Department of Justice Applauds Congressional Passage Of Reauthorization Of The Antitrust Criminal Penalty Enhancement And Reform Act
On June 25, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, to repeal the sunset provision of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA).
“We applaud both Houses of Congress for their bipartisan action and recognition of ACPERA’s importance in the fight to safeguard our free markets and protect American consumers from collusion,” said Assistant Attorney General Makan Delrahim of the Department of Justice’s Antitrust Division. “The Division wholeheartedly agrees with Congress’s findings that ‘[c]onspiracies among competitors to fix prices, rig bids, and allocate markets are categorically and irredeemably anticompetitive and contravene the competition policy of the United States.’”
“The Division is firmly committed to the Leniency Program, which has been our most important prosecutorial tool for the last 26 years, particularly when it comes to international cartels,” said Antitrust Division Deputy Assistant Attorney General for Criminal Enforcement Richard A. Powers. “Because of yesterday’s reauthorization, ACPERA’s incentives to self-report, seek leniency, and cooperate with our investigations will continue to assist the Division’s mission of deterring, detecting, and prosecuting cartel offenses.”
Congress enacted ACPERA in 2004 in part to provide greater incentives for corporations to self-report and cooperate pursuant to the Antitrust Division’s Corporate Leniency Policy. Since 2004, ACPERA’s provisions have substantially strengthened the Antitrust Division’s ability to detect and prosecute anticompetitive cartel activity through the Leniency Program.
From Fiscal Year 2010 to 2019, the Antitrust Division’s criminal prosecutions have resulted in over $9 billion in criminal fines and penalties, along with jail terms for more than 250 individuals. Since the fall of 2019 alone, the Division obtained three criminal fines and penalties at or above the Sherman Act’s $100 million statutory maximum, and prosecuted antitrust violations affecting generic drugs, cancer patients, grocery store staples, financial markets.
If the legislation is signed by the President, ACPERA will continue to mitigate a successful leniency applicant’s civil damages exposure from treble damages to actual damages if the company provides civil plaintiffs with timely and satisfactory cooperation. While treble damages liability can be an important deterrent for engaging in anti-competitive behavior, civil exposure also can deter self-reporting of criminal wrongdoing. Therefore, the Department supports the reauthorization of ACPERA and the repeal of its sunset provision.