Photo of E. Kate Patchen

E. Kate Patchen

Kate Patchen is partner and co-chair of both the firm’s Cartel Defense Practice Group and the firm’s Civil Antitrust Litigation Practice Group. With more than two decades of experience in global antitrust and competition law, she is a leading U.S. and globally recognized antitrust and competition lawyer. Kate focuses her practice on government antitrust investigations, antitrust litigation, and antitrust compliance advice and training. Kate has worked on complex antitrust matters across numerous major industries, including technology, digital advertising, consumer products, and manufacturing.

Kate joined Covington following both a distinguished career in government and as a leader of the Competition and Litigation Department of a major Fortune 100 company. She served as the former Chief and Assistant Chief of the San Francisco Office of the Department of Justice Antitrust Division where she spent sixteen years investigating and litigating antitrust violations. During her time at the Division, she oversaw the Office’s civil and criminal antitrust enforcement programs, including criminal price-fixing, bid-rigging, and no-poach investigations, as well as civil conduct matters and merger review. Following her service in government, she spent several years as Director of Competition and Director of Litigation at one of the largest tech companies in the world where she advised on high-stakes litigation, government investigations, and provided competition legal advice globally. The breadth of Kate’s unique experience, and her insight on antitrust agency priorities, goals, and policies is a valuable asset to companies facing international, domestic, and multi-agency exposure.

Kate has a track record of success in both civil and criminal antitrust litigation, including prosecuting corporate and individual defendants in high-profile antitrust cases and defending a company in a high-profile monopolization case. She also served as a Special Assistant United States Attorney in the Western District of Washington and in the Eastern and Northern Districts of California where she successfully prosecuted and tried multiple federal criminal cases, including fraud and false-statement cases.

Kate is a non-governmental advisor to the International Competition Network, an advisor to the Executive Committee of the California Lawyer’s Association Antitrust and Unfair Competition Law Section, and a member of the American Bar Association’s Antitrust Section. Kate is also a regular speaker on antitrust panels and programs.

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October 17, 2023, Covington Alert

What You Need to Know

  • On October 4, 2023, Deputy Attorney General Lisa Monaco provided new and expanded policy guidance on corporate criminal enforcement, announcing a new Mergers and Acquisitions Safe Harbor Policy (“Safe Harbor Policy”).
  • The Safe Harbor Policy provides acquiring companies an opportunity to avoid criminal charges if they voluntarily self-disclose misconduct at acquired companies within six months of a merger or acquisition (“M&A”), fully cooperate in any DOJ investigation, engage in timely and appropriate remediation within one year of the transaction closing date, and pay restitution or disgorgement, as appropriate.
  • The Safe Harbor Policy—which we expect will be formalized in writing and incorporated into the Justice Manual—appears to draw heavily on policies and guidance from the Criminal Division dating back to 2008, but that will now be formalized, clarified, and applied across the Department, with different parts of the Department “tailor[ing] its application . . . to fit their specific enforcement regime.”
  • As with all of the Department’s recent policy announcements concerning the benefits of voluntary disclosure, significant questions remain. We discuss some of those below, and we will be watching to see how DOJ applies the Safe Harbor Policy in practice. At a minimum, however, companies should ensure that their pre- and post-closing diligence and integration processes are designed to quickly identify legacy or ongoing misconduct at acquired companies so that they may have an opportunity to consider the expected benefits and burdens associated with a voluntary disclosure under the Safe Harbor Policy.
  • In addition to announcing the Safe Harbor Policy, Deputy Attorney General Monaco noted a “dramatic” expansion in national security enforcement, new enforcement tools that the Department is deploying, continued focus on incentivizing companies to seek compensation clawbacks from individual wrongdoers, and even more policy changes to come. Deputy Attorney General Monaco’s announcement follows recent shifts in enforcement remedies sought by the Department, such as divestiture in certain criminal antitrust cases—an unprecedented remedial measure.

Continue Reading DOJ Provides Further Voluntary Disclosure Incentives, This Time Linked to M&A Transactions, and Signals Other Areas of Focus