Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust Division's criminal enforcement head talks up continuing value of leniency, (Jun 8, 2015)

By Jeffrey May, J.D.

Brent Snyder, Deputy Assistant Attorney General for criminal enforcement at the Department of Justice Antitrust Division, reassured attendees of the Sixth Annual Chicago Forum on International Antitrust Issues today that the benefits of obtaining leniency from the Antitrust Division continue to outweigh the significant costs of seeking relief in multiple jurisdictions. Snyder also noted the benefits of a “culture of compliance” in the sentencing phase for companies that are not the first in the door in the race for leniency.

A company that participates in cartel conduct can avoid prosecution and limit civil damages liability in private suits by self-reporting its conduct to the Antitrust Division under the Corporate Leniency Program. Under the program, a company that is the first to self-report, is accepted into the leniency program, and cooperates with the resulting investigation, and along with its current employees, will not be prosecuted by the Antitrust Division. Leniency applicant also can limit liability in the civil lawsuits that follow government investigations to single damages rather than treble damages.

According to Snyder, leniency is more valuable than ever. Companies that engage in cartel conduct are exposed to greater monetary penalties from more and more jurisdictions today than just ten years ago.

Seeking leniency is costly, but costs are significant for any company that engages in cartel conduct. The company that self-reports first has the opportunity to significantly reduce those costs. “It should be an easy decision for a company to come in and self-report,” Snyder said.

Snyder also discussed coordination efforts among enforcement agencies to minimize overlapping and sometimes contradictory demands on leniency applicants. For instance, competition authorities are considering coordinating deadlines and being more strategic in document demands. In addition, while the Justice Department will not conduct joint interviews with other agencies, Snyder noted that agencies should consider being more efficient in gathering testimony from key witnesses.

"Culture change." The Antitrust Division takes the position that a company cannot avoid criminal antitrust charges by simply pointing to the existence of a corporate compliance program. A company will not be rewarded for a compliance program that fails to deter or detect a cartel.

Snyder noted that a company can however get credit in sentencing for compliance efforts that reflect a cultural change. It must be more than the maintenance of a “backward-looking” compliance program. Credit will require “action and results,” and not just promises of future action, Snyder said.

As an example, Snyder pointed to the recent action against Barclays plc and other banks for violations relating to the rigging of various foreign exchange (FX) benchmarks. In that matter, Barclays, as well as Citicorp, JPMorgan, and Royal Bank of Scotland each agreed to plead guilty to a one-count felony charge of conspiring to fix prices and rig bids for U.S. dollars and euros exchanged in the FX spot market.

According to Snyder, Barclays was entitled to a reduction in its fine ($650 million) based on its compliance efforts. Barclays substantiated what it did to change its culture compared to the other banks. Barclays has not yet been fined by the court. Snyder explained that the government's sentencing memo will lay out the details of what made Barclay's efforts “extraordinary,” thereby meriting consideration in the sentencing.

News: Antitrust AntitrustDivisionNews