The US DoJ announces its intention to hold accountable companies that violate national antitrust laws in connection with the manufacturing and the distribution or the sale of public health products following the COVID-19 pandemic

As we all respond to COVID-19 (the coronavirus), we should keep an eye on the responsive measures being taken by the US Department of Justice (DOJ), and consider how those measures might impact companies and individuals globally. The DOJ acts in several roles, including as a part of law enforcement, as an executive agency overseeing the Federal Bureau of Prisons (BOP), and as an employer. Over the past week, the following noteworthy developments took place at the DOJ with respect to each of these roles, and more are sure to come.

First, on March 9, 2020, the DOJ joined international regulators, such as the UK Competition and Markets Authority, in warning the business community that anyone attempting to capitalize on consumer anxiety related to COVID-19 would be held accountable. Attorney General William Barr, in a DOJ press release, asserted that the DOJ “stands ready to make sure that bad actors do not take advantage of emergency response efforts, healthcare providers, or the American people during this crucial time.” The DOJ emphasized that it will not hesitate to criminally prosecute individuals or companies that fix prices or rig bids for personal health protection equipment, such as sterile gloves and face masks, or competitors who agree to allocate among themselves consumers of public health products. The DOJ also indicated that its new Procurement Collusion Strike Force, an interagency partnership formed in November of 2019 to focus on deterring, detecting, investigating and prosecuting antitrust crimes in government procurement, grant, and program funding, would be on high alert for collusive practices in the sale of such products to federal, state, and local agencies.

Companies are already encountering challenges related to price gouging as consumers prepare for potential quarantines by stocking up on products, such as hand sanitizer, face masks, anti-bacterial products, and even toilet paper in stores and through online marketplaces. Online marketplaces have reportedly been pulling thousands of coronavirus-themed products from their websites to prevent sellers from exploiting the outbreak. Some sellers have attempted to mislead customers about their products or increase prices.

Second, on March 12, 2020, the Chairman of the House Judiciary Committee sent a letter to Attorney General William Barr, requesting information concerning the DOJ’s handling of COVID-19 and the health and safety of those in federal prisons. The letter inquired, among other things, as to whether the DOJ had given any direction or guidance to the BOP or the US Marshals Service for dealing with COVID-19, and whether any precautionary measures had been taken, such as implementing special protocols for attorney and family visits. The letter suggested that the DOJ should consider directing US Attorney’s Offices, wherever possible, to not seek the detention of individuals at their initial appearance in court, decline prosecuting minor, non-violent offenses, and decline pursuing supervised release and probation revocations that involve technical and minor violations.

On March 13, 2020, the BOP announced that, after consulting with the DOJ and the administration, it would take additional measures to protect against the spread of COVID-9. These measures include the immediate suspension of social visits and the limitation of legal visits for 30 days. The BOP also suspended staff travel and trainings and movement of inmates, and implemented screening programs for inmates and staff. However, it remains to be seen how the DOJ will address the letter’s other concerns, and whether, for instance, US Attorney’s Offices will be more amenable to bail requests from individuals who have been arrested.

Third, the DOJ has been providing information as to the effect of COVID-19 on its own personnel and operations. For instance, on March 13, 2020, a DOJ trial attorney sent a letter to the US Court of Appeals for the Fourth Circuit, in which the attorney stated that persons in the DOJ’s Civil Division office in Washington, D.C. had “exhibited symptoms consistent with COVID-19 and have sought medical attention.” The letter corrected a prior letter to the court regarding the scheduling of oral arguments, sent on March 11, 2020, which had stated, inaccurately, that the DOJ had discovered that attorneys in the office had “tested positive for coronavirus.”

The Trump administration has reportedly been preparing a plan that will allow hundreds of thousands of federal employees to work remotely. If the DOJ, prompted by concerns about the spread of COVID-19 in its offices, begins to require its attorneys to telework on a regular basis, that may well affect the pace and the nature of the cases pursued by the DOJ in the near term.

These developments from last week are likely only the beginning. Keeping track of how the DOJ is reacting to COVID-19 will be important, because the DOJ’s reactions to COVID-19 will likely affect companies and individuals worldwide.

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  • Eversheds Sutherland (New York)
  • Eversheds Sutherland (Washington D.C.)


Ronald W. Zdrojeski, Lewis S. Wiener, The US DoJ announces its intention to hold accountable companies that violate national antitrust laws in connection with the manufacturing and the distribution or the sale of public health products following the COVID-19 pandemic, 9 March 2020, e-Competitions Criminal sanctions, Art. N° 93823

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