In a statement on April 12, 2013, the head of the U.S. Department of Justice’s Antitrust Division, William J. Baer, announced two changes to the Division’s practice of excluding certain employees from the non-prosecution provisions of corporate plea agreements, also known as its “carve-out” policy. First, the Division will no longer include the names of carved-out employees in publicly filed plea documents; instead, they will be filed in a sealed appendix. Second, the Division will no longer carve out individuals for reasons unrelated to culpability. William J. Baer, Statement on Changes to Antitrust Division’s Carve-Out Practice Regarding Corporate Plea Agreements (April 12, 2013).

These changes, which are designed to reconcile Division policies with fairness and due process, are welcome and encouraging. But they do not go far enough. Rather, the new policy still leaves substantial and unnecessary ambiguity about which employees can be carved out of a corporate plea agreement, and why. Most notably, while the Division now claims that its carve-out policy will focus exclusively on the culpability of employees, the policy still leaves exposed what it refers to—but never actually defines—as “potential” targets of the investigation. Moreover, even if an employee is included in a corporate plea (or “carved in”), the new policy allows the Antitrust Division to revoke that protection if, in its sole discretion, it deems that employee insufficiently cooperative.

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