In the final hours of the Obama administration, the Antitrust Division issued two new guidance documents that relate to criminal antitrust enforcement. In a Friday, January 13, 2017 press release the Division announced:
The Department of Justice and the Federal Trade Commission (FTC) issued today revised Antitrust Guidelines for International Enforcement and Cooperation. These guidelines update the 1995 Antitrust Enforcement Guidelines for International Operations and provide guidance to businesses engaged in international activities on questions that concern the agencies’ international enforcement policy as well as the agencies’ related investigative tools and cooperation with foreign authorities.
The new guidelines can be found here.
Then on January 17, 2017, the Antitrust Division issued an update to the Frequently Asked Questions About the Antitrust Division’s Leniency Program and Model Leniency Letters. The original FAQ was published on January November 19, 2008. The updated FAQ can be found here. The introduction to the FAQ states:
The answers to these Frequently Asked Questions restate much of the information that is already available in the speeches and model letters [also on the Division’s Leniency website]. They are a comprehensive and updated resource that provides guidance with respect to common issues that leniency applicants encounter under the Division’s Corporate Leniency Policy and Leniency Policy for Individuals. These Frequently Asked Questions address: 1) leniency application procedures; 2) the criteria for receiving leniency under the Corporate Leniency Policy; 3) the criteria for receiving leniency under the Leniency Policy for Individuals; 4) the conditional leniency letter; 5) the potential revocation of conditional leniency and the final unconditional leniency letter; and 6) confidentiality for leniency applicants.
Elizabeth Prewitt, Robert Bell and Dina Hoffer, of Hughes Hubbard and Reed, published an article in Law 360 on January 19, 2017 titled “DOJ Narrows Paths to Immunity for Antitrust Crimes.” The article notes the changes from the previous FAQ’s and discusses some of the implications of the new FAQ’s. As the article notes, the FAQ’s should be reviewed carefully by anyone considering applying for a leniency marker. The article itself is behind a firewall but here are a few key points by the HHR team:
- “the division has also removed the provision allowing counsel to secure a short-term anonymous marker without identifying his or her client.”
- “The revised FAQ’s also explicitly noted that former directors, officers or employees are only eligible for protection under a corporate conditional leniency letter ‘when these specific former directors, officers or employees provide substantial, noncumulative cooperation against remains potential targets, or when their cooperation is necessary for the leniency applicant to make a confession of criminal antitrust activity suffocate to be reliable for conditional leniency.'”
- “The revised FAQ’s also warn that corporate applicants ‘should not expect to use the Leniency Program to avoid accountability for non antitrust crimes.’”
- “The revised FAQ’s also formalize the Antitrust Division’s ‘penalty plus’ policy, which…seeks enhances sentences where a company pleads guilty to one antitrust offense under the leniency program but fails to report a second antitrust crime it was also involved in.”
Elizabeth Prewitt is partner in the New York office of Hughes Hubbard and Reed. She spent 16 years in the Antitrust Division’s New York Field Office and was Assistant Chief when she left in 2014. Robert Bell is a partner in the firm’s Washington, D.C. office and Dina Hoffer is an associate in the firm’s New York office.
More to come on both these new documents. I’m escapably curious to see if the new administration embraces the new Guidelines of International Operations. These guidelines tend to deal more with the Division’s interpretation of case law and set forth policy on important questions such as the application of the FTAIA.