CORPORATE LENIENCY PROGRAM
In August 1993, the Antitrust Division of the U.S. Department of Justice
("Division") revised its Corporate Leniency Program to make it easier for and more
attractive to companies to come forward and cooperate with the Division. Three
major revisions were made to the program: (1) amnesty is automatic if there is no
pre-existing investigation; (2) amnesty may still be available even if cooperation
begins after the investigation is underway; and (3) all officers, directors, and
employees who cooperate are protected from criminal prosecution. As a result of
these changes, the Amnesty Program is the Division's most effective generator of
international cartel cases, and it is the Department's most successful leniency
- Application Rate. The revised Corporate Amnesty Program has
resulted in a surge in amnesty applications. Under the old amnesty
policy the Division obtained roughly one amnesty application per year.
Under the new policy, the application rate has been more than one per
month. As a result of this increased interest, the Division frequently
encounters situations where a company approaches the government
within days, and in some cases less than one business day, after one of
its co-conspirators has secured its position as first in line for amnesty.
Of course, only the first company to qualify receives amnesty.
- Case Generator. In the last five years, cooperation from amnesty
applications have resulted in scores of convictions and well over
$1.5 billion in fines. In fact, the majority of the Division's major
international investigations have been advanced through the
cooperation of an amnesty applicant.
- Amnesty - A Corporate "Super Saver". The vitamin, graphite
electrodes, fine arts auctions, and marine construction investigations
offer four prime examples of the stunning financial advantages for
companies that take advantage of the Amnesty Program. In each of
these matters, the amnesty applicant paid zero dollars in criminal fines.
- Vitamins. In the vitamin investigation, the applicant's
cooperation directly led to F. Hoffmann-La Roche's and BASF's
decision to plead guilty and pay fines of $500 million and $225
- Graphite Electrodes. In the graphite electrodes investigation,
the next company in the door after the amnesty applicant paid a
$32.5 million fine, the third company in paid a $110 million fine,
and a fourth company pled guilty and paid a $135 million fine.
Mitsubishi was recently convicted at trial for its role as an aider
and abetter of the cartel and was sentenced to pay a $134 million
- Fine Arts Auctions. The amnesty applicant's cooperation directly
resulted in Sotheby's decision to plead guilty and pay a $45
- Marine Construction. In the marine construction investigation, a
corporate co-conspirator agreed to plead guilty and cooperate
with the government's investigation shortly after the
investigation went overt based on information provided by the
amnesty applicant. Though the company provided very valuable
cooperation and received a significant reduction in its fine for
that cooperation, it still paid a fine of $49 million.
- Amnesty Plus. Currently, there are roughly 30 sitting grand juries
investigating suspected international cartel activity. More than one-half of these investigations were initiated by evidence obtained as a
result of an investigation of a completely separate industry. For
example, a new investigation results when a company approaches the
Division to negotiate a plea agreement in a current investigation and
then seeks to obtain more lenient treatment by offering to disclose the
existence of a second, unrelated conspiracy. Under these
circumstances, companies that chose to self report and cooperate in a
second matter can obtain what we refer to as "Amnesty Plus." In such
a case, the company will receive amnesty, pay zero dollars in fines for
its participation in the second offense, and none of its officers, directors,
and employees who cooperate will be prosecuted criminally in
connection with that offense. Plus, the company will receive a
substantial additional discount by the Division in calculating an
appropriate fine for its participation in the first conspiracy.
- Confidentiality Policy. The Division's policy is to treat as
confidential the identity of amnesty applicants and any information
obtained from the applicant. Thus, the Division will not disclose an
amnesty applicant's identity, absent prior disclosure by or agreement
with the applicant, unless authorized by court order. In the four cases
noted above -- vitamins, graphite electrodes, fine art auctions, and
marine construction -- the amnesty applicants issued press releases
announcing their conditional acceptance into the corporate amnesty
program thereby obviating the need to maintain their anonymity.