USA Law and Practice Contributed by: Robert Houck, William Lavery, Leigh Oliver and Joseph Ostoyich, Clifford Chance LLP
6.3 Leniency and Settlement Agreements As described in 2.3 Impact of Competition Authori- ties , agreements to settle most forms of enforcement proceedings by the US federal antitrust authorities are typically made public in the course of a federal court’s review of the proposed resolution. One exception to this general rule is for parties who qualify for leniency pursuant to the Department of Justice, Antitrust Divi - sion’s Corporate Leniency Policy. The Leniency Program, a long-standing centrepiece of the Division’s criminal cartel enforcement efforts, accords immunity from criminal antitrust prosecu - tion to the first corporation or individual to voluntarily report their role in a per se antitrust violation at an early stage and meet certain other conditions. These requirements include, among other things, prompt self-reporting, full and continuing co-operation, reme - diation, and efforts to provide restitution to injured parties. To encourage applicants to come forward, the Divi - sion’s policy is to treat as confidential the identity of leniency applicants and the materials they provide. The Division acknowledges that it will disclose the identity of a leniency applicant if ordered to do so by a court, though such an order would be unusual. While at least one appeals court has held that the Division must disclose leniency agreements pursuant to requests under the US Freedom of Information Act (FOIA), that court also recognised that details within those materials identifying a leniency recipient could be exempt from FOIA disclosure ( Stolt - Nielsen Trans- portation Group v United States , 534 F 3d 728 [DC Cir 2008]). That said, a conditional leniency recipient will likely identify itself to plaintiffs in follow-on civil litigation, in order to fulfil its restitution obligation under the Leni - ency Policy by co-operating with plaintiffs and earning the resulting de-trebling of damages available under the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA). In addition, public companies may face other legal obligations, such as under the securities laws, to dis - close their status as the recipient of leniency.
government investigation). The privilege also does not protect attorney-client communications made for the purpose of committing or furthering a crime or fraud ( United States v Zolin , 491 US 554 [1989]). The “common interest” protection – an exception to the rule that sharing legal advice with third parties results in a privilege waiver – safeguards against the compelled disclosure of communications between parties and their respective counsel when aligned in a common legal interest. Federal appeals courts disa - gree as to whether the common interest protection is limited to communications between parties when threatened by litigation; a number of appeals courts recognise that the privilege applies to the “full range of communications otherwise protected by the attorney- client privilege” without regard to whether litigation is threatened ( United States v BDO Seidman , 492 F 3d 806 [7th Cir 2007] [agreeing with at least five sis - ter circuits that the threat of litigation is not required for the common interest protection to apply], but see Santa Fe Int ’ l , 272 F 3d 705 [5th Cir 2001] [find - ing that the protection only applies where there is the threat of litigation]). In federal antitrust litigation, co- defendants regularly invoke the common interest pro - tection to share materials and collaborate on defence strategy. Frequently, co-defendants will sign a joint defence agreement formalising that arrangement (but this step is not strictly required for the common inter - est protection to apply). A related protection arises under the “work product” doctrine, which shields from disclosure materials “pre - pared in anticipation of litigation” (Fed R Civ P 26[b] [3]). It protects both “documents and tangible things” and the “mental impressions, conclusions, opinions or legal theories of a party’s attorney”. The work product doctrine is not an absolute bar to compulsory disclo - sure of qualifying materials. Rather, an adversary may ask the court to compel disclosure of work product by showing that the requesting party has a “substantial need” for the materials in order to prepare its case and that the party cannot, without “undue hardship”, obtain through other means the “substantial equiva - lent” of the requested materials (Fed R Civ P 26[b][3] [A]). In practical terms, however, this standard is very challenging to meet.
251 A NTITRUST LI T IGATI O N 2026
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