USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency The DOJ maintains an active leniency pro - gramme that generally makes immunity from prosecution available to the first company that self-reports an unknown criminal antitrust vio - lation. The immunity to the first company can potentially extend to its employees and officers. To obtain leniency or immunity, a cartel partici - pant must come forward with information and evidence about the cartel that is not already known to the authorities. The applicant must co-operate in the DOJ investigation, continue to provide evidence and make witnesses available for DOJ interviews. The applicant must also ulti - mately admit that it engaged in a criminal anti - trust violation. The first participant to come forward and sat - isfy the requirements of the leniency programme may be granted full immunity from prosecution, including criminal fines and jail time for cov - ered co-operating executives and employees. Leniency is not available for other companies although generally companies that are not “first in” can obtain better treatment from the DOJ through early and full co-operation. A company can apply for “marker” under the DOJ’s Corporate Leniency Policy. The marker provides the company with a limited period to gather the necessary information and evidence to satisfy the leniency requirements. The marker protects the company’s place in line for leniency while it conducts its internal investigation. The DOJ has a strong record of granting leniency to co-operating parties, and the programme has
been successful in uncovering cartels and pros - ecuting participants. 3.2 Amnesty/Immunity There is no separate amnesty regime distinct from the leniency programme. As mentioned above, the Antitrust Division operates a leniency programme that offers immunity to corporations and individuals who self-report their involvement in cartel activity, co-operate fully with the inves - tigation, and meet other conditions. 3.3 Whistle-Blowers The Criminal Antitrust Anti-Retaliation Act (15 U.S.C. § 7a-3) prohibits employers from retali - ating against certain individuals who report criminal antitrust violations. The Act allows an individual to file a complaint with the Secretary of Labor if they are retaliated against for report - ing to the federal government information about what they believe to be a criminal violation of the antitrust laws. The Antitrust Division of the Department of Justice has a Report Violations Page on its website. The law is different from other whistle-blower protection statutes in the US, however, in that whether a whistle-blower can receive financial compensation for reporting a criminal antitrust violation depends on whether the victim of the violation was a government entity or private indi - viduals. The law does not provide financial com - pensation to an antitrust whistle-blower where the Antitrust Division brings criminal prosecution and fines are imposed. The whistle-blower can bring a qui tam lawsuit under the False Claims Act if the federal government is a victim of the criminal antitrust violation. If the government recovers money from a qui tam lawsuit, then the whistle-blower is entitled to a portion of that recovery.
362 CHAMBERS.COM
Powered by FlippingBook