Requirements of the Corporate Leniency Policy

• Pages: 45-67

45

CHAPTER III

REQUIREMENTS OF THE CORPORATE

LENIENCY POLICY

A. Introduction

The Leniency Program of the Antitrust Division, United States

Department of Justice (Division) offers two types of corporate leniency1

for applicants who report their illegal antitrust activity and meet program

requirements.2 First, Type “A” leniency, the requirements of which are

set forth in Section 7-3.310 of the Division’s Leniency Policy. Type A

corporate leniency is available only before the Division has begun an

investigation and only if, at the time the applicant reports the illegal

activity, the Division has not already received information about the

activity from any other source.3 Second, if the Division has already

begun an investigation of the reported conduct or otherwise has received

information about the conduct, a company may still qualify for the

Division’s Type “B” leniency. Type B leniency, set forth in Section 7-

3.320 of the Leniency Policy, is available only if the Division does not

yet have evidence against the applicant that is likely to result in a

sustainable conviction, and only to the first company to qualify for

leniency.4

1. The term “amnesty” has sometimes been used in the context of the

Division’s Corporate and Individual Leniency Policies. This chapter will

use the term “leniency” in connection with the Division’s Corporate

Leniency Policy, as is the current practice of the Division.

2. The Division announced an update to the Leniency Program in April

2022, which included the addition of the leniency policy to the antitrust

chapter of the Justice Manual. See Jonathan Kanter, Assistant Att’y Gen.,

Antitrust Div., U.S. Dep’t of Just., Opening Remarks at 2022 Spring

Enforcers Summit (Apr. 4, 2022), available at

https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-

kanter-delivers-opening-remarks-2022-spring-enforcers.

3. ANTITRUST DIV., U.S. DEP’T OF JUST., ANTITRUST DIVISION LENIENCY

POLICY § 7-3.310 (2022), available at

https://www.justice.gov/atr/page/file/1490246/download [hereinafter

LENIENCY POLICY] (formerly, “Corporate Leniency Policies and

Procedures”).

4. Id. § 7-3.320.

46 Antitrust Cartel Leniency and Sentencing Handbook

The purpose of this “first-in-the-door” requirement for both Type A

and Type B applicants is to place companies engaged in illegal conduct

in a “race” against their coconspirators, their coconspirators’ employees,

third parties, and even the companies’ own employees to report their own

illegal conduct and receive Type A or alternative leniency.5 The primary

difference between Type A and B leniency, from the applicant’s

perspective, is how much discretion the Division has to grant each of the

two forms of corporate leniency. The program requirements are more

objective for a Type A application. Type B leniency, in contrast, includes

the requirement that, in the Division’s view, granting leniency would not

be unfair to others. In both cases, however, a successful application will

result in full leniency for the applicant.

The Division understands that companies are less likely to report

their illegal conduct and expose themselves to criminal penalties if they

cannot predict the treatment that they will receive under the Leniency

Program.6 As a result, the Division over time has published its Leniency

Policy (including the requirements for Type A and Type B Corporate

Leniency, Individual Leniency, and the Application Process),7 Model

Conditional Leniency Letters,8 and Frequently Asked Questions About

the Antitrust Division’s Leniency Program that explains the application

of the Leniency Policy using hypothetical examples.9

5. See Scott D. Hammond, Dir. of Crim. Enf’t, Antitrust Div., U.S. Dep’t of

Just., Address Before the ICN Workshop on Leniency Programs:

Cornerstones of an Effective Leniency Program § III (Nov. 22-23, 2004),

available at https://www.justice.gov/atr/file/518156/download. Third

parties (that is, parties that did not participate in the illegal antitrust

activity) are not eligible for leniency, but third parties occasionally

become aware of such activity by others and report it to the Antitrust

Division.

6. Id. § V.

7. LENIENCY POLICY § 7-3.300.

8. See ANTITRUST DIV., U.S. DEP’T OF JUST., MODEL CORPOR ATE

CONDITIONAL LENIENCY LETTER (2022), available at

https://www.justice.gov/atr/page/file/1490291/download; ANTITRUST

DIV., U.S. DEP’T OF JUST., MODEL INDIVIDUAL CONDITIONAL LENIENCY

LETTER (2022), available at

https://www.justice.gov/atr/page/file/1113031/download.

9. ANTITRUST DIV., U.S. DEP’T OF JUST., FREQUENTLY ASKED QUESTIONS

ABOUT THE ANTITRUST DIVISION’S LENIENCY PROGRAM (2022),

https://www.justice.gov/atr/page/file/1490301/download [hereinafter

LENIENCY FAQS]. The original version of the LENIENCY FAQs was

published in 2008, updated in 2017, and again in 2022.