7-3.000 - Criminal Enforcement
| 7-3.100 | Standards for Initiating a Criminal Investigation |
| 7-3.200 | Notifying a Target and Pre-Indictment Meetings |
| 7-3.300 | Antitrust Division Leniency Policy and Procedures |
| 7-3.400 | Corporate Enforcement and Individual Accountability |
| 7-3.500 | Sentencing |
| 7-3.600 | Criminal Antitrust Cases Handled by United States Attorney |
| 7-3.700 | Sources of Policy, Guidance, and Resources |
7-3.100 - Standards for Initiating a Criminal Investigation
A criminal antitrust investigation can be opened as a preliminary inquiry or as a grand jury investigation.
When presented with a request to open a preliminary inquiry, the Antitrust Division considers: (a) whether there is reason to believe that an antitrust violation may have been committed; (b) what amount of commerce is affected; (c) if the investigation will duplicate or interfere with other efforts of the Division, the Federal Trade Commission, a United States Attorney, or a state attorney general; and (d) whether allocating resources to the matter fits within the needs and priorities of the Division. If additional evidence of an antitrust violation is gathered through the preliminary inquiry phase, then a request for grand jury authority can be made.
When presented with a request to open a grand jury investigation, the Antitrust Division considers the prior factors along with whether it is likely that if sufficient evidence confirming the alleged anticompetitive conduct is developed, the Antitrust Division would proceed (or approve proceeding) with a criminal prosecution.
When a significant amount of evidence is available at the inception of a case, a request can be made to seek grand jury authority without going through the preliminary inquiry phase.
[updated April 2022]
7-3.200 - Notifying a Target and Pre-Indictment Meetings
The Antitrust Division follows the Department’s practice of notifying targets, under certain circumstances, in a reasonable time before seeking an indictment. See JM 9-11.153; see also JM 9-11.151 (defining “target”) and 9-11.152 (discussing requests by targets to testify in the grand jury). Following the Department’s practice, notifying targets in antitrust cases is not appropriate in routine clear cases or when notification would be inconsistent with the ends of justice, for example if the indictment is to be sealed or for the reasons enumerated in JM 9-11.153.
Targets of antitrust investigations often request pre-indictment meetings between their counsel and the Antitrust Division. A target does not have a right to pre-indictment meetings. The Division considers these requests on a case-by-case basis, assessing whether a meeting will assist the Division in efficiently evaluating a putative defendant’s evidentiary, legal, and policy arguments against prosecution. If afforded a meeting, counsel is encouraged to present all good-faith factual, legal, and policy arguments against indictment.
A meeting with staff and their direct management will generally be afforded unless, in the staff’s assessment, the target has, through counsel, refused to engage productively with staff throughout the investigation. A meeting would be unwarranted if, for example, the target and counsel have declined to engage with staff or it is otherwise apparent to the Division that further engagement will not be productive.
If a target’s counsel is afforded a pre-indictment meeting with staff and their direct management, counsel’s arguments will be considered when the Antitrust Division’s Front Office evaluates the case recommendation. The Deputy Assistant Attorney General for Criminal Enforcement and the Director of Criminal Enforcement may also give counsel an opportunity to be heard before recommending an indictment to the AAG, particularly if the case raises a significant issue with policy or legal implications. Only in very unusual circumstances is a target’s counsel granted a meeting with the AAG. A target must request a meeting with staff and their direct management before requesting a meeting with the Antitrust Division’s Front Office, and all requests by targets to meet with the Antitrust Division’s Front Office must be made through staff.
By requiring adherence to these procedures, the Antitrust Division ensures that all putative defendants are treated equitably and that their factual, legal, and policy positions are given appropriate consideration based on neutral principles.
[updated November 2022]
7-3.300 - Antitrust Division Leniency Policy and Procedures
| 7-3.310 | Type A Corporate Leniency |
| 7-3.320 | Type B Corporate Leniency |
| 7-3.330 | Individual Leniency |
| 7-3.340 | Application Process |
The Antitrust Division has a policy of according leniency to organizations or individuals that self-report their participation in a criminal conspiracy in violation of Section 1 or 3(a) of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 3(a) (“illegal activity”), and meet certain conditions. As used in this policy, an organization or individual that meets the criteria for leniency will not be charged criminally for the illegal activity.
The corporate leniency policy, JM 7-3.310 to JM 7-3.320, is the Antitrust Division’s voluntary self-disclosure policy. It incentivizes timely corporate self-reporting that facilitates prosecution of individuals responsible for the misconduct. An organization that seeks to self-report illegal activity to the Antitrust Division, but does not meet the conditions of the corporate leniency policy, will not be eligible for a declination.
Pursuant to JM 9-28.900(A)(3)(c), when an acquiror discloses illegal activity by the acquired entity, the prosecution team should apply a presumption of declination to the acquiror only if the parties (i) satisfy all relevant requirements of the Antitrust Division’s leniency policy; (ii) voluntarily disclose the misconduct to the Antitrust Division (and the Federal Trade Commission, if the Commission is reviewing the transaction) before the merger or acquisition closes; and (iii) enter into an agreement, to the satisfaction of the Antitrust Division (and, when relevant, Federal Trade Commission), that (a) suspends any review period until a conditional leniency letter is issued or the marker lapses, and/or (b) otherwise commits to not close the merger or acquisition for a specified period of time, in the discretion of the Antitrust Division (and, when relevant Federal Trade Commission), after a conditional leniency letter is issued or the leniency marker expires. For the purposes of JM 9-28.900(A)(3)(c), in situations where the Antitrust Division concludes that the parties have satisfied the requirements of JM 9-28.900(A)(3)(c)(i) – (iii), the prosecution team may effectuate this “presumption of declination” by issuing a conditional leniency letter or its functional equivalent. See JM 7-3.340(B)-(C).
Additional information and current contact information to make an application can be found in the Antitrust Division’s Leniency Program FAQs, available at: https://www.justice.gov/atr/leniency-program
Whenever used in this policy, “current directors, officers, and employees” and “timely, truthful, continuing, and complete cooperation” are defined in the model conditional leniency letters available at: https://www.justice.gov/atr/leniency-program
7-3.310 - Type A Corporate Leniency
Leniency will be granted to an organization that reports its participation in illegal activity before the Antitrust Division has begun an investigation if:
- At the time the applicant reports the illegal activity, the Antitrust Division has not received information about the illegal activity from any other source;
- The applicant, upon its discovery of the illegal activity, promptly reports it to the Antitrust Division;
- The applicant reports its participation in the illegal activity with candor and completeness and makes a confession of wrongdoing that is truly a corporate act, as opposed to isolated confessions of directors, officers, and employees;
- The applicant provides timely, truthful, continuing, and complete cooperation to the Antitrust Division throughout its investigation;
- The applicant uses best efforts to make restitution to injured parties, to remediate the harm caused by the illegal activity, and to improve its compliance program to mitigate the risk of engaging in future illegal activity; and
- The applicant did not coerce another party to participate in the illegal activity and clearly was not the leader or originator of that activity.
If Type A leniency is granted, the applicant’s current directors, officers, and employees will not be charged criminally for the illegal activity if they provide timely, truthful, continuing, and complete cooperation to the Division throughout its investigation of the illegal activity.
7-3.320 - Type B Corporate Leniency
Leniency will be granted to an organization that reports its participation in illegal activity but does not meet the criteria for Type A Corporate Leniency if:
- At the time the applicant reports the illegal activity, the Antitrust Division does not yet have evidence against the applicant that, in the Antitrust Division’s sole discretion, is likely to result in a sustainable conviction against the applicant;
- The applicant, upon its discovery of the illegal activity, promptly reports it to the Antitrust Division;
- The applicant reports its participation in the illegal activity with candor and completeness and makes a confession of wrongdoing that is truly a corporate act, as opposed to isolated confessions of directors, officers, and employees;
- The applicant provides timely, truthful, continuing, and complete cooperation that advances the Antitrust Division’s investigation;
- The applicant uses best efforts to make restitution to injured parties, to remediate the harm caused by the illegal activity, and to improve its compliance program to mitigate the risk of engaging in future illegal activity;
- The applicant did not coerce another party to participate in the illegal activity and clearly was not the leader or originator of that activity; and
- The applicant is the first to qualify for leniency for the illegal activity reported and the Antitrust Division determines that granting leniency to the applicant would not be unfair to others.
In evaluating whether granting leniency to the applicant would be unfair to others, the Antitrust Division will consider the nature of the illegal activity, the applicant’s role in it, the applicant’s criminal history, and the timing of the leniency application.
The Antitrust Division will consider including non-prosecution protection for current directors, officers, and employees of a Type B corporate leniency applicant, for the illegal activity. Such protection is not guaranteed and is at the Antitrust Division’s sole discretion. Individuals seeking non-prosecution protection as part of a Type B application must admit their wrongdoing with candor and completeness and provide timely, truthful, continuing, and complete cooperation that advances the Antitrust Division’s investigation.
7-3.330 - Individual Leniency
Leniency will be granted to an individual reporting their participation in illegal activity before the Antitrust Division has begun an investigation if:
- At the time the individual reports the illegal activity, the Antitrust Division has not received information about the illegal activity from any other source;
- The individual reports the wrongdoing with candor and completeness and provides timely, truthful, continuing, and complete cooperation to the Antitrust Division throughout its investigation; and
- The individual did not coerce another party to participate in the illegal activity and clearly was not the leader or originator of that activity.
Any individual who does not qualify for leniency under the Individual Leniency Policy will be considered for statutory or informal immunity or a non-prosecution agreement. The Antitrust Division will make such decisions on a case-by-case basis consistent with the Principles of Federal Prosecution.
7-3.340 - Application Process
- Step One: Leniency Marker
A “marker” is the confirmation the Division gives a leniency applicant to hold its place in line. While one applicant has a marker, no other applicant can obtain a marker for the same conspiracy.
Markers must be requested using the contact information available at: https://www.justice.gov/atr/leniency-program
To obtain a marker, an applicant must: (1) report that they have uncovered some information or evidence indicating that the applicant has engaged in a criminal antitrust violation and disclose the general nature of the conduct discovered; (2) identify the industry, product, or service involved in terms that are specific enough to allow the Antitrust Division to determine whether leniency is still available and to protect the marker for the applicant; and (3) identify the client.
If the Antitrust Division determines a marker is available and the applicant qualifies for one, it will inform the applicant. While the applicant holds the marker, the Antitrust Division and the applicant will take steps to confirm that the applicant meets the Leniency Policy’s requirements.
A marker is deemed “perfected” when the leniency applicant has provided sufficient information to move from the marker stage to the conditional leniency letter stage.
- Step Two: Conditional Leniency Letter
The second stage is the conditional leniency letter. This is the initial, conditional grant of leniency to the applicant. An applicant will remain in this stage until it has demonstrated that it can meet the criteria to qualify for leniency, including through providing evidence of the self-disclosed violation.
The Antitrust Division’s model corporate and individual conditional leniency letters are available at: https://www.justice.gov/atr/leniency-program
- Step Three: Final Leniency Letter
The third stage is the final leniency letter. An applicant will receive a final leniency letter after it satisfies its obligations under the conditional leniency letter and the Division verifies the applicant’s representations regarding eligibility. Normally, the Division issues the final leniency letter after the completion of the investigation and any resulting prosecutions.
7-3.400 - Corporate Enforcement and Individual Accountability
| 7-3.410 | Corporate Enforcement |
| 7-3.420 | Individual Accountability |
| 7-3.430 | Individual Releases of Criminal Liability in Corporate Resolutions |
7-3.410 - Corporate Enforcement
The Antitrust Division considers its Leniency Policy, the Principles of Federal Prosecution, and the Principles of Federal Prosecution of Business Organizations when conducting an antitrust investigation, determining whether to bring charges, and deciding how to resolve criminal charges against an organization. JM 9-28.300. If a culpable organization declines to resolve pretrial in a form appropriate under departmental policy, the nature and seriousness of antitrust offenses typically warrant indictment, regardless of the organization’s pre-indictment conduct, e.g., voluntary disclosure, cooperation, remediation or restitution. JM 9-28.400.
[updated June 2022]
7-3.420 - Individual Accountability
Individual criminal sanctions, including prison sentences, are the single most effective deterrent to antitrust offenses. The Antitrust Division therefore prioritizes holding culpable executives and employees accountable, particularly high-level corporate officers responsible for corporate misconduct. See JM 9-28.210. The Antitrust Division typically seeks terms of imprisonment for those convicted of antitrust crimes. See JM 7-3.500.
[updated June 2022]
7-3.430 -Individual Releases of Criminal Liability in Corporate Resolutions
Outside of its Leniency Policy the Antitrust Division enters into corporate resolutions that include individual non-prosecution protections only in extraordinary circumstances, and any such releases must be personally approved in writing by the AAG. JM 9-28.210, 9-28.1600.
Outside of Type A Corporate Leniency, JM 7-3.310, decisions to include individual releases in a corporate resolution are made on an individualized basis in accord with the Principles of Federal Prosecution, JM 9-27.000, and under the standard for individual non-prosecution agreements, JM 9-27.600. Any individuals included in a corporate resolution’s non-prosecution protections shall also be included in the resolution’s cooperation requirements, and the resolution may obligate the corporate defendant to secure those individuals’ cooperation.
Consistent with JM 9-27.650, if individuals receive non-prosecution protection as part of a corporate resolution, the attorney for the government should ensure that the case file or court record contains a written record identifying the covered individuals. Those records should be signed or initialed by the individuals or their counsel. The government will move to seal any such records filed with the court as appropriate.
If additional individuals cooperate after the corporate resolution is entered, the Antitrust Division may consider entering into separate cooperation and non-prosecution agreements with them.
Individual releases are considered only for individuals who might otherwise be prosecuted. If the person reasonably is viewed only as a potential witness rather than a potential defendant, and the person is willing to cooperate, there is no need to consult JM 9-27.600 et seq.
7-3.500 - Sentencing
Sentencing recommendations in antitrust cases are based on an individualized assessment under the Principles of Federal Prosecution, JM 9-27.730, and any other applicable Department policies.
In antitrust cases, sentencing recommendations that are consistent with the U.S. Sentencing Commission Guidelines for antitrust violations, U.S.S.G. § 2R1.1, generally reflect an appropriate balance of the factors in JM 9-27.730, though an individualized assessment in a particular case may lead to the conclusion that a sentence above or below the advisory guidelines range would be more appropriate. Prosecutors may make such recommendations with supervisory approval, JM 9-27.730.
An individualized assessment usually counsels in favor of incarceration for individual defendants because of the importance of general deterrence in criminal antitrust cases and because these crimes typically cause serious economic harm. The United States Sentencing Guidelines state that “in very few cases will the guidelines not require that some confinement be imposed,” U.S.S.G. § 2R.1.1 (background), and that “[i]t is the intent of the Commission that alternatives such as community confinement not be used to avoid imprisonment of antitrust offenders,” id., Application Note 5.
7-3.600 - Criminal Antitrust Cases Handled by US Attorneys
| 7-3.610 | Standards for Initiating a Criminal Investigation |
| 7-3.620 | Approvals for Case Recommendations |
7-3.610 - Approvals
When a USAO has sought and received the approval of the AAG or the AAG’s designee to independently investigate antitrust violations, see JM 7-1.400, the United States Attorney is responsible for assessing the weight of the evidentiary support and litigation strategy in recommending charges or other final dispositions to the Antitrust Division. The Antitrust Division’s review in that case is limited to an analysis of whether the facts presented meet the legal and policy requirements for an antitrust violation.
[updated June 2022]
7-3.620 - Appeals
The Antitrust Division’s Appellate Section is responsible for handling all appeals in antitrust cases. In a criminal antitrust case handled by a USAO, at the conclusion of a case that may involve an appeal, the USAO should consult with the Antitrust Division’s Appellate Section through the Deputy Assistant Attorney General for Criminal Enforcement.
7-3.700 - Sources of Policy, Guidance, and Resources
Further guidance and resource materials on the Antitrust Division’s Criminal Program are available at: https://www.justice.gov/atr/criminal-enforcement. See JM 1-1.200 (“When the Justice Manual conflicts with earlier DOJ statements, the Justice Manual controls.”).
[updated June 2022]