Justice will no longer name individuals investigated in price-fixing cases unless they are charged

Business executives under investigation or being questioned about price fixing practices — but not yet charged — will no longer be publicly named in corporate plea agreement documents submitted to courts by the Department of Justice.

The new policy will also completely exclude from plea agreements the names of employees who are not cooperating with the price-fixing or bid-rigging investigation, as well as those who can’t be tracked down or are still being investigated. If they are charged, their names will be made public.

William Baer, the assistant attorney general for the antitrust division, reviewed the previous naming practice – criticized by antitrust lawyers for years – and announced the new policy on Friday.

“The division will not include the names of [culpable] employees in the plea agreement itself,” Baer said in a statement. “Those names will instead be listed in an appendix, and we will ask the court for leave to file the appendix under seal. Absent some significant justification, it is ordinarily not appropriate to publicly identify uncharged third-party wrongdoers. “

The Antitrust Division’s corporate plea agreements often have non-prosecution protection for employees who cooperate with the investigation and are not suspected of wrongdoing.

For over a decade, employees who could not be located, were uncooperative, were still being investigated, or who could be culpable were “carved out” of the agreement and were named as such, according to Baer. The plea agreements are filed publicly in district courts.

Under the change in the practice, the names of uncooperative and missing employees and those still being investigated are not listed in the agreements at all.

The names of the employees suspected of wrongdoing will still be included in the plea agreement, but the division will ask that those names be sealed until charges are brought against them. If the possibly culpable employees are never charged, their names will remain under seal.