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Office of Public Affairs | Deputy Assistant Attorney General Manish Kumar Delivers Remarks at the Second Annual Spring Enforcers Summit

OpinionOffice of Public Affairs | Deputy Assistant Attorney General Manish Kumar Delivers Remarks at the Second Annual Spring Enforcers Summit

Remarks as Prepared for Delivery

Introduction

Thank you for the introduction, Patty. And thank you for always being a supporter and mentor for the San Francisco Office.

It was great to watch the first set of coffee talks.

I saw people smiling, greeting one another, exchanging ideas, having discussions, and debating different viewpoints.

What I saw was a community. A community of enforcers. Whether you come from a state, national, or international sister agency, we share the same core mission. We protect and promote competition.

When speaking to the International Bar Association last September, AAG Kanter said: “We must deepen cooperation among jurisdictions committed to the shared values that underlie free and open markets. . . . This demands and requires increasing collaboration from enforcers.”[1]

This theme was echoed by Criminal Division Assistant Attorney General Kenneth Polite just a few weeks ago at the ABA White Collar Conference, when he said, “[W]e have to broaden our sense of community. Crime does not limit itself by country or region.”[2]

That’s what I mean by a community of enforcers. We look around the world and see common problems. Markets growing more concentrated. Prices going up. Collusion in public spending as we recover from the pandemic. As we all know, anticompetitive conduct does not limit itself by country or region. Antitrust violations can span national borders and reach across the world. We, here in the Great Hall, are part of a coordinated response.

I see a number of familiar faces. But since I am new to this role and still meeting many of you for the first time, I want to share a bit about myself.

Personal Background

Like many of you, I travelled across many borders to get here. My parents immigrated to this country when I was very young. I became a naturalized citizen when I was ten years old and grew up in Las Vegas, Nevada.

While these specific details of my story might be unusual, especially the Las Vegas part, the experience of growing up as a newcomer to country is not. The perspective that I share with so many others—including with all of you—is that a level playing field, honest competition, and freedom of opportunity are values that are worth fighting for. Perhaps that’s why my career has been devoted to antitrust enforcement, which shares the same core principles. I imagine that is what drew many of you to competition law as well. That is how I got to be among this esteemed group today.

Today’s discussions and presentations have been wonderful. With the goal of inspiring further conversations about how we can work together, both this week and beyond, I wanted  to briefly highlight three examples of how the Division’s Criminal Program has engaged with the broader law enforcement community: first, combating procurement collusion; second, increasing the risk of detection through international engagement; and third, our interactions with the FTC’s Criminal Liaison Unit.

I. Procurement Collusion

I start with an area of increasing congruence among international enforcers: prosecuting collusion in government spending. In the United States, we have approached this problem through an initiative called the Procurement Collusion Strike Force, which is led by the Antitrust Division’s Dan Glad and Assistant Director Sandra Talbott.

The PCSF,  emphasizes interagency coordination, training, and outreach to deter, identify, investigate, and prosecute antitrust crimes and related fraudulent conduct in public procurements.

Since the PCSF started in November 2019, it has prosecuted over 50 companies and individuals for crimes involving over $350 million worth of government contracts. This initiative has become especially important as funds begin to flow from federal stimulus programs, such as the Bipartisan Infrastructure Law’s $1.2 trillion.

A defining feature of our PCSF cases has been the collaborative approach we have taken to investigations and prosecutions across agencies, including multiple U.S. Attorneys’ Offices and law enforcement agencies. To give you a sense of the scale of this collaboration, the five criminal offices of the Antitrust Division are collaborating with 22 U.S. Attorneys’ Offices and 11 law enforcement agencies as part of the initiative. These partnerships allow us to engage in localized training and outreach, and when crimes are detected, to efficiently and expertly investigate and prosecute these cases. To take one example, as we speak, a team of prosecutors is awaiting a jury verdict in a trial involving military procurement fraud in Georgia. That case is being prosecuted by the Antitrust Division and the USAO for the Northern District of Georgia, along with Army Criminal Investigative Division and the Defense Criminal Investigative Service, both associated with the Department of Defense.

Similarly, in the District of Montana earlier this year, we filed a case charging attempted monopolization of road-building services. That case, an important milestone for criminal enforcement of our monopolization statute, was jointly investigated and prosecuted by the Antitrust Division and the federal prosecutor in the state of Montana, along with the U.S. Department of Transportation’s Office of Inspector General.

What do these cases signify? They highlight the value of getting out of our silos and engaging with the broader community. To tackle a pernicious problem like procurement collusion, we have forged valuable and productive partnerships with federal, state, and local governments to investigate and prosecute these cases. This engagement has allowed us widen the aperture on the criminal conduct we were seeing, helping us to charge heartland antitrust violations—bid rigging, price fixing, market allocation, monopolization crimes—and related fraud as well. And we are leveraging local expertise to reach audiences across the country and bring cases in courtrooms from Alaska to Texas to Connecticut.

These partnerships mean that defendants don’t face the Antitrust Division in one courtroom and the U.S. Attorney’s Office or the Criminal Division in another. It’s multiple litigating components, working together to present a cohesive narrative that captures the full scope of the criminal conduct. That’s what a community of enforcers can achieve.

II. Cartel Detection

Next, I want to turn to work that the Division is doing to enhance its ability to detect criminal cartels.

As a starting point, we understand that a real and growing risk of detection is a key motivation for a company or individual to voluntarily disclose committing a crime and seek leniency.

In terms of its detection efforts, I can say that the Division’s Criminal Program, which I lead along with Acting Director Emma Burnham, is more active now than in any time in recent memory. We have the most criminal grand jury investigations open in 30 years. Many of these are proactive matters, what our friends in Europe call ex officio investigations. We are aggressively using all tools at our disposal, which can include not just grand jury process, but also search warrants, consensually recorded communications, wire taps, and undercover agents, all of which are currently being deployed in ongoing Division investigations. We are also investing in developing expertise in data science to sharpen the technical sophistication of our investigative teams.

But what is perhaps most relevant to this audience is how we have been pursuing the increased detection of cartels through engagement with the international community of enforcers. Last year, as part of an initiative dedicated to combatting collusion occurring under the cover of supply chain disruptions and inflation, we began having regular meetings just like the ones we’re having here in the Great Hall. Through multilateral and one-on-one conversations with our fellow enforcers, we’ve shared intelligence on problematic industries. We’ve advised one another on investigative techniques. We’ve consulted with one another on taking investigations public. Picking up the phone or logging onto Zoom sounds simple, I know. But it works. I am very excited to report that these conversations have allowed the Division to proactively initiate multiple cartel investigations, both public and non-public alike. Part of the impetus for these meetings was a conversation that I had with Maria Jaspers at last year’s Spring Meeting. So yes, these conversations matter.

At the same time, the Leniency Program remains a pillar of our enforcement efforts. I’m pleased to report that the rest of the DOJ recently adopted voluntary self-disclosure policies analogous to the Division’s Leniency Program. We remain committed to working with our global partners on coordinating improvements to the program. To that end, I am looking forward to the OECD Roundtable on the Future of Leniency Programs that AAG Kanter will be hosting in June. I hope to see many of you there.

III. FTC CLU

The third and final collaboration I want to highlight is with our sister federal agency, the FTC.

Now, I know you’re all familiar with the fact that the FTC and DOJ work closely with one another on a number of issues that present civil equities, like the merger guidelines.

But another area where we have been working together more recently is on criminal matters. Last year, the FTC established a Criminal Liaison Unit, or CLU, headed by two former prosecutors from the Division, Susan Musser and Nathan Brenner. The CLU has been the vehicle for the agencies to have an ongoing and highly valuable series of conversations about potential investigative referrals, training opportunities, and other issues of shared interest, one of which I am about to highlight for you. Thanks to Nathan and Susan’s initiative, the FTC has referred over a dozen cases to us, involving not only possible criminal violations of the Sherman Act, but possible fraud, obstruction, witness tampering, and spoliation as well. This is precisely the sort of collaboration that is the goal of today’s event. I want to commend Nathan and Susan for their diligence and enthusiasm in pursuing this initiative on top of their busy casework.

One recurring topic in our ongoing discussion is obstructive conduct during our investigations. Every enforcer in this room can appreciate our shared interest in deterring behavior that harms our ability to seek the truth.

Our recent conversations have been focused on the risks presented by messaging platforms with encrypted or ephemeral messaging functionality, especially on personal devices. As we all know, these applications require additional diligence for recipients of investigative process to preserve data and communications.

But we are seeing too many instances of these materials being destroyed. In response, the Agencies are jointly working together to ensure that our investigative process captures documents and communications exchanged on those platforms. We are in the process of revising grand jury process, administrative subpoenas, and document schedules found in Civil Investigative Demands and Second Requests, with the goal of harmonizing our requests for these materials across both agencies. We expect to begin rolling out these revisions in the coming months.

Conclusion

These are just a few examples of what we can accomplish when we embrace the community that we find ourselves in and engage with one another. For those of you whom I have not yet gotten the opportunity to meet, I look forward to having similar conversations on how we can explore our shared interests.

We may practice in different jurisdictions and enforce different statutes. But we are part of a coordinated response to a common problem, which makes us a community of enforcers. I am deeply honored to speak to you today. Thank you.

Story from www.justice.gov

Disclaimer: The views expressed in this article are independent views solely of the author(s) expressed in their private capacity.

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