Department of Justice Antitrust Division updates its Leniency Program
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The U.S. Department of Justice (DOJ) released revisions to its Antitrust Division Leniency Policy and Procedures as well as updated guidance in the form of Frequently Asked Questions (FAQs) on April 4, 2022. Since its formalization in 1993, the Antitrust Division’s corporate leniency policy has been a mainstay of its criminal enforcement program.
Companies that discovered anti-competitive behavior in their ranks rushed to report their wrongdoing to the Antitrust Division, hoping to be first in the door and thereby receive near-certain amnesty for the company and all cooperating employees. But there has been a multi-year downward trend in fine levels and companies coming forward to report criminal antitrust violations. Seeking to revitalize its leniency program, the Division revised its policy and expanded the FAQs to provide greater “transparency, predictability, and tangible benefits” to the leniency process. This alert addresses several important changes in the Division’s leniency program.
In the introduction to the revised FAQs, the Antitrust Division states that “[t]he Leniency Policy is most effective when antitrust offenders face credible threats of detection and substantial penalties, and when, at the same time, the process for self-reporting is transparent and predictable, with tangible benefits in the form of immunity from criminal prosecution.” The revised Leniency Policy contains a dedicated section to the application process. The process clearly demarcates three steps to the process: (i) leniency marker; (ii) conditional leniency letter; and (iii) final leniency letter. The revised FAQs in turn are broad in scope, with nearly 50 new questions and responses added. The FAQs contain refreshed guidance that describe in plain language the marker process (Questions 2–10), Type A and B Leniency (Questions 19, 20, 28) and the Antitrust Division’s policies for Leniency Plus (Question 78) and for Penalty Plus (Question 80). Accessibility is a key feature, with the Division announcing a new email address (firstname.lastname@example.org) and telephone number to apply for leniency.
There are a number of notable adjustments to the marker procedures. In Question 5, the Antitrust Division states that the threshold for obtaining a marker “is low, especially when the Division has no information about the illegal activity.” The Division emphasizes: “Organizations and individuals should seek leniency at the first indication of wrongdoing no matter how slight.” The Division then adds that “[w]hen the Division already has information about the illegal activity or has an active investigation in the industry, it may require a more detailed report of the illegal activity.” In Question 6, the Antitrust Division addresses the scope of the initial marker accorded, stating that scope “is tailored to the facts that the applicant proffers at the time the applicant requests the marker.” In a departure from prior guidance, in particular the 2017 FAQs, the Division appears to have eliminated the possibility of receiving an “anonymous” marker. Question 4 now makes clear that, to secure a marker, an applicant must “identify itself.”
Another key feature of the revised FAQ is promptness. To obtain corporate leniency, the applicant must, “upon its discovery of the illegal activity,” “promptly report” the illegal activity to the Antitrust Division.
As part of Question 3, the Antitrust Division states that “[a]n organization should seek a leniency marker at the first sign of potential wrongdoing even if it is not certain the wrongdoing occurred.” Question 3, citing the word “race” three times, cautions that “[o]rganizations are in race with their co-conspirators—including their own employees, who may seek individual leniency and have whistleblower protections if they report to the Division—to secure a marker.” The Division notes that organizations “have lost the race for leniency by a matter of hours and faced significant fines, and prosecution of their senior executives as a result.” As to individuals, the Division adds that they too “are in a race with each other—both others at their employer and those at other organizations participating in the conspiracy.” Notably, in an address at the ABA Antitrust Spring Meeting timed to the release of the new updates, Acting Assistant Attorney General Richard Powers announced that “going forward, there will be no presumption that individuals from a company charged with an antitrust crime will receive non-prosecution protections.” Instead, the Antitrust Division will apply the principles of federal prosecutions and weigh the individual’s degree of culpability, the timing of cooperation and other factors.
Question 22 provides further guidance, amplifying what it means to “promptly” report illegal activity. The Division now advises that it “makes this assessment based on the facts and circumstances of the illegal activity and the size and complexity of operations of the corporate applicant.” The Division acknowledges that, before self-reporting, “an organization may still be eligible for leniency if it conducts a preliminary internal investigation in a timely fashion” to be certain that a crime occurred, but expressly warns that “an organization that confirms its involvement in illegal activity and then chooses not to self-report until later learning that the Division has opened an investigation will not be eligible for leniency.” The Division makes clear that it is “the applicant’s burden to prove that its self-reporting was prompt.”
Organization, defined broadly
The revised FAQs broadly define organization for purposes of “discovery of the illegal activity” and determining eligibility for a conditional grant of leniency. In Question 21, the revised FAQs state that the Antitrust Division generally considers “an organization to have discovered the illegal activity at the earliest date on which an authoritative representative of the applicant for legal matters—the board of directors, its counsel (either insider or outside), or a compliance officer—was first informed of the conduct at issue.” The FAQs then state that an organization “will not be eligible for leniency if an authorized representative learns of potential illegal activity and refrains from investigating further.” This guidance implicitly reinforces the importance the Division has placed on implementing an effective antitrust compliance program.
Significant new features of the FAQs cover the Antitrust Division’s approach to restitution, remediation and compliance. Under the revised FAQs, in Question 34, applicants “are required to make restitution to their victims.” Moreover, in Question 48, the revised FAQs state that the applicant “must demonstrate to the Division that it has satisfied its obligation to address its future antitrust risk and remediate its criminal conduct before it will be granted a conditional leniency letter.” Question 49 then summarizes the various ways an applicant may satisfy this remediation requirement. According to the FAQs, some applicants “may need to implement new or improved formal compliance programs,” while others “may require less formal solutions.” The applicant also “may be required to undertake additional remedial measures to obtain a conditional leniency letter,” including a root-cause analysis, other measures designed to reduce the risk of repetition of the activity and “efforts to discipline or remove its culpable, non-cooperative personnel.”
The final section of the revised FAQs summarizes the Antitrust Division’s approach to cooperation credit when leniency is not available. This is a significant new aspect of the Division’s policy given broader developments within the DOJ about the role of corporate compliance programs, cooperation credit and the principles of federal prosecution.
In the past decade criminal enforcement actions for other substantive federal crimes have become progressively less “all-or-nothing” in terms of the punishment meted out to corporate defendants. Prosecutors investigating corporate wrongdoing have grown increasingly reliant on two forms of resolution that are neither declinations nor prosecutions, Non-Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs). Under NPAs and DPAs, the DOJ agrees not to prosecute a company, provided that in return the company acknowledges wrongdoing, pays a fine, continues to cooperate with the ongoing investigation and accedes to any other conditions that prosecutors may require. The U.S. Attorneys’ Manual describes those forms of settlements as a “third option” that “can help restore the integrity of a company’s operations and preserve the financial viability of a corporation that has engaged in criminal conduct, while preserving the government’s ability to prosecute a recalcitrant corporation that materially breaches the agreement.” (United States Attorneys’ Manual, Title 9, Chapter 9-28.1100.)
The revised FAQs appear to recognize leniency “is not a standalone tool.” In Question 81, the Division states that an organization “that voluntarily self-reports its criminal conduct and pleads guilty may earn a reduce fine based on its substantial assistance to the Division’s investigation.” The Division notably adds that “in certain circumstances” “a disposition short of a criminal conviction may be appropriate even if an organization does not qualify for leniency, especially when it has invested in an effective compliance program that allowed it to identify the misconduct and promptly self-reported, despite that it was not the first to seek leniency.”
A final observation
The Antitrust Division’s revised Leniency Policy and FAQ guidance offers much needed clarity to the legal and business community. That said, the revised Leniency Policy does not appear to set aside the prior administration’s sweeping policy changes that displaced the corporate leniency program as the only potential benefit of prompt self-reporting and an effective compliance program. Although details continue to emerge, the Antitrust Division appears to be formally readjusting its policy focus from one based on leniency alone to one that more fully incentivizes compliance and cooperation, in line with DOJ practice more broadly.