Articles Posted in Criminal Antitrust Issues

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Author:  Molly Donovan

Amelia is 9. She makes friendship bracelets that are quite good because she uses high-sheen thread sourced directly from Brazil. Amelia sells the bracelets at school, from anywhere between $5 and $10, depending on how much thread and labor is required to make a particular bracelet.

One day Amelia gets an email from her thread manufacturer stating: “Amelia, Bad news. The cost of embroidery thread has skyrocketed in Brazil—increases of 20% across all manufacturers. Do you want to continue with your regular procurement schedule?”

Amelia has no choice—the Brazilian floss is what makes her friendship bracelets so premium. “Yes,” she replies, “continue with the usual schedule.”

Naturally, due to her rising material costs, Amelia increases the price of her finished bracelets by 20%. Although not happy, the school friends buy them anyway because the bracelets are trending.

One day Amelia learns online that the Brazilian thread manufacturers had raised their prices illegally—in collusion with each other as part of a global thread cartel. As a result, each of the manufacturers is being prosecuted by the DOJ (save the amnesty applicant).

Wait. How could that be when all of the troublesome activity took place in Brazil? Who do the U.S. antitrust enforcers think they are?  Well, little did the thread manufacturers know, there is a U.S. statute called the Foreign Trade Antitrust Improvements Act (FTAIA) under which activities taking place beyond U.S. borders *might* be within reach of U.S. antitrust laws.

[“They should have called me,” says the antitrust lawyer, “I would have told them that.”]

Amelia is incensed. She wonders whether the FTAIA gives her a cause of action even though she’s a U.S. purchaser and the relevant cartel activity took place in Brazil. She’s super savvy. She calls her antitrust lawyer.

Here’s what the lawyer said:

The FTAIA says that there are two main ways in which foreign conduct becomes subject to private claims in the U.S.:  there’s import commerce or direct effects. The language of the statute itself is super confusing—even to grown-up lawyers—so, here’s a relatively simple way to break it down:

  • Import Commerce. Amelia’s is the definitive example of import commerce, i.e., a transaction between an overseas conspirator and a purchaser in the United States. The conspirator invoiced Amelia in the United States and shipped the product directly to her. Pretty clear cut—that’s import commerce and it’s actionable in the United States.

But say that the thread makers first sold the thread to distributors in Brazil and it was the distributors who imported the thread to the United States with no involvement from the manufacturers. That may “count” against the manufacturers as import commerce even though the manufacturers imported nothing to the United States themselves. Depending on the jurisdiction, some U.S. courts say that so long as conspirators targeted a U.S. import market, you have import commerce for purposes of the FTAIA. As a practical matter, targeting could simply mean that the conspirators discussed the fact that thread gets distributed worldwide, including in the United States, so potentially, this is a rather loose test.

  • Direct Effects. For foreign cartel conduct to meet the direct effects test, the conduct must have a direct, substantial and reasonably foreseeable effect on U.S. commerce and the U.S. effect must give rise to the plaintiff’s claim. What? Let’s unpack it:
  • Direct: if the U.S. effect comes immediately after the foreign price-fix, with no intervening steps, it’s direct.

Some courts have adopted an even looser standard—even if the U.S. effect is not immediate, so long as the product enters the U.S. reasonably close in time and steps to the initial sale of the price-fixed product, it’s direct.

For Amelia, there are no steps between the foreign fix and her U.S. purchase, so she’s good here.

  • Substantial: this has come up mainly in component-part cases—where one part of a finished product was subject to the foreign price-fix and the question is whether the component part is too small in size and cost relative to the finished good for the effect of the price-fix to be considered “substantial.”

While it’s not an issue for Amelia, it would be an issue for Amelia’s school friends who did not buy the thread itself, but did buy the finished bracelets. Since thread is the major material component and makes up the entire cost of a bracelet, excluding labor and overhead, it’s safe to say that the U.S. effect on the price of the thread could be “substantial” to a bracelet buyer, particularly if lots of thread came into the United States.

  • Reasonably Foreseeable: this prong hasn’t been litigated a whole lot either, but an objective test seems to be in order, e., there’s reasonable foreseeability if a reasonable person would expect the price-fixed product to wind up in the United States—even if the defendants themselves didn’t have that understanding or didn’t think about it.
  • Gives Rise To: the private plaintiffs who have faced challenges here purchased the relevant products outside the United States and argued that prices increased globally, so that there is some U.S. effect in play. In those cases, the effect in the U.S. may not “give rise to” a claim based on non-U.S. purchases. Amelia doesn’t have an issue here.

Bottom line: the FTAIA is not a serious hurdle for Amelia’s claim against the Brazilian thread makers—she can sue all of them on a theory of joint and several liability for trebled damages.

Morals of the Story: 

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Author: Molly Donovan

If I Were You is a new Bona Law podcast that gives in-house lawyers the essential 5 bullets they need to explain real-world antitrust and competition risks to their business teams. This podcast is a quick 10 minutes or less, easily digestible during a commute or errand, and we hope it becomes a practical resource for in-house lawyers.

I’ll be the regular host of the podcast, which was inspired by one of my favorite in-house friends who said, “A good way to talk to the business side is to say something like, ‘I’m not saying don’t do it, but if I were you, I would do x, y, and z to mitigate the risk.’” And—tah dah—this podcast was born.

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Author: Molly Donovan

Crises that disrupt distribution chains and cause supply shortages tend to prompt discussions among competitors about how to survive. Discussions may begin as relatively innocuous information exchanges but become risky when they turn to coping strategies. This topic can sometimes lead to conversations amongst competitors such as, “We’re all in the same boat, so joint efforts ought to be made to stabilize prices,” or “We, as an industry, should stay on the same page and base future price increases on the rising costs of material costs and/or distribution downstream.” As we know from history (earthquakes, tsunamic, floods), those sorts of discussions are real and prompt DOJ investigations. As difficult as it has been for some businesses, the COVID-19 pandemic will not be a defense to cartel conduct.

So now that at least some aspects of business have returned to normal, it’s an excellent time for in-house counsel to survey the relevant business units to assess whether any potentially anticompetitive conduct occurred over the last couple of years. Counsel can do this inquiry with minimal cost and minimal disruption to business: a few key interviews, a high-level but strategic sweep of emails, and a big picture look at pricing and production figures. Top leadership can deliver messages that make it clear that whistleblowers will be protected (consistent with federal law). Companies can set up a message box so employees can self-report anonymously.

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Author: Molly Donovan

Yesterday the DOJ’s Antitrust Division announced updates to its Leniency Policy and issued nearly 50 new FAQs, and related responses, regarding its leniency practices. One welcome development is that the new FAQs clarify some the DOJ’s positions concerning ACPERA—the statute designed to limit an amnesty company’s potential exposure in civil lawsuits. Previously, guidance on ACPERA was almost non-existent, yet seriously needed to curb the unreasonable demands that plaintiffs were placing on amnesty companies relative to their co-defendants, making ACPERA not particularly incentivizing, at least at times. Even worse, plaintiffs could continually threaten expensive litigation over the satisfaction of ACPERA, undermining its incentive powers even more. Now, the FAQs make the DOJ’s view clear that an applicant who chooses to pursue ACPERA benefits need not be at a plaintiff’s beck and call regardless of plaintiff’s reasonableness, or lack thereof.

While the changes on this front are helpful to potential applicants, the Division could have gone further and some uncertainties for companies contemplating a self-report to the DOJ will remain.

Here are some of the critical bullet points.

Prompt Self-Reporting. To qualify for leniency, a company is required to “promptly” self-report once the relevant conduct is discovered. While there’s no bright-line rule, “promptly” does not appear to mean that an inkling of wrongdoing must be followed immediately by a call to DOJ, as some may have previously thought. Rather, with the new FAQ guidance, the condition of “promptly” appears to be aimed at disqualifying companies whose lawyers or compliance officers investigate and confirm anticompetitive activity, yet purposefully choose not to self-report in hopes that the conduct remains otherwise unearthed.

On the other hand, the DOJ seems to recognize the fact that internal investigations conducted by counsel are typically a necessary step between some indication of wrongdoing and the seeking of a marker, and that cartel investigations in particular often span jurisdictions, and are otherwise complex and take time. This mindset and approach appear to be appropriate to the DOJ in terms of timing.

Relatedly, the FAQs say that an internal failure to appreciate that the activities at issue are illegal (or illegal in the United States) is not a defense to a failure to promptly self-report. Companies (and particularly non-U.S. companies) that are unsure how problematic a particular activity is are wise to seek U.S. counsel as early as practicable.

In any event, the DOJ’s FAQs say that if an organization is too late to obtain leniency, but nevertheless chooses to self-report and cooperate, it may earn credit applicable at sentencing.

Remediation and Compliance. To qualify for leniency, the corporate applicant must now “undertake remedial measures” and improve compliance to prevent recidivism. This requirement, as stated, is new in that “remediation” appears separate and apart from the condition that an applicant make best efforts to pay restitution. While “restitution” is focused on compensating victims, “remediation” appears to be focused mostly on internal efforts to “address the root causes” of the conduct by, for example, recognizing its seriousness, accepting responsibility, implementing measures to prevent similar conduct from reoccurring, and disciplining or firing “culpable, non-cooperating personnel.” What constitutes sufficient remediation will depend on the circumstances, according to the FAQs, but detailed guidance as to compliance can be found in the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations Guidance (the DOJ’s guidelines regarding effective compliance programs).

What is unclear is what “recognizing seriousness” and “accepting responsibility” mean in this context. For leniency applicants who can admit to a criminal U.S. antitrust violation, but must litigate certain nuances elsewhere in the world, or in civil lawsuits in the U.S., as to the extent of harm, for example, there is a potential tension.

Restitution. The program has long required an applicant to make best efforts to pay restitution to victims where possible. Previously, “where possible” was unclear, and it’s now been clarified to mean that actual payments of restitution will be excused only in relatively narrow circumstances, e.g., “the applicant is in bankruptcy and prohibited by court order from making payments; where such payments would likely cause the applicant to cease operations or declare bankruptcy; or if the sole victim is defunct.”

Absent such circumstances, to receive a final leniency letter, “applicants must actually pay restitution.”  This obviously sounds like a higher burden than merely “making efforts” to pay restitution, and the questions remain who is a “victim,” how that will be decided, and whether 100% of all victims must be compensated before final leniency can be achieved. Assuming a final letter is desired for some practical reason, the situation could be a tough one for applicants who disagree that a particular claimant is an actual victim, or that a particular claimant is owed the full amounts it says it is. In such cases, litigation over these questions could take years, making the quest for a final leniency letter a very long and uncertain one.

The same goes for another new requirement that, to get even a conditional letter, an applicant must “present concrete, reasonably achievable plans about how they will make restitution.” It’s questionable how this would work in practice. At the outset of a cartel investigation, it’s unclear how many claimants will come forward, when they’ll come forward and how much they will claim they are owed. A generic “plan” may be one thing—a prediction about who the bona fide victims are and whether they will claim compensation and how and when they will be paid is another.

As with remediation, there is also tension here for an amnesty applicant that admits to conspiratorial agreements, but will litigate the nuances involved in the complex determination of whether an agreement had full or only partial success. Given all the economic facts, there may be nothing inconsistent with an admission of criminal guilt, on the one hand, and the position that a particular claimant did not suffer.  But determining who is a victim and who is not can be an intensive undertaking.  If the Division is going to require actual competition to all victims, it’s an inquiry they should be willing to look at closely for fairness, particularly where the civil plaintiffs are alleging a conspiracy much bigger in size and scope (and therefore, in damages) than the conspiracy admitted to for purposes of criminal guilt.

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Author: Jon Cieslak

The U.S. Department of Justice Antitrust Division made waves recently by indicating that it is prepared to bring criminal charges for illegal monopolization, something it has not done in over 40 years.

Speaking at the American Bar Association’s National Institute on White Collar Crime on March 2, Deputy Assistant Attorney General Richard Powers said that, while he was not “making any announcements,” the Antitrust Division was “absolutely” prepared to bring Sherman Act, Section 2 criminal charges. He noted that Congress made violations of both Section 1 (which addresses anticompetitive agreements) and Section 2 a crime, and that the Antitrust Division has previously brought Section 2 charges alongside Section 1 charges “when companies and executives committed flagrant offenses intended to monopolize markets.”

If the Division does bring Section 2 charges, it will not lack for statutory authority. Section 2 of the Sherman Act expressly makes it a felony to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2.

But with a dearth of previous Section 2 prosecutions—which were usually brought with Section 1 claims in any case—it is hard to know what monopolization conduct the Division might prosecute. After all, the Division does not prosecute all violations of Section 1; it only prosecutes per se violations such as price fixing, bid rigging, and some market allocation agreements, not other anticompetitive agreements that are judged under the rule of reason. Section 2 violations, however, are not so neatly compartmentalized into per se and rule of reason violations.

This could lead defendants to challenge any forthcoming Section 2 charges on Due Process grounds because the statute is unconstitutionally vague about what conduct is illegal. Indeed, some have argued that Section 1 is vulnerable to this same attack—even though courts have substantial experience with Section 1 criminal cases.

The Antitrust Division previously dealt with this potential problem in a different context. When the Division announced that it would begin prosecuting wage fixing and no poaching agreements, which it previously had not prosecuted, it issued guidance to HR professionals about what conduct the Division would prosecute. This approach has been successful so far, as the only court to consider the issue has ruled against a constitutional challenge to the Antitrust Division’s prosecution of a wage fixing agreement.

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Author: Jon Cieslak

I recently wrote about the DOJ Antitrust Division’s Leniency Program, and the benefits it can provide to a company engaged in criminal antitrust conduct. Those benefits can extend beyond a company’s immunity agreement with the DOJ to the civil litigation that frequently follows a DOJ investigation. The civil law benefits of a successful leniency application are provided by the Antitrust Criminal Penalty Enhancement and Reform Act, Pub. L. No. 108-237, § 213(a)-(b), 118 Stat. 665, 66-67 (2004), commonly referred to by its acronym, ACPERA.

Originally passed in 2004, and made permanent by Congress in 2020, ACPERA provides additional incentives for companies engaged in criminal antitrust conduct to participate in the Leniency Program. ACPERA does so by altering the damages that can be recovered from a successful leniency applicant in two ways:

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Author: Jon Cieslak

In 1993, the U.S. Department of Justice Antitrust Division created its Leniency Program by issuing its Corporate Leniency Policy. The Leniency Program provides means for a company to avoid criminal prosecution for violating federal antitrust laws—such as price fixing, bid rigging, and market allocation—by self-reporting the illegal activity to the Antitrust Division.

Since then, the Leniency Program has been a major impetus for criminal antitrust cases in the United States. In fact, because the Antitrust Division’s criminal prosecutions are almost always followed by civil litigation filed by private plaintiffs, it is widely understood (though not always confirmed) that some of the largest antitrust cases of the past thirty years started with leniency applications, including In re TFT-LCD (“Flat Panel”) Antitrust Litigation and In re Sulfuric Acid Antitrust Litigation.

Although some have lately questioned the Leniency Program’s effectiveness, the Leniency Program is widely considered a success and a key part of the Antitrust Division’s enforcement toolbox. Accordingly, any time a company discovers that it may have engaged in conduct violating the antitrust laws, it should consider participation in the Leniency Program.

How does a company qualify for the Leniency Program?

The Leniency Program provides two ways in which a company can obtain leniency, commonly referred to as “Type A” leniency and “Type B” leniency. The key difference between the two is that Type A leniency is only available before the Antitrust Division opens an investigation of the illegal activity, whereas Type B leniency can be obtained even after an investigation is opened. Flowing from this key difference, the requirements to obtain each type of leniency vary slightly.

To obtain Type A leniency, a company must:

  1. Report the illegal activity before the Antitrust Division receives information about the illegal activity;
  2. Take “prompt and effective” steps to end its involvement in the illegal activity as soon as it was discovered;
  3. Report the illegal activity “with candor and completeness” and cooperate with the Antitrust Division’s investigation;
  4. Confess to its wrongdoing on behalf of the company, “as opposed to isolated confessions of individual executives or officials;”
  5. Provide restitution to injured parties if possible; and
  6. Not be a ringleader or originator of the illegal activity.

Type B leniency shares some of these requirements, but has several of its own. To obtain Type B leniency, the following conditions must be met:

  1. The company is the first “to come forward and qualify for leniency;”
  2. The Antitrust Division does not already have evidence against the company “that is likely to result in a sustainable conviction;”
  3. As with Type A, the company ended its involvement in the illegal activity;
  4. As with Type A, the company cooperates with the investigation;
  5. As with Type A, the company confesses its wrongdoing;
  6. As with Type A, the company provides restitution; and
  7. The Antitrust Division determines that leniency “would not be unfair to others” under the circumstances.

What are the benefits of the Leniency Program?

While the Leniency Program’s requirements are considerable—it is no small thing to self-report and admit to an antitrust crime—the program offers substantial benefits to those that qualify. First and foremost, a successful leniency application means that the Antitrust Division will not bring criminal charges against the company for the reported activity. Although there are other ways to avoid charges, such as a deferred prosecution agreement, the Leniency Program provides the surest path to immunity.

In addition, if a company qualifies for Type A leniency, all company directors, officers, and employees who admit their involvement and cooperate with the Antitrust Division’s investigation will likewise receive leniency. Under Type B leniency, the Antitrust Division will evaluate leniency for directors, officers, and employees on an individual basis, but still commonly grants leniency.

Finally, a successful leniency application provides benefits in any related civil litigation pursuant to the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA). An upcoming article will discuss those benefits in detail.

How does a company participate in the Leniency Program?

A company’s participation in the Leniency Program can vary depending on the facts and circumstances of the illegal activity and, in particular, how the Antitrust Division chooses to investigate it. But there are a few common steps you should plan on at the outset.

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Author: Jarod Bona

In the market, there are many ways to buy and sell products or services.

For example, if you want to purchase some whey protein powder, you can walk into a store, go to the protein or smoothie-ingredient section, examine the prices of the different brands, and if one of them is acceptable to you, carry that protein powder to the register and pay the listed price.

Similarly, if you want to purchase a Fitbit Sense, you find the Fitbit manufacturer’s product in a store or online and pay the listed price. Oftentimes products like this, from a specific manufacturer, are the same price wherever you look because of resale price maintenance or a Colgate policy (to be clear, I am not aware of whether Fitbit has any such program or policy). But these vertical price arrangements are not the subject of this article.

Another approach—and the true subject of this article—is to accept bids to purchase a product or service. Governments often send out what are called Requests for Proposals (RFPs) to fulfill the joint goals of obtaining the best combination of price and service/product and to minimize favoritism (which doesn’t always work).

But private companies and individuals might also request bids. Have you ever renovated your house and sought multiple bids from contractors? If so, that is what we are talking about. If you’ve done this as a real-estate investor, you should read our real-estate blog too.

What is Bid-Rigging?

Let’s say you are a bidder and you know that two other companies are also bidding to supply tablets and related services to a business that provides its employees with tablets. The bids are blind, which means you don’t know what the other companies will bid.

You will likely calculate your own costs, add some profit margin, try to guess what the other companies will bid, then bid the best combination of price, product, and services that you can so the buyer picks your company.

This approach puts the buyer in a good position because each of the bidders doesn’t know what the others will bid, so each potential seller is motivated to put together the best offer they can. The buyer can then pick which one it likes best.

But instead of bidding blind, what if you met ahead of time with the other two bidding companies and talked about what you were going to bid? You could, in fact, decide among the three of you which one of you will win this bid, agreeing to allow the others to win bids with other buying companies. In doing this, you will save a lot of money and hassle.

The reason is that you don’t have to put forth your best offer—you just have to bid something that the buyer will take if it is the best of the three bids. You can arrange among the three bidders for the other two bidders to either not bid (which may arouse suspicion) or you could arrange for them to bid a much worse package, so your package looks the best. The three bidders can then rotate this arrangement for other requests for proposals. Or you offer each other subcontracts from the “winner.”

If you did this, you’d save a lot of money, in the short run.

Of course, in the medium and long run, you might learn more about criminal antitrust law and end up in jail. You could also find yourself on the wrong side of civil antitrust litigation.

This is what is called bid-rigging. It is one of the most severe antitrust violations—so much so that the courts have designated it a per se antitrust violation.

Bid rigging is also a criminal antitrust violation that can lead to jail time. And it often leads to civil antitrust litigation too. Many years ago, when I was still with DLA Piper, I spent a lot of time on a case that included bid-rigging allegations in the insurance and insurance brokerage industries called In re Insurance Brokerage Antitrust Litigation.

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Authors: Luis Blanquez and Jon Cieslak

Deferred prosecution agreements (“DPAs”) in the antitrust world have been a hot topic on this side of the Atlantic during the past two years. DPAs seem to be slowly becoming an efficient instrument for the Department of Justice to tackle antitrust conspiracies, and we expect this trend to continue.

What is a DPA?

A DPA is a legal agreement between a prosecutor and a defendant where the former eventually drops any charges against the latter, if the terms of such agreement are met. In other words, a DPA is a contract to resolve a criminal enforcement action without the prosecution of charges.

If the defendant––either a company or an individual––complies with all the terms of the DPA during a period of time (usually two to three years), despite being initially charged, the prosecutor will dismiss the charges and the defendant will avoid a conviction. DPA terms commonly require a defendant to pay a fine, implement certain remedial measures to alleviate the wrongdoing, or take steps to ensure future compliance.

While DPAs are almost universally considered a positive outcome for the defendant, they do carry some risk. By agreeing to a DPA, a defendant admits to wrongdoing and waives any right to challenge a set of agreed facts that are sufficient to sustain a conviction. Accordingly, if a defendant fails to comply with the terms of a DPA, it will face prosecution and almost certain conviction.

The Role of DPAs in the DOJ Criminal and Antitrust Recent Guidelines

Until recently, if an antitrust defendant did not win the race for leniency, the DOJ Antitrust Division’s approach was to insist that the company plead guilty to a criminal charge with the opportunity to be an early-in cooperator, and potentially receive a substantial penalty reduction for timely, significant, and useful cooperation. This all-or-nothing philosophy highlighted the value of winning the race for leniency.

But all that changed in July 2019, when the Antitrust Division announced a new policy to incentivize antitrust compliance. These new guidelines were presented by AAG Makan Delrahim on July 11, 2019, at the Program on Corporate Compliance and Enforcement at the New York University School of Law: Wind of Change: A New Model for Incentivizing Antitrust Compliance Programs.

Delrahim explained that, unlike in the past, corporate antitrust compliance programs will now factor into prosecutors’ charging and sentencing decisions, allowing companies to qualify for DPAs or otherwise mitigate exposure, even when they are not the first to self-report criminal conduct.

In particular, Delrahim highlighted three important points.

  • First, that the adequacy and effectiveness of a compliance program is but one of the ten factors the Justice Manual directs prosecutors to consider when weighing charges against a corporation. Among the “Factors to Be Considered”, four in particular stand out as hallmarks of good corporate citizenship: (1) implement robust and effective compliance programs, and when wrongdoing occurs, they (2) promptly self-report, (3) cooperate in the Division’s investigation, and (4) take remedial action.
  • Second, that the DOJ’s new approach would allow prosecutors to proceed by way of a DPA when “the relevant Factors, including the adequacy and effectiveness of the corporation’s compliance program, weigh in favor of doing so.” DPAs, as the Justice Manual recognizes, “occupy an important middle ground between declining prosecution and obtaining the conviction of a corporation.”
  • Third, that the mere existence of a compliance program does not necessarily guarantee a DPA. Instead, “Department prosecutors are directed to conduct a fact-specific inquiry into “whether the program [at issue] is adequately designed for maximum effectiveness in preventing and detecting wrongdoing by employees. In making a charging recommendation, Antitrust Division prosecutors will evaluate the compliance program’s effectiveness or lack thereof, and holistically, consider it together with all the other relevant Factors.”

This marked a substantial policy shift for the Antitrust Division, which previously never considered DPAs as an option to resolve antitrust conspiracy cases. Under the DOJ’s existing leniency program, the antitrust Division was allowing full immunity exclusively to leniency applicants.

That’s not the case anymore––but make no mistake––only so long as the offending party has, as explained above, a truly robust and effective compliance program in place. And for that purpose, the recent Revised Guidance from the Criminal Division issued in June 2020 on the Evaluation of Corporate Compliance Programs is the last piece of this puzzle. The new Guidance provides additional information to assist prosecutors––both in antitrust and other investigations––in making informed decisions as to whether, and to what extent, a corporation’s compliance program was effective at the time of the offense. You can read more about it on our previous post:

The Department of Justice Policy and Guidance on Antitrust Compliance Programs and Antitrust Criminal Violations

A Detailed Look at the First Eight DPAs Under the New Policy Incentivizing Compliance

As a result of the new DOJ’s guidance on antitrust compliance programs and criminal investigations, we are starting to see an increased use of DPAs by the Antitrust Division. Let’s have a close look at the ones made public so far.

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Author: Jon Cieslak

Over a year after it was first passed by the Senate, the Criminal Antitrust Anti-Retaliation Act finally became law in December 2020. The new law protects employees who report criminal antitrust violations such as price fixing or bid rigging from retaliation.

The Act states that an employer may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against” an employee, agent, contractor, or subcontractor who reports suspected criminal antitrust violations to an appropriate authority, which includes the federal government, the employee’s supervisor, or an individual working for the employer with appropriate investigative powers (such as corporate counsel or an antitrust monitor). The Act also protects employees who participate in or assist a federal investigation of suspected antitrust violations, whether or not they acted as a whistleblower in the first instance.

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