For the Defense - Vol. 7, Issue 3 - 27

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
4. " [I]t
conduct makes an employee more culpable than
another.
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
is important that the application of the
leniency policy to civil and criminal cartel conduct
is clearly articulated to provide maximum certainty
to potential leniency applicants. " 40
Before AAG
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
Kanter's announcement, it was widely understood
that follow-on civil lawsuits seeking treble damages
from the cartelists were the best vehicles for
obtaining restitution. To better align criminal and
civil incentives to self-report, the Division lobbied
Congress to enact the Antitrust Criminal Penalty
Enhancement and Reform Act ( " ACPERA " ) which,
assuming certain conditions were satisfied, limits
a leniency applicant's civil exposure to the actual
damages caused by its misconduct, as opposed
to three times the damages caused by the entire
antitrust conspiracy.41
After AAG Kanter's remarks
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
Preserving Leniency
NOTES:
1
these civil lawsuits are usually filed after the first
guilty pleas become a matter of public record
and are litigated for years after the Division has
substantially concluded its own investigation. If the
Division requires a company to pay restitution, i.e.,
go to trial or settle, before issuing the final leniency
letter, then the fate of the leniency applicant and
its employees may hang in the balance long after
it has satisfied its obligations under the Leniency
Program.
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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#153A5B
#EAC137
As DAAG Richard Powers, the current head of the
Division's criminal enforcement section, aptly observed,
the Division " must be proactive in safeguarding and
preserving leniency's incentives to ensure its longevity and
continued success. " 43
5
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
The Division should heed these wise
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
full notes section for this article.
NOTES:
1
words to reverse the trend of waning criminal fines and
penalties. Several non-U.S. jurisdictions have implemented
reforms that are clearly intended to encourage, rather
than dissuade, leniency applicants to come forward. The
Division should also consider whether implementing new
measures of protection-or at least reversing recent policy
changes-would better achieve the goals of transparency
and predictability that incentivize self-reporting.44
About the Author
Click here to view and/or print the
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
on restitution, criminal and civil incentives no
longer run on parallel tracks; they are conflated.
On the one hand, the Division's stance that
" restitution can be satisfied through settlements
negotiated directly with victims or in parallel
private civil actions " 42
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
File your client's motion after the
remains intact. However,
5
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
Id.
Competition poliCy internAtionAl Antitrust ChroniCle (Jan. 2019).
2
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jail-charts.
3
NOTES:
1
4
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
remarks-2022-spring-enforcers.
5
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Speech of Jonathan Kanter, Ass't Att. Gen., U.S. Dep't of Justice,
Antitrust Div., Assistant Attorney General Jonathan Kanter Delivers
Opening Remarks at 2022 Spring Enforcers Summit [hereinafter " Kanter
Remarks " ] at 2 (Apr. 4, 2022) available at https://www.justice.gov/opa/
speech/assistant-attorney-general-jonathan-kanter-delivers-opening22/58/92
234/194/56
Barker
v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
program.
6
other-international-competition-fora/leniency_united_states.pdf.
7
About the Author
Click here to view and/or print the
Leniency Policy and Procedures, supra note 7, at 1-2.
9 See OECD Report, supra note 6, at 2.
full notes section for this article.
10 See id.
11 See id. at 3.
12
operations.
13
See U.S. Dep't of Justice, Antitrust Div., Antitrust Division Workload
Statistics FY 2010 - 2019, available at https://www.justice.gov/atr/divisionSee,
e.g., Int'l Competition Network, Leniency Links (viewed July 20,
2022), available at https://www.internationalcompetitionnetwork.org/
working-groups/cartel/leniency/leniency-links/.
14
See OECD, OECD Competition Trends 2022, at 14 (2022) available at
https://www.oecd.org/daf/competition/oecd-competition-trends-2022.pdf.
15
Remarks of Richard A. Powers, Deputy Ass't Att. Gen. Antitrust Div.,
A Matter of Trust: Enduring Leniency Lessons for the Future of Cartel
Enforcement, [hereinafter, " A Matter of Trust " ] prepared for the Amer.
Bar Ass'n 13th Int'l Cartel Workshop (Feb. 19, 2020) available at https://
www.justice.gov/opa/speech/deputy-assistant-attorney-general-richardpowers-delivers-remarks-13th-international.
About
the Author
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Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
U.S. Dep't of Justice, Antitrust Div., Frequently Asked Questions About
the Antitrust Division's Leniency Program [hereinafter, " Leniency FAQs " ]
at 1 (Apr. 24, 2022), available at https://www.justice.gov/atr/leniencyOrganisation
for Economic Co-operation and Development, Directorate
for Financial and Enterprise Affairs Competition Committee, Working
Party No. 3 on Co-operation and Enforcement, Roundtable on challenges
and co-ordination of leniency programmes - Note by the United States
[hereinafter, " OECD Report " ] at 2 (June 5, 2018), available at https://
www.ftc.gov/system/files/attachments/us-submissions-oecd-2010-presentSee
U.S. Dep't of Justice, Antitrust Div., Antitrust Division Leniency Policy
and Procedures [hereinafter, " Leniency Policy and Procedures " ], at 1-2
(Apr. 4, 2022), available at https://www.justice.gov/atr/leniency-program.
8
https://files.hugheshubbard.com/files/The-Corporate-Leniency-ProgramDid-The-Antitrust-Division-Kill-The-Goose-That-Laid-The-Golden-Eggs.
pdf
( " The cumulative effect of [the Division's] statements is to create
concern and uncertainty for leniency applicants as to whether their
cooperation will be thorough enough to meet the Division's standards . . .
and whether they will be able to discover all of the relevant facts in time
to provide what the Division considers prompt cooperation. " ); Donald C.
Klawiter, The U.S. Corporate Leniency Policy: It is Time for a Renaissance,
U.S. Dep't of Justice, Antitrust Div., Criminal Enforcement Trends Charts,
available at https://www.justice.gov/atr/criminal-enforcement-fine-andand
trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
#153A5B
#EAC137
See generally, e.g., Robert B. Bell & Kristin Millay, " The Corporate
Leniency Program: Did the Antitrust Division Kill the Goose that Laid the
Golden Eggs, " Antitrust Vol. 33 No. 1 at 83 (2018) available at
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
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Vol. 7, Issue 3 l For The Defense 27
Vol. 4, Issue 4 l For The Defense 9
Jennifer F. Driscoll is a partner
at Sterlington, PLLC. Her
practice focuses on antitrust
litigation, government
investigations, compliance, and
counseling. She would like to
thank Donald C. Klawiter for
his insights and support.

For the Defense - Vol. 7, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 3