DOJ Updates Antitrust Leniency FAQs––Clarifying Some Standards and Raising Questions

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.

These new updates, the first in five years, come in the form of nearly 50 new guidance FAQs addressing the Antitrust Division’s practices, and expectations, for leniency applicants.

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.

Key Highlights

• Promptness: The new FAQs clarify that a leniency applicant must promptly self-report illegal activity. See FAQ 22. The guidance is clear that a preliminary internal investigation “in a timely fashion” to confirm that a violation did in fact occur is allowed. However, companies that confirm involvement in a conspiracy but choose not to self-report until the Antitrust Division opens an investigation will “not be eligible for leniency.” As described by AAG Kanter, “A company that discovers it committed a crime and then sits on its hands hoping it goes unnoticed does not deserve leniency.” The FAQs note that it is “the applicant’s burden to prove that its self-reporting was prompt.”
• Restitution: The new guidance also moves up an applicant’s restitution obligations. Now, to even receive a conditional leniency letter, an applicant must “present concrete, reasonably achievable plans about how they will make restitution.” FAQ 35. Thus, the new guidance seems to require applicants to develop restitution plans early in the process. Further, the guidance clarifies that full restitution payments will only be excused in narrow circumstances, such as instances of bankruptcy or where the victim business is defunct.
• Remediation: The Antitrust Division has also underscored its authority to scrutinize remedial efforts, even before issuing a conditional leniency letter. The new guidance recognizes that “what remediation is appropriate depends on the nature of the illegal activity,” but flags that the Division may “consider the applicant’s efforts to discipline or remove its culpable, non-cooperating personnel.” FAQ 49. While actual DOJ practice on this requirement remains to be seen, this could suggest that the DOJ expects amnesty applicants to terminate noncooperating employees, even high-level ones, before it will issue a conditional letter.
• Compliance Program: As part of the remediation efforts, the guidance emphasizes the role of “the applicant’s compliance program at the time of the antitrust violation and when it makes subsequent improvements.” See FAQ 49. The Division has specific compliance program elements that it reviews in assessing the effectiveness of an applicant’s compliance program.[1] Leniency applicants will need to consider compliance and remediation efforts as part of applying for leniency.
• Authorized Representatives: The guidance expands the group of “authorized representatives” who the Division considers may learn of and report potential unlawful activity. FAQ 21 now includes the compliance officer as an authorized representative along with the board of directors and counsel (inside or outside).
• Whistleblower Protections: The guidance highlights that whistleblower protections may be available under the Criminal Antitrust Anti-Retaliation Act of 2019 (CAARA).[2] First, the FAQs note that leniency applicants may be in a race to apply for leniency “with their co-conspirators—including their own employees, who may seek individual leniency and have whistleblower protections if they report to the Division.” FAQ 3. According to the guidance, “An individual who has knowledge of illegal activity, but no personal involvement in that activity, may still report it to the Division and is encouraged to do so.” FAQ 18. Companies will want to ensure their whistleblower programs are up to date so they will learn of internal reports about potential antitrust violations.

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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