Connecting the dots: Tracing the DOJ's inclusion of indirect commerce in auto parts criminal penalties

After an unprecedented run spanning at least seven years, the US Department of Justice’s international criminal investigations into collusion in the auto parts industry appear to have largely concluded. All told, the DOJ charged 48 companies and 65 executives with price fixing, bid rigging, and other anticompetitive conduct that involved more than 50 different automotive parts. The auto parts investigations are important not just because they set a new high-water mark for DOJ enforcement efforts, but also because they form a large set of plea agreements that may be compared to each other to analyze the DOJ’s criminal fining policy. The set of agreements make a dataset worthy of examination, particularly with regard to whether the sentencing outcomes are consistent, both across the various investigations and with the DOJ’s stated policies.
While there are many potential topics for examination, authors Michelle Burtis, Daniel K. Oakes, and Mary Beth Savio focus their discussion on one of the main drivers of criminal antitrust fines: the volume of commerce (VOC) considered by the DOJ to have been affected by the conspiracy and used as a basis in the determination of the fine. Though the DOJ is frequently criticized for a general lack of transparency in calculating affected VOC,4 the auto parts cases viewed together shed additional light on the DOJ’s methodology of accounting for a controversial type of “indirect” sales potentially affected by conspiratorial agreements. As far as we are aware, these cases are the first to explicitly detail the DOJ’s treatment of such indirect sales. However, the DOJ’s methodology is not intuitive and so far has not been explained or rooted in any clearly articulated policy statement. While this analysis is specific to the auto parts litigation, the article provides useful insights for class certification practitioners.