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34 Crim. Just. 14 (2019-2020)
The Antitrust Division's Corporate Leniency Program: Learn from the Past Or Be Condemned to Repeat It

handle is hein.journals/cjust34 and id is 14 raw text is: The Antitrust D1 sion's Corporate I ency Program by POBEPT B. BELL AND KRISTIN MILLAY riminal antitrust violations differ from most corporate criminal violations in that they require agreements among multiple parties. In a criminal antitrust violation, several competitors collude to fix prices, rig bids, or otherwise limit free and fair competition in the marketplace. Criminal antitrust activity is inherently difficult to detect and to prosecute without the cooperation of at least one participant in the cartel. The involvement of multiple parties in the criminal activity creates a unique opportunity that the Antitrust Division of the Department of Justice has long seized upon: the ability to create an incentive structure that encourages self-reporting. The Division has capitalized on the unique nature of criminal antitrust violations by developing a Leniency Program that provides amnesty from Published in Criminal Justice, Volume 34, Numn 2019 by the American Bar Association. Reprod All rights reserved. This information or anyport be copied or disseminated in any fort or by ar an electronic database or retrieval system with tenconsent of the American Bar Association. criminal antitrust prosecution for the first company that discloses an antitrust violation and cooperates with DOJ. Essentially, the Leniency Program pits co-conspirators against one another by creating a race to be the first company to report their misconduct. In exchange for the leniency that it grants to the first self-reporting company, the Division reaps a substantial reward in the form of cooperation that enables DOJ to get pleas from or convictions of the remaining members of the conspiracy. In 1993, the Division put in place a Leniency Program that was massively and consistently successful, incentivizing cartel participants to self-report and to cooperate in helping DOJ build its case against their co- conspirators. The violations reported by leniency applicants triggered a series of major cartel investigations and helped the Division obtain hundreds of millions of dollars in antitrust fines each year. In 2016, however, criminal antitrust fines abruptly plummeted to a level lower than the Division had seen in over a decade. Fines remained at low levels in 2017 and 2018, leading many to wonder why the consistent successes of the Leniency Program had suddenly stalled. This article explores some possible explanations for this surprising decrease in criminal antitrust enforcement activity and focuses in particular on a series of recent changes to the Leniency Program that have altered the balance of incentives facing potential leniency applicants. ROBRT . BELi0 ate andll KR IS IN IILL is anIII!11! asiat in4 l the Wahigtn DClI-dIIdI1111i~ officell ofII~l Hughes Hubbard & r01, Spring 2019. @ ed with permission. thereof may nt r mneans or stored in F4 It the express writ-