Updated DOJ Guidance Signals Closer Scrutiny of Antitrust Leniency Program Applicants Going Forward
On January 26, 2017, the U.S. Department of Justice’s Antitrust Division revised its primary guidance document for companies and individuals considering whether to seek immunity for their role in antitrust crimes under the Division’s Leniency Program. Originally published in 2008, the Division’s “Frequently Asked Questions About the Antitrust Division’s Leniency Program and Model Leniency Letters” is a comprehensive resource that explains how companies and individuals can avoid prosecution for criminal antitrust violations. A close look at the updated guidance reveals careful changes that suggest the Division will take a narrower approach when granting immunity going forward. Because the updated guidance was released in the middle of a presidential transition, there is some uncertainty regarding the extent to which the guidance will be followed by the new administration. Historically, both Democratic and Republican administrations have aggressively pursued criminal cartel behavior and, if the past is any prologue, the new guidance may well be implemented by the Trump administration.