Model Individual Conditional Leniency Letter

U.S. DEPARTMENT OF JUSTICE
Antitrust Division

[Name]
Deputy Assistant Attorney General

Main Justice Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
(202) 514-2401 / (202) 514-0306 (Fax)

[Name and address]

Dear [Name]:

This letter sets forth the terms and conditions of a conditional agreement between the
United States Department of Justice Antitrust Division (“Antitrust Division”) and [you/your
client [Name]] (“Applicant”) concerning Applicant’s eligibility for the Antitrust Division’s
Leniency Policy, Justice Manual 7-3.400, which is incorporated by reference. Applicant
represents that it is fully familiar with the Leniency Policy.

1. Applicant’s Eligibility. Subject to verification of Applicant’s representations in this
paragraph, and subject to Applicant’s timely, truthful, continuing, and complete
cooperation, as described in Paragraph 3, the Antitrust Division conditionally agrees that
Applicant is eligible for Individual Leniency of the Leniency Policy.

(a) Applicant admits that it participated in [DEFINE CONSPIRACY
1
] (“the illegal
activity”).

(b) Applicant did not coerce any other party to participate in the illegal activity and
clearly was not the leader or originator of that activity.

2. Conditional Nonprosecution Agreement. Subject to verification of Applicant’s
representations in Paragraph 1, and subject to Applicant’s timely, truthful, continuing,
and complete cooperation, as described in Paragraph 3, the Antitrust Division
conditionally agrees that it will not bring any criminal prosecution against Applicant for
acts or offenses it committed in furtherance of the illegal activity before the date the
Antitrust Division executes this letter.

1
The definition of the illegal activity will generally follow this format: Beginning at least as early as [XXXX] and
continuing until as late as [XXXX], in the [XXXX] District of [XXXX] and elsewhere, Applicant and co-conspirators
knowingly entered into and engaged in a conspiracy to suppress and eliminate competition by [allocating
customers/employees, rigging bids, and fixing prices] for [affected product or service] in the United States and
elsewhere, in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.

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3. Applicant’s Cooperation. Applicant has provided, and will continue to provide
throughout the Antitrust Division’s investigation, timely, truthful, continuing, and
complete cooperation, including but not limited to:

(a) producing in the United States all documents and records without the
requirements of a subpoena, including personal documents and records, and other
materials in [his/her/their] possession, custody, or control, wherever located, not
protected under the attorney-client privilege or work-product doctrine, requested
by attorneys and agents of the United States in connection with the illegal
activity;

(b) making [himself/herself/themself] available for interviews in the United States
upon the request of attorneys and agents of the United States in connection with
the illegal activity;

(c) responding fully and truthfully to all inquiries of the Antitrust Division in
connection with the anticompetitive activity being reported, without falsely
implicating any person or intentionally withholding any information, subject to
the penalties of making false statements (18 U.S.C. § 1001) and obstruction of
justice (18 U.S.C. §§ 1503 et seq.);

(d) otherwise voluntarily providing the Antitrust Division with any materials or
information, not requested in (a) - (c) of this paragraph and not protected under
the attorney-client privilege or work-product doctrine, that [he/she/they] may have
relevant to the illegal activity;

(e) when called upon to do so by the Antitrust Division in connection with the illegal
activity, participating in affirmative investigative techniques, including but not
limited to making telephone calls, recording conversations, and introducing law
enforcement officials to other individuals, with all such activity being conducted
only at the express direction and under the supervision of attorneys and agents of
the United States;
2

(f) when called upon to do so by the United States, testifying in trial and grand jury
or other proceedings in the United States, fully, truthfully, and under oath, subject
to the penalties of perjury (18 U.S.C. § 1621), making false statements or
declarations in grand jury or court proceedings (18 U.S.C. § 1623), obstruction of
justice (18 U.S.C. §§ 1503 et seq.), and contempt (18 U.S.C. §§ 401-402), in
connection with the illegal activity; and

(g) not committing, participating in, or attempting to commit or participate in any
additional antitrust crime in violation of Title 15, United States Code, or any acts
of perjury or subornation of perjury (18 U.S.C. §§ 1621-22), making a false

2
Counsel for the Applicant should discuss with the Antitrust Division any concerns, such as safety concerns,
regarding engaging in affirmative investigative techniques. The Antitrust Division will take those concerns into
consideration in assessing the Applicant’s good faith and complete cooperation.

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statement or declaration (18 U.S.C. §§ 1001, 1623), obstruction of justice (18
U.S.C. §§ 1503 et seq.), contempt (18 U.S.C. §§ 401-402), or conspiracy to
commit such offenses.

4. Tolling. Applicant agrees that if this letter is withdrawn for any reason, the statute of
limitations period for the illegal activity and any crimes committed in furtherance of the
illegal activity will be tolled for the period between the date the Antitrust Division
executes this letter and the date on which the letter is withdrawn, or for a period of sixty
(60) days after the Antitrust Division executes this letter, whichever period is greater.

5. Conditional Leniency Agreement.

(a) Applicant agrees that it bears the burden of proving its eligibility for leniency,
including demonstrating that its representations in this letter are accurate and that
it fully understands the consequences that might result from a revocation of this
conditional letter.

(b) After Applicant establishes that it is eligible to receive leniency and provides the
required cooperation, the Antitrust Division will notify Applicant in writing that it
has been granted leniency.

(c) If at any time before Applicant is granted leniency the Antitrust Division
determines that Applicant (1) contrary to its representations in Paragraph 1, is not
eligible for leniency or (2) has not provided the cooperation required by
Paragraph 3, this letter shall be void and the Antitrust Division may revoke
Applicant’s conditional eligibility under the Leniency Policy. Before the Antitrust
Division makes a final determination to revoke Applicant’s conditional leniency,
the Antitrust Division will notify counsel for Applicant in writing of staff’s
recommendation to revoke Applicant’s conditional leniency and will provide
counsel an opportunity to meet with the Antitrust Division regarding the potential
revocation. Should the Antitrust Division revoke Applicant’s conditional
leniency, the Antitrust Division may thereafter initiate a criminal prosecution
against Applicant, without limitation. The Antitrust Division may use against
Applicant in any such prosecution any documents, statements, or other
information provided to the Antitrust Division at any time under this letter by
Applicant.

(d) Applicant understands that the Leniency Policy is an exercise of the Antitrust
Division’s prosecutorial discretion, and Applicant agrees that it may not, and will
not, seek judicial review of any Antitrust Division decision to revoke its
conditional leniency unless and until it has been charged by indictment or
information for the illegal activity.

6. Privilege and Work Product. Disclosures made by counsel for Applicant in furtherance
of the leniency application will not constitute a waiver of the attorney-client privilege or
the protections of the work-product doctrine.

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7. Parties to the Agreement. This letter is not binding on any other government agency. At
the Applicant’s request, the Antitrust Division will bring this letter to the attention of
other prosecuting offices or administrative agencies.

8. Entire Agreement. This letter constitutes the entire agreement between the Antitrust
Division and Applicant, and supersedes all prior understandings, if any, whether oral or
written, relating to the subject matter herein. This letter cannot be modified except in
writing, signed by the Antitrust Division and Applicant.

The signatories below acknowledge acceptance of the foregoing terms and conditions.

Sincerely,

Date: [Name]
Deputy Assistant Attorney General
Antitrust Division

[Applicant Name]

Date:

[Counsel Name]
Counsel for [Applicant Name]

Date: