Overview of Leniency for Antitrust Violations

• Pages: 29-43

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CHAPTER II

OVERVIEW OF LENIENCY FOR ANTITRUST

VIOLATIONS

A. Introduction

Criminal antitrust investigations can be resolved in various ways,

such as declinations, deferred prosecution agreements, nonprosecution

agreements, negotiated criminal plea agreements, and through trial.

However, one resolution method for criminal antitrust violations—

leniency, sometimes referred to as amnesty—is unique. This Chapter

provides a general overview and historical context for this policy

administered by the Antitrust Division. This Chapter will also describe

the relative importance of the program to the Antitrust Division’s

criminal enforcement program, the benefits of leniency, how the

Antitrust Division’s Leniency Program compares to leniency or amnesty

programs in other components of the Department of Justice, and the

relevance of such leniency programs in other jurisdictions.1

B. The History and Importance of the Antitrust Division’s

Corporate Leniency Program

Although the Antitrust Division originally introduced a form of the

Leniency Program in 1978,2 it revolutionized its methods for detecting

and prosecuting cartel conduct with major revisions to the Leniency

Program in August 1993. The 1993 Leniency Program remained

unchanged until the Antitrust Division updated its Leniency Policy and

1. The Antitrust Division’s Leniency Program provides for the complete

avoidance of criminal fines and prison terms for qualifying companies

and individuals. Some non-U.S. jurisdictions use the term immunity to

refer to the complete elimination of penalties for qualifying applicants,

and leniency to refer to a reduction in penalties for qualifying applicants.

2. John H. Shenefield, Assistant Att’y Gen., Antitrust Div., U.S. Dep’t of

Justice, Antitrust Div., The Disclosure of Antitrust Violations and

Prosecutorial Discretion, Address Before the 17th Annual Corporate

Counsel Institute (Oct. 4, 1978) [hereinafter Shenefield, Disclosure of

Antitrust Violations].