Frequently Asked Questions About the Antitrust Division’s Leniency Program

FREQUENTLY ASKED QUESTIONS ABOUT THE ANTITRUST
DIVISION’S LENIENCY PROGRAM
Originally Published November 19, 2008
Update Published January 26, 2017
Update Published April 4, 2022
Update Published January 3, 2023

To apply for leniency, contact the Antitrust Division
at
antitrust.leniency@usdoj.gov or
(202) 705-4620
Table of Contents
I.INTRODUCTION AND PURPOSE ........................................................................................ 1
1.What are the principles of the Antitrust Division’s Leniency Policy? ................................ 1
II.LENIENCY APPLICATION (MARKER) PROCEDURES ................................................... 2
2.Does an applicant need a lawyer to seek leniency? ............................................................. 2
3.When should an applicant ask for a marker? ....................................................................... 2
4.What information must an applicant provide to secure a marker? ...................................... 2
5.What is the threshold for securing a marker? ...................................................................... 3
6.How is the scope of the initial marker determined? ............................................................ 3
7.Can the scope of a marker change as the applicant discovers and reports additional
information? ........................................................................................................................ 4
8.Can an applicant obtain multiple markers to cover different conspiracies? ........................ 4
9.How long are markers granted for? ..................................................................................... 4
10. Can markers be extended? .................................................................................................. 4
11.What other information will the Division require an applicant to provide while a marker
is pending? ....................................................................................................................... 4
III.CONDUCT NOT COVERED BY THE LENIENCY POLICY .............................................. 5
12.How does the Leniency Policy apply to other offenses? ................................................. 5
13.Does the Leniency Policy protect applicants from prosecution by other Department of
Justice components or agencies? ..................................................................................... 5
IV.INDIVIDUAL LENIENCY AND ALTERNATIVES ............................................................. 6
14.Can an individual receive leniency? ................................................................................ 6
15.What are an individual applicant’s cooperation obligations? .......................................... 6
16.How does the Division evaluate the individual leniency requirement that the applicant
did not coerce another party to participate in the activity and clearly was not the leader
or originator of the activity? ........................................................................................................ 6
17.Can an individual who self-reports their own criminal antitrust activity, but does not
qualify for individual leniency, avoid criminal prosecution? .......................................... 7
18.Are there whistleblower protections for someone who reports illegal activity but is not
personally involved in it? ................................................................................................ 7

V.CORPORATE LENIENC
Y ..................................................................................................... 7
19.Is corporate leniency available both before and after the Division opens an
investigation? ................................................................................................................... 7
20.For Type A Leniency, what does it mean that the Division has “not received
information about the illegal activity being reported from any other source?” ............... 7
21.What does “discovery of the illegal activity” being reported mean? .............................. 8

22. What does it mean to report the illegal activity “promptly”? .......................................... 8
23. What wrongdoing must an applicant confess? ................................................................ 9
24. What does it mean for the confession to be “truly a corporate act”?............................... 9
25. Can an organization obtain leniency if none of its personnel admit to the illegal
activity? ........................................................................................................................... 9
26. What does it mean for an applicant to “report[] its participation in the illegal activity
with candor and completeness”? ................................................................................... 10
27. What does it mean to be a “leader or originator of the activity”? ................................. 10
28. For Type B Leniency, how does the Division assess whether it has evidence “likely to
result in a sustainable conviction”? ............................................................................... 11
VI. COOPERATION OBLIGATIONS ........................................................................................ 11
29. How far do the cooperation obligations extend? ........................................................... 11
30. What does the Division do when cooperation obligations conflict with other legal
reporting requirements/requests from other jurisdictions? ............................................ 11
31. How long do an applicant’s cooperation obligations last? ............................................ 12
32. Must an applicant waive attorney-client privilege or work-product protections? ......... 12
33. How does a current employee’s refusal to cooperate impact an applicant? .................. 12
VII. RESTITUTITON AND ACPERA ......................................................................................... 13
34. How does the Division determine whether a corporate applicant has used “best efforts”
to make restitution to injured parties “where possible”? ........................................................... 13
35. When must applicants complete the requirement to make restitution? ......................... 13
36. What are the applicant’s restitution obligations for injuries caused by the effects of the
illegal activity on foreign commerce? ....................................................................................... 13
37. What are the applicant’s restitution obligations if the Division ultimately brings no
criminal case? ................................................................................................................ 14
38. What is the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA), and
how does it affect a qualifying applicant’s civil liability? ............................................. 14
39. How does an applicant seek ACPERA benefits? .......................................................... 15
40. What is “satisfactory cooperation”? .............................................................................. 16
41. When must an ACPERA applicant provide satisfactory cooperation? ......................... 17
42. How can an ACPERA applicant comply with its cooperation obligations to the Division
and its cooperation obligations to civil plaintiffs if the Division seeks a stay of
discovery? ...................................................................................................................... 17
43. When are ACPERA benefits determined?..................................................................... 18
44. Does ACPERA apply to actions by States or its subdivisions?..................................... 18
45. Does ACPERA apply to actions by the United States or its agencies under Section 4a of
the Clayton Act, 15 USC § 15a? ................................................................................... 19
46. Does ACPERA apply to other violations arising from the illegal activity? .................. 19

iii

47. Can an applicant take positions in civil litigation that conflict with the corporate
admission of wrongdoing made as part of its leniency application? ............................. 19
48. When must an applicant satisfy the requirement that it “uses best efforts . . . to
remediate the harm caused by the illegal activity” and “improve its compliance program
to mitigate the risk of engaging in future illegal activity”? ....................................................... 20
49. How does an applicant satisfy the requirement that it “uses best efforts . . . to remediate
the harm caused by the illegal activity” and “improve its compliance .... program to mitigate the
risk of engaging in future illegal activity”? ............................................................................... 20
50. How does the size of the organization affect the assessment of its compliance program?
21
VIII. NON-PROSECUTION PROTECTION FOR CURRENT OR FORMER EMPLOYEES ... 21
51. What are the conditions for non-prosecution protection for a Type A applicant’s current
directors, officers, and employees? ........................................................................................... 21
52. How does the Division decide whether to grant non-prosecution protection for a Type B
applicant’s current directors, officers, and employees? ............................................................ 22
53. How does the timing of a Type B applicant influence whether the Division grants
immunity to current directors, officers, and employees? .............................................. 22
54. When will current directors, officers, and employees of Type B applicants know
whether they will receive non-prosecution protection? ................................................. 23
55. What cooperation must an applicant’s current personnel provide? ............................... 23
56. How is “current director, officer, or employee” defined for purposes of the cooperation
obligations and non-prosecution protection of the corporate conditional leniency letter? ........ 24
57. How are a corporate applicant’s contractors treated under leniency? ........................... 24
58. Can an applicant’s former directors, officers, and employees be included in the scope of
the conditional leniency letter? .................................................................................................. 24
59. May individual directors, officers, and employees that are covered by a leniency letter
be required to execute a separate non-prosecution agreement? ..................................... 25
60. Do protections offered through the Leniency Policy extend to corporate affiliates of .. the
leniency applicant such as parents or subsidiaries? ................................................................... 25
IX. MODEL LENIENCY LETTERS ............................................................................................ 26
61. Why is the conditional leniency letter “conditional”? ................................................... 26
62. What is the final leniency letter? ................................................................................... 26
63. If a corporate applicant is the subject or target of a separate investigation, will this also
be reflected in its corporate conditional leniency letter? ........................................................... 27
X. WITHDRAWAL, REVOCATION, AND EXPULSION ......................................................... 27
64. Can a leniency applicant withdraw its application after it receives a marker? .............. 27
65. Can the Division withdraw an applicant’s marker? ....................................................... 28
66. What process does an applicant receive before its marker is withdrawn?..................... 28
67. What protections does an applicant retain after its marker is withdrawn? .................... 28

68. Can an applicant voluntarily withdraw its leniency application after it receives a
conditional leniency letter? ............................................................................................ 28
69. Can the Division revoke a conditional leniency letter? ................................................. 29
70. What would cause the Division to revoke a conditional leniency letter? ...................... 29
71. What process will an applicant receive before its conditional leniency letter is revoked?
.......................................................................................................29
72. When can an applicant or its employees ask a court to overturn the Division’s decision
to revoke conditional leniency? ..................................................................................... 30
73. If a corporate conditional leniency letter is revoked, what will happen to the .. protection
provided in the letter for the applicant’s personnel? ................................................................. 30
74. Under what circumstances can the protection granted to an individual under a
corporate conditional leniency letter be revoked? ......................................................... 30
75. What notice or process will an individual receive if the Division is contemplating
revoking their protections under a corporate conditional leniency letter?..................... 31
XI. CONFIDENTIALITY ............................................................................................................ 31
76. What confidentiality assurances are given to applicants? ............................................. 31
77. Will the Division disclose an applicant’s identity or information to a foreign
government? .................................................................................................................. 32
XII. LENIENCY AND PENALTY PLUS .................................................................................... 32
78. What is leniency plus? ................................................................................................... 32
79. What kind of cooperation credit is given in leniency plus investigations? ................... 33
80. What is penalty plus?..................................................................................................... 33
XIII. WHEN LENIENCY IS NOT AVAILABLE ......................................................................... 34
81. If an organization is too late to obtain leniency, what cooperation credit can it expect to
receive for self-reporting its criminal conduct? ......................................................................... 34
82. If an organization is too late to obtain leniency, how will its current personnel be treated
if it self-reports its criminal conduct? ........................................................................................ 35

To apply for leniency, contact the Antitrust Division at
antitrust.leniency@usdoj.gov
or
(202) 705-4620
I. INTRODUCTION AND PURPOSE
The Antitrust Division Leniency Policy, U.S. Dep’t of Justice, Just. Manual §7-
3.300, provides non-prosecution protection to the first organization or individual to self-
report its participation in a criminal conspiracy in violation of Section 1 or 3(a) of the
Sherman Antitrust Act, 15 U.S.C. §§ 1, 3(a) (“illegal activity”), and meet enumerated
criteria. This document answers Frequently Asked Questions on the application of the
Leniency Policy
1
and provides illustrative hypothetical examples accessible to all.
2
The
Division updates the FAQs regularly to provide transparency, predictability, and practical
guidance to the public. If the FAQs conflict with Division statements, the FAQs control.
The FAQs have no force or effect of law. They are not intended to be, and may
not be, relied upon to create any rights, substantive or procedural, enforceable at law by
any party. Nothing in this document should be construed as mandating a particular
outcome in any specific case, and nothing in this document limits the discretion of the
U.S. Department of Justice or any U.S. government agency to take any action, or not to
take any action, with respect to matters under its jurisdiction.
1.What are the principles of the Antitrust Division’s Leniency Policy?
The Leniency Policy is most effective when antitrust offenders face credible
threats of detection and substantial penalties, and when, at the same time, the process for
self-reporting is transparent and predictable, with tangible benefits in the form of
immunity from criminal prosecution. While leniency imposes significant cooperation
obligations on applicants, the benefits are such that an organization or individual
involved in illegal activity should always seek leniency.
Credible Threat of Detection and Severe Penalties
Leniency is not a stand-alone tool; it works in tandem with the full complement
of enforcement tools. The Division deploys a range of criminal enforcement tools,
including informants, search warrants, subpoenas, consensual monitoring, undercover
agents, and wiretaps. The Division also prioritizes developing and strengthening
relationships with law enforcement partners to detect suspicious behavior. For example,
the Division-led Procurement Collusion Strike Force, an interagency partnership to detect
and prosecute antitrust crimes impacting taxpayer dollars, educates federal, state, and
local contracting officials on the red flags of collusion.
Organizations and individuals that fail to seek leniency and are convicted of
violating the Sherman Act face substantial penalties. I ndividuals face significant jail time.
Organizations face substantial fines—the highest to date is $925 million. And they may
1
The Division will review leniency applications under the version of the policy and model conditional
letter in effect at the time the applicant received a marker.
2
These examples are not exhaustive.

be placed on probation, with terms potentially including a court-ordered monitor to
ensure adequate compliance in the future.
Transparency, P
redictability, and Tangible Benefits
From the initial contact with an applicant seeking a marker to the grant of
leniency, the Division adheres to the Leniency Policy, as explained in the FAQs. The
Division’s model conditional leniency letters are publicly available.
3
The policy provides
the criteria for eligibility and applicants’ obligations. The policy has no unwritten rules or
hidden caveats. Leniency’s benefits are substantial: successful applicants receive
immunity from criminal prosecution for the illegal activity reported. In exchange,
applicants must in good faith provide timely, truthful, complete, and continuing
cooperation in the Division’s investigation and any resulting prosecutions.
II. LENI
ENCY APPLICATION (MARKER) PROCEDURES

2. Does an applicant need a lawyer to seek leniency?

No.
3. When should an applicant ask for a marker?

An organization should seek a leniency marker at the first sign of potential
wrongdoing even if it is not certain that the wrongdoing occurred. Only one organization
or individual can receive leniency per conspiracy, so time is of the essence. Organizations
are in a race with their co-conspirators—including their own employees, who may seek
individual leniency and have whistleblower protections if they report to the Division—to
secure a marker. Organizations have lost the race for leniency by a matter of hours and
faced significant fines, and prosecution of their senior executives, as a result.

Mean
while, individuals are in a race with one another—both others at their
employer and those at other organizations participating in the conspiracy. If any of those
individuals applies for leniency, other participants that lose the race will face criminal
prosecution for their unlawful conduct.

4. W
hat information must an applicant provide to secure a marker?

An a
pplicant must: (1) report that it uncovered information or evidence indicating
that it engaged in a criminal antitrust violation and disclose the general nature of the
conduct; (2) identify the industry, product, or service involved specifically enough to
allow the Division to determine whether leniency is available and to protect the marker
for the applicant; and (3) identify itself.

3
The Division’s Model Leniency Letters are available here: Leniency Program, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/atr/leniency-program.

When
an applicant discovers indications of potential illegal activity, it may not
know enough to enable it to admit definitively to the violation. But confirmation of the
violation is not required for a marker. Rather, an applicant must report that it has
uncovered information or evidence suggesting possible illegal activity. Applicants cannot
obtain a marker by merely stating that they received a grand jury subpoena or were
searched during a Division investigation and want a marker to investigate whether a
violation has occurred. They must be willing to admit that they have some separate
indication of illegal activity. While the applicant may not be able to confirm that it
committed a violation when it seeks a marker, it must admit to participating in the illegal
activity to receive a conditional leniency letter. See FAQ 23.

To obtain a marker, an applicant must identify the relevant industry, product, or
service. In some cases, the industry alone may be enough for the Division to know
whether leniency is available. In most cases, however, an applicant must specify the
products or services, co-conspirators, and the identity or location of affected customers
for the Division to know whether a marker is available and its proper scope.

5. Wh
at is the threshold for securing a marker?

The threshold for obtaining a marker is low, especially when the Division has no
information about the illegal activity. Organizations and individuals should seek leniency
at the first indication of wrongdoing no matter how slight.

For example, if after an attorney’s compliance presentation an employee reports
to the attorney a conversation the employee overheard about their employer’s potential
price fixing, this information is sufficient. Similarly, if an applicant uncovers evidence of
potential illegal activity but is not certain whether the conspiracy occurred within the
statute of limitations, affected U.S. commerce, or is immunized by U.S. law, it should
nevertheless request a marker.

When the Division already has information about the illegal activity or has an
active investigation in the industry, it may require a more detailed report of the illegal
activity. But regardless, an applicant should request a marker as soon as possible. Once
an applicant seeks a marker, the Division will discuss with the applicant whether more
detailed information is needed to secure a marker. An applicant may be given a “marker
for a marker” to hold its place in line while the Division determines whether to grant a
marker.

6. H
ow is the scope of the initial marker determined?

The scope of the initial marker is tailored to the facts that the applicant proffers at
the time the applicant requests the marker. It is coextensive with the scope of the
conspiracy that the applicant reports.

7. Can the scope of a marker change as the applicant discovers and reports
additional information?

Yes. A marker can be expanded or narrowed based on additional information the
applicant provides. For example, after obtaining a marker, an applicant might learn that
the illegal activity was broader in terms of its geographic scope or the number of products
involved in the conspiracy than originally reported. So long as the applicant has not tried
to conceal the conduct and is providing timely, truthful, continuing, and complete
cooperation, the Division will expand the scope of the marker to be coextensive with the
scope of the facts the applicant proffers.

Likewise, when the Division or applicant learns that the illegal activity is
narrower than what the applicant originally reported, the scope of the marker will be
narrowed to correspond with the scope of the conspiracy that the evidence supports.
Ultimately, if an applicant perfects its marker, the conditional leniency letter will be
tailored to the scope of the conspiracy.

8. C
an an applicant obtain multiple markers to cover different conspiracies?

Yes. For example, if while attempting to perfect a marker for price fixing of
product A, an applicant discovers territorial allocation for sales of product B, it may seek
an additional marker for this separate conspiracy. If a marker is available and the
applicant provides sufficient information (see FAQ 5), the Division will give the
applicant a marker covering the separate conspiracy.

9. How long are markers granted for?

A marker is provided for a limited period. That period varies based on factors
such as the location and number of employees that the applicant’s counsel needs to
interview, the volume, location, and format of records counsel needs to review, and
whether the Division already has an ongoing investigation at the time the marker is
requested. Thirty or 45-day periods for initial markers are common, particularly in
situations where the Division is not yet investigating the conduct.

10. C
an markers be extended?

Yes. W
hen needed, markers may be extended at the Division’s discretion for
additional limited periods if the applicant demonstrates it is making a good-faith effort to
complete its application promptly.

11. W
hat other information will the Division require an applicant to provide while
a marker is pending?

While its marker is pending, the applicant must provide enough information to
demonstrate that it has satisfied the criteria in the Leniency Policy. As part of the
cooperation criterion, this information will include all potentially relevant facts about the

illegal activity. The applicant must timely preserve, collect, and produce to the Division
all potentially relevant records, wherever located (see FAQ 30), including translations if
requested. The applicant must use its best efforts to secure the cooperation of its current
and former personnel. The Division will interview the personnel of the applicant who
were involved in the violation during the marker stage.
During the marker stage and before receiving a conditional leniency letter, the
applicant must remediate the harm caused and improve or develop its corporate
compliance to mitigate the risk of engaging in future illegal activity. See FAQs 48-50. At
this marker stage, the Division will also require the applicant to provide its plan for
making restitution to injured parties. See FAQ 35.
III. CONDUCT NOT COVERED BY THE LENIENCY PO
LICY

12. How does the Leniency Policy apply to other offenses?

The Division will not prosecute a qualifying applicant for the antitrust violation it
reports or acts or offenses that are “in furtherance of” that violation. For example,
conduct integral to the illegal activity may itself constitute another offense, such as mail
or wire fraud when conspiratorially set bids are mailed or emailed, or a violation of
Section 2 of the Sherman Act when the applicant also conspired to monopolize markets.
The Division’s model conditional leniency letters provide that the Division will not
prosecute a qualifying applicant for these additional offenses “committed in furtherance
of the illegal activity before the date the Antitrust Division executes this letter.”
4

13. D
oes the Leniency Policy protect applicants from prosecution by other
Department of Justice components or agencies?

Th
e Leniency Policy does not bind other federal or state prosecuting agencies,
including other Department of Justice components. Therefore, the conditional leniency
letter does not protect applicants from criminal prosecution by other prosecuting agencies
for offenses other than Sherman Act violations. For example, an applicant that bribed
foreign public officials in violation of the Foreign Corrupt Practices Act receives no
protection from prosecution by any other prosecuting agency, regardless of whether the
bribes were also made in furtherance of the reported antitrust violation. In addition, a
leniency application does not discharge existing reporting obligations to other
prosecuting agencies, nor does it insulate the applicant from the consequences of
violating earlier agreements not to commit crimes.

It has been the Division’s experience that other prosecuting agencies do not use
other criminal statutes to do an end-run around grants of leniency. At the same time,
applicants should not expect to use the Leniency Policy to avoid accountability for other

4
MODEL CORP. CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 2; MODEL INDIVIDUAL
CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 2.

crimes.

Applicants with exposure for both antitrust and non-antitrust crimes should report
all crimes to the relevant prosecuting agencies. Under the Department’s Principles of
Federal Prosecution of Business Organizations, self-reporting is one factor that federal
prosecuting agencies consider when making charging decisions. Factors weighed in
deciding whether to prosecute an organization can be found in JM 9-28.300.
5

IV. INDIVIDUAL LENIENCY AND ALTERNATIVES

14. Can an individual receive leniency?

Yes. Individual leniency is available for individuals who approach the Division on
their own and not in concert with or on behalf of an organization. An individual may seek
a marker before their employer comes forward. But the window for individual leniency
closes as soon as an organization requests a marker and provides the Division with
information about the illegal activity.

No current or former directors, officers, or employees of an organization that has
already applied for leniency may be considered for individual leniency. Such individuals
who come forward and admit their involvement in the criminal antitrust violation as part
of the corporate confession will be considered for non-prosecution protection under their
employer’s leniency.

In the event a corporate applicant later declines to move forward with its marker,
an individual may choose to continue cooperating with the Division’s investigation. Such
individuals who provide substantial, non-cumulative cooperation may still be granted
non-prosecution protections, at the Division’s sole discretion.

15. What are an individual applicant’s cooperation obligations?

The model individual conditional leniency letter describes specific cooperation
obligations of the individual applicant. These obligations include the production of
documents, records, and other materials and information; participation in interviews; and
provision of testimony.

16. How does the Division evaluate the individual leniency requirement that the
applicant did not coerce another party to participate in the activity and clearly
was not the leader or originator of the activity?

Th
is criterion is evaluated the same way as the same requirement for corporate
leniency. As with a corporate applicant, wherever possible, the Division has construed

5
U.S. Dep’t of Justice, Just. Manual § 9-28.800, available at https://www.justice.gov/jm/jm-9-28000-
principles-federal-prosecution-business-organizations.

and interpreted this condition in favor of accepting an applicant into the leniency
program. See FAQ 27.

17. Can an individual who self-reports their own criminal antitrust activity, but
does not qualify for individual leniency, avoid criminal prosecution?

The decision whether an individual qualifies for leniency is distinct from whether
the Division will pursue criminal charges. Any individual who does not qualify for
individual leniency may still be considered for a declination or non-prosecution
agreement.

18. Are there whistleblower protections for someone who reports illegal activity but
is not personally involved in it?
An individual who has knowledge of illegal activity, but no personal involvement
in that activity, may still report it to the Division and is encouraged to do so. Such an
individual does not qualify for or need the protections of individual leniency, but may
qualify for whistleblower protections under the Criminal Antitrust Anti-Retaliation Act of
2019 (“CAARA”). CAARA prohibits employers from retaliating against employees who
report potential antitrust crimes or assist a federal government investigation.
Individuals who believe that they have suffered retaliation in violation of CAARA
may file a retaliation complaint with the Occupational Safety and Health
Administration. For information on filing a complaint, visit: www.whistleblowers.gov.

V. CORPORATE LENIENCY

19. Is corporate leniency available both before and after the Division opens an
investigation?
Yes. There are two types of corporate leniency: Type A and Type B. Type A is
available before the Division has opened an investigation, provided the Division has not
received information about the illegal activity from any other source and the other criteria
for Type A Leniency are met. See FAQ 20. Type B is available even after the Division
has opened an investigation into the illegal activity, so long as the corporate applicant
satisfies Type B’s criteria.
20. For Type A Leniency, what does it mean that the Division has “not received
information about the illegal activity being reported from any other source?”

It means that the Division has not received any information about the alleged
illegal activity from any source, including but not limited to other government
investigations, anonymous or identified citizen complainants, whistleblowers, customers,
private civil actions, or press reports. These other sources of information must alert the
Division to the potential existence of underlying illegal activity and not simply describe
the consequences of it, such as price increases in an industry.

For example, if a newspaper article describes significant price increases in an
industry, but does not attribute them to illegal activity, then the Division will not consider
the news report to be information about the illegal activity, and Type A Leniency is
available. By contrast, if the newspaper report describes illegal activity, such as an
agreement among members of a trade association to impose surcharges, then the Division
will have received information about the illegal activity, and Type A Leniency is not
available.
While potential applicants may not know whether the Division has an open
investigation, applicants should recognize that they are in a race against their co-
conspirators. Delays may mean missing out on the benefits of leniency.
21. What does “discovery of the illegal activity” being reported mean?

The Division generally considers an organization to have discovered the illegal
activity at the earliest date on which an authoritative representative of the applicant for
legal matters—the board of directors, its counsel (either inside or outside), or a
compliance officer—was first informed of the conduct at issue. An organization will not
be eligible for leniency if an authoritative representative learns of potential illegal activity
and refrains from investigating further.

Le
niency may still be available if top executives, individual board members, or
owners participated in the conspiracy. When the board of directors of a small, closely
held company is never formally advised of the activity because all board members are
conspirators, the applicant still may qualify if it promptly reported the conduct after its
counsel or a compliance officer was first informed of the activity.

22. W
hat does it mean to report the illegal activity “promptly”?

Th
e Division makes this assessment 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.

For
example, while the Division encourages applicants to seek a marker at the
first indication of possible wrongdoing, an organization may still be eligible for leniency
if it conducts a preliminary internal investigation in a timely fashion to confirm that it
committed a violation before self-reporting. But an organization that confirms its
involvement in illegal activity and then chooses not to self-report until later learning that
the Division has opened an investigation will not be eligible for leniency.

An
applicant that fails to appreciate that its conduct could be criminal is not
absolved of the prompt self-reporting requirement. Potential applicants that are uncertain
whether particular conduct is criminal should seek a marker as soon as possible.

23. What wrongdoing must an applicant confess?

Applicants need not have information sufficient to make a corporate confession to
secure a marker. See FAQ 5. But to obtain a conditional leniency letter, the applicant
must confess to its involvement in the illegal activity.
To make this confession, applicants (through their employees and corporate
representative) must admit that they came to an agreement or understanding with co-
conspirators to fix prices, rig bids, or allocate markets, customers, products, territories, or
employees. The agreement need not be express, formal, or written. It need not be spoken
at all; it may be understood or inferred from the applicant’s and co-conspirators’ actions.
The applicant must also admit that the illegal activity either occurred in the flow
of or substantially affected trade or commerce among the states or with foreign nations,
that it continued into the limitations period, and that it is not immunized by U.S. law.
6

When the illegal activity involves foreign conduct or foreign commerce, the applicant
must admit a sufficient connection to the United States such that U.S. law applies.
7

24. What does it mean for the confession to be “truly a corporate act”?

To be eligible for leniency, the applicant must admit its participation in illegal
activity. For a corporate applicant, a corporate representative must admit to the
wrongdoing on its behalf, and the applicant’s involved personnel must admit to the
applicant’s participation in the illegal activity unless they are not cooperating or are
otherwise unavailable. An organization unable or unwilling to admit to participating in
the illegal activity is ineligible for leniency regardless of the reason.
25. Can an organization obtain leniency if none of its personnel admit to the illegal
activity?

Yes. In rare circumstances, an applicant may report its involvement in the illegal
activity, but be unable to produce a current director, officer, or employee with firsthand
knowledge of the conduct. In that situation, an applicant may still qualify for leniency if
it otherwise satisfies the criteria and makes a corporate confession of wrongdoing.

For example, an organization may seek a marker based on communications
between former employees and their counterparts at competing firms exchanging
confidential bid information for purposes of rigging bids. If none of the former
employees involved in the wrongdoing are willing to cooperate, the applicant may still be

6
See, e.g., United Mine Workers v. Pennington, 381 U.S. 657, 669-670 (1965); E.R.R. Presidents Conf. v.
Noerr Motor Freight, Inc., 365 U.S. 127, 142-143 (1961).
7
See generally U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST GUIDELINES FOR
INTERNATIONAL ENFORCEMENT Ch. 3 (Jan. 13, 2017).

able to make a corporate confession based on the communications and any other evidence
uncovered during its internal investigation.

The Division expects a corporate applicant to take all legal, reasonable steps to
secure the cooperation of its personnel with the Division’s investigation. Additionally, a
corporate representative must be willing to admit to the wrongdoing on behalf of the
applicant even if they were not personally aware of or involved in the crime.

26. What does it mean for an applicant to “report[] its participation in the illegal
activity with candor and completeness”?

An applicant must admit its participation in the conspiracy without qualification
and in its entirety. An applicant willing to confess to only some, but not all, of the self-
reported conspiracy it participated in will not be able to meet the requirement for candor
and completeness.

27. W
hat does it mean to be a “leader or originator of the activity”?

A leader or originator of the illegal activity refers to a participant that, in the
totality of circumstances, is uniquely situated from its co-conspirators and appears to be
the driving force behind the cartel by virtue of its relative economic power or influence.

An applicant will not be disqualified from leniency merely because it is the
largest organization in the industry or has the greatest market share. Similarly, an
applicant will not be disqualified merely because it initiated the first invitation to
participate in the cartel. Instead, the Division will consider the applicant’s particular
conduct and culpability relative to other participants.

In
a two-firm conspiracy, for example, if each firm played a decisive role in the
operation of the cartel, actively contributed to further the cartel’s objectives, and
benefitted from the cartel, either firm may be eligible for leniency, regardless of whether
one firm was larger than the other. On the other hand, if, in a bid-rigging scheme, one
firm with large market share extracts agreements from its much smaller rivals that enable
it to win all bids in exchange for relatively small payments, the Division may disqualify
that large firm. In this example, the Division will, again, consider the relative culpability
of the conspirators, including each firm’s particular conduct, its role in creating and
operating the cartel, and the relative benefits each firm received.

Whe
rever possible, the Division has construed and interpreted this criterion in
favor of granting leniency, and exclusion under this criterion is rare. This provides the
maximum incentive and opportunity for organizations to self-report their illegal activity.

28. For Type B Leniency, how does the Division assess whether it has evidence
“likely to result in a sustainable conviction”?

The Division analyzes all evidence available to it when the marker is sought. This
may include any kind of admissible evidence gathered from subjects or victims of the
conspiracy, third parties, or public or non-public sources. The Division’s investigations
regularly gather evidence from sources other than subjects. Its analysis of available
evidence—and whether Type B Leniency is available—may change quickly. The
Division does not notify subjects that its analysis has changed or is expected to change.
VI. COOPERATION OBLIGATIONS

29. How far do the cooperation obligations extend?

Cooperation obligations extend as far as the investigation requires. An applicant
should be prepared to provide all facts known that relate to the illegal activity. An
applicant must timely preserve, collect, and produce to the Antitrust Division all records
related to that activity, regardless of where those records are located, and provide
translations if requested.
A corporate applicant must use its best efforts to secure the timely, truthful,
continuing, and complete cooperation of all current and former employees. This includes
facilitating the interview or testimony of such employees. It also includes removing any
impediments within the applicant’s control to its current or former employees’ complete
and truthful responses to all questions asked in interviews, grand jury appearances, or
trial. Such efforts may also include providing any separate counsel to current or former
employees with access to information and documents necessary to facilitate their clients’
cooperation with the Division’s investigation.
30. What does the Division do when cooperation obligations conflict with other
legal reporting requirements/requests from other jurisdictions?

The Division is aware that antitrust enforcers outside the United States often
investigate the same conduct as the Division and that simultaneous investigations may
present challenges for applicants. The Division has longstanding relationships with other
antitrust enforcers and extensive experience coordinating cross-border investigations to
ensure that applicants are not overburdened. Any potential conflicts that could arise from
an applicant’s providing simultaneous cooperation to multiple jurisdictions are typically
handled between the enforcers in discussion with the applicant.
The Division’s efficient engagement with other enforcers is often facilitated by
confidentiality waivers granted by the applicants. See FAQ 77. As a result of engagement
with other antitrust enforcers, the Division has not had a case in which an applicant was
not ultimately able to fulfill its cooperation obligations to the Division because of
obligations in other jurisdictions.

The Division is also aware that certain jurisdictions have laws or rules, for example,
privacy laws or “blocking statutes,” that may, in certain circumstances, prohibit the
processing or transfer of protected records to other jurisdictions. The applicant bears the
burden of establishing the existence of any restriction on production and identifying
reasonable alternatives to provide these records to the Division. The applicant must work
diligently to identify all available legal bases to provide such records to the Division. In
the Division’s experience, applicants are generally able to comply with privacy laws and
regulations in other jurisdictions while fully cooperating with the Division’s
investigation.
31. How long do an applicant’s cooperation obligations last?

An applicant’s cooperation obligations last through the Division’s
investigation and related prosecutions. Normally, the Division does not issue a final
leniency letter until its investigation and any resulting prosecutions are completed.

32. Must an applicant waive attorney-client privilege or work-product protections?

No. An applicant must cooperate by disclosing the relevant facts concerning the
illegal activity. But the Division does not require an applicant to provide communications
or records protected by the attorney-client privilege or the work-product doctrine, and
eligibility for leniency is not predicated on the waiver of attorney-client privilege or work
product protection. See JM 9-28.710, 9-28.720 for more information on the types of
communications and records covered by attorney-client privilege and the work product
doctrine. As stated in the model corporate conditional leniency letter, the Division does
not consider disclosures made by counsel as part of a leniency application to be a waiver
of attorney-client privilege or work-product protections.

An applicant may waive attorney-client privilege or work product protections—
only if they voluntarily choose to—but the Division will not ask for such waivers.

33. How does a current employee’s refusal to cooperate impact an applicant?

A corporate applicant must use its best efforts to secure the employee’s
cooperation, but its failure to secure that cooperation does not necessarily prevent it from
receiving leniency. An organization may still confess its wrongdoing with candor and
completeness even without a specific employee’s confession.

When determining whether the applicant is making a candid and complete
confession of wrongdoing and is providing timely, truthful, continuing, and complete
cooperation, the Division considers the number and significance of the individuals who
fail to cooperate and the steps taken to secure their cooperation. Of course, non-
cooperating individuals will not be protected under the corporate conditional leniency
letter, and the Division is free to prosecute them for the illegal activity and any other
offenses.

VII. RESTITUTITON AND ACPERA

Restitution
34. How does the Division determine whether a corporate applicant has used “best
efforts” to make restitution to injured parties “where possible”?

Applicants are required to make restitution to their victims. The “best efforts”
qualifier covers situations when providing full restitution is impossible in the specific
circumstances of the applicant or the victim. For example, full restitution may be
impossible when the applicant is in bankruptcy and prohibited by court order from
making payments; where such payments would likely cause the applicant to cease
operations or declare bankruptcy; or if the sole victim is defunct.

In
most cases, restitution can be satisfied through settlements negotiated directly
with victims or in parallel private civil actions. FAQs 38-46 provide further information
about the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, which
provides applicants with certain protections in private actions.

Wh
en restitution is owed to federal agencies, applicants should make restitution to
federal victims without these agencies having to resort to civil recovery actions seeking
damages under Section 4A of the Clayton Act, 15 U.S.C. § 15a.

35. When
must applicants complete the requirement to make restitution?

To
receive a conditional leniency letter, applicants must present concrete,
reasonably achievable plans about how they will make restitution. Before receiving a
final leniency letter, applicants must actually pay restitution.

36. W
hat are the applicant’s restitution obligations for injuries caused by the
effects of the illegal activity on foreign commerce?

U.S. federal antitrust laws do not provide redress for every economic harm around
the world related to an antitrust violation.
8
So an applicant is not required to make
restitution to victims whose antitrust injuries are independent of, and not proximately
caused by, any effect on:

1) trade or commerce within the United States;

2) impo
rt trade or commerce; or

8
See 15 U.S.C. § 6a; F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004); Lotes Co.. v.
Hon Hai Precision Indus., 753 F.3d 395 (2d Cir. 2014); In re Dynamic Random Access Memory (DRAM)
Antitrust Litig., 546 F.3d 981 (9th Cir. 2008); In re Monosodium Glutamate Antitrust Litig., 477 F.3d 535
(8th Cir. 2007); Empagran S.A. v. F. Hoffmann-La Roche Ltd., 417 F.3d 1267 (D.C. Cir. 2005).

3) 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 antitrust
activity being reported.

An applicant may be required to substantiate a claim that the injury of a victim or
set of victims was independent of, and not proximately caused by, such an effect. This
approach to restitution ensures that the obligations of a successful applicant are not
greater than the exposure its co-conspirators face.

37. W
hat are the applicant’s restitution obligations if the Division ultimately brings
no criminal case?

An applicant’s restitution obligations are independent of whether the Division
chooses to prosecute the applicant’s co-conspirators. If the Division closes an
investigation without bringing charges, the Division will typically notify the applicant
that the investigation has been closed. If on receipt of this information, the applicant
chooses to withdraw its leniency application after receiving a conditional leniency letter,
it will be relieved of the obligations in the conditional leniency letter, including the
requirement to pay restitution. If the applicant has already made restitution or is in the
process of doing so before withdrawing from its leniency application, the applicant must
resolve the matter with the victims.

An a
pplicant that withdraws its leniency application will no longer benefit from
non-prosecution protection and will not qualify for de-trebling of civil damages under the
Antitrust Criminal Penalty Enhancement and Reform Act.

ACPERA

38. What is the Antitrust Criminal Penalty Enhancement and Reform Act
(ACPERA), and how does it affect a qualifying applicant’s civil liability?

Congress recognized the serious harm that antitrust cartels pose to businesses and
consumers, passing ACPERA in 2004 and making it permanent in 2020 to provide
greater incentives to self-report criminal antitrust violations. “Conspiracies among
competitors to fix prices, rig bids, and allocate markets are categorically and
irredeemably anticompetitive and contravene the competition policy in the United
States,” and “[c]ooperation incentives are important to the efforts of the Antitrust
Division of the Department of Justice to prosecute and deter” antitrust violations.
9

9
Continuing Appropriations Act, 2021 & Other Extensions Act, Pub. L. No. 116-159, § 4302, 134 Stat.
709, 742 (2020).

ACPERA provides that in exchange for timely
10
and “satisfactory cooperation”
with civil plaintiffs (who the statute refers to as “claimants”), an applicant will receive
two benefits: (1) the applicant will only be liable for “actual damages sustained by [a]
claimant”—in lieu of treble damages that otherwise may be awarded, and (2) the
applicant will only be liable for damages
“attributable to the commerce done by the
[leniency] applicant in the goods or services affected by the violation
”—in lieu of jointly
and severally liable for damages attributable to the commerce done by other co-
conspirators. 15 U.S.C. § 7a.
11

ACPERA’s limitation on recovery serves two purposes. First, it strengthens
criminal antitrust enforcement by addressing the concern that the threat of treble damages
and joint and several liability serve as “a disincentive to self to repor[t]” criminal antitrust
violations and by providing “increased incentives for participants in illegal cartels to
blow the whistle on their coconspirators and cooperate with the [Division].”
12

Second, it strengthens private, civil antitrust enforcement by encouraging
cooperation with plaintiffs in private lawsuits, which can increase compensation to
victims of antitrust crimes.
13
Typically, applicants satisfy their restitution obligations in
the Leniency Policy through negotiated settlements in civil actions with private plaintiffs.
Applicants are encouraged to work with civil plaintiffs and the court to streamline
damages determinations so that restitution to victims happens as swiftly as possible.
ACPERA limits damages for both federal and state law claims “based on conduct
covered by a currently effective antitrust leniency agreement.” 15 U.S.C. § 7a–1(a); see
also FAQ 44. The Division understands that “courts have demonstrated the ability to
competently review expert damages analyses and any damages issues that may arise” in
order to appropriately compensate all victims.
14

39. How does an applicant seek ACPERA benefits?

To obtain ACPERA benefits, the applicant must meet the criteria of the Leniency
Policy, including cooperating fully with the Division’s investigation. The applicant also
must meet ACPERA’s requirements in connection with a plaintiff’s (or “claimant’s”)
civil lawsuit.

10
15 U.S.C. §§ 7a-7a-2; In 2010, ACEPRA was reauthorized and amended to require courts to consider the
timeliness of the applicant’s cooperation with the civil plaintiffs.
11
150 Cong. Rec. S. 6327 (Apr. 2, 2004) (Statement of Sen. Hatch) (explaining “the applicant would only
be liable for the actual damages attributable to its own conduct, rather than being liable for three times the
damages caused by the entire unlawful conspiracy”); 150 Cong. Rec. S. 6328 (Statement of Sen. Leahy)
(explaining applicant is liable for the portion of the damages actually caused by its own actions).
12
150 Cong. Rec. S. 6327.
13
Id.
14
COMM. TO SUPPORT ANTITRUST LAWS, SUBMISSION BY COSAL ON THE EFFICACY OF THE ANTITRUST
CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT at 18 (May 31, 2019),
https://www.justice.gov/atr/page/file/1168671/download.

If requested by the applicant or a court, the Division will fully advise a court of
the timeliness, nature, extent, and significance of the applicant’s cooperation under the
Leniency Policy and its commitment to prospective cooperation with the Division’s
investigation and prosecutions, so long as such disclosure does not compromise law
enforcement activity.
ACPERA benefits are available if the applicant provides civil plaintiffs with
timely and “satisfactory cooperation,” which includes
providing the plaintiff with “a full
account” of all potentially relevant facts known to the applicant or cooperating individual
and all potentially relevant records. See 15 U.S.C. §7a-1(b).
The Division does not determine ACPERA benefits beyond assessing whether an
applicant meets the requirements of the Leniency Policy and issuing markers, conditional
leniency letters, and final leniency letters. The Division’s issuance of a marker does not
qualify as a “currently effective antitrust leniency agreement” necessary for an applicant
to obtain ACPERA benefits. 15 U.S.C. §7a-1(a).

An applicant seeking ACPERA benefits must have either a conditional or final
leniency letter. An applicant must seek ACPERA benefits from the court presiding over
the relevant civil action. Specifically, a court must determine whether the applicant has
provided timely and “satisfactory cooperation” to the civil plaintiff after considering “any
appropriate pleadings from the [plaintiff].” 15 U.S.C. §7a-1(b).
40. What is “satisfactory cooperation”?

Satisfactory cooperation is addressed by 15 U.S.C. §§7a-1(b)(1)-(3). An applicant
must provide the civil plaintiff with “a full account” of all potentially relevant facts
known to it and all potentially relevant records.
A cooperating individual includes “a current or former director, officer, or
employee of the antitrust leniency applicant who is covered by the agreement.” 15 U.S.C.
§7a(5). A cooperating individual may be asked to make themself available for
“interviews, depositions, or testimony” and must respond “completely and truthfully” to
the plaintiff’s questions and requests for information. 15 U.S.C. §7a-1(3)(A). Requests
directed at the cooperating individual must be reasonable, and the applicant must use its
“best efforts” to secure cooperation from the cooperating individual. 15 U.S.C. §7a-
1(3)(B).
An applicant should not be disqualified from ACPERA benefits when a plaintiff
makes unreasonable requests of a cooperating individual or the applicant itself.
Disqualifying an applicant for failing to respond to an unreasonable request undermines
the effectiveness of ACPERA, which is a critical part of the Leniency Policy’s incentive
structure. Whether a request is reasonable depends on the facts.
For example, a civil action may allege conduct beyond the scope of the
conspiracy that the applicant admitted to, and the applicant or cooperating individual

should not be expected to provide “a full account to the claimant of all facts” about this
larger conspiracy unless such facts are “known to the applicant or cooperating
individual.” 15 U.S.C. §7a-1(b)(1). Nor does an applicant need to provide information
not relevant to the conspiracy identified in the leniency letter.
15

41. W
hen must an ACPERA applicant provide satisfactory cooperation?

A court will assess the timeliness of the applicant’s cooperation in every case. 15
U.S.C. §7a-1(c). Whether an applicant’s cooperation is timely depends on the facts,
including the stage of the Division’s criminal investigation and the procedural posture of
the civil litigation. Although an applicant may choose not to identify itself until later in a
civil litigation, the circumstances surrounding its decision to delay will be relevant to
whether a court will grant ACPERA benefits.
16
When necessary to protect the integrity of
an ongoing criminal investigation, the Division may ask an applicant to refrain from
identifying itself or cooperating (either fully or in part) with civil plaintiffs. At the
applicant’s request, the Division will apprise the court of any such requests.
42. How can an ACPERA applicant comply with its cooperation obligations to the
Division and its cooperation obligations to civil plaintiffs if the Division seeks a
stay of discovery?

Congress recognized when it made ACPERA’s protections permanent that
“[c]ooperation incentives are important to the efforts of the Antitrust Division . . . to
prosecute and deter [cartel] offenses.”
17
ACPERA specifically states that its protections
do not affect the right of the Division “to seek a stay or protective order in a civil action
based on conduct covered by an antitrust leniency agreement,” to prevent the applicant’s
cooperation “from impairing or impeding” a Division investigation.
18
When discovery is
stayed in a civil action, an applicant’s cooperation obligations to civil plaintiffs are
correspondingly stayed without prejudice to its qualification for ACPERA benefits.
An applicant has a continuing obligation to cooperate with the Division’s
investigation. The Division acknowledges that criminal enforcement interests and timing
may limit how quickly civil litigation proceeds. Notwithstanding, the Division will work
with the applicant to ensure that as much civil discovery as possible can proceed without
harming the Division’s ongoing criminal investigation or prosecutions.

15
See 150 Cong. Rec. 6328 (Statement of Sen. Leahy) (explaining that the applicant “must provide
substantial cooperation not only in any criminal case brought against the other cartel members, but also in
any civil case brought by private parties that is based on the same unlawful conduct.”).
16
See In re TFT-LCD (Flat Panel) Antitrust Litig., 618 F. Supp. 2d 1194 (N.D. Cal. 2009).
17
Continuing Appropriations Act, Pub. Law. No. 116-159, § 4302(a).
18
15 U.S.C. § 7a-2(1); see also 150 Cong. Rec. H3658.

Ultimately the applicant must follow a court’s orders with respect to any
discovery stays and provide as much information as possible to the civil plaintiffs, within
the parameters of ACPERA and any court orders, to qualify for ACPERA benefits.
19

Once a stay or protective order expires, an applicant must provide satisfactory
cooperation “without unreasonable delay.”
20

43. W
hen are ACPERA benefits determined?

ACPERA requires the court to “determin[e], after considering any appropriate
pleadings from the [plaintiffs], that [the leniency applicant][...] has provided satisfactory
cooperation” in the plaintiffs’ civil action.
21
This cooperation includes disclosing
potentially relevant facts, furnishing potentially relevant records, and ensuring that
cooperating individuals participate fully in interviews, depositions, and testimony at
trial.
22
ACPERA does not establish a specific time for this determination. Parties may
agree on timing, which may occur before trial,
23
and the Division encourages the
applicant and civil plaintiffs to agree on a time for the ACPERA determination.
Determining ACPERA benefits before trial may increase the efficiency of civil
litigation, including by narrowing the damages presentation to only the “actual damages”
caused by the applicant. An early ACPERA determination may also encourage resolution
of the case because there is greater certainty regarding the scope of damages. Thus, an
agreement between the parties may expedite the litigation and restitution to the victims.
Further, increasing the efficiency of civil litigation and the timeliness of a
resolution for a fully cooperating applicant bolsters transparency and predictability,
thereby incentivizing organizations to apply for leniency.
44. Does ACPERA apply to actions by States or its subdivisions?

ACPERA excepts from its damages limitations any State bringing a civil action to
recover damages sustained by itself or its subdivisions. Such damages would include
overcharges paid by state agencies including schools, hospitals, or prisons.
24
The
legislative history makes clear that this exclusion applies, however, only to the states and

19
See generally In re Aftermarket Auto. Lighting Prod. Antitrust Litig., No. 09 MDL 2007-GW PJWX,
32013 WL 4536569 (C.D. Cal. Aug. 26, 2013).
20
15 U.S.C. §7a-1(d).
21
15 U.S.C. §7a-1 (b).
22
Id.
23
In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 329 (N.D. Ill. 2005).
24
ACPERA applies to claims in a “civil action alleging a violation of section 1 or 3 of [the Sherman Act]
or any similar State law.” 15 U.S.C. § 7a-1(4). A State can be a “claimant” under the statute; however,
ACPERA is defined to exclude “a State or a subdivision of a State with respect to a civil action brought to
recover damages sustained by the State or subdivision.” Id.

subdivisions and not to parens patriae claims where the state, standing in the shoes of its
citizens, brings suit.
25

45. Do
es ACPERA apply to actions by the United States or its agencies under
Section 4a of the Clayton Act, 15 USC § 15a?
No. The federal government is not a “person” subject to ACPERA’s damages
limitations. Section 4A of the Clayton Act, 15 U.S.C. §15a, allows the government to
recover treble damages for antitrust violations when the government itself is the victim.
Notwithstanding, to incentivize the reporting of illegal activity that harms taxpayers, the
Division’s civil enforcement program—when bringing actions to recover damages under
Section 4A for federal victims—will respect the spirit of ACPERA and will not seek
treble damages against qualifying applicants.

46. Does ACPERA apply to other violations arising from the illegal activity?
Yes. Applicants may seek ACPERA protections for misconduct that occurred “in
furtherance of” the illegal activity, including state law claims based on substantially the
same conduct.
26
ACPERA’s scope is consistent with the Division’s commitment not to
prosecute acts or offenses in furtherance of the illegal activity. See FAQ 12. ACPERA
does not apply to antitrust violations that are not “based on conduct covered by a
currently effective antitrust leniency agreement.”
27

47. Can an applicant take positions in civil litigation that conflict with the
corporate admission of wrongdoing made as part of its leniency application?
No. As specified in the model conditional letter, an applicant must refrain from
taking positions in the civil litigation that contravene the corporate confession of
wrongdoing made as part of its leniency application. For example, if in a parallel civil
action, an applicant denies participating in the illegal activity that it reported, then it has
either made a false statement in that litigation or failed to meet the Leniency Policy’s
requirements for a corporate confession of wrongdoing. Further, making inconsistent
statements about its participation in the conspiracy may hinder the applicant’s ability to
meet its cooperation obligations under the Leniency Policy.

25
150 Cong. Rec. H3654-01, H3658 (daily ed. June 4, 2004) (“[the definition of claimant] specifically
excludes plaintiffs who are states or subdivisions of states with respect to civil actions brought to recover
damages sustained by the state or subdivision (i.e., civil actions not brought as parens patriae.”)).
26
See Morning Star Packing Co. v. S.K. Foods, 2015 WL 3797774 *7 (E.D. Cal. June 18, 2015)
(i nterpreting ACPERA to apply to bribery, money laundering, mail fraud, wire fraud, RICO, and other
violations covered by ACPERA’s damages limitation because “the actions were committed in furtherance
of anticompetitive behavior”).
27
15 U.S.C. § 7a-1 (a). See also 150 Cong. Rec. 6327 (Statement of Senator Hatch) (explaining that
ACPERA protections apply only if an applicant provides “adequate and timely cooperation to both the
Government investigators as well as any subsequent private plaintiffs bringing a civil suit based on the
covered criminal conduct”).

Nothing in this answer should prevent applicants from raising valid defenses in
parallel civil proceedings consistent with its confession of wrongdoing.

VII. REMEDIATION AND COMPLIANCE
48. When must an applicant satisfy the requirement that it “uses best efforts . . . to
remediate the harm caused by the illegal activity” and “improve its compliance
program to mitigate the risk of engaging in future illegal activity”?

The applicant must demonstrate to the Division that it has satisfied its obligation
to address its future antitrust risk and remediate its criminal conduct before it will be
granted a conditional leniency letter.
49. How does an applicant satisfy the requirement that it “uses best efforts . . . to
remediate the harm caused by the illegal activity” and “improve its compliance
program to mitigate the risk of engaging in future illegal activity”?

An
applicant may satisfy this requirement in a variety of ways.

Compliance

Some applicants may need to implement new or improved formal compliance
programs. Others may require less formal solutions. Ultimately, corporate compliance
should be appropriately tailored to the applicant’s size and line of business. See FAQ 50.

Th
e Division will assess an applicant’s antitrust compliance, including its culture
of compliance and risk assessment, considering the questions and factors laid out in the
Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations
Guidance.
28
This is a fact-specific inquiry and there is no checklist or formula for
determining whether a compliance policy or program is effective.
The Division will consider the applicant’s compliance program at the time of the
antitrust violation and when it makes subsequent improvements. The Division will
consider the actions that the organization has taken since the reported antitrust violation
to prevent similar illegal activity from reoccurring, and what methods the organization
will use to assess its antitrust risks to prevent future violations.
Remediation

In addition to improving its compliance program and committing to pay
restitution, the applicant may be required to undertake additional remedial measures to

28
EVALUATION OF CORPORATE COMPLIANCE PROGRAMS IN CRIMINAL ANTITRUST INVESTIGATIONS, U.S.
DEP’T OF JUSTICE (July 2019), https://www.justice.gov/atr/page/file/1181891/download.

obtain a conditional leniency letter. This requirement ensures that that the applicant fully
remedies the harm caused by the offense, to the extent not covered by restitution, and
eliminates or reduces the risk of recidivism.

Whether and what remediation is appropriate depends on the nature of the illegal
activity, the nature of any harm caused (e.g., reduced worker mobility from a “no-poach”
agreement), and the applicant’s role in it. With respect to the risk of recidivism, the
applicant will be expected to conduct a thorough analysis of causes of underlying conduct
(i.e., a root cause analysis) and undertake remedial efforts tailored to address the root
causes. This may include additional steps demonstrating recognition of the seriousness of
the illegal activity, acceptance of responsibility for it, and the implementation of
measures to reduce the risk of repetition of the illegal activity, including measures to
identify future risks. The Division may also consider the applicant’s efforts to discipline
or remove its culpable, non-cooperating personnel.

50. H
ow does the size of the organization affect the assessment of its compliance
program?

“[T]he Division recognizes that a company’s size affects the resources allocated
to antitrust compliance and the breadth of [the applicant’s] compliance program.”
29
All
applicants—no matter the size—must demonstrate that they have taken reasonable
measures—appropriately tailored to their size and risk profile—that will address and
remediate the applicant’s criminal conduct and prevent future antitrust violations.
Any measures taken by the applicant should be directed at improving antitrust
compliance in the organization’s line of business, accounting for risks discovered as a
result of the reported illegal activity.
30
Large and small applicants will not be expected to
have identical responses to violations, but effective antitrust compliance is important for
all organizations seeking to remediate harm and prevent future antitrust violations.
VIII. NON-PROSECUTION PROTECTION
FOR CURRENT OR FORMER EMPLOYEES

51. What are the conditions for non-prosecution protection for a Type A applicant’s
current directors, officers, and employees?

No current directors, officers, and employees of a Type A Leniency recipient will
be charged criminally for the illegal activity if they provide timely, truthful, continuing,
and complete cooperation to the Division throughout its investigation.

29
Id. at 2.
30
Id. at 7-8.

If a current director, officer, or employee does not fully cooperate with the
Division’s investigation, however, they will be excluded, or “carved out,” from the non-
prosecution protections in the conditional leniency letter. If an individual stops
cooperating with the Division’s investigation, then that individual’s protections are void.
In those circumstances the Division will notify the individual that their non-prosecution
protection has been revoked.

The Division may also exercise its discretion to include specific former personnel
of the applicant in the non-prosecution protections in the conditional leniency letter. See
FAQ 58.

52. How does the Division decide whether to grant non-prosecution protection for a
Type B applicant’s current directors, officers, and employees?
The Leniency Policy provides that current directors, officers, and employees of
Type B applicants will be considered for non-prosecution protection. This means that the
Division has broad discretion on whether to provide non-prosecution coverage for those
persons compared to similarly situated directors, officers, and employees of a Type A
applicant, for whom non-prosecution protection is guaranteed so long as they provide
timely, truthful, continuing and complete cooperation. In Type B applications, non-
prosecution protection for directors, officers, and employees is not guaranteed. Rather,
the Division assesses non-prosecution protection for current directors, officers, and
employees of a Type B applicant on a case-by-case basis considering the following:

To be eligible for non-prosecution protection under the corporate leniency letter,
Type B applicants’ personnel must admit their wrongdoing with candor and provide
timely, truthful, continuing and complete cooperation throughout the investigation.
Moreover, the Division will consider Type B applicants’ 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.
31

As these sections reflect, the Division will extend non-prosecution protection to
personnel of Type B applicants—whether through the organization’s leniency letter or
through agreements directly with individual employees—if the cooperation appears to be
necessary to the public interest and other means of obtaining the cooperation are
unavailable or ineffective. In making this determination, the Division will consider the
importance of the matter, the value of the individual’s cooperation as well as its timing,
the individual’s relative culpability and criminal history, and the interests of any victims.

53.
How does the timing of a Type B applicant influence whether the Division
grants immunity to current directors, officers, and employees?
Timing is crucial. When an organization seeks a Type B marker before the
Division has served subpoenas, executed search warrants, or otherwise made the

31
U.S. Dep’t of Justice, Just. Manual §§ 9-27.600, 9-27.620, 9-27.630.

investigation publicly known, it is more likely that the Division will not yet have
developed significant evidence of the illegal activity. In those circumstances, cooperation
from the applicant’s personnel may be particularly valuable, and the applicant will have a
higher likelihood of receiving non-prosecution protection for its personnel under the
corporate leniency letter. As the Division obtains significant evidence from subpoenas,
search warrants, or other investigative tools, the cooperation of the applicant’s personnel
may no longer be necessary to the public interest.

54. When will current directors, officers, and employees of Type B applicants know
whether they will receive non-prosecution protection?
The timing of the Division’s non-prosecution decisions depends on the facts and
circumstances of the particular matter. At the time a corporate applicant seeks a marker,
if the Division’s evidence against certain individuals is sufficiently developed to make a
non-prosecution agreement with them unwarranted, the Division will notify the applicant
that those individuals will be excluded from the non-prosecution protections of the
corporate leniency letter. For all other personnel, the Division will work with the
applicant to make individualized assessments using the standard for individual non-
prosecution agreements in JM 9-27.600.
32
I f at any point individuals decline to provide
timely, truthful, continuing, and complete cooperation, they will not receive non-
prosecution protection under the corporate leniency letter.

Depending on the outcome and timing of the decision concerning whether
particular individuals will receive non-prosecution protection under a Type B Leniency,
individuals involved in the conspiracy may require separate counsel. Once the Division
determines whether a particular individual should or should not receive non-prosecution
protection, the Division will typically notify the applicant and counsel for the individual.

55. W
hat cooperation must an applicant’s current personnel provide?
The cooperation obligations for current directors, officers, and employees are
significant. Individuals who receive non-prosecution protection under a corporate
leniency letter must provide timely, truthful, continuing, and complete cooperation with
the Division’s investigation. This means that the individual must admit any knowledge of
or participation in the illegal activity and that of all other persons and organizations. The
individual must produce records and information to the Division and must agree to be
interviewed or provide testimony on request. Further, at the request of the Division, the
individual must participate in affirmative investigative techniques, such as making
telephone calls, recording conversations, and introducing law enforcement officials to
other individuals.

32
U.S. Dep’t of Justice, Just. Manual §§ 9-27.600.

The Division may revoke non-prosecution protection for any individual who fails
to provide timely, truthful, continuing and complete cooperation or otherwise fails to
meet their obligations set forth in the corporate conditional leniency letter. See FAQ 74.

56. How is “current director, officer, or employee” defined for purposes of the
cooperation obligations and non-prosecution protection of the corporate
conditional leniency letter?
Status as a “current director, officer, or employee” is defined at the time the
corporate conditional leniency letter is signed by the Division. Thus, the non-prosecution
protections offered to individuals who are directors, officers, and employees of the
applicant at the time the letter is signed by the Division will continue after they leave
their employment so long as they satisfy their obligations under the corporate conditional
leniency letter.

For an individual employed by a corporate applicant at the time it secures a
marker, but who leaves that employment before the applicant receives a conditional
leniency letter, the Division may provide non-prosecution protection to the individual by
carving them in to the applicant’s conditional leniency letter or by executing a separate
non-prosecution agreement with the individual so long as they satisfy their obligations to
provide timely, truthful, continuing, and complete cooperation.

57. H
ow are a corporate applicant’s contractors treated under leniency?

Neither Type A nor Type B Leniency guarantee non-prosecution protection to an
applicant’s contractors. On rare occasions, an applicant will identify a contractor who
participated in the illegal activity as the organization’s agent or representative.

In those situations, the applicant should identify the specific contractor(s) to the
Division as early as possible in the process and discuss whether the individual(s) should
be included in the leniency application. The Division will evaluate such individuals for
inclusion based on the same criteria applied to former directors, officers, and employees.
See FAQ 58. Any individual included in the corporate conditional leniency letter through
this process is required to meet the same cooperation obligations as other individuals who
receive non-prosecution protection through the conditional leniency letter.

58. C
an an applicant’s former directors, officers, and employees be included in the
scope of the conditional leniency letter?

Former directors, officers, and employees are presumptively excluded from any
grant of corporate leniency. The Leniency Policy does not refer to former directors,
officers, or employees. The Division is under no obligation to extend leniency to former
directors, officers, or employees.

At
the Division’s sole discretion, specific named former directors, officers, or
employees may receive non-prosecution protection under a corporate conditional

leniency letter or by a separate non-prosecution agreement. Such protections are offered
only for individuals who provide substantial, noncumulative cooperation against
remaining potential targets, or when the cooperation is necessary for the applicant to
make a corporate confession. See FAQ 25.

When assessing whether to provide immunity to former directors, officers, and
employees, the Division will consider the factors in the Principles of Federal Prosecution
at 9-27.600, 9-27.620, and 9-27.630.
33
Covered former directors, officers, and employees
must provide timely, truthful, continuing, and complete cooperation to the Division
throughout its investigation and resulting prosecutions.

59. M
ay individual directors, officers, and employees that are covered by a leniency
letter be required to execute a separate non-prosecution agreement?

Yes. Sometimes the Division will require that certain individuals covered by a
conditional leniency letter (whether current or former directors, officers, and employees)
execute a separate non-prosecution agreement or sign an addendum to the conditional
letter. Whether the Division executes a separate non-prosecution letter with an individual
will depend on the circumstances of the case. One situation in which the Division may
decide to execute a separate non-prosecution letter with an individual is when the scope
of the individual’s involvement in the conspiracy differs from the scope of the corporate
applicant’s involvement.
For example, consider the following: an individual currently employed by XYZ
(the leniency applicant) previously worked for ABC, which was also involved in the
conspiracy. XYZ did not join the conspiracy until after hiring the individual. The
individual, however, while employed by ABC, was involved in the conspiracy.
Accordingly, the scope of the individual’s involvement in the conspiracy is broader than
the scope of the applicant’s (XYZ).

In
these circumstances, the Division may execute a non-prosecution agreement
that specifies the individual’s lengthier involvement in the conspiracy. And in some
cases, the Division may require separate non-prosecution agreements with an applicant’s
employees to ensure that they are available for the trial of fugitive defendants.

60. D
o protections offered through the Leniency Policy extend to corporate
affiliates of the leniency applicant such as parents or subsidiaries?
It depends. Parent companies, subsidiaries, and other affiliates of a corporate
applicant may be considered for non-prosecution protection as part of the leniency
application. Considerations that affect that decision include:

33
U.S. Dep’t of Justice, Just. Manual §§ 9-2 7.600, 27.620, 27.630.

• the ownership share and other indicia of corporate control exercised by (or on) the
applicant by the affiliate;
• the affiliate’s involvement in the illegal activity; and
• the affiliate’s ability to satisfy the conditions for receipt of leniency, including
providing timely, truthful, continuing, and complete cooperation with the
Division’s investigation.
Corporate affiliates that were not involved in the illegal activity and do not have
meaningful cooperation to provide will not be included in the conditional leniency letter.
By contrast, if those affiliates were involved in the illegal activity and provide
cooperation along with the applicant, the leniency letter may specifically name the
parents, subsidiaries, or other corporate affiliates of the applicant.
An applicant that has questions about whether a corporate affiliate will be
included in its leniency application should raise those issues as early as possible with the
Division and be prepared to provide information that addresses the considerations
described above.
IX. MODEL LENIENCY LETTERS

61. Why is the conditional leniency letter “conditional”?

The letter is conditional because the applicant must meet certain obligations
before it receives a final leniency letter. Those obligations are defined in the model
conditional leniency letters and explained in the FAQs.
34

Although many of these obligations are fulfilled during the investigation and any
resulting prosecutions, the Division understands that applicants want assurances up front,
even if conditional, that they will receive non-prosecution protection at the conclusion of
the investigation if they fulfill the requirements of the Leniency Policy. The conditional
leniency letters address that need and provide organizations and individuals with a
transparent and predictable process from the initial marker request through the final
leniency letter.

Typically, conditional leniency protects the applicant for its acts and offenses in
furtherance of the illegal activity before the Division executes the conditional letter.

62. What is the final leniency letter?

An applicant receives a final leniency letter a fter it satisfies its obligations under
the conditional leniency letter, and the Division verifies the applicant’s representations

34
Leniency Program, U.S. DEP’T OF JUSTICE, https://www.justice.gov/atr/leniency-program.

regarding eligibility. Normally, the Division issues the final leniency letter after the
completion of the investigation and any resulting prosecutions.
63. If a corporate applicant is the subject or target of a separate investigation, will
this also be reflected in its corporate conditional leniency letter?

Yes. To enhance transparency and predictability, the Division has also published
a model corporate conditional leniency letter for dual investigations.
35
A corporate
applicant in this situation can expect its letter to make clear that the protections afforded
to it and its directors, officers, and employees, as well as their cooperation obligations,
extend only to the activity reported in the leniency application, and not to the separate
investigation. Specifically, the letter will detail:
• the status of the applicant and any of its personnel as subjects, targets, or
defendants in the separate investigation;
• that the conditional leniency letter does not prohibit the Division from prosecuting
the applicant or its personnel in the separate investigation; and
• that the separate investigation has no effect on the applicant’s cooperation
obligations in connection with its request for leniency.
In addition, personnel of the applicant who are subjects, targets, or defendants in
the separate investigation, but who are interviewed by the Division as part of the leniency
application, will receive a separate Dual Investigations Acknowledgement Letter.
36
This
letter notes the individual’s status as a subject or target in the separate investigation and
acknowledges that the corporate applicant’s conditional leniency letter governs the
conditions of the individual’s eligibility for leniency protection.

X. WITHDRAWAL, REVOCATION, AND EXPULSION

Withdrawal After Issuance of a Marker

64. Can a leniency applicant withdraw its application after it receives a marker?

Yes. If, after receiving a marker, an applicant concludes that it cannot satisfy the
criteria for leniency, or determines that it no longer wants to pursue leniency, it may
withdraw its application or let its marker expire. The Division may continue its
investigation after an applicant withdraws its application or the marker expires, in which
case the former applicant will not have any protection against prosecution. Once the
Division issues a final leniency letter, the applicant cannot withdraw its application.

35
MODEL DUAL INVESTIGATIONS CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE.
36
MODEL DUAL INVESTIGATIONS ACKNOWLEDGEMENT LETTER FOR EMPLOYEES, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/sites/default/files/atr/legacy/2008/11/24/239512.pdf.

65. Can the Division withdraw an applicant’s marker?

Yes. The Division can withdraw or let expire the marker of an applicant if the
Division concludes that the applicant cannot meet the criteria for leniency. Generally, the
Division will extend an applicant’s marker so long as the applicant demonstrates it is
making a good-faith effort to complete its application promptly. If, after an appropriately
tailored inquiry by the applicant or the Division, the Division determines that the
applicant cannot meet the leniency criteria, the Division will withdraw the applicant’s
marker, or let it expire, without granting leniency.

66. What process does an applicant receive before its marker is withdrawn?

If staff determines an applicant cannot meet the criteria for leniency, they will
notify the applicant in writing that it does not appear to qualify for leniency and thus,
they intend to recommend that the Division withdraw the applicant’s marker or let it
expire.

Th
e Deputy Assistant Attorney General for Criminal Enforcement and Director of
Criminal Enforcement will evaluate any recommendations that the Division withdraw a
marker or let it expire without the applicant’s consent. The applicant will also typically
have the opportunity to meet with Division leadership regarding the determination that it
does not qualify for leniency. The applicant has the burden of persuading the Division of
its eligibility for leniency.

67.
What protections does an applicant retain after its marker is withdrawn?

If an applicant or the Division withdraws a marker, the applicant does not have
any protection from prosecution. As a practical matter, if after conducting a thorough
investigation, the Division withdraws a marker because the Division determines that the
applicant was not involved in illegal activity, the applicant does not need the protections
of leniency.
Withdrawal After Issuance of the Conditional Leniency Letter

68. C
an an applicant voluntarily withdraw its leniency application after it receives a
conditional leniency letter?

Yes. Because, at this stage, the grant of leniency is conditional and contingent on
the applicant’s satisfying the criteria for leniency, the applicant can withdraw its
application. If an applicant withdraws its leniency application after receiving a
conditional leniency letter, it will be relieved of the conditional letter’s obligations and
will no longer receive the non-prosecution protection afforded by the letter.

69. Can the Division revoke a conditional leniency letter?

Yes
. The grant of immunity is contingent on the applicant’s satisfying the criteria
for leniency. The Division does not take revocation lightly—the Division has revoked
only one conditional leniency letter—but may revoke the letter if the applicant cannot or
does not satisfy the conditions for leniency.
70. What would cause the Division to revoke a conditional leniency letter?

The Division may revoke a conditional leniency letter if:

• Contrary to the applicant’s representations, the applicant is not eligible for
leniency or

• The applicant has not provided the cooperation required by the conditional
leniency letter or met its other obligations detailed in the letter.
In the history of the Leniency Policy, the Division has revoked only one conditional
leniency letter. One example of a circumstance in which the Division may do so is:

Corporate Applicant XYZ seeks leniency and represents to the
Division that it promptly reported its illegal conduct to the
Division on discovering it. XYZ also represents to the Division
that its participation in the conspiracy had lapsed years before
this discovery, limiting the opportunities to assist with a covert
investigation. After the Division gives XYZ a conditional
leniency letter, the Division discovers credible evidence that
these representations are false; XYZ initially discovered the
illegal activity years before reporting it to the Division and
responded by training employees on the dangers of ambiguous
communications, which led employees to avoid referencing the
conspiracy in writing without ceasing their illegal conduct. In
fact, XYZ only truly terminated its participation in the
conspiracy shortly before it executed the conditional leniency
letter.

71. What process will an applicant receive before its conditional leniency letter is
revoked?

Be
fore the Division makes a final determination to revoke an applicant’s
conditional leniency, it will notify the applicant of the staff’s recommendation to revoke
leniency and provide the applicant with an opportunity to meet with staff, section or

office management, the Director of Criminal Enforcement, and the Deputy Assistant
Attorney General for Criminal Enforcement regarding the revocation.
37

W
hile a recommendation to revoke leniency is under consideration, the Division
will suspend the applicant’s obligation to cooperate so that the applicant is not put in the
position of continuing to provide evidence that could be used against it should the
conditional leniency letter be revoked.

72. When can an applicant or its employees ask a court to overturn the Division’s
decision to revoke conditional leniency?

The Leniency Policy is an exercise of prosecutorial discretion and is generally not
subject to judicial review.

Under the conditional leniency letter, an applicant agrees not to seek judicial
review of a revocation unless it is charged for the illegal activity. Similarly, applicants
agree that judicial review of any Antitrust Division decision to revoke any conditional
non-prosecution protection granted to an individual under a corporate conditional letter
“is not available unless and until the individual has been charged by indictment or
information for the illegal activity.”
38

73. If a corporate conditional leniency letter is revoked, what will happen to the
protection provided in the letter for the applicant’s personnel?

If the Division revokes the applicant’s conditional leniency letter, the conditional
leniency agreement is void. Thus, the protection provided to individuals under the letter
no longer exists.

As a matter of prosecutorial discretion, even if the Division revokes an
organization’s conditional leniency, the Division will elect not to prosecute individuals
who had received protection under the letter so long as they had provided, and continue
to provide, timely, truthful, continuing, and complete cooperation to the Division before
the revocation and, in the Division’s view, were not responsible for the revocation.

74. Under what circumstances can the protection granted to an individual under a
corporate conditional leniency letter be revoked?

The
Division does not take revocation lightly. It may revoke a director, officer, or
employee’s non-prosecution protections under a corporate conditional leniency letter
under any of the following conditions:

37
See MODEL CORP. CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 6; MODEL INDIVIDUAL
CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 6.
38
See MODEL CORP. CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 6.

1) The individual caused the corporate applicant to be ineligible for leniency under
paragraph 1 of the corporate conditional leniency letter;

2) The individual continued to participate in the illegal activity after the corporate
applicant reported the activity to the Division, and the individual was instructed to
cease their participation in the activity;

3) The individual obstructed or attempted to obstruct an investigation of the illegal
activity at any time, whether the obstruction occurred before or after the date of
the corporate conditional leniency letter; or

4) The individual fails to provide timely, truthful, continuing, and complete
cooperation.

75. What notice or process will an individual receive if the Division is
contemplating revoking their protections under a corporate conditional
leniency letter?

Absent exigent circumstances, such as risk of flight, the staff will notify the
individual or their counsel, and counsel for the corporate applicant, of its
recommendation to revoke the individual’s protections under the conditional leniency
letter. Counsel for the individual typically has the opportunity to meet with Division
leadership before the Division makes a final determination to revoke an individual’s
protection provided under a corporate conditional leniency letter.

If
the Division revokes conditional protection granted to a director, officer, or
employee of a corporate applicant, the Division may use against such individual any
evidence provided at any time under the corporate conditional leniency letter by the
corporate applicant, the individual, or other directors, officers, or employees of the
applicant.
39
While a recommendation to revoke the protections provided in the
conditional leniency letter as they relate to this specific individual is under consideration,
the Division will suspend the individual’s obligation to cooperate so that the individual is
not put in the position of continuing to provide evidence that could be used against them
should their protections be revoked.

XI. CONFIDENTIALITY

76. What confidentiality assurances are given to applicants?

Th
e Division treats an applicant’s identity and information in strict confidence.
Therefore, the Division does not publicly disclose an applicant’s identity or information
the applicant provides unless: (1) the applicant has publicly disclosed its application; (2)

39
MODEL CORP. CONDITIONAL LENIENCY LETTER, U.S. DEP’T OF JUSTICE ¶ 6.

the applicant agrees to the disclosure; (3) a court orders the disclosure; or (4) disclosure is
required in a criminal case.

77. Will the Division disclose an applicant’s identity or information to a foreign
government?

The Division will not disclose an applicant’s identity or information to enforcers
outside the United States without the applicant’s consent. Typically, when an applicant
has sought leniency in other jurisdictions, it will provide this consent in the form of a
confidentiality waiver to facilitate efficient investigations. See FAQ 30.
The Leniency Policy does not insulate applicants from proceedings in other
jurisdictions, nor do applications in other jurisdictions insulate applicants from
prosecution by the Division.
XII. LENIENCY AND PENALTY PLUS

78. What is leniency plus?

Leniency plus enables an organization that is under investigation for one antitrust
conspiracy (but cannot obtain leniency for that conspiracy) to receive additional credit for
substantial assistance in its plea agreement for that conspiracy by reporting its
involvement in a separate antitrust conspiracy for which it is eligible for leniency.

Ma
ny of the Division’s investigations result from evidence developed during an
investigation of a completely separate conspiracy. The Division takes a proactive
approach to attracting leniency applications by encouraging subjects and targets of
investigations to consider whether they may qualify for leniency in other markets. For
example, consider the following hypothetical fact pattern:

As a result of a leniency application in the widgets market, a
grand jury is investigating the other four producers in that
market, including XYZ, for their participation in an
international cartel. In its internal investigation, XYZ uncovers
information that its executives also participated in a separate
conspiracy in the sprockets market. The government has not yet
detected the sprockets cartel because the applicant was not a
competitor in that market and no other investigation has
uncovered it. XYZ is interested in cooperating with the
Division’s widgets investigation under a plea agreement and
seeking leniency for the sprockets conspiracy.

As
suming that XYZ qualifies for leniency in the sprockets conspiracy and
provides timely, truthful, continuing, and complete cooperation with the Division’s
investigation into the widgets conspiracy, XYZ may also obtain “leniency plus.” That
means XYZ receives leniency for the sprockets conspiracy—plus, in the sentencing

hearing for the widgets cartel, the Division recommends that the court, in calculating
XYZ’s fine, make a substantial assistance departure that takes into consideration the
applicant’s cooperation in both investigations. The substantial assistance departure that
the Division recommends would be greater than if XYZ had cooperated exclusively in
the widgets investigation. XYZ receives credit for self-reporting and cooperating in the
sprockets investigation by both obtaining leniency for sprockets and receiving a greater
reduction in the recommended widgets fine.

79. What kind of cooperation credit is given in leniency plus investigations?

How much cooperation credit the Division recommends for reporting an
additional conspiracy will depend on the defendant’s cooperation and the facts and
circumstances of the case. Factors the Division considers include:

1) th
e strength of the evidence the defendant provides in the leniency
investigation;

2) the
potential significance of the violation reported in the leniency application,
measured in such terms as the volume of commerce involved, the geographic
scope, and the number of corporate and individual co-conspirators; and

3) t
he likelihood that the Division would have uncovered the additional violation
without the self-reporting, e.g., if there were little or no overlap in the
corporate participants or the culpable executives involved in the original cartel
under investigation and the leniency plus matter, then the credit for the
disclosure will be greater.

Of
these three factors, the first two are given the most weight.

To
receive any leniency plus credit at sentencing, the defendant must provide
timely, truthful, continuing, and complete cooperation with the investigation that led to
the guilty plea.

80.
What is penalty plus?

“Pen
alty plus” refers to situations where an organization fails to uncover or
disclose the full extent of its antitrust-related wrongdoing before being sentenced for one
of its antitrust crimes. In those cases, it is the Division’s practice to seek a more severe
punishment at the time the applicant is sentenced for its second antitrust conviction.
40

40
See, e.g., Press Release, U.S. Dep’t of Justice, Bridgestone Corp. Agrees to Plead Guilty to Price Fixing
on Automobile Parts Installed in U.S. Cars (Feb. 13, 2014), https://www.justice.gov/opa/pr/bridgestone-
corp-agrees-plead-guilty-price-fixing-automobile-parts-installed-us-cars.

Like leniency plus, described above, penalty plus creates substantial incentives for
an organization to conduct a thorough internal investigation to detect and report any
additional antitrust crimes it uncovers. If an organization pleads guilty to an antitrust
offense but fails to report an additional antitrust crime it was also involved in, that
applicant not only foregoes potential credit from leniency plus, but the Division will
generally seek a more severe punishment under penalty plus for the additional crime.

The severity of the penalty plus enhancement the Division seeks depends on the
reason the applicant failed to report the additional crime. For example, if an
organization’s internal investigation fails to discover the additional crime, and the
organization agrees to plead guilty and cooperate after the Division detects the crime,
the Division would recommend that any downward adjustment begin from a higher
point in the U.S. Sentencing Guidelines range for the additional antitrust crime.

The sentencing consequences will be greater for an organization that made no
meaningful effort to conduct an internal investigation or was aware of the additional
antitrust crime but elected not to report it. In that case, the Division will seek a more
severe penalty plus enhancement in the form of a higher fine and will likely recommend
that the court impose probation under the U.S. Sentencing Guidelines.
41

In the most egregious cases, the Division will recommend that the court consider
the failure to report the additional crime as an aggravating sentencing factor warranting a
fine at the top end of the Guidelines range or an upward departure. The Division may also
recommend that the court appoint a monitor to ensure compliance.

XIII. WHEN LENIENCY IS NOT AVAILABLE

81. If an organization is too late to obtain leniency, what cooperation credit can it
expect to receive for self-reporting its criminal conduct?

Even if an organization cannot qualify for leniency, it should self-report criminal
conduct, accept responsibility, and cooperate with the Division’s investigation. The
Division evaluates the facts of each case under the L eniency Policy, the Principles of
Federal Prosecution,
42
and the Principles of Federal Prosecution of Business
Organizations
43
when considering the appropriate disposition for organizations involved
in criminal conduct. Among the factors considered is whether the applicant made a timely
and voluntary disclosure of its wrongdoing.

41
GUIDELINES MANUAL, UNITED STATES SENTENCING COMM’N §§8D1.1-8D1.4 (2016),
https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/GLMFull.pdf.
42
U .S. Dep’t of Justice, Just. Manual § 9-28.710.
43
U.S. Dep’t of Justice, Just. Manual § 9-28.300.

An organization that voluntarily self-reports its criminal conduct and pleads guilty
may earn a reduced fine based on its substantial assistance to the Division’s investigation.
Organizations that self-report their wrongdoing and cooperate early usually have a
greater chance to provide assistance that is recognized at sentencing. In addition, timely
acceptance of responsibility will be reflected in a reduced sentence under the
Guidelines.
44

In certain circumstances, a disposition short of a criminal conviction may be
appropriate even if an organization does not qualify for leniency, especially when it has
invested in an effective compliance program that allowed it to identify the misconduct
and promptly self-report, despite that it was not the first to seek leniency.

82. If an organization is too late to obtain leniency, how will its current personnel
be treated if it self-reports its criminal conduct?

To qua
lify for any cooperation credit, an organization must provide the Division
with all relevant facts related to its wrongdoing, including identifying all individuals
involved in or responsible for the misconduct. The Division retains discretion to
prosecute those individuals and makes charging decisions based on the Principles of
Federal Prosecution.
45

Under Department policy, outside of corporate leniency, individual releases of
liability are included in a corporate resolution only in extraordinary circumstances, but
individual non-prosecution agreements may be available. The order in which an
organization and its co-conspirators accept responsibility does not determine whether its
personnel will be subject to prosecution. Nevertheless, it is in the applicant’s and the
individuals’ interests to cooperate promptly. The earlier cooperation begins, the more
likely it is to substantially assist the investigation. And an individual’s willingness to
cooperate—and the value of that cooperation—is among the most important factors the
Division considers when making charging decisions or recommending reduced sentences.

44
GUIDELINES MANUAL, UNITED STATES SENTENCING COMM’N § 3E1.1 (2016),
https://guidelines.ussc.gov/gl/%C2%A73E1.1
45
U.S. Dep’t of Justice, Just. Manual § 9-27.000.

Frequently Asked Questions About the Antitrust Division’s Leniency Program

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