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Opportunities for antitrust leniency

The Department of Justice’s Antitrust Division offers a leniency program under which corporations or individuals involved in antitrust crimes may come forward and voluntarily confess to such crimes. By so doing, they can avoid conviction and associated penalties, such as fines and prison time.

What is an antitrust violation?

Any abusive practice that affects the integrity of trade and commerce is considered a violation of antitrust laws. The first federal antitrust law was the Sherman Act, which made it illegal to conduct monopolistic business practices. Bid rigging, price-fixing and capacity restriction are some examples of antitrust violations.

How does one apply for the leniency program?

As a prerequisite of antitrust leniency, the individual or corporation in question must admit to engaging in “illegal antitrust activity.” A whistleblower who was not complicit in such activity, therefore, may not apply for leniency on behalf of a corporation.

If a company or individual provides material evidence from which one could draw the conclusion that antitrust laws were breached, but no one in the organization will admit to wrongdoing, the Department of Justice will generally consider this to be an inadequate admission of guilt and will not grant leniency.

Here are some other important guidelines surrounding leniency:

  • For any given antitrust conspiracy, a maximum of one corporation may apply for leniency.
  • An individual or corporation can obtain leniency either before or after investigation is underway.
  • If leniency is granted to a corporation, it does not apply to former employees within that corporation.
  • Sometimes the Antitrust Division will define other requirements before granting a conditional leniency letter, such as interviews with certain executives within the corporation under investigation.

How is leniency granted?

When an individual or corporation applies for leniency, they will initially receive a conditional leniency letter. This letter offers provisional leniency protections, provided the applicant meets all of the following requirements during the criminal investigation. The applicant must:

  • Be eligible to apply for leniency,
  • Cooperate completely with the Antitrust Division throughout the investigation and
  • Repay victims of the violation.

If all of these conditions are met, the Antitrust Division will issue the individual or corporation a final grant of leniency.

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