Congress Passes Extension of Limits on Antitrust Damages for Leniency Program Participants

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Legislation to extend for ten years the Antitrust Criminal Penalties Enforcement and Reform Act (ACPERA) of 2004 was approved by Congress yesterday. ACPERA limits the civil liability of cartel participants who are accepted into the Department of Justice Antitrust Division's leniency program.

Under ACPERA, leniency program participants are liable in private antitrust lawsuits for the actual damages caused by the company, rather than the treble damages usually available.

As a result, a significant disincentive to participating in the leniency program—the prospect of treble damages in a civil suit despite immunity from criminal prosecution--is removed. The law was amended in 2009 to extend the detrebling provision for one year, until June 22, 2010.

The current legislation (H.R. 5330), if signed by the president, will extend the de-trebling provision until 2020. A Senate version of the bill (S. 3259) would have provided for a permanent extension of ACPERA.

Senator Kohl’s Views

"This 10-year extension will offer the Department of Justice Antitrust Division the resources and authority necessary to protect consumers from price-fixing cartels," said Senator Herb Kohl (Wisconsin) in a May 28 statement.

"The program has proven successful in uncovering and punishing price-fixing crimes, and it is my hope that this extension will usher in another decade of detection and prosecution."

Comptroller General Study

The legislation also calls on the Comptroller General to submit a report to Congress on the effectiveness of the ACPERA, both in criminal investigation and enforcement and in private civil actions. The report is to consider the addition of qui tam proceedings to the antitrust leniency program and the creation of anti-retaliatory protection for employees who report illegal anticompetitive conduct.