DOJ

DOJ to Senator Ted Stevens: “We Deeply Regret That This Has Occurred”

April 8, 2009

It’s not often that the U.S. Department of Justice prosecutes a sitting U.S. Senator, obtains a conviction at trial, and then concludes it has no choice but to voluntarily dismiss the charges and let the former defendant walk free, totally vindicated.  But that’s what happened in United States v. Ted Stevens, the government’s case against the longest-serving Republican in the Senate’s history.  If this has ever happened before in the United States, I’m unaware of it. To quote from today’s New York Times: Judge Emmet G. Sullivan dismissed the charges against Mr. Stevens, which was expected given the way the case has disintegrated since the conviction in October. But the judge went well beyond that step, declaring that what the prosecutors did was the worst “mishandling or misconduct that I’ve seen in my 25 years.” Judge Sullivan spoke disdainfully of the prosecutors’ repeated assertions that any mistakes during the trial were inadvertent and made in good faith. He said he had witnessed “shocking and serious” violations of the principle that prosecutors are obligated to turn over all relevant material to the defense. The judge appointed the attorney Henry Schuelke as special prosecutor to investigate possible criminal contempt charges against the prosecution team. How could this happen?  The article suggests the lawyers may have been grossly overworked, rushed to trial by an aggressive defense (damn good move by the defense, if…

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Whither Antitrust?

April 6, 2009

A new administration often means a new approach to federal agency enforcement of the antitrust laws.  And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC.  The business and legal communities want to know, what can we expect? James W. Lowe and Thomas Mueller of Wilmer Hale attempt to answer some of these questions in their article Whither US Antitrust?, published in the March 2009 issue of the Global Competition Review.

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The FTC and DOJ – "So Sorry, but When it Comes to Sherman Action Section 2 Conduct, We Can't Agree on What the Law Is, or What it Should Be"

November 4, 2008

The Federal government has two antitrust enforcement authorities – the Antitrust Division of the Department of Justice and the Federal Trade Commission. These two agencies have partially overlapping enforcement authority over civil cases, and they often collaborate in setting antitrust policy. Although the federal courts are the final arbiters of the federal antitrust laws (which are statutory, and therefore originate with Congress), the business community relies heavily on the Justice Department and the FTC to provide their views on the law. Accordingly, from time-to-time the Justice Department and FTC issue detailed joint guidelines. (Examples include: Collaborations Among Competitors, 2000; Antitrust and IP Rights, 2007; and Antitrust Licensing Guidelines, 1995). The DOJ/FTC joint reports are a big deal – they often include lengthy hearings, prepared testimony and position papers from interested parties, proposed guidelines, revised guidelines, and so on, until (drum role ….) the big day when the final report is issued. And, as a result, these reports are given great weight by the antitrust community – and by that I mean the vast army of antitrust lawyers and economists who endeavor to understand this stuff, harmonize it with court decisions (where possible), and advise their clients on how to behave. So, it’s no understatement to say that it is an unwelcome surprise when the federal antitrust enforcement agencies can’t agree on the law. Yet, this is what occurred when the…

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