Strategic Defense in Criminal Antitrust Case Can Impact Civil Class Action Case Outcomes

A criminal antitrust case involving two bagged ice producers that pleaded guilty to conspiring "to supress and eliminate competition" was recently concluded in U.S. District Court in Cincinnati.  While KMK was not involved in this case, it does bring to mind a few key considerations for companies and their attorneys to weigh when faced with bet-the-company criminal and civil litigation.

The defense counsel has to fully understand — and be able to effectively communicate to company officials — the risks involved with defending the company in an antitrust criminal case.  If a company takes a very hard defensive stance and loses, the government attorneys will most likely request the imposition of the maximum possible fine.  Also, it is not unusual in these types of cases for the company's senior officers to be criminally charged, and if ultimatley found guilty, sentenced to prison.

If, on the other hand, the company elects to attempt to negotiate a deal with the government attorneys, it is important to make that decision early in the process.  These cases often involve multiple defendants and the first one to the table offering to cooperate fully with the prosecutors often gets the best deal.

In addition, as in this case, the outcome of the criminal case can have an effect on the inevitable civil cases filed against the company.  A guilty plea in the criminal case can be used by the plaintiffs in civil cases.  If a company has already pleaded guilty in one court, a jury in another court is much less likely to determine that nothing wrong occurred.  The civil class actions against the ice producers remain pending in the U.S. District Court in Detroit, and it will be interesting to see if the first proposed settlement offered by Home City Ice Company is approved by the judge overseeing the consolidated civil suits.


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