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Axinn Antitrust Insight: DOJ Updates Antitrust Leniency Program and Agencies Continue Shift to Increase Merger Enforcement
April 19, 2022
Axinn Update

During the week of the ABA Section of Antitrust’s annual Spring Meeting conference, DOJ and FTC officials made a number of announcements and remarks which continued the Biden Administration’s steady shift toward unconventional and more aggressive antitrust enforcement. First, DOJ announced updates to its flagship criminal Leniency Program that increase the burdens for obtaining leniency. Second, government officials made a number of remarks signaling more hostility to mergers.

New, Stricter Requirements for Criminal Leniency Program

On April 5, 2022, Assistant Attorney General Jonathan Kanter unveiled substantial new changes to the DOJ Antitrust Division’s criminal Leniency Program while speaking at the joint DOJ and FTC Spring Enforcers Summit. The Leniency Program encourages self-reporting of criminal antitrust violations by providing non-prosecution protection in exchange for being the first entity to self-report the violation and full cooperation. Kanter said the updates are intended to make the Leniency Policy more “transparent, predictable, and accessible to the public” by aligning written policy with current practice and using more “plain language” for the benefit of the public. Other DOJ officials speaking at the Spring Meeting similarly downplayed the magnitude of the changes. 

But these revisions – the first changes to the Leniency Policy since the 1990’s – do include some significant changes and may affect incentives for companies and individuals to self-report conduct. The changes also fit into the backdrop of the DOJ’s broader, more aggressive approach to criminal enforcement, exemplified by expansion into labor markets and potentially even monopolization conduct, despite DOJ’s recent failures in criminal enforcement.

The most significant substantive changes are found in the updates to the Division’s “Frequently Asked Questions” (FAQs) document, which describes the way that the Antitrust Division implements the Leniency Policy. The new FAQs revise answers to questions in prior editions, and add nearly 50 more questions and answers to the policy document. Some of the key updates are as follows:

The Antitrust Division also updated its model corporate and individual leniency letters to, among other things, prohibit the applicant from making any public statement, including in litigation, that could contradict the acceptance of responsibility. This could take particular significance if a leniency applicant faces civil litigation with a scope that is broader or different from the conduct admitted as part of its application—causing leniency applicants to walk a tightrope to avoid losing leniency protection. 

On the whole, the recent changes provide a measure of clarity as to the DOJ’s current Leniency Program practices. But they also highlight the heightened burdens, challenges, and new potential pitfalls facing leniency applicants under the current leadership, which may result in a change to a company’s calculus regarding whether to self-report and seek leniency coverage. 

Continued Shift to Increase Merger Enforcement

At various Spring Meeting events, government officials made remarks, including the following, which continue this Administration’s hostility to mergers.

While the antitrust agencies have significant discretion in managing their pre-litigation investigations and making enforcement decisions, ultimately, for parties willing to litigate, the agencies must convince a federal court in order to enjoin a transaction. Merging companies should prepare for greater friction during merger investigations and potentially earlier litigation preparation.

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