Before receiving a final leniency letter, applicants must now actually pay restitution to the victims of the misconduct

The Antitrust Division of the DOJ today announced updates to one of its primary enforcement tools, the offender leniency program, and issued a revised set of plain-language answers to frequently asked questions (FAQs) relating to the program. The Antitrust Division’s Leniency Program is the division’s self-described “most important investigative tool” for detecting cartel and anticompetitive activity. Corporations and individuals who report their violative activity and cooperate in the Division’s investigation of the cartel reported can avoid criminal conviction, fines, and prison sentences if they meet the requirements of the program.

The new program updates specify that now, in order to obtain benefits under the program, applicants must also pay restitution to the victims of the misconduct, usually through negotiating a settlement with civil plaintiffs. The Antitrust Division notes that “these changes reaffirm the Antitrust Division’s commitment to transparency, predictability and accessibility in criminal enforcement.”

As specified in the new language:

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. (Further detail available on the DOJ website).

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.

“This is an important step in ensuring that victims of antitrust violations receive compensation for their injuries,” noted Lieff Cabraser partner Dean Harvey, who is among the nation’s leading advocates for workers asserting antitrust claims in an employment context, and who leads our firm’s work on labor-antitrust cases.

To view the Antitrust Division’s full Leniency Policy and Revised Plain Language Answers to Frequently Asked Questions, visit the DOJ’s website.

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