Criminal Antitrust Fines and Penalties | FTI Consulting

Criminal Antitrust Fines and Penalties

Reductions Based on Ability to Pay

Forensic & Litigation Consulting | American Bar Association (Reprint)

April 19, 2017

Criminal antitrust fines and penalties obtained by the Department of Justice have risen substantially in recent years, from $338M in 2005 to more than $3.6B in 2015. As large criminal antitrust fines have become common, more companies are finding themselves facing potential penalties that exceed their available resources. The U.S. Sentencing Guidelines allow for reduction of a fine under certain circumstances, one of which involves the company’s ability to pay the fine imposed.

This article describes a methodology that can be used to support an argument for reducing a proposed fine through an evaluation of the company’s ability to pay, explains how such an argument is raised during the course of a company’s plea negotiations with the Division, and identifies cases where the argument has resulted in a fine reduction. A hypothetical case example is also provided to show how the methodology may be used in practice.

Posted with permission from American Bar Association © 2017 The Business Lawyer Publication. All rights reserved.

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