Souter refuses to block antitrust indictment

By Lyle Denniston
on Jul 25, 2006 at 4:51 pm

UPDATE Wednesday p.m. Stolt-Nielsen S.A. on Wednesday took its plea to delay an antitrust prosecution to another member of the Supreme Court, Justice John Paul Stevens, after being rebuffed Tuesday by Justice Souter. The company also announced in a press release that, if it fails to head off an indictment, it will move promptly in federal court to dismiss any charges, using the same legal arguments it has made in trying to prevent prosecution up to now.

Supreme Court Justice David H. Souter on Tuesday afternoon cleared the way for the Justice Department Antitrust Division to seek a criminal indictment of a Norwegian ocean shipping company and at least one of its executives in a case involving alleged division of customers among competitors. In a brief order containing no explanation, Souter denied an application to stay and to recall a Circuit Court mandate that allows the Department to proceed. (The application was in 06-A-79, Stolt-Nielsen S.A., et al., v. U.S.) Stolt-Nielsen had asked for delay of any indictment until after the Supreme Court acted on its appeal challenging the government’s authority to go ahead. It claims the Antitrust Division is violating an immunity deal.

Souter took no action on the pending petition for review (06-97). There was no indication that he had consulted with his colleagues before denying the stay application. He was not required to do so, since he had authority in his role as Circuit Justice for the Third Circuit to deal with the application.

If the denial of a stay is actually followed by an indictment, a question would arise whether the petition would be moot, since the only issue it seeks to raise is whether federal courts lack the authority to block an indictment that allegedly breaches a promise not to prosecute.

The Justice Department, in opposing a stay, argued that Stolt-Nielsen could use its claim of a broken immunity promise as a defense once it had been indicted.

Earlier posts below describe the dispute more fully.