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The Stolt-Nielsen antitrust case opened the widest window yet into the secret wheeling and dealing that goes on between the U.S. Department of Justice and a corporation seeking amnesty. This opening occurred when both sides allowed their lawyers -- John Nannes for Stolt and Deputy Assistant Attorney General James Griffin for the government -- to testify in open court about how they reached the agreement.

The Corporate Leniency Program, begun in 1978 and revised in 1993, works differently than other Justice Department deals that offer deferred and nonprosecution agreements. In the others, the investigation comes first and the deal at the end. In the amnesty program, since 1993, Justice first grants a conditional amnesty from all prosecution and fines, and the investigation follows.

The quest for amnesty begins with a race to the Justice Department. As little as two hours could separate the first company, which won amnesty, from the second one seeking it, according to antitrust division veterans. So immediately after his first meeting with Stolt executives on Nov. 22, 2002, Nannes phoned his former colleague in the antitrust division, Griffin, as well as Griffin's assistant, Scott Hammond, and left voice mails saying that Nannes wanted to seek "a marker." The marker preserves a company's place as first in line. "The way the program is structured," Nannes explains, "is that the first person in gets all the benefits, and the second person gets none."

Next came what Nannes calls "the minuet" -- a little dance between the lawyer and the division. Naming the shipping industry but not his client, Nannes asked if any tanker company had won a marker. "So Jim Griffin and I spent a couple days fishing with one another," Nannes recalls in an interview. "He'd give a little information, I'd give some, and we'd try to narrow it down so I could be comfortable that no one else in the industry was yet granted a marker."

Griffin eventually confirmed that no marker was granted. But the division had already opened a general investigation the same day Nannes called, based on a Wall Street Journal article that day that discussed a lawsuit by Stolt's former general counsel, Paul O'Brien. Griffin asked Nannes if his client's business involved "specialty transportation on the water" and if a fired counsel had sued his client. Nannes confirmed both facts, and they knew they "had a match," according to court testimony. At one point the government's Griffin called Stolt's actions a "firing-the-messenger problem" and said it could block an amnesty deal.

Nannes then met the division on Dec. 4 to explain the O'Brien situation. According to a brief by Justice's lawyers, Nannes assured the division that O'Brien had quit and not been fired, that his "allegations were not credible," and that he had a "history of animosity" toward Stolt-Nielsen management. Nannes, according to the brief, also said O'Brien was using the "lawsuit to try to extort a settlement, a substantial amount of money" from the company.

Nannes overcame the fire-the-messenger problem, and on Dec. 17 Justice granted the marker to Stolt. But that was only the beginning. Before any company can actually receive amnesty, it has to admit its guilt and provide evidence, "a proffer," against the co-conspirators. The division gave Nannes about four weeks to investigate -- over the Christmas holidays, no less -- and to bring in his proffer. Nannes and his team had to interview Stolt employees on four continents [from the United States, the Netherlands, Brazil and Singapore], but couldn't tell them of the possible amnesty because Justice insisted on confidentiality. It was difficult, Nannes told the court, adding, "We didn't use the 'L' [leniency] word, but we tried as close as we could to convey to them that the company was working on a strategy."

After several rounds of interviews, Nannes' team still had no hard evidence. After each round, the lawyers "triangulated" information and compared notes. Eventually one of them heard about a customer list held by Andrew Pickering, Stolt's one-time managing director of tanker trading.

So Nannes went back to Pickering, who had since been transferred to Singapore, "and he kind of mumbled, then finally admitted that yes, there was a list" that allocated customers, but he had cleaned out all his files when he moved to Singapore. It was at that point, Nannes recalls in an interview, "that we determined we had illegal activity, but we still didn't have a smoking gun" to give to Justice.

Stolt's lawyers call what happened next "the Columbo moment." Nannes and his team had already interviewed Richard Wingfield, the man who replaced Pickering as managing director, about a dozen times. Now they pressed Wingfield again. He insisted that Pickering had told him of a six-page document that divided up the trade lanes and customers, but said he'd never seen it. Then, in late December of 2002, Wingfield was talking on the phone with Pickering and describing the pressure to find the list.

Pickering felt certain that he had discarded the list with his files. Prodded by Wingfield, Pickering then remembered something: He hadn't kept this document in his files. He'd hid it in his office, which was now Wingfield's office. Pickering directed Wingfield to move to his left and look behind him, between the computer credenza and the wall. Wingfield put down the phone and followed the directions. He spotted something, reached in and pulled out a clear plastic folder with papers inside. "Well, Andrew, you're not going to believe what I'm holding," Wingfield later testified saying, "but it's the combined customer list from 1998."

Wingfield hung up and rushed to the office of Alan Winsor, Stolt's current general counsel, to report the find. They told Nannes, who was ecstatic; he now had the smoking gun he needed to complete the amnesty deal. "It was like something out of [the TV detective series] Columbo," he says. "But you couldn't even make something like that up."

Related timeline:
Stolt: Five Years to Vindication

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