Model Corporate 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 and [insert company name]
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(“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 [Type A/Type B] of the Leniency Policy.
(a) Applicant admits that it participated in [DEFINE CONSPIRACY
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] (“the illegal
activity”).
(b) Upon discovering the illegal activity, Applicant promptly reported it to the
Antitrust Division.
(c) Applicant did not coerce any other party to participate in the illegal activity and
clearly was not the leader or originator of that activity.
(d) Applicant has remediated the harm caused by the illegal activity and improved its
compliance program to mitigate the risk of engaging in future illegal activity.
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If subsidiaries are included in the conditional leniency letter, either name them or if they are too numerous to
name, identify them as “entities in which [Applicant] had a greater than 50% ownership interest as of the date of
this letter.” If other related entities are included, name them. When subsidiaries or other related entities are
included, the parenthetical reference to Applicant will change to “(collectively “Applicant”).
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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.

Applicant has provided a satisfactory plan to make restitution to parties injured by
the illegal 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:
(a) 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.
(b) that it will not bring criminal charges against Applicant’s current [and former
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]
directors, officers, and employees as of the date the Antitrust Division executes
this letter, listed in Attachment A (“Covered Personnel”)
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for their acts and
offenses in furtherance of the illegal activity if they provide timely, truthful,
continuing, and complete cooperation to the Antitrust Division throughout its
investigation of the illegal activity, as described in paragraph 4.
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) providing a full exposition of all facts known to Applicant relating to the illegal
activity;
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Former directors, officers, and employees are presumptively excluded from grants of corporate leniency. The
Division may in its sole discretion include specific named former directors, officers, or employees in a corporate
conditional leniency letter, only when they provide substantial, noncumulative cooperation against remaining
potential targets, or when their cooperation is necessary for the applicant to make a confession sufficient to be
eligible for conditional leniency.
When assessing whether to provide immunity to former directors, officers, and employees, the Division will consider
the factors set forth in Principles of Federal Prosecution, JM 9- 27.600, 9-27.620, and 9-27.630. Covered former
directors, officers, and employees must provide timely, truthful, continuing, and complete cooperation to the
Division throughout its investigation and resulting prosecutions.
Before the Division decides whether to include specific former personnel in the scope of a corporate conditional
leniency letter, those individuals must submit to an interview with Division attorneys and company counsel must
make a commitment that the company will continue to assist in securing the cooperation of those individuals,
including that the former personnel will continue to be made available for interviews and testimony.
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Applicant should provide the Division with a list of its current personnel, which will be attached to the conditional
leniency letter. In both a Type A and Type B leniency, that attachment will omit any current personnel who have
declined to provide timely, truthful, continuing, and complete cooperation with the Division’s investigation. In a
Type B leniency, the Division will consider current personnel under the Principles of Federal Prosecution and
following the standard for individual non-prosecution agreements in exchange for cooperation, JM 9-27.600, 620,
and 630. If the Division determines that certain current personnel do not meet that standard, those individuals will
be omitted from Attachment A.
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(b) providing promptly, and without requirement of subpoena, all documents,
information, or other materials in its possession, custody, or control, wherever
located, not protected under the attorney-client privilege or work-product
doctrine, requested by the Antitrust Division in connection with the illegal
activity, to the extent not already produced;
(c) using its best efforts to secure the Covered Personnel’s timely, truthful,
continuing, and complete cooperation in the Antitrust Division’s investigation
into the illegal activity;
(d) facilitating the ability of Covered Personnel to appear for interviews or testimony
in connection with the illegal activity as the Antitrust Division may require at the
times and places designated by the Antitrust Division;
(e) using its best efforts to ensure that Covered Personnel who provide information to
the Antitrust Division relevant to the illegal activity respond completely, candidly,
and truthfully to all questions asked in interviews and grand jury appearances and
at trial;
(f) using its best efforts to ensure that Covered Personnel who provide information to
the Antitrust Division relevant to the illegal activity make no attempt to falsely
protect or falsely implicate any person or entity; 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
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. Covered Personnel’s Cooperation. Covered Personnel will provide timely, truthful,
continuing, and complete cooperation throughout the Antitrust Division’s investigation,
including but not limited to:
(a) producing in the United States all documents and records, including personal
documents and records, and other materials, 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 themselves 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 of the Antitrust Division’s inquiries in
connection with the illegal activity, without falsely implicating any person or
entity or intentionally withholding any information, subject to the penalties of
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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 they may have relevant
to the illegal activity;
(e) when called on 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;
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(f) when called on 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
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.
5. 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 Division executes this
letter and the date on which the letter is withdrawn, or for a period of sixty (60) days after
the Division executes this letter, whichever period is greater.
6. 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.
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Counsel for the Applicant should discuss with the Division any concerns, such as safety concerns, regarding
engaging in affirmative investigative techniques. The Division will take those concerns into consideration in
assessing the Applicant’s good faith and complete cooperation.
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(b) Applicant will make restitution before being granted leniency. Applicant is not
required to pay restitution to victims whose antitrust injuries are independent of,
and not proximately caused by, any effect on (i) trade or commerce within the
United States, (ii) import trade or commerce, or (iii) the export trade or commerce
of a person engaged in such trade or commerce in the United States, which effect
was proximately caused by the illegal activity.
(c) 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.
(d) 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 or by any of its current or former directors, officers, or employees.
(e) If at any time before Applicant is granted leniency the Antitrust Division
determines that a Covered Personnel (1) caused Applicant to be ineligible for
leniency under Paragraph 1; (2) obstructed or attempted to obstruct an
investigation of illegal activity at any time, whether the obstruction occurred
before or after the Antitrust Division executes this letter; or (3) failed to provide
timely, truthful, complete, and continuing cooperation as required under
Paragraph 3, this letter shall be void as to that individual and the Antitrust
Division may revoke the conditional nonprosecution protection provided to that
individual under this letter. Absent exigent circumstances, before the Antitrust
Division makes a final determination to revoke an individual’s conditional
nonprosecution protection, the Antitrust Division will notify such individual (or
their counsel, if represented) and Applicant’s counsel in writing of staff’s
recommendation to revoke the conditional nonprosecution protection granted to
the individual under this letter and will provide an opportunity to meet with the
Antitrust Division regarding the potential revocation. Should any conditional
nonprosecution protection granted to an individual under this letter be revoked,
the Antitrust Division may thereafter prosecute such individual criminally,
without limitation. The Antitrust Division may use against that individual in any
such prosecution any documents, statements, or other information provided to the
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Antitrust Division at any time under this letter by Applicant or by any of its
current or former directors, officers, or employees, including the individual.
(f) 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. Judicial review of any Antitrust Division
decision to revoke any conditional nonprosecution protection granted to an
individual under this letter is not available unless and until the individual has been
charged by indictment or information for the illegal activity.
7. 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.
8. Public Statements by Applicant. Applicant expressly agrees that it shall not, through
present or future attorneys, directors, officers, employees, agents, or any other individual
authorized to speak for Applicant, make any public statement, in litigation or otherwise,
contradicting Applicant’s acceptance of responsibility in Paragraph 1(a). Any such
contradictory statement shall, subject to cure rights of the Applicant described below,
void this letter, and the Antitrust Division may revoke Applicant’s conditional eligibility
under the Leniency Policy. The decision whether any public statement by any such
individual contradicting Paragraph 1(a) will be imputed to Applicant shall be at the sole
discretion of the Antitrust Division. If the Antitrust Division determines that a public
statement by any such individual contradicts Paragraph 1(a) in whole or in part, the
United States shall so notify Applicant, and Applicant may avoid revocation of its
conditional eligibility by publicly repudiating such statement(s) within five (5) business
days after notification. Applicant shall be permitted to raise defenses and assert
affirmative claims in other proceedings relating to its admission in Paragraph 1(a)
provided that such defenses and claims do not contradict the admission in Paragraph 1(a).
This Paragraph does not apply to any statement made by any present or former officer,
director, employee, or agent of Applicant in the course of any criminal, regulatory, or
civil case initiated against such individual, unless such individual is speaking on behalf of
Applicant.
9. 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.
10. 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.
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11. Authority and Capacity. The signatories to this letter on behalf of each party have the
authority and capacity necessary to execute this letter and to bind the respective parties.
The signatories below acknowledge acceptance of the foregoing terms and conditions.
Sincerely,
Date: [Name]
Deputy Assistant Attorney General
Antitrust Division
[Name]
[Position]
[insert company name]
Date:
[Counsel Name]
[insert company name]
Date:
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