Requirements of the Individual Leniency Program

• Pages: 69-80

69

CHAPTER IV

REQUIREMENTS OF THE INDIVIDUAL LENIENCY

PROGRAM

A. Introduction

Although the Corporate Leniency Program of the Antitrust Division

of the U.S. Department of Justice can provide significant protections to

employees of a corporate leniency applicant,1 there may be situations

where individuals face the specter of potential punishment for cartel

participation. For example, a company may decide not to apply for

leniency, leaving an individual cartel participant subject to criminal

prosecution and a potential jail sentence.

Under the Leniency Policy for Individuals, first announced by the

Division in 1994,2 the application of which has been clarified by

numerous Division speeches and publications, including the Antitrust

Division’s “Frequently Asked Questions,”3 corporate employees with

potential criminal antitrust exposure may approach the Division on their

own behalf—i.e., not as part of a corporate proffer, confession, or

leniency application—to seek leniency in return for reporting criminal

antitrust activity of which the Division is not yet aware.4

The Individual Leniency Program intentionally creates potential

friction between the company and its culpable employ ees. A corporation

1. U.S. DEP’T OF JUST., JUST. MANUAL § 7-3.300 ET. SEQ. (2022), ANTITRUST

DIVISION LENIENCY POLICY AND PROCEDURES, [hereinafter LENIENCY

POLICY], available at

https://www.justice.gov/atr/page/file/1490246/download. See Section

C.1. of this chapter and Section D.5. of Chapter III, supra, for a

discussion of the treatment of company employees under the Corporate

Leniency Policy.

2. Id. at § 7-3.330.

3. ANTITRUST DIV., U.S. DEP’T OF JUSTICE, FREQUENTLY ASKED

QUESTIONS ABOUT THE ANTITRUST DIVISION’S LENIENCY PROGRAM

(Apr. 4, 2022), available at

https://www.justice.gov/atr/page/file/1490311/download [hereinafter

LENIENCY FAQS].

4. LENIENCY POLICY at § 7-3.330. As noted below, infra p. 69 &fn.9, the

Individual Leniency Policy—unlike the Corporate Leniency Policy—

does not provide for leniency if the Division is aware of the conduct.