In a recent criminal case, the antitrust division of the Department of Justice took the position — and a federal court agreed — that statements employees make during proffer sessions with the government can be used against their employer at trial, even though the company was not a party to the proffer agreement and was represented by separate counsel.

The government argued that it was permitted to use employees’ statements in this way because they are vicarious admissions by the company itself. As far as the government and the court were concerned in that case, the only facts that mattered were that the employee worked at the company at the time of the proffer and made statements about things he did as part of his job.

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