United States v. Stolt-Nielsen S.A. (524 F. Supp. 2d 586, 2007)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BRUCE W. KAUFFMAN, District Judge.

AND NOW, this day of November, 2007, after an evidentiary hearing and careful review of the record, including the parties’ post-hearing supplemental briefs, exhibits, and proposed findings of fact and conclusions of law, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

I.Background

1. Defendant Stolt-Nielsen S.A. (“SNSA”), a Luxembourg corporation, is the parent of the Stolt-Nielsen Transportation Group (“SNTG”) and all the Stolt-Nielsen entities (collectively, “Stolt-Niel-sen”). SNTG is a parcel tanker shipping company.

2. In 2002, Defendant Samuel A. Coo-perman (“Cooperman”) was Chairman of SNTG.

3. In 2002, Defendant Richard B. Wingfield (“Wingfield”) was Managing Director of Tanker Trading at SNTG.

4. During the period relevant to this case, Stolt-Nielsen’s primary competitors in the parcel tanker shipping industry were Odfjell Seachem (“Odfjell”), a Norwegian company, and Jo Tankers BV (“Jo Tankers”), a Dutch company.

II. The Conspiracy Is Formed

5. In August 1998, Stolt-Nielsen representatives Cooperman and Andrew Pickering met in SNTG’s London office with Odfjell executives Bjorn Sjaastad (“Sjaas-tad”), Erik Nilsen (“Nilsen”), and Atle Knutsen and agreed not to compete for one another’s customers on deep-sea trade routes. See Testimony of John Nannes (“Nannes ”) GX-5, at 165-67; Testimony of Andrew Pickering (“Pickering ”) 5/31/07, at 153; Testimony of Atle Knutsen (“Knutsen ”) 6/13/07, at 16-17.

6. After the meeting, Stolt-Nielsen and Odfjell exchanged customer allocation lists to facilitate the agreement, sometimes referred to as “coop” or “status quo.” Pickering 5/31/07, at 135-39; Testimony of William Humphreys (“Humphreys ”) 6/4/07, at 144. As part of the agreement, Odfjell and Stolt-Nielsen would refrain from bidding or competing for customers and trade routes allocated to the other party. Pickering 5/31/07, at 139,197.

7. During this period, SNTG also developed an informal, “ad hoc” arrangement with Jo Tankers, whereby the two companies agreed not to compete for each other’s customers on certain trade routes. The companies did not exchange customer lists. See Testimony of Hendrikus Van Westenbrugge (“Van Westenbrugge”) 6/14/07, at 79; Pickering 5/31/07, at 135-36.

8. Stolb-Nielsen’s agreement with Odf-jell and Jo Tankers covered only deep-sea contracts, and generally excluded spot car-gos, new business, and regional contracts. See Testimony of Raymond Long (“Long”) 6/5/07, at 88-90; Testimony of James Fleming (“Fleming ”) 6/5/07, at 38-39.

9. Prior to 2001, Pickering, who at the time managed the Tanker Trading division, was responsible for implementing the agreement with Odfjell and Jo Tankers with the help of business directors and other lower-level employees. At that time, employees of StolNNielsen and Odfjell engaged in frequent anticompetitive communications. See Pickering 5/31/07, at 134— 35; Fleming 6/4/07, at 186-87.

10. In February 2001, Wingfield was transferred to StolNNielsen’s Greenwich, Connecticut office, where he replaced Pickering as Managing Director for Tanker Trading. See Testimony of Wingfield 6/5/07, at 107-08.

11. After Wingfield assumed the position, he sought to limit anticompetitive contacts and discussions between lower-level employees of SNTG and their counterparts at Odfjell and Jo Tankers, and designated himself and Bjorn Jansen (“Jansen”), his subordinate, to handle any collusive contacts. See Testimony of Brian Cleary (“Cleary") 6/1/07, at 161-62; Fleming 6/5/07, at 10-11.

III. O’Brien “Discovers” the Conspiracy

12. In January 2002, Paul O’Brien, then Senior Vice-President and General Counsel of Stolb-Nielsen, found a copy of an April 10, 2001 memorandum from Jansen to Wingfield, which had been left anonymously on his desk. See GX-2; Nannes GX-6, at 70; Testimony of Paul O’Brien (“O’Brien ”) 6/14/07, at 33-34. The memo weighed the advantages and disadvantages of competing with Odfjell and concluded that “continued coop is preferable.” GX-2; see Testimony of Jansen 6/13/07, at 89-91.

13. In February 2002, O’Brien reported his concerns about antitrust compliance at Stolt-Nielsen to Cooperman. Cooper-man promptly met with O’Brien to address his concerns. See Nannes GX-5, at 113, 129.

14. O’Brien resigned from Stolb-Niel-sen on March 1, 2002. See GX-8. In June 2002, he filed a constructive-discharge lawsuit against Stolt-Nielsen and Cooperman in Connecticut State Court. O’Brien v. Stolt-Nielsen Transp. Group Ltd., No. 02-0190051-S (Conn.Super. Ct., filed June 18,2002); GX-10A; Testimony of Richard Fisher (“Fisher”) 6/11/07, at 12. The complaint alleged “ongoing criminal conduct” in violation of the antitrust laws. GX-10A, at ¶¶ 8,15.

15. Because O’Brien left the company in March 2002, he was not in a position to monitor StolNNielsen’s antitrust compliance in the relevant March-November 2002 period. See GX-8.

16. Sometime after June 2002, Fisher, a member of SNSA’s Board of Directors, obtained a copy of O’Brien’s complaint. See Fisher 6/11/07, at 12-14. On August 1, 2002, Cooperman contacted Fisher to discuss the complaint. Fisher requested that it be addressed at the August board meeting of SNSA. Fisher 6/11/07, at 15-16.

17. On August 14, 2002, Cooperman addressed the Board and reported that Stolt-Nielsen was participating in no ongoing antitrust violations. See Fisher 6/11/07, at 64 (Cooperman gave an “earnest report” on “ongoing activity from early 2002 going forward”).

TV. Stolt-Nielsen Takes “Prompt and Effective Action” to Terminate its Part in the Conspiracy

18. In response to the concerns raised by O’Brien, beginning in late February 2002 Stolt-Nielsen instituted a comprehensive and revised antitrust compliance policy (“Antitrust Compliance Policy”) in a prompt effort to terminate its part in the anticompetitive activity that had been reported by O’Brien.

19. As part of the new policy, Stolt-Nielsen issued and distributed a revised Antitrust Compliance Handbook (the “Handbook”). See DX-334.

20. The Handbook stressed the importance of antitrust compliance, expressly prohibited collusive contacts with competitors, required that any contact with competitors other than routine sublet and time charters be approved in advance by the Chief Executive Officer, and clarified that violation of any of its provisions would result in demotion or termination. See DX-334.

21. On or about March 11, 2002, Coo-perman and Reginald Lee (“Lee”), then CEO of SNTG, provided Wingfield with the Handbook, and ordered him to strictly comply with it and to disseminate it to Stolt-Nielsen employees, “pool partners” and competitors. Wingfield committed to adhere strictly to the new policy. See Wingfield 6/5/07, at 134-36.

22. In late February and early March 2002, Cooperman and Lee introduced the Antitrust Compliance Policy to StolWNiel-sen’s Business Directors. Cooperman met individually with each Business Director and stated that all collusive activity was to cease fully and immediately and that there would be severe consequences for noncompliance. See Testimony of P. Wayne Harrison (“Harrison ”) 5/31/07, at 210-11; Humphreys 6/4/07, at 160-62; Long 6/5/07, at 63-64; Cleary 6/1/07, at 120, 136, 148-50; Jansen 6/13/07, at 99, 159, 230-32.

23. On or about March 12, 2002, a Business Directors meeting was held for the purpose of discussing the Handbook and Antitrust Compliance Policy. Cleary 6/1/07, at 54-55; Testimony of Richard Judd (“Judd”) 6/1/07, at 173-76. The meeting was attended by Lee, who emphasized the need for strict compliance. See Testimony of Thomas Confrey (“Confrey ”) 6/1/07, at 208-09.

24. In late March and April 2002, Stolt-Nielsen held a series of mandatory seminars designed to inform employees about the Antitrust Compliance Policy. On April 24, 2002, Gary Sesser of the law firm of Carter, Ledyard & Milburn conducted two presentations in Greenwich, CT. Pickering 5/31/07, at 112; Harrison 5/31/07, at 218-20. The seminars were attended by Cooperman and Lee, as well as all regional managing directors worldwide. See Pickering 5/31/07, at 112-13; DX-354; DX-389; DX-390.

25. All seminar attendees were required to sign in and undergo a roll-call. Pickering 5/31/07, at 112-13; Harrison 5/31/07, at 219; DX-389; DX-390.

26. Mandatory seminars were also held in Houston, Rotterdam, and Singapore. See Wingfield 6/5/07, at 159-60; DX-356; Testimony of Ronald Soffree (“Soffree ”) 6/4/07, at 42-43; Pickering 5/31/07, at 108-09; DX-353; DX-407.

27. During each seminar, management conveyed the message that all anticompeti-tive activity must cease immediately. See Pickering 5/31/07, at 110; Soffree 6/4/07, at 43; Wingfield 6/5/07, at 160-61.

28. On March 15, 2002, Wingfield distributed the Handbook to parcel tanker operations and chartering personnel in the United States. See DX-355.

29. On March 19, 2002, Wingfield presented Stolt-Nielsen’s Antitrust Compliance Policy to the chartering and operational staff at a meeting in Greenwich, CT. Wingfield 6/5/07, at 137-38; Humphreys 6/4/07, at 65-66.

30. Lee and Cooperman directed the distribution of the Handbook to StolU-Niel-sen employees worldwide, including Europe and Asia. See DX-318; Pickering 5/31/07, at 105-07; Soffree 6/4/07, at 41; DX-353.

31. In May 2002, StolMSlielsen required all relevant employees to sign certifications representing as follows:

1.I have received, read and am familiar with the revised edition (Mar. 11.02) of the SNTG Antitrust Compliance Handbook.

2. I attended [one of] the Antitrust Compliance Seminar[s] ...

3. I will comply with all the terms and provisions of the Antitrust Compliance Policy.

4. I confirm that I am not aware of any violations of the Antitrust Compliance Handbook existing at this time.

5. I will promptly report any violations, or attempted violations, of the Policy to SNTG Legal Counsel.

By July 31, 2002, 134 employees had signed the certifications. See DX-100 to DX-100.132; Long 6/5/07, at 65-66; Pickering 5/31/07, at 114; Cleary 6/1/07, at 60; Harrison 5/31/07, at 220-21.

32. The Antitrust Compliance Policy was successful in transforming Stolb-Niel-sen’s corporate culture and reforming its business practices. The policy heightened employees’ alertness to antitrust compliance, and drastically altered the manner in which employees conducted business. See Harrison 5/31/07, at 221; Pickering 5/31/07, at 204; Fleming 6/4/07, at 191 (“For me, it was 180-degree turnaround in the way that the company had been behaving prior to that.”); Confrey 6/1/07, at 214-15 (“When this policy came into effect, everything changed. It was a tornado ... ”). Attendance at industry conferences and social events attended by competitors was restricted and required prior authorization. See Harrison 5/31/07, at 218, 226; Judd 6/1/07, at 183; Soffree 6/4/07, at 45-46.

33. After March 2002, competitors continued to initiate anticompetitive contacts, but Stolb-Nielsen employees repeatedly refused to engage in collusive discussions with them. Those employees who were contacted by Odfjell reported such calls to their superiors in compliance with the Antitrust Compliance Policy. See Long 6/5/07, at 66-67; Humphreys 6/4/07, at 89-90; Fleming 6/4/07, at 192-94, 196-97.

34. After March 2002, Stolt-Nielsen employees were instructed to turn in or discard their copies of the customer allocation lists. See Long 6/5/07, at 66.

35. In March 2002, Wingfield returned two European cell phones that Odfjell had suggested be used specifically to facilitate collusive contacts. Wingfield 6/5/07, at 140-41; DX-12.

36. Prior to March 2002, the customer-allocation conspiracy required the participation of personnel at various levels within Stolt-Nielsen. See Pickering 5/31/07, at 135. Two of those employees testified that it would have been impossible for anticom-petitive contacts to have continued without their knowledge. See Confrey 6/1/07, at 227-28; Fleming 6/4/07, at 212-13. Dr. Barry Harris (“Harris”), former Deputy Assistant Attorney General for Economics at the Division, explained that the revised Antitrust Compliance Policy effectively “severed” the internal company communication pathways — i.e., the links between those who were in contact with competitors and those responsible for bidding— that made it possible for Stolt-Nielsen to implement the customer allocation conspiracy. See Testimony of Harris 6/20/07, at 24-28.

37. After March 2002, Stolt-Nielsen and Odfjell competed for contracts that previously had been subject to collusion. See Long 6/5/07, at 70-72; DX-4009.

38. Between March and November ' 2002, Stolt-Nielsen succeeded in winning a number of contracts allocated to Odfjell prior to March 2002. Examples include (1) the BP contract from U.S. Gulf to Mexico, which Stolt-Nielsen won in April 2002, Fleming 6/4/07, at 203; DX-2706, at SN-E-0072029; and (2) the Dow Chemical Contract from U.S. Gulf to Mexico, which Stolt-Nielsen won in October 2002. Fleming 6/4/07, at 203; DX-3172; GX-53.

39. Between March and November 2002, Odfjell competed for and won a number of contracts previously allocated to Stolt-Nielsen. These included (1) the Rhodia contract from Europe to Asia, Cleary 6/1/07, at 92; Testimony of Nilsen 6/15/07, at 135; Nilsen 6/19/07, at 40; and (2) the Oxiquim contract from U.S. Gulf to Chile and Peru to Chile. Nilsen 6/19/07, at 50; Long 6/5/07, at 77; DX-4066, at OE041016.

40. In February 2002, Trond Storli (“Storli”), an Odfjell employee, obtained a copy of the 1998 combined customer allocation list and threatened to expose the conspiracy unless Odfjell paid him. See Testimony of Jarle Haugsdal (“Haugsdal”) 6/12/07, at 233-36; Testimony of Sjaastad 6/20/07, at 147-48. On March 20, 2002, Odfjell and Storli entered into an agreement whereby Storli received $50,000. The agreement required Storli to certify that he was unaware of any violation of law by Odfjell or its employees. See Wingfield Ex. 119, at OD 0094958-59.

41. As a result of Storli’s threats, Haugsdal, an Odfjell executive, told the Odfjell vice presidents to destroy copies of the customer allocation lists. Haugsdal 6/12/07, at 241-14.

42. Odfjell sought to conceal its involvement in the conspiracy when Haugs-dal was quoted in a February 20, 2003 Wall Street Journal article stating “we are of the firm opinion that we in our business dealings have always acted well within the relevant competition laws.” DX-1353; Haugsdal 6/12/07, at 138-39, 134-35.

V. Contacts with Competitors: March-November 2002

A. The NPRA Conference

43. On March 26, 2002, Wingfield met with Odfjell executives Sjaastad and Mor-ten Nystad (“Nystad”) at the National Petroleum Refiners Association (“NPRA”) conference in San Antonio and informed them that in response to antitrust concerns raised by its in-house counsel, Stolt-Nielsen had adopted and issued a new antitrust policy. Wingfield 6/5/07, at 142-43.

44. During the meeting, Wingfield informed Sjaastad and Nystad that Stolid Nielsen would comply with the new policy without exception, and that its participation in the prior customer allocation conspiracy must end. See Wingfield 6/5/07, at 142-44; Wingfield 6/6/07, at 33; Sjaastad 6/20/07, at 114.

45. There was no discussion of specific customers at the meeting. However, Wingfield explained that the new antitrust policy did not require Stolt-Nielsen to go after all of Odfjell’s customers, nor did Stolt-Nielsen have the capacity to do so. See Wingfield 6/5/07, at 143-46; Jansen 6/13/07, at 210-12.

46. Sjaastad asked Wingfield to send him a copy of the Handbook, and Wing-field e-mailed it to him upon return to his office. Wingfield 6/5/07, at 147; DX-363.

47. Sjaastad subsequently sent Haugs-dal a copy of the Handbook. Haugsdal forwarded the Handbook to Odfjell’s outside law firm for review. See Haugsdal 6/12/07, at 116-20,125-26.

48. There is no credible evidence that Wingfield told Sjaastad and Nystad that it was “business as usual” or that “the status quo would prevail.” Wingfield 6/5/07, at 111-12.

49. On the evening of March 26, 2002, Wingfield, Jansen and Cleary had a dinner meeting with Jo Tankers executives Van Westenbrugge and Hugo Finlay (“Finlay”) at a restaurant in San Antonio. Wingfield 6/5/07, at 148-50; Van Westenbrugge 6/14/07, at 180-81.

50. The purpose of the meeting was to discuss a co-service agreement between the two companies, a lawful subject for discussion. Wingfield 6/5/07, at 149; Van Westenbrugge 6/14/07, at 180-84; Cleary 6/1/07, at 77, 115; Jansen 6/13/07, at 103.

51. During the meeting, Wingfield requested that Finlay and Cleary leave the table so that he could speak with Van Westenbrugge in private. See Wingfield 6/5/07, at 150-51. Wingfield then told Van Westenbrugge that as a result of antitrust concerns raised by its in-house counsel, Stolt-Nielsen had issued a new Antitrust Compliance Policy that would be strictly enforced. Wingfield 6/5/07, at 152-54; Van Westenbrugge 6/14/07, at 182-84.

52. Finlay was not present at the table when Wingfield raised the subject of Stolt-Nielsen’s Antitrust Compliance Policy, and therefore had no personal knowledge of the discussion. Cleary 6/1/07, at 78-79; Wingfield 6/5/07, at 150-52; Van Westenbrugge 6/14/07, at 181, 212.

53. Van Westenbrugge requested a copy of the Handbook, which Wingfield emailed him upon return to his office. Wingfield 6/5/07, at 153-54; Van Westenbrugge 6/14/07, at 182, 215; DX-365.

54. Wingfield reported his discussion with Van Westenbrugge to Lee on the day after the dinner meeting. Wingfield 6/5/07, at 156.

55. There is no credible evidence that Wingfield stated or suggested that the ad hoc customer allocation arrangement between Stolt-Nielsen and Jo Tankers would continue. See Van Westenbrugge 6/14/01, at 226.

B. The “Luigi’s” Meeting in London

56. On June 13, 2002, Wingfield and Jansen met Odfjell executives Nilsen and Haugsdal for dinner at Luigi’s restaurant in London. Wingfield 6/5/07, at 166-68; Jansen 6/13/07, at 112-14.

57. The purpose of the meeting was to discuss formalizing a lawful sublet arrangement that was in place between Stolt-Nielsen and Odfjell on the Brazil-Afriea-Japan (“BAJ”) trade lane in order to adhere more strictly to Stolh-Nielsen’s Antitrust Compliance Policy. See Wingfield 6/5/07, at 165-67; Jansen 6/13/07, at 149-50; Nilsen 6/15/07, at 125-26, 188; Nilsen 6/19/07, at 18,115-17.

58. After the meeting, Wing-field reported to Lee that Odfjell would be proposing wording for a formal co-service agreement. DX-419; Wingfield 6/5/07, at 173-75.

59. Odfjell ultimately decided not to accept Stolt-Nielsen’s request to formalize the sublet agreement. See DX-625; Haugsdal 6/12/07, at 174-75.

60. There is no credible evidence of any collusive discussions or agreements reached at the dinner meeting, or that Wingfield stated that “it will be business as usual.” See Wingfield 6/5/07, at 111-12.

C. The Heathrow Meeting

61. On October 18, 2002, Wingfield and Jansen met with Haugsdal and Nilsen at the bar of the Hilton Hotel at Heathrow Airport. See Wingfield 6/5/07, at 180; Haugsdal 6/12/07, at 102, 224.

62. The purpose of the meeting was to discuss complaints by Stolb-Nielsen customer, Dow Chemical, regarding operational issues on the BAJ trade lane, including recurring late shipments. See DX-657; Wingfield 6/5/07, at 176-77. Wing-field wanted to address Odfjell’s poor performance on scheduling of sublets before a meeting with Dow on October 30, 2002. Wingfield 6/5/07, at 176-77; Jansen 6/13/07, at 124-25; DX-692, at SNTG-E-011932; DX-705.

63. Communications with Odfjell regarding sublets were permissible under the Antitrust Compliance Policy. See Wingfield 6/6/07, at 105-06; DX-334, at SNTG-436250.

64. During the meeting, Jansen made a passing comment about competition on Equatorial, a contract involving cargo shipped from Asia to South Africa that previously had been allocated to Stolt-Nielsen. Jansen 6/13/07, at 153-55; Wingfield 6/5/07, at 184-85. Neither Haugsdal nor Nilsen recalled the comment, and there is no evidence that Odfjell took any action in response to it. Haugsdal 6/12/07, at 220; DX-4114 at ¶ 11.

65. There is no credible evidence that the Heathrow meeting was conspiratorial in nature. See Wingfield 6/5/07, at 187; Jansen 6/13/07, at 153.

D. The Sasol Bid

66. In the Summer and Fall of 2002, Stolt-Nielsen, with the support of Wing-field and other members of senior management, competed vigorously for the business of Sasol, a customer previously allocated to Odfjell. See Humphreys 6/4/07, at 78; Wingfield 6/6/07, at 108-09; Jansen 6/13/07, at 123; Sjaastad 6/20/07, at 122.

67. Stolt-Nielsen submitted a highly competitive initial bid to Sasol on September 16, 2002. See Humphreys 6/4/07, at 77-78; DX-2529; DX-2832.

68. On October 11, 2002, Stolt-Nielsen submitted a highly competitive final bid to Sasol. See Humphreys 6/4/07, at 78, 90.

69. In an effort to gain a competitive advantage over Odfjell, and with the support of management including Wingfield, Stolt-Nielsen entered into a joint venture with a company called Southern Tankers as part of the South African Government’s “black-empowerment initiative,” a program designed to engage the country’s black population in economic development. See Humphreys 6/4/07, at 75-76; DX-2487; GX-72.

70. Wingfield, with the support of his superiors, was instrumental in formulating the black empowerment strategy. Testimony of Nils Vogth Eriksen (“Vogth Eriksen ”) 6/4/07, at 29; Humphreys 6/4/07, at 75-76.

71. On September 30, 2002, Lee sent an e-mail message to Niels Stolt-Nielsen, CEO of SNSA reporting about Stolb-Niel-sen’s prospects of winning the Sasol contract as a result of the black empowerment initiative. GX-72, at SNTG-E-011146. On October 1, 2002, Niels Stolt-Nielsen replied, congratulating Lee and Cooper-man on their “creative thinking.” GX-72, at SNTG-E-011145. Lee forwarded the message to Wingfield, who replied “thank you!! Let’s hope it works.” GX-72, at SNTG-E-011144. Niels Stolb-Nielsen then inquired: “which contracts will [Odf-jell] retaliate on?” to which Wingfield responded: “good question and the truthful answer is [I] don’t know ... what we will say publicly (and [Odfjell] will pick up on this) is that this is regional business and not part of main fleet business — not really true but hopefully we can avoid a war in the near term.” Id. The discussion, which reveals a sincere will to win the Sasol contract and a concern about “retaliation,” manifests a genuine commitment to competition on the Sasol contract, accompanied by a desire to avoid a full-fledged war with Odfjell — a lawful objective.

72. Upon learning about Stolt-Niel-sen’s competitive bid to Sasol, Odfjell executives called Stolt-Nielsen to complain and demand that the bid be withdrawn. Specifically, on the morning of October 11, 2002, Nilsen called Wingfield. Wingfield 6/6/07, at 60.

73. Wingfield refused to withdraw the bid or to answer questions about it, as confirmed in his contemporaneous journal notes: “told him won’t discuss.” Wingfield 6/6/07, at 93, 103-04; GX-26B, at SNT-0005747; Haugsdal 6/12/07, at 100, 109; Nilsen 6/15/07, at 144; Nilsen 6/19/07, at 86.

74. Later on the morning of October 11, 2002, Nilsen and Haugsdal together called Wingfield and again demanded that he withdraw the Sasol bid. Wingfield 6/6/07, at 63-64; Haugsdal 6/12/07, at 100, 109; Nilsen 6/15/07, at 144, 197. Wingfield again refused to do so. See Wing-field 6/6/07, at 63-65, 108; Haugsdal 6/12/07, at 100.

75. After submission of the final bid, Nilsen called Wingfield yet again, this time while Humphreys was in Wingfield’s office. Wingfield 6/6/07, at 64-65; Humphreys 6/4/07, at 95-96.

76. Despite Odfjell’s repeated protests and demands, Wingfield refused to instruct his subordinates to withdraw StolNNiel-sen’s bid for the Sasol contract. See Humphreys 6/4/07, at 96; Wingfield 6/6/07, at 108.

77. On October 11, 2002, Cooperman spoke with Humphreys, who oversaw the bidding on the Sasol contract and reported that Stolt-Nielsen’s bid was aggressive. See Humphreys 6/4/07, at 124-25. During the conversation, Humphreys informed Cooperman that Odfjell had called Wing-field to complain about competition from Stolt-Nielsen on the Sasol contract. Humphreys 6/4/07, at 92. Cooperman then visited Wingfield’s office to inquire about the bid, and was assured that Stolt-Nielsen’s chances of winning the contract were good. See Wingfield 6/6/07, at 62-63.

78. The evidence reveals that Sasol gave Odfjell a “last look,” and that Odfjell reduced its rates significantly in response to the information it received from Sasol, thus winning the bid. See DX-4173; DX-1571, at OD0088746; Nilsen 6/19/07, at 105-10; DX-1221, at OD0090960; compare DX-2525, at SNTG-SASOL-000108 with DX-2539, at SNTG-SASOL-000176.

79. There is no credible evidence that Wingfield ever revealed StolF-Nielsen’s rates to Odfjell or that there was any collusion on the Sasol contract. See Wingfield 6/5/07, at 189-90; Wingfield 6/6/07, at 65; Humphreys 6/4/07, at 96; Jansen 6/13/07, at 123,149.

80. Odfjell’s contemporaneous internal bid analyses reveal that Odfjell decreased its initial bid by over 7 percent, and not by “2 to 3 percent” as Haugsdal testified, discrediting the allegation that Wingfield had “leaked” StolNNielsen’s bid rates to Odfjell. See Haugsdal 6/12/07, at 101, 210-16; DX-2543.

E. The SK Contract

81. In 2001, StolNNielsen entered into a contract with SK Corp. that was scheduled to expire in June 2003. Harrison 5/31/07, at 234-35; GX-266.

82. Harrison, Business Director for Home Bound Return, had final authority to determine the rates Stolt-Nielsen would offer to SK in 2002. Harrison 5/31/07, at 236-37.

83. Wingfield was not involved in rate negotiations with SK, nor did he determine the rates to be offered to SK. See Wingfield 6/6/07, at 71; Harrison 5/31/07, at 237-38.

84. The Division alleges that Wingfield contacted Nilsen in June 2002 and gave him price guidance to ensure that Odfjell would not compete for the SK contract. Nilsen is the only witness who testified that a June 2002 call with StolWSTielsen occurred, but could not recall any details about the alleged call, including the identity of the person with whom he allegedly spoke. See Nilsen 6/15/07, at 195. His testimony was contradicted by ample credible testimony and contemporaneous evidence of fierce competition.

85. On June 17, 2002, SK’s broker notified Hallvard Edvardsdal (“Edvardsdal”) of Odfjell that SK had a contractual commitment with Stolt-Nielsen through June 2003. See GX-57, at OD0077412-413. If SK were to breach the Stolt-Nielsen contract by not shipping the minimum volume required, SK would have had to pay deadfreight, a contractual penalty. See Testimony of Edvardsdal 6/15/07, at 82. Odfjell informed SK that Odfjell was not able to make an offer to take over the Stolt-Nielsen contract due to delays on new ships being built in Poland. See GX-57, at OD0077412.

86. In the Fall of 2002, SK approached Odfjell to solicit bids. The contract included the ports of New Orleans and Houston. Because of Odfjell’s limited port capabilities in New Orleans, it submitted a bid only for the Houston portion of the contract. See Edvardsdal 6/15/07, at 16, 78; GX-64, at OD0077429. In December 2002, SK’s broker told Edvardsdal that SK could not accept Odfjell’s offer because SK could not find a shipowner willing to carry just the New Orleans portion. DX-1993, at OD0077433.

87. Stolt-Nielsen’s regular service to and terminal capabilities in both Houston and New Orleans, as well as its status as an incumbent, gave it a competitive advantage over Odfjell. See Harrison 5/31/07, at 243; Edvardsdal 6/15/07, at 66-67.

88. On November 18, 2002, SK’s broker gave Stolt-Nielsen, the incumbent, a “last look.” Thus, while other bidders were required to submit their bids by November 15, Stoltr-Nielsen was permitted to submit its bid on November 20, 2002. See DX-1912; DX-2796.

89. Based on the information provided by the broker, Harrison was led to believe that Odfjell’s bid was substantially lower than it turned out to be. In response to the competition from a number of carriers, Harrison and the bid team reduced Stolt-Nielsen’s rates, and on November 20, 2002, submitted its bid. See Harrison 5/31/07, at 242-43; Harrison 6/1/07, at 23-24; DX-1912; DX-2796.

90. StolWNielsen faced stiff competition on the SK contract from Odfjell, Aurora Tankers, Jo Tankers and MTMM, and managed to retain the contract only after a 25% rate reduction and other valuable concessions to SK. Harrison 5/31/07, at 243, 246-47; Harrison 6/1/07, at 35-36.

91. The Division alleges that Wingfield contacted Nilsen in November 2002 to ensure that Odfjell would not compete for the SK contract. There is no credible evidence that Wingfield sought protection against competition from Odfjell or that the SK contract was “rigged.” Harrison 5/31/07, at 255-56; Jansen 6/13/07, at 156; Wingfield 6/6/07, at 78.

92. Nilsen testified that in response to Wingfield’s request, he added $2 or $3 to Stolt-Nielsen’s targeted rate, but as he later admitted and as the bidding documents confirmed, Odfjell’s bid was only fifty cents above Stolt-Nielsen’s target bid as of November 15, 2002. Nilsen 6/15/07, at 159; Nilsen 6/19/07, at 36-37.

93. Nilsen’s May 2004 Grand Jury declaration does not mention any alleged collusion on SK in June 2002. Nilsen 6/15/07 at 195-96; DX-4114.

94. Nilsen’s testimony to the Korea Fair Trade Commission (“KFTC”) regarding SK was also devoid of any mention of collusion with Stolt-Nielsen in June 2002. Nilsen 6/19/07, at 19-21; DX-524, at OD0094666.

F. The Pecten Contracts

95. In the Fall of 2002, two Pecten contracts were on the market: the “large” Pecten contract from the U.S. Gulf to a number of ports in the Far East, and the Chinese Outports contract from the U.S. Gulf to two ports in China. While Jo Tankers was competing for the large Pec-ten contract, StolWNielsen was competing for the smaller contract. See Cleary 6/1/07, at 83-87.

96. StolWNielsen did not have the capacity to compete with Jo Tankers for the large Pecten contract. As a result, Stolt-Nielsen was not asked to bid on the large Pecten contract. See Cleary 6/1/07, at 83-87, 90; DX-1596; DX-1575.

97. On November 1, 2002, after Pecten removed the outports of Hong Kong and Xiao Hu Dao from the large Pecten contract, Stolt-Nielsen submitted a bid for those two Chinese ports. Cleary 6/1/07, at 87-90; DX-1716 ¶ 6; DX-1709.

98. The Indictment charges that in Fall 2002, Stolt-Nielsen agreed not to compete for a contract with Pecten, and in exchange Jo Tankers agreed not to compete for a contract with Stolt-Nielsen’s customer SK Corporation. See Indictment ¶ 6(n).

99. Wingfield was not involved in determining rates on Stolt-Nielsen’s bid for the Chinese Outports contract. See Cleary 6/1/07, at 89; Jansen 6/13/07, at 157.

100. There is no credible evidence that Stolt-Nielsen agreed not to compete for a contract with Pecten as part of a quid pro quo arrangement with Jo Tankers. See Van Westenbrugge 6/14/07, at 202-03, 222 (“[T]he two events are completely separate.”); GX-63, at J0092908; Wingfield 6/5/07, at 188-89; Harrison 6/1/07, at 26.

101. The evidence reveals that Jo Tankers decided not to bid for the SK contract for independent business reasons, anticipating that Stolt-Nielsen would be receiving a “last look.” See Van Westenbrugge 6/14/07, at 200-02.

102. There is no evidence that after March 2002, Cooperman, Wingfield, Jansen, or any other StolNNielsen executive instructed any subordinate to withhold a bid or to “bid high” to participate in a customer allocation.

VI. Stolt-Nielsen Contacts John Nannes

103. In November 2002, Cooperman contacted the SNTG Board of Directors and requested authorization to conduct an independent investigation of Stolt-Niel-sen’s antitrust compliance. Authorization was given, and Stolt-Nielsen retained John Nannes, former Deputy Assistant Attorney General for the Antitrust Division and a partner of the law firm Skadden, Arps, Slate, Meagher & Flom LLP, to conduct the investigation, along with SNTG’s antitrust counsel at Carter, Led-yard & Milburn. See Nannes GX-5, at 107, 131.

104. On November 22, 2002, Nannes met with Cooperman, Gary Sesser of Carter, Ledyard & Milburn, and Alan Winsor, Stolt-Nielsen’s general counsel. Nannes GX-5, at 124. On the day of the meeting, the Wall Street Journal published an article reporting on the O’Brien lawsuit. Nannes GX-5, at 128-129; GX-14. (See Findings of Fact ¶ 14, supra).

105. During the meeting, Nannes learned that O’Brien had raised antitrust concerns in February 2002, after discovering the April 10, 2001 memorandum from Jansen to Wingfield. Nannes could not determine from the face of the document whether it reflected a collusive agreement or lawful conscious parallelism. Nannes GX-5, at 129-30, 163-64; Nannes GX-6, at 106.

106. At the meeting, Nannes reviewed the Corporate Leniency Program of the Antitrust Division (the “Division”) with Cooperman. Cooperman authorized him to contact the Division to explore the possibility of participation in the Program. Nannes GX-5, at 131-33.

VII. The Corporate Leniency Program

107. The Division adopted a revised Corporate Leniency Policy in August 1993 that provided an opportunity and incentive for companies to cooperate with its criminal investigations into violations of the antitrust laws. See Testimony of James Griffin (“Griffin ”) GX-5, at 189.

108. Under the Corporate Leniency Program, the Division would agree not to prosecute companies that report their illegal antitrust activity to the Division and meet all of the Program’s conditions. See GX-3, Preamble.

109. Only the first company per conspiracy to report the illegal activity is eligible to qualify for leniency. GX-3, at 1-2.

110. In order to qualify for the Corporate Leniency Program, a company must represent that “upon its discovery of the illegal activity being reported, [it] took prompt and effective action to terminate its part in the activity.” GX-3, at 1-3 ¶ A.2, ¶ B.3. In addition, the company must provide full, continuing and complete cooperation to the Division in connection with the activity being reported. GX-3, at 3