Law Extends “De-Trebling” for Antitrust Cooperators

July 6, 2009

On June 19, 2009, President Obama signed into law the “Antitrust Criminal Penalty Enhancement and Reform Act of 2004 Extension Act” (“ACPERA Extension”), P.L. 111-30 (H.R. 2675), which extends for one year the availability of ACPERA’s civil damages limits for participants in the Department of Justice’s Antitrust Division Leniency Program.

When it was passed in 2004, ACPERA 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 Leniency Program. Under the Leniency Program, the first member of an illegal conspiracy in restraint of trade to report the anticompetitive conduct 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 were set to expire on June 22 of this year. The ACPERA Extension postpones that sunset date for one year — to June 22, 2010 — and otherwise does not affect ACPERA’s provisions. Thus, the “de-trebling” incentive remains in place for now.