United States: DOJ Policy Updates Signal Continuity Of Antitrust Program


This month, the US Department of Justice Antitrust Division revised its "Frequently Asked Questions About the Antitrust Division's Leniency Program and Model Leniency Letters" (FAQs), with releases both before and after the new administration took office. The revisions serve as a signal that the continuity we have seen in previous years from the Antitrust Division is likely to continue. The changes include long-needed clarifications and updates since the release of the FAQs in 2008.

In Depth


The US Department of Justice (DOJ) Antitrust Division revised its "Frequently Asked Questions About the Antitrust Division's Leniency Program and Model Leniency Letters" (FAQs). This guidance was originally released in November 2008. The FAQs contain 34 questions and answers that include: applying for leniency; the criteria for receiving leniency under the Corporate Leniency Policy and the Leniency Policy for Individuals; conditional and final unconditional leniency letters; potential revocation of conditional leniency; and confidentiality for applicants.

Updates to FAQs

The revisions were released on January 17, and again on January 26 to correct an omitted footnote in the first release. Since the revisions come in the midst of the presidential transition, including after the new administration took office, one may assume that the FAQs had the approval from new leadership. As a first signal, the message is largely one of continuity. Though some report that the changes indicate the Division will take a narrower approach in granting immunity, this is not necessarily the case. The Division points out in its short announcement that "[m]any questions—and answers—remain unchanged from before," and that some have been "clarified" in response to 10 years of Division practice since the FAQs were first released.


  • The revisions change the wording regarding Type B leniency (available where the Division already has some evidence of a violation, but only if "[t]he corporation is the first to come forward and qualify for leniency with respect to the activity"). With respect to cooperating employees, officers and directors of a Type B leniency applicant, the wording includes a change from "the Division ordinarily provides leniency" as it would in a Type A context, to "the Division often chooses to include protection" for these persons. With this subtle change, the Division includes a caveat that it "may exercise its discretion to exclude from the protections that the leniency letter offers those current directors, officers, and employees who are determined to be highly culpable." This language raises questions in part because of the lack of definition of "highly culpable" and lack of guidance as to how the Division will exercise its discretion. However, bear in mind that it would be counterproductive for the Division to exclude from coverage an individual whose cooperation has great value for its investigation. Given the fast pace of many investigations, the Division would need to move quickly to implement any exclusion, creating a risk of potentially losing access to valuable evidence if it excludes key individuals from coverage. Company and individual counsel will need to press for clarity on individual coverage at the inception of Type B investigations.
  • Cooperation remains key and receives added emphasis in the revised FAQs, but cooperation has always been key to the application for leniency with the Division.
  • The guidance on non-antitrust crimes confirms that the Division will grant leniency for such crimes that are integral to the antitrust crime. However, as was the case before, the Leniency Program "does not protect applicants from criminal prosecution by other prosecuting agencies for offenses other than Sherman Act violations." The document makes clear that applicants should not expect to use leniency to obtain immunity from other agencies for non-antitrust crimes. This clarifies more than changes existing policy. The Division prosecutes antitrust, obstruction, mail and wire fraud crimes, but typically leaves other crimes such as securities fraud and violations of the Foreign Corrupt Practices Act (FCPA) to other parts of the DOJ. The new FAQ states that other prosecuting agencies do not typically attempt an end-run around the Leniency Program for antitrust crimes.
  • The revisions include a new question describing the Division's approach to the "Penalty Plus" framework under which the Division seeks enhanced penalties for companies that omit reporting certain antitrust crimes when pleading guilty to others. The Division's Penalty Plus policy has been in place for many years and is meant to punish recidivism with respect to companies that take advantage of the Leniency Program with one product but do not investigate or disclose conduct with respect to other products. With the changes, the Penalty Plus guidance is clearer. However, these incentives for thorough internal investigations by companies have always been present.
  • The edits also streamline the language dealing with the marker system whereby a company may investigate its own conduct. Applicants for leniency must contact the deputy assistant attorney general for criminal enforcement or the director of criminal enforcement, instead of staff in one of the Division's criminal investigative offices.


The Division's FAQs is an important document that provides insights into the Division's practice. The revisions to the FAQs are important changes, and they serve to update and clarify guidance that was close to a decade old. The continuity we have seen from the Division over the years, despite the previous administration changes, is likely to continue under the current administration with respect to criminal activity. Though it is early in the days of the current administration and not all new leadership is in place, the revisions to the FAQs could be the first indication that criminal antitrust enforcement may be as usual at the DOJ.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions