Here we have what seems a tight little case of a single company committing a fraud against a landfill operator by misrepresenting the origin of certain trash, qualifying it to pay a lower rate to be dumped. That may be all there was to get, but what if there was more? Would a more aggressive enforcement policy deliver even more “bang for the government enforcement buck.” Could this indication of criminality suggest the possibility of a wider scheme involving collusion with competitors?
The case was handled by the US Attorney’s Office, FBI and Massachusetts State Inspector General. Say that the press release had come to the attention of an attorney in the Antitrust Division of the Department of Justice, perhaps one in the New York Field Office? How might events proceed at that point?
First, she would probably notice the names of the investigative agencies and see no obvious indication that this case, conduct and scheme have been reviewed by anyone as a possible approach point into a bid rigging or price fixing scheme. She would look at the press release for any “tells” about whether the defendant is being indicted or charged by information which can be an indicator of a plea agreement or maybe even a cooperation plea agreement.
Next she would seek to develop as much information that she could about the scope of the charged defendant’s business. What are the defendant’s total sales? How is business won and awarded? Is it through competitive bidding? Who are its competitors? How often do they lose an account to a competitor? What is been the trend in prices versus at other locations around the country? Has there been any new entry into the business in the last several years? Is it possible to get, in a private contract setting, actual competitive quotations from industry participants? Are there areas where the company does not pursue business where it would be expected to?
After developing a rough sketch of the industry, she might reach out to the US Attorney’s Office or to the agents on the case to learn just how much might have been done to investigate potential collusion. She would want to find out whether the defendant has a cooperation agreement. Is the defendant seeking to perfect a 5K-1 cooperation plea agreement prior to sentencing? Assuming not, is there any receptivity to offering a Rule 35 downward departure motion after sentencing in the event the charged defendant was willing to provide evidence of other crimes? Perhaps the Antitrust Division attorney would seek to speak with the defendant’s counsel to arrange a proffer under favorable circumstances to the defendant or, if the assessment by the prosecuting attorneys and agent were that such an approach would be fruitless, perhaps there are subordinates or former employees who might be willing to provide evidence about a separate bid rigging conspiracy or customer allocation agreement?