The subject of corporate leniency as a tool for combating criminal conduct seems to be top of mind for federal prosecutors. In the last few months, the Deputy Attorney General, Lisa Monaco, and senior enforcers in the Criminal Division, Assistant Attorney General Kenneth A. Polite, Jr. and Deputy Assistant Attorney General Lisa H. Miller, have announced and reinforced the Division’s commitment to its new Corporate Enforcement Policy, which rewards timely self-reporting and other forms of “extraordinary” cooperation in the form of declinations and deferred prosecution agreements.[i]
The Antitrust Division of the Department of Justice, however, is the only division of the DOJ that has had an established self-disclosure leniency program for decades. The original Antitrust Division Corporate Leniency Policy existed since the 1970’s, and was significantly revised in 1993 to provide more predictability and transparency. Over the years, the Antitrust Division has responded to requests for clarifications by issuing Frequently Asked Questions, first in 2008, and again in 2017 and 2022. In April 2022, the Division announced updates to its Leniency Policy for the first time since 1993 and integrated those changes into the Justice Manual.[ii]
These issues and more are addressed in the first edition of the American Bar Association’s Antitrust Cartel Leniency and Sentencing Handbook, published in January 2023. Drafted by an impressive collection of seasoned antitrust cartel practitioners, including Sheppard Mullin Partners Leo Caseria and Ann O’Brien, co-leaders of the firm’s Antitrust and Competition Practice Group, and principally edited by Ann, the Handbook provides practitioners with critical information and insights for representing companies and individuals who either discover possible criminal violations of the antitrust laws or face criminal investigation and/or prosecution.
Not only does the Handbook provide an overview of the antitrust laws, the Leniency Program, and how to apply for leniency, cartel defense professionals will find information and guidance around nuanced and tricky issues such as:
- The difficult decision to apply for leniency;
- For companies or individuals who do not win the race for leniency, whether to cooperate or litigate;
- Complications introduced by the Antitrust Division’s recent focus on criminally prosecuting no-poach agreements and monopolization and attempted monopolization;
- Antitrust-specific sentencing issues and fines for companies and individuals; and
- Elements of an effective antitrust compliance program.
Copies of the Handbook are available for purchase here.
[i] See, e.g., Kenneth A. Polite, Jr., Assistant Attorney General Kenneth A. Polite, Jr. Delivers Keynote Address at the Global Investigations Review Live: DC Spring Conference, justice.gov, (Mar. 23, 2023) available at https://www.justice.gov/opa/speech/assistant-attorney-general-kenneth-polite-jr-delivers-keynote-address-global (last accessed May 25, 2023) (addressing the DOJ’s recent announcement of the Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy and others); Lisa Monaco, Deputy Attorney General Lisa Monaco Delivers Remarks at American Bar Association National Institute on White Collar Crime, justice.gov, (Mar. 2, 2023) available at https://www.justice.gov/opa/speech/deputy-attorney-general-lisa-monaco-delivers-remarks-american-bar-association-national (last accessed May 25, 2023); Lisa H. Miller, Deputy Assistant Attorney General Lisa H. Miller Delivers Remarks at the University of Southern California Gould School of Law on Corporate Enforcement and Compliance, justice.gov, (Feb. 16, 2023) available at https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-lisa-h-miller-delivers-remarks-university-southern (last accessed May 25, 2023).
[ii] Press Release, Antitrust Division Updates Its Leniency Policy and Issues Revised Plain Language Answers to Frequently Asked Questions, Department of Justice, (Apr. 4, 2022) available at https://www.justice.gov/opa/pr/antitrust-division-updates-its-leniency-policy-and-issues-revised-plain-language-answers (last accessed May 26, 2023). For a copy of the most recent Leniency Policy, see https://www.justice.gov/atr/page/file/1490246/download (last accessed May 26, 2023). For the relevant sections of the Justice Manual, see https://www.justice.gov/jm/title-7-antitrust (last accessed May 26, 2023).