The Bumble Bee matter is a Criminal Antitrust prosecution in which the central sentencing issue was the defendant’s ability to pay a criminal fine. Bumble Bee Foods, LLC, a packaged-seafood producer, was criminally charged with one count of price fixing under Section 1 of the Sherman Act, for conspiring to fix prices of shelf-stable canned and pouch tuna sold in the United States from at least the first quarter of 2011 through the fourth quarter of 2013.
Bumble Bee agreed to plead guilty under a Rule 11(c)(1)(C) plea agreement and to pay a $25 million criminal fine, subject to increase up to $81.5 million, payable by a related entity upon a qualifying sale of the company. The agreed fine fell substantially below the otherwise-applicable U.S. Sentencing Guidelines range. Under U.S.S.G. § 8C3.3, a sentencing court may reduce a corporate fine below the guidelines range upon finding that the organization cannot pay the guidelines fine without substantially jeopardizing the organization’s continued viability. The reduction therefore turned on a contested financial determination of the company’s ability to pay.
On behalf of Bumble Bee, Professor Zmijewski, supported by Pavel Nikolov, analyzed the company’s financial condition and its capacity to satisfy a criminal fine. Professor Zmijewski evaluated whether the company could pay a guidelines-range fine without substantially jeopardizing its continued viability, and whether the imposed $25 million fine—payable without interest over an extended schedule—represented the maximum amount Bumble Bee could pay with continued operation. He also proposed an appropriate payment schedule and corresponding interest amount.
Professor Zmijewski’s declaration and the supporting financial exhibits were filed under seal, as was the government’s responsive expert’s declaration.