IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
JO TANKERS B.V.,
Defendant.
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Criminal No. 04-221
Violation: 15 U.S.C. § 1
Filed: June 9, 2004
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PLEA AGREEMENT
The United States of America and Jo Tankers B.V. ("defendant"), a corporation
organized and existing under the laws of The Netherlands, hereby enter into the following Plea
Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure ("Fed. R.
Crim. P."):
RIGHTS OF DEFENDANT
1. The defendant understands its rights:
(a) | to be represented by an attorney; |
(b) | to be charged by Indictment; |
(c) | as a corporation organized and existing under the laws of The Netherlands,
to decline to accept service of the Summons in this case, and to contest the jurisdiction of
the United States to prosecute this case against it in the United States District Court for
the Eastern District of Pennsylvania; |
(d) | to plead not guilty to any criminal charge brought against it; |
(e) | to have a trial by jury, at which it would be presumed not guilty of the
charge and the United States would have to prove every essential element of the charged
offense beyond a reasonable doubt for it to be found guilty; |
(f) | to confront and cross-examine witnesses against it and to subpoena
witnesses in its defense at trial; |
(g) | to appeal its conviction if it is found guilty at trial; and |
(h) | to appeal the imposition of sentence against it.
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AGREEMENT TO PLEAD
GUILTY AND WAIVE CERTAIN RIGHTS
2. The defendant waives the rights set out in Paragraph 1(b)-(g) above, including all
jurisdictional defenses to the prosecution of this case, and agrees voluntarily to consent to the
jurisdiction of the United States to prosecute this case against it in the United States District Court
for the Eastern District of Pennsylvania. The defendant also waives the right to appeal the
imposition of sentence against it, so long as the sentence imposed is consistent with the
recommendation in Paragraph 8 of this Plea Agreement. Further, pursuant to Fed. R. Crim. P.
7(b), the defendant will waive indictment and plead guilty at arraignment to a one-count
Information to be filed in the United States District Court for the Eastern District of Pennsylvania.
The Information will charge the defendant with participating in a conspiracy to suppress and
eliminate competition by allocating customers, fixing prices and rigging bids for contracts of
affreightment for parcel tanker shipping of products to and from the United States and elsewhere
beginning at least as early as the second half of 1998 and continuing until as late as November
2002, in violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
3. The defendant, pursuant to the terms of this Plea Agreement, will plead guilty to
the criminal charge described in Paragraph 2 above and will make a factual admission of guilt to
the Court in accordance with Fed. R. Crim. P. 11, as set forth in Paragraph 4 below.
FACTUAL BASIS FOR OFFENSE CHARGED
4. Had this case gone to trial, the United States would have presented evidence to
prove the following facts:
(a) | For purposes of this Plea Agreement, the "relevant period" is that period
beginning at least as early as the second half of 1998 and continuing until at least as late as
November 2002. During the relevant period, the defendant was a corporation organized
and existing under the laws of The Netherlands with its principal place of business in
Spijkenisse, The Netherlands. During the relevant period, the defendant was a provider of
parcel tanker shipping services and was engaged in parcel tanker shipping of products to
and from the United States and elsewhere. Parcel tanker shipping is the ocean transport of
bulk liquid chemicals, edible oils, acids and other specialty liquids. Parcel tankers are
deep sea vessels equipped with compartments designed to carry shipments of various
sizes. The temperature and other specifications of the compartments can be regulated
according to the specific requirements of the type of liquid being transported. |
(b) | During the relevant period, the defendant, through its agents, officers and
employees, participated in a conspiracy among major providers of parcel tanker shipping,
the substantial terms of which were to allocate customers, rig bids, and fix prices for
contracts of affreightment for parcel tanker shipping of products to and from the United
States and elsewhere. A contract of affreightment is a contract between a customer and a
parcel tanker shipping company for the transportation of bulk liquids from one port to
another. A contract of affreightment typically covers multiple shipments during a certain
time period and specifies the price, cargo, destinations and other terms and conditions. |
(c) | During the relevant period and in furtherance of the conspiracy, the
defendant, through its agents, officers and employees, and defendant's co-conspirators
attended meetings and engaged in discussions in the United States and Europe concerning
customers, for contracts of affreightment and prices of parcel tanker shipping of products
to and from the United States and elsewhere. The defendant and co-conspirators agreed
during those meetings and discussions to allocate customers. The defendant and co-conspirators agreed during those meetings and discussions not to compete for one
another's customers either by not submitting prices or bids to certain customers, or by
submitting intentionally high prices or bids to certain customers. Defendant and co-conspirators discussed and exchanged prices to certain customers so as not to undercut one
another's prices. |
(d) | During the relevant period, products shipped by defendant, and parcel
tanker shipping vessels, equipment and supplies necessary to providing such parcel tanker
shipping, as well as payments for such parcel tanker shipping, traveled in interstate and
foreign commerce. The activities of the defendant and its co-conspirators in connection
with the parcel tanker shipping services affected by this conspiracy were within the flow
of, and substantially affected, interstate and foreign trade and commerce. |
(e) | The conspiracy was carried out, in part, within the Eastern District of
Pennsylvania. Contracts of affreightment for parcel tanker shipping services affected by
this conspiracy were entered into by one or more of the conspirators with customers
located in this District. |
POSSIBLE MAXIMUM SENTENCE
5. The defendant understands that the maximum penalty which may be imposed
against it upon conviction for a violation of Section One of the Sherman Antitrust Act is a fine in
an amount equal to the greatest of:
(a) | $10 million (15 U.S.C. § 1); |
(b) | twice the gross pecuniary gain the conspirators derived from the crime (18
U.S.C. § 3571(c) and (d)); or |
(c) | twice the gross pecuniary loss caused to the victims of the crime by the
conspirators (18 U.S.C. § 3571(c) and (d)). |
6. In addition, the defendant understands that:
(a) | pursuant to § 8B1.1 of the United States Sentencing Guidelines
("U.S.S.G."), the Court may order it to pay restitution to the victims of the offense; |
(b) | pursuant to 18 U.S.C. § 3013(a)(2)(B) and U.S.S.G. § 8E1.1, the Court is
required to order the defendant to pay a $400 special assessment upon conviction for the
charged crime; and |
(c) | pursuant to 18 U.S.C. § 3561(c)(1), the Court may impose a term of
probation of at least one year, but not more than five years. |
SENTENCING GUIDELINES
7. Sentencing for the offense to be charged will be conducted pursuant to the
U.S.S.G. Manual in effect on the day of sentencing. U.S.S.G. § 1B1.11. Pursuant to U.S.S.G. §
1B1.8, the United States agrees that self-incriminating information that the defendant provides to
the United States pursuant to this Plea Agreement will not be used to increase the volume of
affected commerce attributable to the defendant or in determining the defendant's applicable
sentencing guidelines range, except to the extent provided in U.S.S.G. § 1B1.8(b).
SENTENCING AGREEMENT
8. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the United States and the defendant agree
that the appropriate disposition of this case is, and agree to recommend jointly that the Court
impose, a sentence requiring the defendant to pay to the United States a criminal fine of $19.5
million, pursuant to 18 U.S.C. § 3571(d), payable in installments as set forth below with interest
accruing under 18 U.S.C. § 3612(f)(1)-(2), with a five-year term of probation ("the recommended
sentence").
(a) | The United States and the defendant agree to recommend, in the interest of
justice pursuant to 18 U.S.C. § 3572(d)(1), that the fine be paid in the following
installments: within 90 days of imposition of sentence $1 million (plus any accrued
interest); at the one-year anniversary of imposition of sentence ("anniversary") -- $2.75
million (plus any accrued interest); at the two-year anniversary -- $4 million (plus any
accrued interest); at the three-year anniversary -- $4 million (plus any accrued interest); at
the four-year anniversary -- $4 million (plus any accrued interest); and at the five-year
anniversary -- $3.75 million (plus any accrued interest); provided, however, that the
defendant shall have the option at any time before the five-year anniversary of prepaying
the remaining balance (plus any accrued interest) then owing on the fine. |
(b) | The defendant understands that the Court will order it to pay a $400 special
assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B) and U.S.S.G. § 8E1.1, in addition to
any fine imposed. |
(c) | The United States and the defendant jointly submit that this Plea
Agreement, together with the record that will be created by the United States and the
defendant at the plea and sentencing hearings, and the further disclosure described in
Paragraph 10, will provide sufficient information concerning the defendant, the crime
charged in this case, and the defendant's role in the crime to enable the meaningful
exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United States
and defendant agree to request jointly that the Court accept the defendant's guilty plea and
impose sentence on an expedited schedule as early as the date of arraignment, based upon
the record provided by the defendant and the United States, under the provisions of Fed. R.
Crim. P. 32(c)(1)(A)(ii), U.S.S.G. § 6A1.1, and Rule 32.3 of the Criminal Local Rules.
The Court's denial of the request to impose sentence on an expedited schedule will not
void this Plea Agreement. |
9. The United States and the defendant agree that the applicable sentencing guidelines
fine range exceeds the fine contained in the recommended sentence set out in Paragraph 8 above.
Subject to the full and continuing cooperation of the defendant, as described in Paragraph 13 of
this Plea Agreement, and prior to sentencing in this case, the United States agrees that it will make
a motion, pursuant to U.S.S. G. § 8C4.1, for a downward departure from the guidelines fine range
and will request that the Court impose the recommended sentence set out in paragraph 8 of this
Plea Agreement because of the defendant's substantial assistance in the government's
investigation and prosecutions of violations of federal criminal law in the parcel tanker shipping
industry.
10. Subject to the ongoing, full, and truthful cooperation of the defendant described in
Paragraph 13 of this Plea Agreement, and before sentencing in the case, the United States will
fully advise the Court and the Probation Office of the fact, manner, and extent of the defendant's
cooperation and its commitment to prospective cooperation with the United States' investigation
and prosecutions, all material facts relating to the defendant's involvement in the charged offense,
and all other relevant conduct.
11. The United States and the defendant understand that the Court retains complete
discretion to accept or reject the recommended sentence provided for in Paragraph 8 of this Plea
Agreement.
(a) | If the Court does not accept the recommended sentence, the United States
and the defendant agree that this Plea Agreement, except for Paragraph 11(b) below, shall
be rendered void. |
(b) | If the Court does not accept the recommended sentence, the defendant will
be free to withdraw its guilty plea (Fed. R. Crim. P. 11(c)(5) and (d)). If the defendant
withdraws its plea of guilty, this Plea Agreement, the guilty plea, and any statement made
in the course of any proceedings under Fed. R. Crim. P. 11 regarding the guilty plea or this
Plea Agreement or made in the course of plea discussions with an attorney for the
government shall not be admissible against the defendant and its subsidiaries engaged in
parcel tanker shipping, in any criminal or civil proceeding, except as otherwise provided in
Fed. R. Evid. 410. In addition, the defendant agrees that, if it withdraws its guilty plea
pursuant to this subparagraph of the Plea Agreement, the statute of limitations period for
any offense referred to in Paragraph 15 of this Plea Agreement will be tolled for the period
between the date of the signing of the Plea Agreement and the date the defendant withdrew
its guilty plea or for a period of sixty (60) days after the date of the signing of the Plea
Agreement, whichever period is greater. |
12. In light of the availability of civil causes of actions, which potentially provide for a
recovery of a multiple of actual damages, the United States agrees that it will not seek a restitution
order for the offense charged in the Information.
DEFENDANT'S COOPERATION
13. The defendant and its subsidiaries will cooperate fully and truthfully with the
United States in the prosecution of this case, the conduct of the current federal investigation of
violations of federal antitrust and related criminal laws involving parcel tanker shipping, any other
federal investigation resulting therefrom, and any litigation or other proceedings arising or
resulting from any such investigation to which the United States is a party ("Federal Proceeding").
The ongoing, full, and truthful cooperation of the defendant shall include, but not be limited to:
(a) | producing to the United States all documents, information, and other
materials, wherever located, in the possession, custody, or control of the defendant or its
subsidiaries, requested by the United States in connection with any Federal Proceeding; |
(b) | securing the ongoing, full, and truthful cooperation, as defined in paragraph
14 of this plea agreement of the current advisory board members, directors, managing
directors and officers of the defendant or any of its subsidiaries, including making such
persons available in the United States and at other mutually agreed-upon locations, at the
defendant's expense, for interviews and the provision of testimony in grand jury, trial and
other judicial proceedings in connection with any Federal Proceeding; |
(c) | using its best efforts to secure the ongoing, full and truthful cooperation, as
defined in Paragraph 14 of this Plea Agreement, of current employees of the defendant or
any of its subsidiaries, as may be requested by the United States, including making these
persons available in the United States and at other mutually agreed-upon locations, at the
defendant's expense for the provision of testimony in grand jury, trial and other judicial
proceedings in connection with any Federal Proceeding. |
14. The ongoing, full, and truthful cooperation of each person described in either
Paragraph 13(b) or 13(c) above will be subject to the procedures and protections of this paragraph,
and shall include, but not be limited to:
(a) | producing in the United States and at other mutually agreed-upon locations
all documents, including claimed personal documents, and other materials, wherever
located, requested by attorneys and agents of the United States in connection with any
Federal Proceeding; |
(b) | making himself or herself available for interviews in the United States and
at other mutually agreed-upon locations, not at the expense of the United States, upon the
request of attorneys and agents of the United States in connection with any Federal
Proceeding; |
(c) | responding fully and truthfully to all inquiries of the United States in
connection with any Federal Proceeding, without falsely implicating any person or
intentionally withholding any information, subject to the penalties of making false
statements (18 U.S.C. § 1001) and obstruction of justice (18 U.S.C. § 1503); |
(d) | otherwise voluntarily providing the United States with any material or
information not requested in (a) - (c) of this paragraph that he or she may have that is
related to any Federal Proceeding; |
(e) | when called upon to do so by the United States in connection with any
Federal Proceeding, testifying in grand jury, trial, and other judicial proceedings in the
United States fully, truthfully, and under oath, subject to the penalties of perjury (18
U.S.C. § 1621), making false statements or declarations in grand jury or court proceedings
(18 U.S.C. § 1623), contempt (18 U.S.C. §§ 401-402), and obstruction of justice (18
U.S.C. § 1503); and |
(f) | agreeing that, if the agreement not to prosecute him or her in this Plea Agreement is rendered void under Paragraph 16(c), the statute of limitations period for
any Relevant Offense as defined in Paragraph 16(a) will be tolled as to him or her for the
period between the date of the signing of this Plea Agreement and six (6) months after the
date that the United States gave notice of its intent to void its obligations to that person
under the Plea Agreement. |
15. Upon entry and acceptance of the guilty plea and the imposition of the
recommended sentence called for by this Plea Agreement, and subject to the cooperation
requirements of Paragraph 13 of this Plea Agreement, the United States agrees that it will not
bring further criminal charges against the defendant or any of its subsidiaries for any act or offense
committed before December 2002 that was undertaken in furtherance of an antitrust conspiracy
involving parcel tanker shipping. The nonprosecution terms of this paragraph do not apply to
civil matters of any kind, to any violation of the federal tax or securities laws, or to any crime of
violence.
16. The United States agrees to the following:
(a) | Upon the Court's acceptance of the guilty plea called for by this Plea
Agreement and the imposition of the recommended sentence and subject to the exceptions
noted in Paragraph 16(c), the United States will not bring criminal charges against any
current advisory board member, director, managing director, officer, or employee of the
defendant or its subsidiaries for any act or offense committed before December 2002 and
while that person was acting as an advisory board member, director, managing director,
officer, or employee of the defendant or its subsidiaries, that was undertaken in furtherance
of an antitrust conspiracy involving parcel tanker shipping ("Relevant Offense"); |
(b) | Should the United States determine that any current advisory board
member, director, managing director, officer, or employee of the defendant or its
subsidiaries may have information relevant to any Federal Proceeding, the United States
may request that person's cooperation under the terms of this Plea Agreement by written
request delivered to counsel for the individual (with a copy to the undersigned counsel for
the defendant) or, if the individual is not known by the United States to be represented, to
the undersigned counsel for the defendant; |
(c) | If any person requested to provide cooperation under Paragraph 16(b) fails
to comply with his or her obligations under Paragraph 14, then the terms of this Plea
Agreement as they pertain to that person, and the agreement not to prosecute that person
granted in this Plea Agreement, shall be rendered void; |
(d) | Except as provided in Paragraph 16(e), information provided by a person
described in Paragraph 16(b) to the United States under the terms of this Plea Agreement,
pertaining to any Relevant Offense, or any information directly or indirectly derived from that information, may not be used against that person in a criminal case, except in a
prosecution for perjury (18 U.S.C. § 1621), making a false statement or declaration
(18 U.S.C. §§ 1001, 1623), or obstruction of justice (18 U.S.C. § 1503); |
(e) | If any person who provides information to the United States under this Plea
Agreement fails to comply fully with his or her obligations under Paragraph 14 of this Plea
Agreement, the agreement in Paragraph 16(d) not to use that information or any
information directly or indirectly derived from it against that person in a criminal case
shall be rendered void; |
(f) | The nonprosecution terms of this paragraph do not apply to civil matters of
any kind, to any violation of the federal tax or securities laws, or to any crime of violence;
and |
(g) | Documents provided under Paragraphs 13(a) and 14(a) or that have been
previously provided shall be deemed responsive to outstanding grand jury subpoenas
issued to the defendant or any of its subsidiaries. |
17. The United States agrees that when any person travels to the United States for
interviews, grand jury appearances, or court appearances pursuant to this Plea Agreement, or for
meetings with counsel in preparation therefor, the United States will take no action, based upon
any Relevant Offense, to subject such person to arrest, detention, or service of process, or to
prevent such person from departing the United States. This paragraph does not apply to an
individual's commission of perjury (18 U.S.C. § 1621), making false statements (18 U.S.C. §
1001), making false statements or declarations in grand jury or court proceedings (18 U.S.C. §
1623), obstruction of justice (18 U.S.C. § 1503), or contempt (18 U.S.C. §§ 401-402) in
connection with any testimony or information provided or requested in any Federal Proceeding.
REPRESENTATION BY COUNSEL
18. The defendant has been represented by counsel and is fully satisfied that its
attorneys have provided competent legal representation. The defendant has thoroughly reviewed
this Plea Agreement and acknowledges that counsel has advised it of the nature of the charge, any
possible defenses to the charge, and the nature and range of possible sentences.
VOLUNTARY PLEA
19. The defendant's decision to enter into this Plea Agreement and to tender a plea of
guilty is freely and voluntarily made and is not the result of force, threats, assurances, promises, or
representations other than the representations contained in this Plea Agreement. The United
States has made no promises or representations to the defendant as to whether the Court will
accept or reject the recommendations contained within this Plea Agreement.
VIOLATION OF PLEA AGREEMENT
20. The defendant agrees that, should the United States determine in good faith, during
the period that any Federal Proceeding is pending, that the defendant or any of its subsidiaries
have failed to provide full and truthful cooperation, as described in Paragraph 13 of this Plea
Agreement, or has otherwise violated any provision of this Plea Agreement, the United States will
notify counsel for the defendant in writing by personal or overnight delivery or facsimile
transmission and may also notify counsel by telephone of its intention to void any of its
obligations under this Plea Agreement (except its obligations under this paragraph), and the
defendant and its subsidiaries shall be subject to prosecution for any federal crime of which the
United States has knowledge including, but not limited to, the substantive offenses relating to the
investigation resulting in this Plea Agreement. The defendant and its subsidiaries agree that, in
the event that the United States is released from its obligations under this Plea Agreement and
brings criminal charges against the defendant or its subsidiaries for any offense referred to in
Paragraph 15 of this Plea Agreement, the statute of limitations period for such offense will be
tolled for the period between the date of the signing of this Plea Agreement and six (6) months
after the date the United States gave notice of its intent to void its obligations under this Plea
Agreement.
21. The defendant understands and agrees that in any further prosecution of it or its subsidiaries resulting from the release of the United States from its obligations under
this Plea Agreement, because of the defendant's or its subsidiaries' violation of the Plea
Agreement, any documents, statements, information, testimony, or evidence provided by it, its
subsidiaries, or current advisory board members, directors, managing directors, officers, or
employees of it or its subsidiaries to attorneys or agents of the United States, federal grand juries,
or courts, and any leads derived therefrom, may be used against it or its subsidiaries in any such
further prosecution. In addition, the defendant unconditionally waives its right to challenge the
use of such evidence in any such further prosecution, notwithstanding the protections of Fed. R.
Evid. 410.
ENTIRETY OF AGREEMENT
22. This Plea Agreement constitutes the entire agreement between the United States and the defendant concerning the disposition of the criminal charge in this case.
This Plea Agreement cannot be modified except in writing, signed by the United States and the
defendant.
23. The undersigned is authorized to enter this Plea Agreement on behalf of the
defendant as evidenced by the Resolution of the Management Board of the defendant attached to,
and incorporated by reference in, this Plea Agreement.
24. The undersigned attorneys for the United States have been authorized by the Attorney General of the United States to enter this Plea Agreement on behalf of the United
States.
DATED: 4/16/2004 |
Respectfully submitted, |
BY:_______________/s/________________
JOHAN ODVAR ODFJELL
Managing Director
Jo Tankers B.V.
BY:_______________/s/________________
RICHARD J. RAPPAPORT
Counsel for Jo Tankers B.V.
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BY:_______________/s/________________
ROBERT E. CONNOLLY
Chief, Philadelphia Office
BY:_______________/s/________________
ANTONIA R. HILL
WENDY BOSTWICK NORMAN
KIMBERLY A. JUSTICE
RICHARD S. ROSENBERG
Attorneys
Antitrust Division
U.S. Department of Justice
Philadelphia Office
The Curtis Center, Suite 650W
170 S. Independence Mall West
Philadelphia, PA 19106
Tel.: (215) 597-7401
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