United States: Cartels
During the past year, cartel enforcement by the DOJ Antitrust Division, and apparent leniency applications, have remained depressed relative to historic levels. The Division has responded by seeking to reinforce incentives for companies to seek leniency and to otherwise cooperate in Division investigations, while bolstering its own enforcement initiatives. Examples of the Division’s efforts include reaffirming recent changes in prosecution policies to increase the benefits of early cooperation, support for the reauthorisation of the ACPERA statute, statements to the Bar that underpin the Division’s commitment to its leniency programme, and the establishment of a Procurement Collusion Strike Force to proactively investigate collusion by government contractors.
- Enforcement, while still down from historic trends, is seeing an increase
- Covid-19 has likely slowed some investigations but may spur future investigations as the pandemic has had a significant impact on the global economy
- DOJ Procurement Collusion Strike Force is focusing resources to root out criminal antitrust activity directed at the US government
- DOJ continues to try to find the right balance on leniency
- Corporate compliance is likely to get more attention moving forward
Referenced in this article
- Enforcement trends
- DOJ Procurement Collusion Strike Force
- Leniency programme
- Compliance Program Guidance
- Recent case developments
While the number of criminal antitrust enforcement actions and fines collected in the United States has increased over the past year, historically, the numbers remain low. There are, however, a number of new initiatives and policy developments that suggest an increase may be forthcoming. The Department of Justice Antitrust Division’s (DOJ or Division) long-anticipated criminal no-poach cases have not yet come to fruition, though Division officials previewed that the first case is expected in 2020. The Division has also announced a new Procurement Collusion Strike Force (PCSF) to focus on bid rigging and other collusive conduct in government procurement contracts. Finally, the Division has acknowledged concern from the antitrust bar that amnesty incentives have been watered down in recent years, negatively impacting the number of companies seeking amnesty.
The global covid-19 pandemic has brought tremendous strain on the global economy. Historically, economic pressure has been a leading cause of companies engaging in unlawful cartel conduct as executives attempt to cut corners in an effort to protect profit margins. The DOJ is aware of this history and is closely monitoring for unlawful conduct, which may also bring about an increase in cartel cases in the coming months and years.
While the total number of criminal cases, and fines and penalties collected, remain low relative to earlier years, both figures are rising. In fiscal year 2019, the number of criminal cases filed stood at 26. 1 This was an increase from 18 in 2018, and 24 in 2017. 2 Over the same period, criminal fines and penalties have more than doubled each year. 3 The Division collected US$67 million in fines in 2017. That number increased to US$172 million in 2018 and US$365 million in 2019. 4 While this is still well below the US$399 million to US$3.6 billion range of annual collection of fines and penalties between 2010 and 2016, it does suggest a trend of increased enforcement. 5 Despite the increase, the DOJ has not announced any investigations of the scale of those that drove enforcement in the first half of the 2010s, such as the Auto Parts investigation.
As investigations of foreign manufacturing companies have drawn to a close, there has been a corresponding steep decrease in the number of DOJ cases against non-US entities, 6 and a number of the most prominent recent investigations and cases have focused on US companies and nationals, including the investigations and prosecutions in the chicken broiler and packaged tuna industries.
Prior to the covid-19 pandemic, Division officials announced that there are a number of ongoing investigations that would to lead to a flurry of activity later in the year. Assistant Attorney General (AAG) Makan Delrahim noted in a January 2020 interview that the Division had several ongoing investigations and expected to bring criminal cases in a number of areas, including generic drugs and no-poach agreements among employers. 7 In the ensuing months, suits have been filed by the Division against generic drug makers. 8
Since cartel investigations can take years from beginning to end, AAG Delrahim’s comments point to a potential increase in case filings and corporate penalties in the coming years. His comments also suggest that the Division continues to be motivated to dispel the notion of decreased enforcement, which would be done most effectively by increasing the number of investigations and case filings.
The past year has seen a number of potentially significant policy developments, some of which appear to be a reflection of the Division’s efforts to reinvigorate its enforcement programme.
Procurement Collusion Strike Force
The DOJ announced a new PCSF. 9 The purpose of the PCSF is to provide greater coordination, more financial resources, and a more aggressive approach to recover penalties and damages against companies that engage in antitrust crimes, such as bid-rigging conspiracies, in the US government procurement and grant funding process. 10
Historically, most government bid-rigging investigations resulted from a whistle-blower, a leniency applicant or an anonymous tip, but Division officials have said that the PCSF is proactively initiating investigations into potential bid-rigging schemes to deter and detect criminal conduct. 11 The PCSF is composed of Division attorneys, the FBI, the US Department of Defence, the United States Postal Service, the General Services Administration and US Attorneys’ offices in 13 districts around the country. 12
One recent high-profile example of the Division’s prosecution of bid rigging in government contracting was its Korea fuels investigation, where a number of Korean oil companies pleaded guilty to bid rigging on fuel supply contracts for US military bases. 13 All told, the DOJ reached criminal and civil settlements totalling approximately US$365 million. 14
The PCSF has more recently put out warnings against anticompetitive activity, such as bid rigging, price-fixing and customer or market allocations during the covid-19 pandemic. 15
Reaffirming the Division’s commitment to the leniency programme
In a speech to practitioners, Deputy Assistant Attorney General (DAAG) Richard Powers sought to reaffirm the Division’s commitment to its leniency programme and to address some of the concerns that have been raised by the cartel bar.
DAAG Powers used a carrot-and-stick approach. He sought to clarify the role of deferred prosecution agreements (DPAs) in the Division’s overall enforcement programme. The Division also unveiled a new policy under which it would change its long-standing aversion to DPAs and offered to forego criminal prosecutions for companies that do not qualify for leniency but meet certain conditions, including maintaining a robust compliance programme. 16 DAAG Powers addressed apparent Division concerns that the potential to avoid prosecution through DPAs has served as a disincentive for companies to seek amnesty. He argued that it is not a sound approach for companies that are aware of cartel conduct to forego leniency in the hope that if their conduct does come to light they can still avoid prosecution through the DPA route under the new policy. 17 DAAG Powers stressed that while a robust compliance programme is an important factor, the Division will consider in determining whether a DPA was appropriate, the Division will also look closely at other factors including ‘prompt self-reporting, cooperation, and remedial action’. The focus on these other factors should weigh heavily against a wait-and-see strategy. 18
DAAG Powers also noted that leniency was still the ultimate prize for a company because a successful applicant receives not only immunity from criminal prosecution of the company, but protection for cooperating employees, and de-trebling of potential civil penalties under the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA). 19 None of these benefits is offered through DPAs. 20 He further emphasised the Division’s commitment to the programme and a recognition that it must come to the table in good faith, treating all applicants fairly and in the same manner – otherwise, without confidence in the programme, the programme will fail. 21 DAAG Powers also acknowledged that the expectations for a leniency applicant have increased. 22 More interviews of employees are usually required, and it is less often the case that an attorney proffer will be sufficient. 23 Internal investigations must also be thorough and expedited. 24
One area where DAAG Powers noted that the Division is still working to improve leniency is through cross-border cartel enforcement. He noted the challenges a leniency applicant can face when attempting to cooperate in various jurisdictions, and said the Division was committed to trying to ensure that a leniency applicant can efficiently cooperate with any ongoing investigation. 25
At the time of writing, the ACPERA statute, which de-trebled damages for successful amnesty applicants, has expired. However, both houses of Congress have passed legislation to reauthorise ACPERA. The legislation would make ACPERA permanent, eliminating the sunset provision that led to the expiry of the original law. 26 Congress has not yet forwarded the legislation to the President for signature, which is required before it becomes effective, but it is expected that the statute will become law in due course. ACPERA’s de-trebling provision has been a key incentive for companies considering whether to seek amnesty, and its reauthorisation will be a key component to ensuring the leniency programme’s future success.
On 1 June 2020, the DOJ released revised guidance on the Evaluation of Corporate Compliance Programs (the Compliance Program Guidance). 27 The Compliance Program Guidance provides companies with general principles and factors to consider when designing, implementing and updating their compliance policies and procedures. 28 It also provides a useful basis for companies seeking to avoid or mitigate prosecution pursuant to the DOJ’s ‘Principles of Federal Prosecution of Business Organizations’ and the US Sentencing Guidelines, both of which require DOJ prosecutors to consider a company’s compliance programme as a factor in their decisions to initiate a case and the amount to seek in fines. 29
The revised guidance builds on the core of the original document by explaining the Division’s practice in prosecutorial and penalty decisions. For example, the previous Compliance Program Guidance stated that prosecutors should make an ‘individualized determination’ of compliance programmes. The revised version explains these factors include ‘the company’s size, industry, geographic footprint, regulatory landscape’ and ‘other factors, both internal and external to the company’s operations’. 30
The revised guidance is also geared towards measuring whether a company itself evaluates and tracks its compliance programme. For example, the revised Compliance Program Guidance indicates that the DOJ would consider whether a company:
- tracks or measures access to its compliance policies and procedures to understand what policies are attracting more attention from employees;
- engages in a ‘periodic review’ of its risk assessment ‘based upon continuous access to operational data and information across functions’ and whether the periodic review has led to updates in policies, procedures and controls;
- employs ‘a process for tracking and incorporating’ lessons learned from ‘prior issues’ of the company and ‘other companies operating in the same industry and/or geographical region’;
- evaluates the impact of training on employee behaviour;
- tests the compliance programme, including the hotline, in terms of employees’ knowledge and comfort in using it and in terms of ‘tracking a report from start to finish’; and
- monitors ‘investigations and resulting discipline to ensure consistency’. 31
AAG Delrahim has noted that by the end of 2020, the Division may consider how corporate compliance programmes are treated within the rubric of criminal cartel prosecutions. 32
Recent case developments
The Division has continued its prosecutions in the Packaged Seafood cartel. Most recently, the DOJ obtained a conviction at the trial against former Bumble Bee Foods LLC (Bumble Bee) CEO, Chris Lischewski. 33 The tuna price-fixing scheme was alleged to have occurred between 2010 and 2013, and only became public in 2015 as part of the DOJ’s review of a bid by Thai Union Group to acquire Bumble Bee. 34 Lischewski, professing his innocence from the beginning, was indicted by a grand jury in May 2018. Prior to his indictment, Lischewski had served as president and CEO of Bumble Bee for nearly two decades. 35
Lischewski’s four-week trial included witness testimony from former executives of Bumble Bee, StarKist and Chicken of the Sea. 36 All three companies admitted participating in the conspiracy and agreed to cooperate with the DOJ. 37 Lischewski initially testified that he had no knowledge of a conspiracy among the three major canned tuna companies, but later conceded that he may have instructed his employees to gather information from competitors and that he possibly received competitors’ non-public information. 38 Lischewski was also confronted with emails to a fellow Bumble Bee executive about a ‘peace proposal’, which he denied represented an agreement. 39 DOJ prosecutors also presented testimony that Lischewski engaged in the price-fixing scheme to increase the value of his Bumble Bee shares to more than US$42 million. 40
Ultimately, the jury found Lischewski guilty of price-fixing, and the DOJ asked the court to impose a sentence of eight to 10 years in prison, plus a US$1 million fine. 41 Lischewski’s attorneys proposed a sentence of 12 months of home confinement, plus a US$100,000 fine. 42 The court ultimately sentenced him to 40 months in prison and a US$100,000 fine. 43 Lischewski has filed a notice of appeal, seeking to overturn his conviction. 44
Separately, the Division has secured guilty pleas from three individuals, as well as corporate guilty pleas from StarKist and Bumble Bee. Corporate fines totalling US$125 million were imposed against StarKist and Bumble Bee as part of their guilty pleas. 45 The investigation has also resulted in several ongoing civil lawsuits. 46
The Division recently secured the extradition of individuals in two separate antitrust investigations. In January 2020, the DOJ secured the extradition of Dutch national Maria Ullings from Italy related to her role in an international scheme to fix surcharge rates on air cargo shipments. 47 Ullings, a former senior executive with Martinair, was indicted in 2010 for allegedly participating in a conspiracy to eliminate competition by fixing surcharges for international air shipments between 2001 and 2006. 48 Ullings, who had been a fugitive for nearly a decade, pleaded guilty to criminal charges, and was sentenced to 14 months in prison and a US$20,000 fine. 49 Ullings is one of 21 executives that have been charged as part of the air cargo investigation. 50 In total, US$1.8 billion in fines have been imposed on the executives and 22 airlines that have been charged. 51
In February 2020, a former executive for Continental Automotive Korea Ltd was extradited from Germany for his role in the international auto parts conspiracy. 52 The executive, Eun Soo Kim, participated in a scheme to allocate markets and rig bids for the sale of instrument panel clusters sold to South Korean automobile producers. 53 Kim pleaded guilty to the charges and was sentenced to nine months in prison, with credit for time served while in custody, and ordered to pay a US$130,000 fine. 54 Kim is the first South Korean to be extradited under the US–Korea extradition treaty. 55 As part of the Division’s wide-ranging auto parts investigation, more than 100 companies and executives have been charged, with 32 individuals given prison sentences. 56
Online bid rigging
The DOJ has indicted several individuals in connection with its investigation into a conspiracy to rig bids in online GSA auctions. The DOJ alleges that from July 2012 to May 2018, the parties conspired to rig bids for online auctions of surplus government supplies. 57 According to the government, the conspirators’ purpose was to suppress pricing and eliminate competition from the online auctions, and thereby deny the federal government fair market value for the auctioned goods. 58
The conspirators are alleged to have communicated their bids by phone, text and email and then would decide who would submit the winning bid. 59 Following these indictments, the DOJ announced the creation of the new PCSF discussed above.
Thus far, two individuals have pleaded guilty for their participation in the bid-rigging scheme and are awaiting sentencing. 60 A third alleged co-conspirator has been indicted and is awaiting trial. 61
The Division has continued its long-running investigation in the generic pharmaceutical industry. In May 2020, Apotex Corporation was charged with fixing the price of a generic drug used to control cholesterol. 62 Apotex allegedly coordinated with its competitors between May 2013 and December 2015 to prevent the submission of competitive bids to customers. 63 Apotex agreed to a DPA to resolve the charges, and will pay a US$24.1 million fine. 64 The company also agreed to cooperate with the ongoing investigation. 65 At the time of writing, the DPA is pending court approval. 66
The Division also recently indicted a former senior executive at a generic pharmaceutical company for his alleged participation in a conspiracy to fix prices for generic drugs used to treat arthritis, seizures and blood clots. 67 According to the Division, the conduct occurred between March 2013 and December 2015. 68 The Division has also charged the executive with making a false statement to the FBI during the execution of a search warrant. 69
A third generic pharmaceutical company, Sandoz Inc, also agreed to a DPA. 70 Sandoz was charged with participating in the alleged conspiracy between 2013 and 2015. 71 As part of the DPA, Sandoz admitted the charges and agreed to pay a US$195 million fine. 72 At the time of writing, the DPA is pending court approval. 73
Pre-release ADR investigation
The Division secured plea agreements with two companies and two executives in an investigation into bid rigging for pre-release American depository receipts (ADRs). 74 ADRs are US-traded securities that represent shares of foreign-listed companies. 75 As part of their guilty pleas, the co-conspirators admitted to participating in a scheme to artificially suppress the rates paid to borrow pre-release ADRs between May 2012 and August 2014. 76 On at least 30 occasions, the co-conspirators allegedly communicated via private chat rooms and text messages and reached agreements on bids that would be submitted as part of an auction process led by a US depository bank. 77 In many instances, the conspirators allegedly agreed to place the exact same bid. 78 Both broker-dealers have been sentenced to pay criminal fines in excess of US$2 million each. 79 The two executives could face prison terms of up to 10 years and a maximum fine of US$1 million. 80
Following a three-week trial, the Division secured a guilty verdict against the former executive director of a multinational bank for his participation in an antitrust conspiracy to manipulate prices for emerging market currencies in the foreign exchange (FX) market. 81 The executive, Akshay Aiyer, was found guilty of coordinating with his co-conspirators on trades of Central and Eastern European, Middle Eastern and African (CEEMEA) currencies in the FX spot market. 82 At trial, the DOJ presented evidence that Aiyer had near-daily discussions with his co-conspirators, through phone calls, text messaging and chat rooms, to coordinate their CEEMEA trades in the FX spot market. 83 The evidence presented also included testimony that Aiyer and his co-conspirators agreed to withhold bids or offers to manipulate the exchange rates and increase profits. 84 The defendant and his co-conspirators allegedly attempted to hide their illegal conduct by using code names and personal devices. 85 And the co-conspirators protected each other’s trading positions by manipulating the supply and demand for currency. 86 The DOJ has asked the court to impose a prison term within the pre-sentence report range of 37 to 46 months, and ‘a significant fine’ (but no more than US$1 million). 87
As part of the Division’s FX spot market investigation, five companies and six individuals have been charged. 88 Those companies have all pleaded guilty and have paid roughly US$2.6 billion in criminal fines. 89 Several individuals have also pleaded guilty and are awaiting sentencing. 90
*The authors would like to thank Alicia Bello, an antitrust associate in the Washington, DC, office, for her assistance
1 See DOJ, CRIMINAL ENFORCEMENT: Trends Charts Through Fiscal Year 2019, www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts (last updated 6 May 2020).
6 Victoria Turner, ‘DoJ may look at treatment of corporate compliance programs in criminal prosecution programs by year-end — Delrahim’, Parr (10 June 2020), https://app.parr-global.com/intelligence/view/prime-3037232?utm_source=Notifications&utm_medium=Email&utm_campaign=Alert&utm_term=5c5c427607cb51002a1cd943.
7 Brent Kendall, ‘U.S. Targets Drug Pricing, No-Poach Deals for Antitrust Action in 2020’, Wall St. J. (15 Jan 2020), www.wsj.com/articles/u-s-targets-drug-pricing-no-poach-deals-for-antitrust-action-in-2020-11579124098.
8 See, eg, Press Release, DOJ, Major Generic Pharmaceutical Company Admits to Antitrust Crimes (2 Mar 2020), www.justice.gov/opa/pr/major-generic-pharmaceutical-company-admits-antitrust-crimes.
9 DOJ, Procurement Collusion Strike Force, www.justice.gov/procurement-collusion-strike-force (last updated 16 June 2020).
11 Makan Delrahim, Assistant Attorney General, Remarks at the Procurement Collusion Strike Force Press Conference, DOJ (5 Nov 2019), www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-procurement-collusion-strike.
13 Kaitlyn Burton and Bryan Koenig, ‘S. Korean Oil Cos. To Pay $126M For Bid-Rigging Scheme’, Law360 (20 Mar 2019), www.law360.com/articles/1140962/s-korean-oil-cos-to-pay-126m-for-bid-rigging-scheme.
15 DOJ, footnote 9.
16 Richard Powers, Deputy Assistant Attorney General, Remarks at the 13th International Cartel Workshop, DOJ, 19 Feb 2020, www.justice.gov/opa/speech/deputy-assistant-attorney-general-richard-powers-delivers-remarks-13th-international.
26 Bryan Koenig, ‘DOJ Cheers Congress’ Renewal Of Antitrust Leniency Perks’, Law360 (26 Jun 2020), www.law360.com/articles/1287274/doj-cheers-congress-renewal-of-antitrust-leniency-perks.
27 DOJ, Evaluation of Corporate Compliance Programs, www.justice.gov/criminal-fraud/page/file/937501/download (last updated June 2020).
32 Chris Yi, ‘PaRR Analytics: US criminal antitrust enforcement drops under Trump’, PaRR (18 May 2020), https://app.parr-global.com/intelligence/view/prime-3051636?utm_source=Notifications&utm_medium=Email&utm_campaign=Alert&utm_term=5c5c42474acaa3001ff5142a.
33 Hannah Albarazi, ‘Ex-Bumble Bee CEO Says He “Had No Idea” About Price-Fixing’, Law360 (22 Nov 2019), www.law360.com/articles/1222750/ex-bumble-bee-ceo-says-he-had-no-idea-about-price-fixing.
34 Hannah Albarazi, ‘Fate Of Ex-Bumble Bee Tuna “Big Fish” Goes To Calif. Jury’, Law360 (2 Dec 2019), www.law360.com/articles/1224488/fate-of-ex-bumble-bee-tuna-big-fish-goes-to-calif-jury.
35 Albarazi, footnote 33.
39 Hannah Albarazi, ‘Ex-Bumble Bee CEO’s Mistrial Bid Flops In Price-Fixing Case’, Law360 (26 Nov 2019), www.law360.com/articles/1223741/ex-bumble-bee-ceo-s-mistrial-bid-flops-in-price-fixing-case?copied=1.
40 Albarazi, footnote 34.
41 Anne Cullen, ‘Ex-Bumble Bee CEO Looks To Avoid Jail Amid COVID-19’, Law360 (14 May 2020), www.law360.com/articles/1273763/ex-bumble-bee-ceo-looks-to-avoid-jail-amid-covid-19.
43 Malathi Nayak, ‘Ex-Bumble Bee CEO Gets Prison Term, a Rarity in Antitrust (1)’, Bloomberg News (16 June 2020), https://news.bloomberglaw.com/mergers-and-antitrust/a-rare-big-fish-gets-prison-for-price-fixing-ex-bumble-bee-ceo.
44 Mike Leonard, ‘Ex-Bumble Bee CEO Lischewski Appeals Price-Fixing Conviction’, Bloomberg News (1 July 2020), https://news.bloomberglaw.com/mergers-and-antitrust/ex-bumble-bee-ceo-lischewski-appeals-price-fixing-conviction.
45 Albarazi, footnote 34.
46 Albarazi, footnote 39.
52 ‘Former auto parts executive extradited, sentenced in U.S. for bid-rigging’, Reuters (3 Mar 2020), www.reuters.com/article/us-usa-antitrust-autoparts/former-auto-parts-executive-extradited-sentenced-in-u-s-for-bid-rigging-idUSKBN20Q2CM.
55 Hyung-jo Choi, ‘First South Korean extradition highlights how arm of US antitrust laws extends to Asia’, Mylex Market Insight (9 April 2020), https://mlexmarketinsight.com/insights-center/editors-picks/area-of-expertise/antitrust/first-south-korean-extradition-highlights-how-arm-of-us-antitrust-laws-extends-to-asia.
56 ‘Former auto parts executive extradited, sentenced in U.S. for bid-rigging’, footnote 52.
57 Press Release, DOJ, Online Bidder Pleads Guilty to Antitrust Charge for Rigging Bids at Government Auctions (24 Sept 2019), www.justice.gov/opa/pr/online-bidder-pleads-guilty-antitrust-charge-rigging-bids-government-auctions.
59 Khorri Atkinson, ‘3rd Defendant Charged In Computer Auction Rigging Probe’, Law360 (5 Feb 2020), www.law360.com/articles/1240938/3rd-defendant-charged-in-computer-auction-rigging-probe.
60 DOJ, footnote 57.
62 Press Release, DOJ, Generic Pharmaceutical Company Admits to Fixing Price of Widely Used Cholesterol Medication (7 May 2020), www.justice.gov/opa/pr/generic-pharmaceutical-company-admits-fixing-price-widely-used-cholesterol-medication.
67 Press Release, DOJ, Generic Drug Executive Indicted on Antitrust and False Statement Charges (4 Feb 2020), www.justice.gov/opa/pr/generic-drug-executive-indicted-antitrust-and-false-statement-charges.
70 Press Release, DOJ, Major Generic Pharmaceutical Company Admits to Antitrust Crimes (2 Mar 2020), www.justice.gov/opa/pr/major-generic-pharmaceutical-company-admits-antitrust-crimes.
74 Press Release, DOJ, Former Financial Services Executive Pleads Guilty to Rigging Bids for Financial Instruments in Violation of Antitrust Law (14 Nov 2019), www.justice.gov/opa/pr/former-financial-services-executive-pleads-guilty-rigging-bids-financial-instruments-0.
77 Press Release, DOJ, New York Broker-Dealer Pleads Guilty To Violating U.S. Antitrust Laws by Rigging Bids for Financial Instruments (10 May 2019), www.justice.gov/opa/pr/new-york-broker-dealer-pleads-guilty-violating-us-antitrust-laws-rigging-bids-financial.
79 DOJ, footnote 77; Press Release, DOJ, Second New York Broker-Dealer Pleads Guilty To Rigging Bids for Financial Instruments in Violation of Antitrust Law (14 June 2019), www.justice.gov/opa/pr/second-new-york-broker-dealer-pleads-guilty-rigging-bids-financial-instruments-violation.
81 Press Release, DOJ, Former Trader for Major Multinational Bank Convicted for Price Fixing and Bid Rigging in FX Market (20 Nov 2019), www.justice.gov/opa/pr/former-trader-major-multinational-bank-convicted-price-fixing-and-bid-rigging-fx-market.
87 Sentencing Submission at 13, 36–37, 44–47, 51, United States v Aiyer, No. 18-cr-00333 (S.D.N.Y. 17 Apr 2020).
88 DOJ, footnote 81.