CORPORATE LENIENCY POLICY
The Division has a policy of according leniency to
corporations reporting their illegal antitrust activity at an
early stage, if they meet certain conditions. "Leniency" means
not charging such a firm criminally for the activity being
reported. (The policy also is known as the corporate amnesty or
corporate immunity policy.)
- Leniency Before an Investigation Has Begun
Leniency will be granted to a corporation reporting illegal
activity before an investigation has begun, if the following six
conditions are met:
- At the time the corporation comes forward to report the
illegal activity, the Division has not received information
about the illegal activity being reported from any other
source;
- The corporation, upon its discovery of the illegal
activity being reported, took prompt and effective action to
terminate its part in the activity;
- The corporation reports the wrongdoing with candor and
completeness and provides full, continuing and complete
cooperation to the Division throughout the investigation;
- The confession of wrongdoing is truly a corporate act, as
opposed to isolated confessions of individual executives or
officials;
- Where possible, the corporation makes restitution to
injured parties; and
- The corporation did not coerce another party to
participate in the illegal activity and clearly was not the
leader in, or originator of, the activity.
- Alternative Requirements for Leniency
If a corporation comes forward to report illegal antitrust
activity and does not meet all six of the conditions set out in
Part A, above, the corporation, whether it comes forward before
or after an investigation has begun, will be granted leniency if
the following seven conditions are met:
- The corporation is the first one to come forward and
qualify for leniency with respect to the illegal activity
being reported;
- The Division, at the time the corporation comes in, does
not yet have evidence against the company that is likely to
result in a sustainable conviction;
- The corporation, upon its discovery of the illegal
activity being reported, took prompt and effective action to
terminate its part in the activity;
- The corporation reports the wrongdoing with candor and
completeness and provides full, continuing and complete
cooperation that advances the Division in its investigation;
- The confession of wrongdoing is truly a corporate act, as
opposed to isolated confessions of individual executives or
officials;
- Where possible, the corporation makes restitution to
injured parties; and
- The Division determines that granting leniency would not
be unfair to others, considering the nature of the illegal
activity, the confessing corporation's role in it, and when
the corporation comes forward.
In applying condition 7, the primary considerations will be
how early the corporation comes forward and whether the
corporation coerced another party to participate in the illegal
activity or clearly was the leader in, or originator of, the
activity. The burden of satisfying condition 7 will be low if
the corporation comes forward before the Division has begun an
investigation into the illegal activity. That burden will
increase the closer the Division comes to having evidence that is
likely to result in a sustainable conviction.
- Leniency for Corporate Directors, Officers, and Employees
If a corporation qualifies for leniency under Part A, above,
all directors, officers, and employees of the corporation who
admit their involvement in the illegal antitrust activity as part
of the corporate confession will receive leniency, in the form of
not being charged criminally for the illegal activity, if they
admit their wrongdoing with candor and completeness and continue
to assist the Division throughout the investigation.
If a corporation does not qualify for leniency under Part A,
above, the directors, officers, and employees who come forward
with the corporation will be considered for immunity from
criminal prosecution on the same basis as if they had approached
the Division individually.
- Leniency Procedure
If the staff that receives the request for leniency believes
the corporation qualifies for and should be accorded leniency, it
should forward a favorable recommendation to the Office of
Operations, setting forth the reasons why leniency should be
granted. Staff should not delay making such a recommendation
until a fact memo recommending prosecution of others is prepared.
The Director of Operations will review the request and forward it
to the Assistant Attorney General for final decision. If the
staff recommends against leniency, corporate counsel may wish to
seek an appointment with the Director of Operations to make their
views known. Counsel are not entitled to such a meeting as a
matter of right, but the opportunity will generally be afforded.
Issued August 10, 1993
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