The Antitrust Division's Corporate Leniency Policy: Practical Considerations for Corporate Counsel

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CHAPTER 4

THE ANTITRUST DIVISION’S CORPORATE LENIENCY POLICY:

PRACTICAL CONSIDERATIONS FOR CORPORATE COUNSEL

It’s Wednesday afternoon. You are in your office reviewing the latest draft of a joint venture

agreement and responding to a steady stream of e-mails when your phone rings. You look at the

caller id and notice that it is your company’s Vice President of Sales. Thinking she’s calling you

for an update on the latest revisions to a contract, you pick up the phone. She sounds harried and

explains that she needs to talk to you immediately—she just learned that a company salesman

has been meeting with a competitor and that they have been coordinating bids. She wants to

know what to do.

The first thing you think is, “Bid rigging. Antitrust.” The next thing you think is, “I have no

idea what to do.”

A. The Antitrust Division’s Corporate Leniency Policy

Obviously there are a number of different directions the corporate counsel in the hypothetical

may go. This article explores one of those directions—the Antitrust Division’s Corporate

Leniency Policy (the “Leniency Policy”).1 A company that qualifies for the Leniency Program

not only saves itself from the ignominy of criminal conviction and substantial criminal fines, but

may also protect company employees from criminal conviction and incarceration. While this

article is not intended as a “how to” discussion of the Leniency Policy, some background

information likely would be helpful.2

The Leniency Policy has been in place for almost 30 years. That is a little misleading

though. The Leniency Policy, as originally implemented, governed the Antitrust Division’s

decision making for nearly half that time. While institution of a leniency policy was a watershed

in the history of criminal antitrust enforcement, the original Leniency Policy was only modestly

1. A copy of the Antitrust Division’s Corporate Leniency Policy may be found at

http://www.usdoj.gov/atr/public/guidelines/0091.htm.

2. The following resources are recommended for readers who want more information regarding the

Leniency Policy: Scott D. Hammond & Belinda A. Barnett, Antitrust Div., U.S. Dep’t of Justice,

Frequently Asked Questions Regarding the Antitrust Division’s Leniency Program and Model

Leniency Letters (Nov. 19, 2008) (“Leniency FAQs”),available at

http://www.usdoj.gov/atr/public/ criminal/239583.htm; Scott D. Hammond, Antitrust Div., U.S.

Dep’t of Justice, Detecting And Deterring Cartel Activity Through An Effective Leniency Program

(Nov. 21, 2000), available at http://www.usdoj.gov/atr/public/speeches/9928.htm; Gary Spratling,

Antitrust Div., U.S. Dep’t of Justice, Making Companies An Offer They Shouldn’t Refuse (Feb. 16,

1999), available at http://www.usdoj.gov/atr/public/speeches/2247.htm (“Making Companies an

Offer”); Gary Spratling, Antitrust Div., U.S. Dep’t of Justice, The Corporate Leniency Policy:

Answers To Recurring Questions (Apr. 1, 1998) (“Recurring Questions”), available at

http://www.usdoj.gov /atr/public/speeches/1626.htm.