrust defense bar and other groups to revise its policy.

“It’s not a new issue,” Waszmer told Main Justice. “There has been a lot of feedback and discussion over a number of years.”

Though defense attorneys have asked for a number of years that names be withheld, plaintiffs lawyers have argued that names should remain public, enabling individuals that may be connected to violations to be named in civil lawsuits.

The division will make decisions on non-prosecution protection on an employee-by-employee basis, Baer said. Those who are given protection will have to cooperate fully and truthfully, Baer said, or else that protection will be revoked.

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