DOJ Revises Leniency Program FAQs

On April 4, 2022, the Department of Justice Antitrust Division (Division) revealed several changes to its leniency program by revising its Leniency Program frequently asked questions (FAQs) for the first time since 2017.

The Division updated its leniency program policies and procedures, adding requirements that applicants must self-report violations “promptly.” The Division likewise added nearly 50 questions and responses to its leniency policy FAQs, including the following notable updates:

• What prompt means: The new guidelines report that the Division determines promptness “based on the facts and circumstances of the illegal activity and the size and complexity of operations of the corporate applicant. It is the applicant’s burden to prove that its self-reporting was prompt.”
• Who must report: The FAQs broaden the types of individuals responsible for reporting violations by adding compliance officers as “authoritative representative[s] of the applicant for legal matters,” in addition to board members and legal counsel. 
• Restitution: Applicants must now complete payment of restitution before receiving a final leniency letter.
• Remediation: Under the new guidance, applicants must make efforts “to remediate the harm caused by the illegal activity, and to improve its compliance program to mitigate the risk of engaging in future illegal activity” before it is granted a conditional leniency letter.
• ACPERA Benefits: The FAQs provide substantial guidance regarding the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA) benefits, including an explanation that “satisfactory cooperation” under the federal statute requires the applicant to provide the civil plaintiff with “a full account” of all potentially relevant facts known to it and all potentially relevant documents.
• Encouraging more reporting: In contrast to the 2017 FAQs, the revised guidelines explain the whistleblower protections available to individuals that report, but had no personal involvement in, illegal activity. Likewise, the revisions repeatedly stress that reporting is a “race” among participants in the scheme.

Although the benefits of leniency that allow a company and its cooperating employees to avoid criminal prosecution remain valuable, these changes to the Division’s leniency program add to the complexity of deciding if and when to self-report an antitrust violation. The experienced team at Hunton Andrews Kurth can help companies navigate these decisions and the leniency process.