Criminal Antitrust Fines and Penalties
Reductions Based on Ability to Pay
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.