September 20, 2021

Volume XI, Number 263

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September 20, 2021

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Department of Justice Narrows "Carve Out" Practice Regarding Corporate Plea Agreements

Assistant Attorney General Bill Baer in charge of the Department of Justice’s Antitrust Division recently announced changes to the division’s “carve-out practice” regarding corporate plea agreements. The changes aim to protect the privacy of those suspected but not yet charged with wrongdoing, and to spare uncooperative employees from being identified in a public document involving criminal conduct.

In the past, the Antitrust Division’s corporate plea agreements sometimes included non-prosecution deals for employees who cooperated and whose conduct did not warrant prosecution. However, the division excluded, or “carved out,” employees who were potentially guilty of wrongdoing. It also excluded a much broader group of individuals, including employees who refused to cooperate, employees against whom that division was still developing evidence, and employees who could not be located. The names of all carved-out employees were included in the corporate plea agreements, which were publicly filed in the district courts where the charges were brought.

The new policy implements two changes. First, the division will “no longer carve out employees for reasons unrelated to culpability.” In addition, the division will no longer include the names of carved-out employees in plea agreements. Instead, those names will be listed in an appendix, and the Department of Justice will ask the court for leave to file the appendix under seal. Baer noted that “absent significant justification, it is ordinarily not appropriate to publicly identify uncharged third-party wrongdoers.”

Assistant Attorney General Baer’s statement is available here.

©2021 Katten Muchin Rosenman LLPNational Law Review, Volume III, Number 110
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