On April 4, 2022, Assistant Attorney General (AAG) Jonathan Kanter delivered remarks at the 2022 Competition Enforcers Summit with the Federal Trade Commission (FTC), announcing changes to the Antitrust Division’s (Division) corporate and individual leniency program.[1] This announcement came at an event preceding the largest gathering of antitrust lawyers – the ABA Antitrust Spring Meeting – which resumed in person after two years of virtual programming. These changes come on the heels of numerous other recent indications that the Division will be vigorously seeking out and prosecuting violations of the antitrust laws[2] and were followed by the release of updated policies and procedures, including 50 new FAQs.[3]
Among the chief changes is the requirement that a company seeking to receive leniency “promptly” self-report suspected misconduct and clarification on its duties regarding restitution and remediation. According to AAG Kanter, “A company that discovers it committed a crime and then sits on its hands hoping it goes unnoticed does not deserve leniency.”[4] The leniency policy in effect from 1993 until April 3, 2022, required prompt and effective “termination” of the illegal activity upon discovery by the company, but did not require immediate reporting.
To qualify for leniency now, a company must be the first to self-report a suspected antitrust violation and then fully comply with all aspects of the Department of Justice’s (DOJ) investigation. In return, companies and individuals may avoid criminal conviction, fines and prison sentences for qualifying, cooperating executives.[5] In his speech, AAG Kanter referred to the program as “one of the division’s most important enforcement tools for rooting out cartels.”[6]
According to these announcements, the changes seek to make DOJ antitrust enforcement policies more accessible, understandable and transparent and to provide clarity on expectations for companies looking to receive leniency. In addition to the FAQs, the announcement included revised model leniency letters for corporations and individuals and the consolidation of the Leniency Policy in the Division’s chapter of the Justice Manual, 7-3.000. The Division additionally announced a new dedicated email address in order to more easily facilitate companies and individuals applying for leniency.
Key Leniency Changes
In addition to the company’s having to be the first involved in the conspiracy to report the misconduct to the Division, likely the most seismic change is that the reporting must now be “prompt.”[7] That determination is left to the discretion of the DOJ. In considering whether the self-reporting at issue was timely, it will evaluate “the facts and circumstances of the illegal activity and the size and complexity of the operations of the corporate applicant.” Navigating when to report might not be altogether clear. Although the Division acknowledges that a company may need to conduct a preliminary investigation to confirm the wrongdoing, it also notes that if the company waits until after the DOJ opens an investigation, such delay will be grounds for exclusion. Further, “[i]t is the applicant’s burden to prove” and the guidance suggests that if “potential applicants that are uncertain whether particular conduct is criminal should seek a marker as soon as possible.”[8]
The FAQs note that companies must now present a defined, specific restitution plan. In addition, while the previous version of the FAQs required companies to make restitution “where possible,” the revised language now reads that companies must use their “best efforts” to pay out. This seems to indicate that the Division will more heavily scrutinize a company’s ability to pay restitution.[9]
In order to qualify for leniency, a company must now undertake appropriate remedial measures to redress the harm and make improvements to its compliance program. The FAQs include examples of what this may look like, including recognizing the seriousness of the illegal activity and taking full responsibility for it, enacting protocols to identify future risks, and disciplining or removing culpable and non-cooperating employees. This is also now noted in the Justice Manual, which expressly includes the need for companies to improve compliance programs.[10]
The FAQs further clarify that leniency extends to other illegal acts committed “in furtherance of” the qualifying offense, such as wire fraud or conspiracy to monopolize the market.[11] This comes on the heels of the Division’s announcement that it would seek to prosecute monopolization criminally. So, while leniency is not directly available for unilateral monopolization, it sounds like it might be available if attendant to other conspiratorial collusion. This will need more fleshing out by the Division to fully understand how this will play out in reality.
- Individuals Responsible for Reporting.
Under previous guidance, a company was deemed to become aware of the violation when either a member of the board of directors or counsel for the company learned of the conduct. The updated version now puts the responsibility on any “authoritative representative of the applicant for legal matters,” broadening the scope of who is responsible for reporting violations.[12] In tandem with the “prompt” reporting requirement, this could create issues for companies without the proper compliance and reporting procedures in place, leading to a loss of leniency eligibility.
- Criminal Antitrust Anti-Retaliation Act.
The updated FAQs now contain a question regarding the Criminal Antitrust Anti-Retaliation Act of 2019 (CAARA), which prohibits retaliation against employees who report potential antitrust violations. The new guidance explains that although an individual may not qualify or need the protections of leniency, they may qualify under CAARA for whistleblower protection.
- Recognition of Document Production Concerns.
The Division also notes the production concerns many foreign companies have, given different data protection laws that may conflict with the Division’s mandate to produce all relevant data regardless of where it is located. The revised FAQs acknowledge that companies can “comply with privacy laws and regulations in other jurisdictions while fully cooperating with the division’s investigation.”[13]
- New Model Corporate and Individual Leniency Letters.
The model letters largely seek to meet the Division’s goals of giving straightforward and clear guidance to applicants. One notable change is that the new corporate leniency letter includes a section titled “Public Statements by the Applicant,” which requires that the applicant not “make any public statement, in litigation or otherwise, contradicting the Applicant’s acceptance of responsibility.”[14] This may create tension for applicants who subsequently face follow-on civil litigation, and the statements made in defense of those claims or as to the amount of damages as to those claims must be made carefully so as to not run afoul of this requirement.
Key Plea Practice Changes
At the ABA Antitrust Spring Meeting, Criminal Deputy AAG Richard Powers made clear in oral statements during a panel that the Division will no longer presumptively include cooperating employees in non-prosecution protections contained in pleas. The Division is doing away with its so called carve-in practice that allows cooperating individual employees who come forward and cooperate with the company to be covered with a grant of non-prosecution in the corporate plea agreement. This is a major change for the Division, which has previously benefited from aligned interests of companies and cooperating individual employees and their corporate employers, allowing for robust and efficient corporate cooperation. These changes appear to be an attempt to align Division practice with the DOJ’s individual accountability focus, but they also seem likely to require large numbers of corporate employees or even cooperating employees to need individual counsel, and therefore likely to significantly slow cooperation and investigations in this complex space.
Conclusion
AAG Kanter’s speech also emphasized the Division’s willingness to litigate where necessary, announcing that for the first time there will be two deputy assistant attorneys general to oversee litigation efforts. In light of these comments, as well as other recent activity from the DOJ and FTC, including that it will be prosecuting violations of Section 2 of the Sherman Act despite never having done so before, companies and individuals should be on high alert of the need to detect potential antitrust violations through a strong compliance program and to navigate effectively through the self-reporting channels when misconduct does occur.
[1] Speech, Assistant Attorney General Jonathan Kanter Delivers Opening Remarks at the 2022 Spring Enforcers Summit, Dep’t of Just., Apr. 4, 2022, available at: https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-delivers-opening-remarks-2022-spring-enforcers.
[2] See, e.g., Ann O’Brien & Lindsey Olson Collins, Antitrust Division Announces Newfound Intent to Pursue Monopolization Cases Criminally, BakerHostetler, Mar. 4, 2022, available at: https://www.bakerlaw.com/Antitrust-Division-Announces-Newfound-Intent-to-Pursue-Monopolization-Cases-Criminally.
[3] 7-3.400 Antitrust Division Leniency Policy and Procedures, Dep’t of Just., updated Apr. 4, 2022, available at: https://www.justice.gov/atr/page/file/1490246/download; Frequently Asked Questions About the Antitrust Division’s Leniency Program, Dep’t of Just., updated Apr. 4, 2022, available at: https://www.justice.gov/atr/page/file/1490311/download.
[4] Assistant Attorney General Jonathan Kanter, supra note 1.
[5] Leniency Program, Dep’t of Just., updated Apr. 4, 2022, available at: https://www.justice.gov/atr/leniency-program.
[6] Assistant Attorney General Jonathan Kanter, supra note 1.
[7] 7-3.410 Antitrust Division Leniency Policy and Procedures, supra note 3.
[8] Frequently Asked Questions, supra note 3.
[9] Id.
[10] 7-3.410 Antitrust Division Leniency Policy and Procedures, supra note 3.
[11] Frequently Asked Questions, supra note 3.
[12] Id.
[13] Id.
[14] Model Corporate Conditional Leniency Letter, Dep’t of Just., updated Apr. 4, 2022, available at: https://www.justice.gov/atr/page/file/1490291/download.
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