For the Defense - Vol. 7, Issue 3 - 25

of directors, officers, and employees (collectively,
" employees " );
3. The applicant provides timely, truthful,
continuing, and complete cooperation to the
Division throughout its investigation;
4. The applicant uses best efforts to make restitution
to injured parties, to remediate the harm
caused by the illegal activity, and to improve its
compliance to mitigate the risk of engaging in
future illegal activity; and
5. The applicant did not coerce another party to
participate in the illegal activity and clearly was
not the leader or originator of that activity.8
The 1993 reforms revitalized the Leniency Program.
By 2003, the Division was fielding an average
In 2010, there
In 1992, the Division received only a single leniency
application.9
of one leniency application per month.10
was a twenty-fold increase in U.S. leniency applications.11
Not surprisingly, the Division collected billions of dollars
in record-breaking fines between 2011 and 2019 as it used
the information acquired through the Leniency Program to
prosecute multinational corporations and their employees.12
The resounding success of the Leniency Program captured
the attention of non-U.S. antitrust enforcers. More than 60
countries, including the European Union, its Member States,
the United Kingdom, Japan, and Australia, have their own
leniency policies.13
programs within the past 20 years.14
Most jurisdictions implemented their
The Division takes
prides in this phenomenon and its record of " successfully
conducting parallel international cartel investigations
[and] reaching coordinated resolutions that address the
enforcement priorities and deterrence goals of multiple
jurisdictions. " 15
Recent Changes in the Leniency Program
However, since 2014, the Division has made several
changes to the Leniency Program that have engendered
controversy. First, at the height of the auto parts
investigation when many non-U.S. corporations were
asking their employees to serve time in U.S. prisons as a
condition of continued employment, the Division rolled
back its unwritten but long-standing policy " not to insert
itself into the personnel matters of companies by requiring
the termination of culpable employees. " 16
In remarks
delivered to the International Chamber of Commerce and
U.S. Council of International Business, then Deputy Assistant
Attorney General ( " DAAG " ) and head of the Division's
criminal enforcement section, Brent Snyder, suggested that
a company should not retain culpable employees if they
were in a position to interfere with the company's internal
investigation and decisions.17
The next day, the thenhead
of the Antitrust Division, Assistant Attorney General
( " AAG " ) Bill Baer, doubled down on DAAG Snyder's words
and warned that retaining a " culpable " employee would
raise " serious doubts about that company's commitment to
implementing a new compliance program or invigorating
an existing one. " 18
Two years later, in 2016, the Division introduced more
dramatic changes. Specifically, the Division rescinded its
bright-line promise of complete and automatic immunity
from prosecution in favor of a more nuanced standard, i.e.,
" broad discretion on whether to provide non-prosecution
coverage " to certain individuals. " 19
Frequently Asked Questions ( " FAQs " ),20
The Leniency Program's
which once advised
self-reporting companies to include former employees in
their leniency applications, announced that these individuals
would now be " presumptively excluded " from the leniency
agreement-rendering them vulnerable to prosecution
even if they cooperated with the Division's investigation.21
Furthermore, amnesty was no longer " guaranteed " 22
for
current employees of a Type B leniency applicant-even if
the company otherwise qualified for immunity. From the
perspective of many in the defense bar, these exclusions
seemed to dismantle the fundamental premise of the
Leniency Program: cooperation in exchange for amnesty.23
More recently, in April 2022, AAG Jonathan Kanter, the
current head of the Division, unveiled more " updates " to
the Leniency Program. One of the most significant changes
concerned the requirement of restitution. Although the
Leniency
Program has
always
obligated
the
leniency
candidate to " use[] best efforts to make restitution to
injured parties, " the Division now expects the applicant to
present " concrete, reasonably achievable plans " before it
will grant conditional leniency.24
applicant " must actually pay restitution " in order to receive
its final leniency letter.25
The antitrust defense bar was-and remains-concerned
by the uncertainty of DOJ's new criteria. For example,
some commentators have observed that eight years after
the Division suggested " culpable " employees must be
terminated by the leniency applicant, " there is no definitive
guidance from the DOJ [as to definition of " culpable " ], and
it is not an easy question to answer. " 26
The Division's stance
to presumptively exclude former employees and withhold
judgment on whether it will prosecute current employees
under Type B leniency has elicited harsher criticism for
allegedly " breach[ing] the delicate balance of trust on
both sides. " 27
The commentary about the April 2022 policy
changes has been mixed, but the consensus from the
defense bar is that the Division should address " concerns
with potential disqualification of otherwise conforming
leniency applications " 28
and clarify " the scope of what
constitutes appropriate restitution. " 29
How to Turn the Ebbing Tide of U.S. Enforcement
To be sure, the Division is not the only competition
authority facing a decline in leniency candidates;
applications decreased worldwide between 2015 and 2020.30
But in contrast to DOJ, other competition authorities are
Vol. 7, Issue 3 l For The Defense 25
Furthermore, the leniency
For the Defense - Vol. 7, Issue 3

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