Bill to Extend ACPERA’s Detrebling Provisions Passes House

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter, and John W. Arden.

Legislation to delay the sunsetting of provisions of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA) passed the U.S. House of Representatives on June 9.

The proposed legislation—“Antitrust Criminal Penalty Enhancement and Reform Act of 2004 Extension Act” (H.R. 2675)—would extend for one year provisions of ACPERA that protect successful amnesty applicants under the Department of Justice Antitrust Division corporate leniency program from treble damages in private suits.

Portions of ACPERA are currently scheduled to sunset on June 22, 2009. According to the law, limitations on recovery against an amnesty applicant cease to have effect five years after the law’s June 22, 2004 date of enactment. Unless the extension is enacted, antitrust amnesty agreements entered into after the expiration date would not shield successful applicants from treble damages.

H.R. 2657 was introduced on June 3 by Representative Hank Johnson (D-Georgia) and referred to the Judiciary Committee, which took no action. On June 9, Johnson moved to suspend the rules and pass the bill. The motion was agreed to on a voice vote, and the bill was received in the Senate today.

In making his motion, Johnson argued that ACPERA promotes “the detection and prosecution of illegal cartel behavior by giving participants in a price-fixing cartel powerful incentives to report the cartel to the Justice Department and cooperate in the prosecution of the cartel.”

Before ACPERA, the Justice Department could offer leniency to the co-conspirator that helps prosecute a cartel, but the co-conspirator would remain fully liable for treble damages in private litigation.

“In the first half of this year, ACPERA has aided the Antitrust Division in securing jail sentences in 85 percent of its individual prosecutions and over $900 million in criminal fines,” Johnson stated.

Earlier, extension of ACPERA’s sunsetting provisions was advocated by the Antitrust Section of the American Bar Association.

In a May 8 letter, the Antitrust Section called on leaders in the House and Senate Judiciary Committees to extend these provisions for five years. Antitrust Section Chair James A. Wilson further suggested that Congress use the five-year extension to evaluate the efficacy of the detrebling provisions.

“While the Section is inclined to believe that the detrebling provision has made an important contribution to the overall effectiveness of the government’s leniency program, with no discernable ill effect on the deterrent and remedial objectives of enforcement,” Wilson wrote, “it also recognizes that legitimate questions have been raised by those who hold a differing view and we note that there has been insufficient time under the ACPERA regime to permit a full evaluation of the benefits and costs of the provision.”

Text of the letter appears here on the ABA website.