The US Department of Justice (DOJ) Antitrust Division announced significant guidance updates to its leniency program on April 4, 2022. Under the program, companies that self-report antitrust conspiratorial activity to the government (and then fully cooperate with the government in its investigation) can receive immunity from the significant fines—and criminal sentences—imposed under the antitrust laws and a de-trebling of civil fines after meeting certain requirements.
The DOJ has repeatedly described the leniency program as “its most important investigative tool for detecting cartel activity.” Antitrust Division Assistant Attorney General (AAG) Jonathan Kanter touted the updated guidance in a speech as an effort to “simplify and demystify our practices.”
“We are focused on making our policies intelligible to all: outside counsel, in-house counsel, and businesspeople in all sectors of the economy and at all levels of sophistication,” Kanter said. “There are no unwritten rules to enforcement at the Antitrust Division. We make our enforcement decisions based on transparent and predictable criteria.”
His remarks echo longstanding Antitrust Division sentiment that an effective leniency program requires transparency, as a willingness to self-report requires certainty on how one will be treated by the Division. The new FAQs, however, raise questions on whether a higher bar may be imposed in some areas for those considering a leniency application.
The new guidance also discusses cooperation obligations under the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA), which limits civil liability in follow-on suits for qualifying leniency applicants. To qualify under ACPERA, leniency applicants must provide “satisfactory cooperation” to those follow-on plaintiffs. Whether cooperation is “satisfactory,” however, has proven to be a contentious issue. See FAQ 39.
While the new FAQs acknowledge that this remains a question for the courts, the Division clarified its position on the matter: “An applicant should not be disqualified from ACPERA benefits when a plaintiff makes unreasonable requests of a cooperating individual or the applicant itself. Disqualifying an applicant for failing to respond to an unreasonable request undermines the effectiveness of ACPERA, which is a critical part of the Leniency Policy’s incentive structure.” FAQ 40.
The FAQs go on to clarify that an applicant should not be expected to “provide information not relevant to the conspiracy identified in the leniency letter.”
Over the last few decades, leniency has provided powerful incentives and benefits to qualifying applicants, who receive nonprosecution protection and can de-treble civil damages under the ACPERA. While the new FAQs address many questions about the leniency process, how the new standards will be applied remains to be seen, including how the DOJ will exercise its discretion in applying the standards.
The ultimate considerations of the benefits and costs of leniency are best considered on a case-by-case basis against the updated FAQs. Morgan Lewis has successfully assisted clients in navigating the leniency process and can address any questions concerning the Antitrust Division’s updated leniency standards.
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Daniel S. Savrin
 See, e.g., M. Krotoski, Landmark Antitrust Division Policy to Incentivize Corporate Compliance and Mitigate Antitrust Risk, Bloomberg Law (2019) (overview of the new evaluation framework for antitrust compliance programs).
 For more information under the statute, see, e.g., M. Krotoski & B. Archbold, Double-Check Whistleblower Programs to Prep for Antitrust Anti-Retaliation Act, Bloomberg Law (Jan. 7, 2021); M. Krotoski & B. Archbold, Prospects Improve for Enactment of the Criminal Antitrust Anti-Retaliation Act of 2019, Competition Policy International (Dec. 15, 2019).