US DOJ Antitrust Division Updates Leniency Policy

The latest changes are intended to reaffirm the Antitrust Division’s commitment to transparency, predictability and accessibility in criminal enforcement as it undergoes significant changes in policy following President Joe Biden’s appointment of new Antitrust officials at both the DOJ and Federal Trade Commission (FTC) that many have seen as a shift in the country’s line regarding antitrust.

The Antitrust Division’s Leniency Policy allows the first individual or company that self-reports its involvement in an antitrust cartel to avoid prosecution if it cooperates with the Division’s investigation and prosecutions, and meets other conditions. The updated policy announced today would now also require that a corporate applicant promptly self-reports after discovering its wrongful conduct and undertake remedial measures to prevent reoffending.

“It’s important for the rules of the road to be clear so the business community knows what to expect and appreciates the costs of losing the race for leniency,” said Assistant Attorney General Jonathan Kanter of the Antitrust Division. “Corporate boards and executives, and the counsel advising them, should understand that sitting on their hands after detecting an antitrust crime will have real ramifications — losing out on leniency means severe consequences.”

As part of the updates, the Leniency Policy was centralized in the Antitrust Division’s chapter of the Justice Manual, 7-3.000 – Criminal Enforcement | JM | Department of Justice. The revised FAQs, available at Leniency Program (justice.gov), include nearly 50 new questions and answers about the Division’s practices concerning leniency. They are written in plain language and provide guidance to outside and in-house counsel, and businesspeople in all sectors of the economy and at all levels of sophistication.

Leniency policies have been applied in a growing number of jurisdictions as a way of reducing the effectiveness of business cartels and thus preventing collusion, with competition authorities worldwide working on refining their leniency regulations and on coordinating these efforts internationally.

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