By: Kali Fleming
Poultry companies have faced lawsuits and investigations concerning price fixing in the past, yet not much incriminating evidence has been found. In 2016, a civil class action lawsuit was filed in the District Court for the Northern District of Illinois, alleging that a number of the United States’ largest poultry companies “conspired and combined to fix, raise, maintain, and stabilize the price of Broilers” using Agri Stats from 2008 to 2016. The civil action received little attention until the Department of Justice (DOJ) Antitrust Division intervened in June of 2019 to ask for a “six-month, limited stay of discovery” in order to pursue potential criminal charges for its indictments. The civil price fixing allegations turned into a full-blown criminal investigation of poultry companies and their executives.
Defendants were served with subpoenas as early as April of 2019. Tyson Foods “uncovered information in connection” with the investigation and “immediately self-reported to the DOJ.” Tyson Foods reported that it applied “for leniency under the DOJ’s Corporate Leniency Program.” The Corporate Leniency Program allows corporations to “avoid criminal prosecution, fines, and prison by being the first to confess participation in a criminal antitrust conspiracy, fully cooperating with the DOJ, and meeting other specified conditions.”
Based on information provided by Tyson Foods under the Corporate Leniency Program, the DOJ has indicted ten executives between two charges in its criminal probe, alleging that the industry executives “conspired to fix prices from 2012 to 2019.” The DOJ apparently uncovered additional evidence that increased the period of time in which collusion between executives occurred. The executives now face a “statutory maximum penalty of ten years in prison and a $1 million fine if convicted.” This reveals the potential for serious individual criminal liability for executives that collude on prices. Additionally, from the DOJ’s original indictments of poultry companies, Pilgrim’s Pride negotiated a plea deal resulting in an order to pay $110.5 million. This reveals the severe financial impacts on companies that do not cooperate with the DOJ under the Corporate Leniency Program, as Pilgrim’s Pride’s settlement was negotiated in an effort to avoid additional charges.
With allegations of price fixing on the rise in the agricultural industry, companies should heed the warnings of the present case in that civil allegations of price fixing can turn into criminal investigations even several years after filing. Companies accused of price fixing can protect their business and executives by conducting swift internal investigations. Where incriminating evidence is uncovered as part of an internal investigation, companies should voluntarily cooperate in criminal investigations under the Corporate Leniency Program. As revealed by Tyson Foods’ swift action in the present case, companies can protect their business and executives from media attention, investigative scrutiny, hefty fines, and potential jail sentences by immediately self-reporting when antitrust issues escalate.
 Carl W. Hittinger & Jeanne-Michele Mariana, Is Big Chicken Cooked? DOJ Intervenes in Price-Fixing Investigation, The Temple 10-Q (July 26, 2019), https://www2.law.temple.edu/10q/is-big-chicken-cooked-doj-intervenes-in-price-fixing-investigation/#:~:text=DOJ%20Intervenes%20in%20Price%2DFixing%20Investigation,-by%20Carl%20W&text=The%20class%20action%20as%20filed,price%20hike%20for%20broiler%20chicken (stating that poultry companies “faced multiple similar lawsuits as well as an investigation by the United States Securities and Exchange Commission, yet nothing was ever found”).
 Complaint at 1, In re Broiler Chicken Antitrust Litig., No. 16-cv-8637 (N.D. Ill Sept. 2, 2016); see also Hittinger & Mariana, supra note 1 (providing that the defendants used “Agri Stats, a subscription service that documents production practices across the chicken industry” to “share detailed marketing and supply information”).
 Motion to Intervene and Stay Discovery, In Re Broiler Chicken Antitrust Litig., No. 16-cv-8637 (N.D. Ill. June 21, 2019).
 See generally Hittinger & Mariana, supra note 1 (providing that the motion to intervene revealed the DOJ’s intent to ensure “the integrity of the grand jury’s investigation”).
 Tyson Foods’ Statement on Department of Justice Indictment in Broiler Chicken Investigation, Tyson Foods, Inc. (June 10, 2020), https://www.tysonfoods.com/news/news-releases/2020/6/tyson-foods-statement-department-justice-indictment-broiler-chicken#:~:text=On%20April%2026%2C%202019%2C%20Tyson,self%2Dreported%20to%20the%20DOJ (indicating that Tyson had applied “for leniency under the DOJ’s Corporate Leniency Program”).
 Antitrust Alert: Justice Department Issues Guidance on Antitrust Criminal Leniency Program, Jones Day (Dec. 2008), https://www.jonesday.com/en/insights/2008/12/antitrust-alert–justice-department-issues-guidance-on-antitrust-criminal-leniency-program. See generally Leniency Program, U.S. Dep’t of Just., https://www.justice.gov/atr/leniency-program (last visited Oct. 28, 2020).
 Greg Henderson, New Indictments in DOJ Chicken Price-Fixing Probe, AG WEB (Oct. 7, 2020, 2:48 PM), https://www.agweb.com/article/new-indictments-doj-chicken-price-fixing-probe (providing that the first indictments were filed against the CEO and former Vice President of Pilgrim’s Pride and the President and Vice President of Claxton Poultry; the second indictments were filed against the former Pilgrim’s Pride CEO, Director of National Account Sales for Perdue Farms, the former Director of Sales for Tyson Foods), and four additional employees of Pilgrim’s Pride); see also Lillianna Byington, Tyson Foods exchanges cooperation for leniency in price-fixing probe, FOODDIVE (June 11, 2020), https://www.fooddive.com/news/tyson-foods-exchanges-cooperation-for-leniency-in-price-fixing-probe/579602/ (providing that the indictment included that “executives and employees discussed details about their pricing in phone calls and text messages for years while they were simultaneously negotiating supply deals with retailers and restaurants”).
 Complaint at 1, In re Broiler Chicken Antitrust Litig., No. 16-cv-8637 (N.D. Ill Sept. 2, 2016) (alleging that price fixing occurred between 2008 and 2016); Henderson, supra note 9 (alleging that price fixing occurred between 2012 and 2019).
 Byington, supra note 9.
 Rob McLean, Pilgrim’s Pride to pay more than $110 million to settle chicken price-fixing charges,CNN Business (Oct. 14, 2020, 9:13 AM), https://www.cnn.com/2020/10/14/business/pilgrims-pride-doj-plea/index.html (providing that Pilgrim’s Pride negotiated the plea deal in an effort to “provide certainty . . . to [their] team members, suppliers, customers, and shareholders”).
 Jordan Strickler, Pilgrim’s Pride Agrees to Plea Deal in DOJ Probe, Forbes (Oct. 15, 2020, 7:50 AM) (providing that “in exchange for the deal . . . the DOJ would not bring further charges against the company or recommend a monitor or any probationary period”).