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The Interplay Between Private Enforcement and Leniency Policy

The Interplay Between Private Enforcement and Leniency Policy. E. Kate Patchen Assistant Chief San Francisco Office. The views expressed are not purported to reflect those of the U.S. Department of Justice. Topic 2.1.

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The Interplay Between Private Enforcement and Leniency Policy

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  1. The Interplay Between Private Enforcement and Leniency Policy E. Kate Patchen Assistant Chief San Francisco Office The views expressed are not purported to reflect those of the U.S. Department of Justice

  2. Topic 2.1 Safeguarding the attractiveness of leniency programs: Access to evidence included in the competition authorities' files and protection of leniency material

  3. Protection During the Investigation • Antitrust Division's Confidentiality Policy • Protection of Grand Jury Materials

  4. Confidentiality Policy • The Antitrust Division does not publicly disclose the identity of a leniency applicant or information provided by the applicant, absent prior disclosure by, or agreement with, the applicant, unless required to do so by court order in connection with litigation. [DOJ FAQ32]

  5. Grand Jury Secrecy Rules • The law imposes a strict obligation of secrecy on the Antitrust Division under the Federal Rules of Criminal Procedure.

  6. Protection of Leniency Applicant’s Documents • Documents may be protected from disclosure to civil litigants under Fed. Rule of Criminal Procedure 6(e). • However, there is a lack of unanimity on the question of whether documents obtained by the grand jury process are considered “matters occurring before the grand jury.”

  7. Protection In Front of the Court • Discovery Stays

  8. Civil Discovery Stays • The Antitrust Division will sometimes intervene in civil actions for the purpose of seeking limitations on civil discovery when there is a parallel criminal proceeding involving a common question of law or fact. • The civil discovery stay may be to stay civil document production or to stay civil depositions.

  9. Protection After the Investigation • Antitrust Division’s Document Retention Practice

  10. Return/Destruction of Leniency Documents • After the investigation or prosecution has concluded the Antitrust Division will return the documents to the witness (or company) that produced them or will destroy the documents. • This includes, but is not limited to, the documents produced by the leniency applicant.

  11. Topic 2.2 Liability of cartel offenders towards private litigants

  12. Leniency Applicant’s Liability in Private Actions • Restitution • ACPERA/Joint and Several Liability

  13. Restitution • Restitution • Court authority to order restitution at criminal sentencing • Restitution in Antitrust Cases is normally resolved through civil actions with private plaintiffs • Compensation occurs later as part of the civil process • Leniency Program • Restitution is a condition of leniency. • There is a “strong presumption in favor of requiring restitution in leniency situations” [DOJ FAQ20] • Make “all reasonable efforts, to the satisfaction of the Antitrust Division, to pay restitution” [Model Conditional Leniency Letter ¶ 2(g)]

  14. ACPERA • Antitrust Criminal Penalty Enhancement and Reform Act of 2004 known as “ACPERA” • Under ACPERA, a leniency applicant may avoid the treble damages and joint and several liability typically available in civil antitrust suits if it provides “satisfactory cooperation” to civil plaintiffs.

  15. Extent of Cooperation • The leniency applicant must: • Provide a full account to the claimant of all facts known to the leniency applicant that are potentially relevant to the civil action; • Furnish all documents or other items potentially relevant to the civil action that are in the possession, custody, or control of the leniency applicant wherever they are located; and • Use its best efforts to secure and facilitate interviews, depositions, or testimony in connection with the civil litigation from cooperating employees.

  16. Timeliness of Cooperation • If the Antitrust Division obtains a stay or protective order in a civil action based on conduct covered by an antitrust leniency agreement, once the stay or protective order, or a portion thereof, expires or is terminated, the antitrust leniency applicant and cooperating individuals shall provide the required cooperation without unreasonable delay to obtain the benefits under the statute.

  17. Questions?

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