Antitrust Practice Co-Chair Saul Morgenstern Weighs In On the Department of Justice’s Immigration Waiver in Global Competition Review

Global Competition Review recently examined a Department of Justice’s (DoJ) immigration waiver, created by a memorandum of understanding between the DoJ and US Immigration and Customs Enforcement, which has been aiding officials in obtaining convictions against foreign cartelists for nearly twenty years. The antitrust division of the DoJ has been using the threat of a US travel ban to draw guilty pleas out of those accused of cartel crimes by arguing that price fixing is a crime involving moral turpitude [CIMT], but not everyone believes that this punishment fits this crime.

According to Kaye Scholer Litigation Partner and Antitrust Practice Co-Chair Saul Morgenstern, “The division’s memorandum goes further than necessary in securing the cooperation of non-US cartelists.”

Some have suggested that, for purposes of fairness, the DoJ should extend the waiver to all foreign nationals who agree to submit to US jurisdiction, not only to those who plead guilty. Morgenstern agreed, saying “The DoJ should consider adopting this ‘convincing alternative.’” His view is that it is fair for the Government to offer an incentive to a foreign national accused of a crime to submit to US jurisdiction either for the purpose of defending himself or for the purpose of pleading guilty, but it is not fair for the Government to offer that incentive only if the accused is prepared to plead guilty.

“The threat of forfeiting the ability to travel is surely a huge incentive for a globetrotting foreign national to come to US to defend himself,” he concluded. “If the word ‘justice’ in the name Department of Justice is going to have any meaning then certainty must be created so that a foreign defendant is able to come to the US and answer charges that he or she violated our law” and not only if he or she is willing to give up the right to defend against the charges.