Pitch Imperfect: Antitrust Division Policy Changes Regarding Pre-Indictment “Pitch” Meetings

Introduction

It has long been the practice of the U.S. Department of Justice Antitrust Division, with limited exceptions where secrecy was necessary, to offer pre-indictment meetings to parties recommended for criminal prosecution. These meetings—called “pitch meetings”—give would-be defendants and their counsel an opportunity to present their position on the law and the facts and to argue against the Division’s proposed charges. Pitch meetings have been the norm in the Antitrust Division not only at the section level with the attorneys conducting the investigation and their direct management; they have also almost invariably been granted by the decisionmakers in the Division’s Front Office, including the Deputy Assistant Attorney General for Criminal Enforcement (the Criminal DAAG) and the Director of Criminal Enforcement.

Putative defendants do not have a right to a pre-indictment meeting. Nevertheless, the Antitrust Division Manual and the Justice Manual, the bible of the broader Department of Justice, traditionally recognize that the Antitrust Division will ordinarily grant such meetings.

In recent years, however, this historic Division process has been viewed as inconsistent with the broader U.S. Department of Justice, where such meetings have fallen out of favor and prosecutors are being pushed to complete investigations more quickly. Moreover, the current administration’s progressive antitrust enforcement agenda, where precedent-setting hiring and criminal monopolization prosecutions are being prioritized, may be less conducive or receptive to the arguments of counsel typically heard in pitch meetings. This has led to what some have characterized as an “indict first; ask questions later” mentality.

The strong push for aggressive enforcement and the “ticking clock” on the term of any administration may tempt enforcers to avoid or sidestep processes that might slow the charging process or lead to compromise or the appearance of external influence. This article describes how, in at least one way, the Antitrust Division has been attempting to do just that: by curtailing pre-indictment meetings with putative criminal defendants. This policy, however, risks eliminating important benefits of a more deliberative and transparent approach to enforcement decisions.

This article recognizes the discretionary nature of party meetings in criminal investigations but believes that the liberal exercise of that discretion is to the benefit rather than the detriment of strong enforcement. Paradoxically, putative defendants often desire such meetings, but they most often benefit the enforcer. The Antitrust Division has already suffered litigation defeats in which its apparent refusal to meet with putative defendants before an indictment might well have been a contributing factor to the outcome. Forgoing the benefits of such meetings will continue to prove costly to the Division, especially now that it is pursuing new and long-dormant criminal enforcement theories with which it has little litigation experience.

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