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Law Seminars International The Corporate Leniency Policy and the 2004 Antitrust Criminal Enhancement and Reform Act: evaluating the race for leniency. Daniel Sasse of Crowell & Moring LLP September 7, 2006. Overview. Amnesty 101 – an overview Start the Race or Circle the Wagons
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Law Seminars InternationalThe Corporate Leniency Policy and the 2004 Antitrust Criminal Enhancement and Reform Act: evaluating the race for leniency
Daniel Sasse of Crowell & Moring LLP September 7, 2006
“Part A” amnesty or automatic amnesty will be granted if before an investigation is begun, six requirements are met:
If an investigation has begun, or if corporation had a leadership role, Alternative or “Part B” Amnesty may be available if seven criteria are met:
Amnesty Plus Results when a company negotiating a plea agreement seeks to obtain lenient treatment by offering to disclose a second, unrelated conspiracy.
Penalty Plus DOJ now takes the position that if a company fails to take advantage of an Amnesty Plus opportunity DOJ will seek an increased penalty. DOJ requests court consider the company's conduct as an aggravating sentencing factor and will pursue a fine or jail sentence at or above the upper end of the Guidelines range.
The Omnibus Question Participants in the program (or grand jury witnesses) asked to disclose whether they are aware of any other cartel activity with respect to other products in this or any other industry. Participants faced with full disclosure or risk losing benefits of amnesty.
It is not surprising that the Antitrust Division would promote competition, and the greatest reward goes to the one who wins the amnesty race.
The key question in considering whether you can win the race is assessing how you learned about the illicit activity and who else is aware of it?
Without a doubt the single biggest consideration is the risk of jail time in the U.S. and to a much lesser extent other jurisdictions.
DOJ has made international cartels a priority.
DOJ has stepped up fines and jail sentences.
2004 Antitrust Criminal Penalty Enhancement Act has increased the risk of doing nothing.
The risk of US litigation, however, can be substantial and can overshadow the combined criminal fines from all global agencies. Companies must consider:
Companies must also consider the web or any other conspiracies and the snowball effect of the disclosures that will be required by:
Similarly, one must consider how disclosures by other cartels members, even in other jurisdictions, will impact your company.
You must assume that your key customers will learn of the illegal activity.
The Act is designed to both support criminal prosecution and to encourage participation in the Amnesty Program. The Act:
Criminal Penalties Are Increased
The Rewards For Cooperation Are Increased for Amnesty Applicant
The Act limits civil plaintiffs to single (de-trebled) damages in claims against amnesty applicants for the following types of claims:
In order to received reduced liability, the amnesty applicant must cooperate with plaintiffs in the follow-on civil litigation.
Does the Act require amnesty applicants to cooperate with the civil litigants? The defense bar has taken the position that amnesty applicants can forfeit the de-trebling and joint-and-several liability protections and refuse to cooperate. The plaintiffs bar has argued that such refusal should revoke the applicants amnesty with the DOJ and subject the company to prosecution, arguing that the Act in essence made cooperation mandatory.
The court in which the civil litigation is pending must determine whether the applicant has provided “satisfactory cooperation” with respect to the following: