House and Senate Bills Would Extend “De-Trebling” for Antitrust Cooperators

June 16, 2009

In 2004, President Bush signed into law the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA), P.L. 108-237, 118 Stat. 661, which increased criminal penalties for violation of Sections 1 through 3 of the Sherman Act, 15 U.S.C. §§ 1-3, and established a new incentive for corporations to take advantage of the Department of Justice’s corporate leniency program. Under the leniency program, the first member of an illegal conspiracy in restraint of trade to report the cartel and cooperate with the government, and otherwise meet the requirements of the program, is granted amnesty from criminal prosecution. ACPERA provided an additional incentive for such cooperators: Damages in associated civil litigation would be limited to “actual damages” suffered by the plaintiff as a result of the defendant’s conduct, rather than the treble damages and joint and several liability ordinarily imposed under the antitrust laws.

These “de-trebling” provisions of ACPERA are set to expire this month, on June 22, 2009. On June 9, the House passed a bill, H.R. 2675, which would amend ACPERA to postpone expiration by one year. On that same date, Sen. Herb Kohl (D-WI) introduced a bill in the Senate, S.1219, which would do the same. The Senate bill was referred to the Judiciary Committee, where it awaits further action. Sen. Kohl sits on the Judiciary Committee and said in his weblog that “we must act quickly to extend [ACPERA].” He said further that “[o]ver the next year, we will review ACPERA, and consider potential changes to make it more effective.”

Should those who are considering applying for amnesty under the leniency program rush to do so before June 22 in order to take advantage of the de-trebling provisions in case the extension is not signed into law? Doing so would likely not make any difference, unless the Justice Department agrees to leniency very quickly. In order to qualify for de-trebling under ACPERA, a corporation must do more than apply for leniency before the sunset date. Rather, the cooperating corporation must have entered into a qualifying leniency agreement with the Justice Department prior to the sunset date.

Meanwhile, for those who already have an agreement, the sunset poses no danger of losing the de-trebling benefits, which continue in effect.