NOTE AND COMMENT: A Sour Carrot and a Big Stick: Reviving Antitrust Enforcement After Stolt-Nielsen 1 Skip over navigation
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Copyright (c) 2007 Seattle Journal for Social Justice 
Seattle Journal for Social Justice

NOTE AND COMMENT: A Sour Carrot and a Big Stick: Reviving Antitrust Enforcement After Stolt-Nielsen 1

Fall / Winter, 2007

6 Seattle J. Soc. Just. 391


Iris Tilley 2



The U.S. Supreme Court's October 2006 decision to, for the second time, deny certiorari of the Third Circuit Court of Appeals antitrust case Stolt-Nielsen, S.A., et. al., v. United States 3 went largely unnoticed by most American consumers. All the major legal newspapers mentioned the incident, but outside of law firms, it sparked little water cooler discussion. It did not make the morning news, and a Dateline expose is not likely to result. Despite this lukewarm response, the Court's decision was big news for businesses and consumers across America.

In Stolt-Nielsen, the Third Circuit Court of Appeals established that parties who enter into immunity agreements under the Department of Justice's (DOJ) Corporate Lenience Policy (CLP) are not entitled to a preindictment review if the DOJ alleges that the party has breached the terms of its immunity agreement. 4 That is, if the DOJ believes that a party has breached the terms of its immunity agreement, the DOJ can file charges against the corporation or individual without first judicially establishing that the corporation or individual is actually in breach. 5 This means that regardless of the terms of a party's immunity agreement and the incriminating information the party has already provided pursuant to the agreement's protection, in the Third Judicial Circuit--which includes Delaware (where over 50 percent of the United States' publicly-traded companies are incorporated)--the DOJ can unilaterally abrogate the terms of the immunity agreement and indict a party previously protected by the agreement's terms. 6

The ...
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