Friday, April 15, 2022

DOJ's Antitrust division behaving amateurish (UPDATED)

It hasn't been a good couple of weeks for the DOJ's Antitrust Division. 

In Denver, they tried a 10 defendant case twice and both times it hung as to all defendants. Ouch!

Wearing those horse eye-blinders, DOJ announced it would retry the case a third time.  That didn't sit well with the judge, who summoned the head of the Division, Jonathan Kanter, to court to explain how a third trial would be in accordance with DOJ federal prosecution standards.  Bloomberg covered it here:

At the hearing Thursday, the judge repeatedly asked Kanter why he thinks the result of a third trial will be different. He also quizzed Kanter about a Justice Department policy requiring prosecutors to go forward with cases only if they believe the evidence will “probably” result in a conviction. But Brimmer said he doesn’t have the authority to require prosecutors to follow the standard.

The judge concluded the hearing by urging Kanter to “go back to Washington and think about that.”

Well then.  

In addition to those standards, there are, of course, basic standards of fairness and decency.  If you can't convict any of 10 defendants after a length trial, let alone two of them, it's time to call it quits.  Congress needs to fix this.  The government should get one shot to convict.  Then it's tie to move on to the next one.

But that's not the only Antitrust black eye.  It brought its first wage-fixing case in Texas against two defendants. Between the two of them, they were charged in 6 counts. The Division lost 5 of those counts, including the top counts.  It only got a conviction on a lesser false statement count against one of the defendants.  

So what does DOJ do?  It issued a press release with the heading: "Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations."  Are you kidding me?  The release starts this way:

Today, a Texas man was convicted of obstructing a Federal Trade Commission (FTC) investigation, following an eight-day trial in the Eastern District of Texas.

“Lying to federal agencies is a crime, plain and simple,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “And, as the court’s rulings in this case make clear, so is wage fixing. When obstruction affects the federal government’s investigations into labor market collusion and impedes our ability to protect workers, we will use all the tools available to prosecute all of these crimes to the full extent of the law.”

“Wage fixing causes tremendous harm to countless hardworking Americans,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “The FBI will continue to work closely with our law enforcement partners to uncover this type of corruption and bring to justice anyone who is responsible or who obstructs our investigations into this conduct.”

How embarrassing.  But it's also wrong. These guys were exonerated.  And it's not until the 6th paragraph of the release that you see what actually happened at the trial.  Thank goodness there was some honest reporting about it, including from Bloomberg, which had this headline: "DOJ’s First Criminal Wage-Fixing Case Ends Mostly in Defeat."  

Antitrust is now waiting for a verdict in the first "no-poach" criminal trial.  Let's see what happens there and how Antitrust handles it.  In the meantime, they should be rethinking their new "aggressive" tactics in criminal cases.

UPDATED Friday evening 7:40 -- The jury acquitted both defendants in the first no-poach trial -- Kent Thiry and DeVita.  It's going to be hard for the government to spin this one!


Anonymous said...

Let me start by saying I am not a criminal attorney. I've done some white collar work, but it is not the marquee of my practice. This article touches on something I have never understood about prosecutors' motivations, and though I came close to becoming one (on two occasions), it makes me happy that my career never went in that direction.

I can understand the desire to serve the public in bringing people who violate the law to justice. I can also understand the desire to build a career through high-profile cases. What I cannot understand is how both of those things translate into prosecuting cases like where, for example, the government tries a novel theory that truly stretches the theory of prosecution to its marginal limit or, in this example, continuing to prosecute cases that are not going anywhere. Where is the desire for justice in that? It seems to me it becomes more about "building a career," but is putting in tireless hours of work (especially in re-trials) really worth a brief mention in a press release? Is that a good return on investment? Is there pressure from leadership to continue with, what appears at times to be "horse eye-blinder," vigor? If so, what is the motivation of leadership in that scenario? Elevation? Notoriety?

I just don't get it--but, again, I'm clearly not a prosecutor. I would love to hear from folks who could help me better understand how these motivations work.

Thanks for posting, David!

Anonymous said...

"If so, what is the motivation of leadership in that scenario?"

Pride. Pure and simple. You see it in civil too. Some lawyers just can't let things go and double down after every misstep. It's ugly.

Anonymous said...

There are lots of cherry pickers and the hard case duckers in prosecutors’ offices…. Much like federal defenders that would plead or get removed from a case before they try it!!

Anonymous said...

Being vindictive has no place in prosecuting crime!