The District Court for the Southern District of Florida recently issued an order allowing Florida West International Airways, Inc. to enter a plea of nolo contendere in a criminal case for price fixing in the air cargo carrier business in United States v. Florida West International Airways, Inc. The issue was whether Florida West's circumstances were unusual enough to warrant entry of the plea.

Between 2002 and 2006, Florida West allegedly agreed with competitors to fix prices of air cargo shipments between Columbia and Miami. In 2010, the Antitrust Division of the DOJ charged Florida West and its CEO Rodrigo Hidalgo with conspiring with two executives from competing companies to eliminate competition by coordinating their air cargo rates. Although the court dismissed the case against Hidalgo based on his plea agreement immunity, the DOJ pursued the charge against Florida West. After almost five years of defending against the investigation and lawsuit, Florida West determined that it could no longer afford to continue its defense and requested that the court allow them to enter a nolo plea.

Despite the DOJ's protests, Judge Robert N. Scola, Jr. allowed the nolo plea because of the unique circumstances of the case, including that former CEO Hidalgo was also secretly employed by one of Florida West's competitors. The DOJ argued that Florida West's nolo plea would undermine the enforcement efforts of the DOJ's corporate leniency program that encourages self-reporting of anticompetitive conduct. For example, Florida West would be unjustly allowed to avoid the negative effects that a guilty plea has on future civil actions.

Judge Scola acknowledged the DOJ's arguments, but accused the agency of being rote and unpersuasive, noting that the attorney for the DOJ had not once in his 20-plus year career agreed with a defendant that a nolo contendere plea was appropriate. Judge Scola explained that, because this case involved extraordinary facts, it is highly unlikely that the nolo plea would have any effect on the DOJ's leniency program.

While the nolo plea in Florida West will not likely affect the success of the DOJ's leniency program, certain defendants may consider requesting approval to make a nolo plea when unusual or extreme facts exist.