Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust chief outlines obligations under leniency program, (Sep 10, 2014)

By Jeffrey May, J.D.

Companies seeking leniency from the Department of Justice Antitrust Division for their role in a cartel will need to do more than make a quick phone call to the Antitrust Division and a promise to cooperate, William Baer, Assistant Attorney General in charge of the Antitrust Division, warned attendees of Georgetown Law School’s Global Antitrust Enforcement Symposium today. In remarks, entitled “Prosecuting Antitrust Crimes,” Baer explained that complete and continuing cooperation with the Division is expected of leniency applicants throughout the investigation and resulting prosecutions. Companies must be willing to invest the necessary time and resources.

In an effort to clear up any ambiguity about the responsibilities of employees of corporate leniency applicants who also seek protection from prosecution, Baer explained that these individuals must be prepared to earn the protection. They must admit to all collusive conduct they participated in or know about and be prepared to be candid and credible witnesses in front of a grand jury and at trial.

“We recently have seen instances where counsel for an individual wanted to pick and choose where and how a client would cooperate—to confess to crimes in one market in hopes of qualifying for leniency, but not cooperate in another market, for which the client is culpable but not eligible for leniency,” Baer said. “It does not work this way.”

Baer also noted that the Antitrust Division's leniency policy governs only the Antitrust Division’s exercise of its prosecutorial discretion in connection with self-reported criminal violations. Where multiple components of the Justice Department investigate both antitrust violations and other crimes—such as fraud, tax evasion, or corruption—leniency applicants under the Antitrust Division policy are not insulated from criminal exposure beyond the Sherman Act. The other components could still prosecute offenses other than Sherman Act violations. Baer noted, however, that “a leniency applicant, even if facing exposure for crimes outside the scope of the leniency policy, still benefits materially from reporting and cooperating with respect to both its antitrust and non-antitrust crimes.”

Of course, only one cartelist can obtain leniency from the Antitrust Division for the particular cartel conduct under investigation. But Baer encouraged companies to approach the Antitrust Division vision at the early stages of an investigation and seek to mitigate the consequences of their criminal wrongdoing.

“Even if a company is too late to qualify for leniency, we take early acceptance of responsibility and meaningful cooperation into account in determining the appropriate consequences for offending corporations and their executives,” Baer said. The Antitrust Division will seek higher fines from companies that do not accept responsibility for their conduct.

With respect to company executives and employees, the Antitrust Division will continue to insist that the most culpable employees face the consequences of their crimes. Sometimes, employees will not be protected by a corporate plea agreement. These excluded individuals-- “carved out” of the corporate plea agreement—are determined on an employee-by-employee basis. Baer said that decisions are based on factors such as the employee’s role in the conspiracy, seniority in the company, and the assistance the employee is able to provide in bringing other wrongdoers to justice.

Last year, the Antitrust Division announced that it would no longer publicly identify these carve-outs unless and until they are charged. The courts have been asked to seal information contained in an addendum to the corporate plea agreement. Courts have honored requests in more than a dozen cases since policy change was announced, according to Baer.

In closing, Baer advised companies that commit an antitrust crime to come forward promptly, cooperate completely, and take the steps necessary to ensure that the conduct does not reoccur.

News: Antitrust AntitrustDivisionNews