Anna Pletcher: Thank you for inviting me to participate. It is great to be here today.
The DOJ leniency program goes back to 1993. It started off as a way to incentivize companies to self-report. One of the challenges with prosecuting antitrust cases is that it is important to have witnesses who can explain what happened and testify at trial. The most effective way to do that is through the use of cooperators. The leniency program is a brilliant way to incentivize that cooperation and was incredibly successful.
The basic bedrock components of the leniency program are that a company will come to the DOJ and self-report. That means they will admit that they participated in an illegal conspiracy. Then the company will provide full cooperation to the government so that they can develop a case against other conspirators. In exchange, the company that is applying for leniency would receive a “free pass”: It will not be prosecuted and none of its employees will be prosecuted. Of course, there are a lot of nuances here. There has been an evolution over time in terms of what cooperation entails and what the benefits are, but that is the core concept behind the program.
Kellie Lerner: We are also going to be talking today about the whistleblower program under Dodd-Frank, so let us hear from Jane just to give us a similar high-level overview of that whistleblower program, and we will dive deeper into it later on in our discussion.
Jane Norberg: Thanks, Kellie, and thanks for inviting me to be here today.
The Dodd-Frank Act put in place a whistleblower program under the SEC as well as its sister agency the Commodity Futures Trading Commission (CFTC), which has a mirror program. Under the SEC’s program there are three core tenets of the program: confidentiality protection, anti-retaliation protection, and monetary awards for individuals who come in and report to the SEC possible securities law violations. If at the end of the day there is an enforcement action that is brought by the SEC based on that whistleblower’s original information, then that person may be eligible to receive a monetary award if the enforcement action is over $1 million ordered against the company or the individual. The intent is to incentivize individuals with information regarding possible securities law violations to report them to the SEC to help with the SEC’s enforcement goals.
Kellie Lerner: Thank you, Jane. Moving back to the DOJ corporate leniency program, it has been described as the “lifeblood of cartel enforcement” by DOJ officials and the “most important tool” for detecting cartels or for developing the evidence necessary for cartels, but as Anna said it has evolved.
Richard, could you walk us through some of the main changes to the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA) over the years?
Richard Powers: Thanks, Kellie. It is good to be here with everyone on the discussion today, and I appreciate the invitation.
ACPERA—I am assuming you are asking about the detrebling statute ACPERA—was passed in 2004, so as Anna said the modern version only goes back to 1993, but in 2004 Congress passed the Antitrust Criminal Penalty Enhancement and Reform Act, which provided additional protections for leniency applicants. In sum, what ACPERA does is allows successful leniency applicants of a DOJ investigation to turn to any private litigation and have its damages detrebled and joint and several liability with its coconspirators removed.
In passing that Act, Congress did two things. First, it removed a disincentive for applicants to come in for leniency, because when you apply for leniency, you have to admit to the violation, and that can create liability in private litigation, so it addressed the issue of the additional liability that was being created for leniency applicants. At the same time, it also creates an incentive. It reduces it down to single damages for the applicant for their goods that were part of the conspiracy.
The other thing it did was that it further enabled a recovery for victims. To qualify under ACPERA, applicants have to provide—it has always been—“satisfactory cooperation,” but now we would ask, “Does it provide timely and satisfactory cooperation to the private plaintiffs in addition to being a successful leniency applicant to receive those benefits?” That was a big step forward for the leniency policy in 2004 to further reduce disincentives to applying, but also to add additional benefits for applicants.
Kellie Lerner: So one of the main changes is this requirement for timely satisfactory cooperation. Can you or Anna walk us through who cooperation is owed to and how you satisfy it?
Richard Powers: The cooperation has to be provided to the claimants in the private litigation in your typical case. There is probably going to be a separate conversation about who exactly qualifies as a victim in the private litigation, and I would be interested to hear Anna’s take on that. In the course of the ordinary antitrust investigation as soon as there is some indication of a government investigation, you tend to see private actions being filed on behalf of the different classes.
The statute itself defines who the claimants are, and it is pretty broad in the sense that it is anybody who was a victim of the antitrust crime. I would say that ACPERA also has been interpreted to cover not just the antitrust violation itself, but also any sort of related violations of law that are part of, and in furtherance of the antitrust violation. That is generally who they have to work with. It is the subject of a lot of back and forth as to who exactly that means because, as you all know—and I think our audience knows—there are all of these different groups of plaintiffs in antitrust cases.
Anna Pletcher: Who the cooperation is owed to is a difficult question because there are the plaintiffs, the class, the individual class members, and the opt-outs. There are a lot of different stakeholders involved in these cases, and you can see how plaintiffs might take a broad view of who cooperation is owed to and defendants would take a more narrow view, so it is definitely a subject of controversy.
Just to take a step back on the bigger picture ACPERA was an important development because, as Richard said, it took away a major disincentive to report. As I mentioned earlier, the core of the leniency program, which was originally called the amnesty program, is that the criminal liability is taken off the table, but the civil liability remains. For a defendant, that is an incredibly important consideration because civil liability can subject companies to millions of dollars of exposure. It can also take a long time to resolve and create a significant distraction for the company and its employees. Sometimes these cases last longer than a decade. So ACPERA was important in the sense that it relieved some of the burden of civil liability, but there are still a lot of difficult and unresolved issues that we have seen, over the last almost twenty years, that raise questions about how effective it is.
Kellie Lerner: I want to address one other area that has led to some confusion, which is, what is “prompt or timely” cooperation? I guess I will go to you first this time, Anna, and then Richard can follow up with any additional thoughts.
Anna Pletcher: ACPERA requires timely cooperation, and what that means is an important question. Does that mean you are cooperating as soon as it becomes known that there is a leniency applicant and an investigation going on? There are some who take that view. Then there are others typically defendants – who might want to delay that cooperation until the case unfolds more. Some plaintiffs may want to settle early and maybe get better deals, but then there is less information out there. So it is a complicated question.
The few times we have seen courts weigh in on ACPERA has tended to be on the issue of timeliness. There is no hard and fast case law about what it means to be timely, and it tends to be a case-by-case decision. In my view, it turns on the reasonableness of the timing of the cooperation, and again that varies case by case.
Kellie Lerner: Thanks, Anna. Richard, do you have anything to add to that?
Richard Powers: Anna has obviously covered it. It is very fact-intensive. One thing that can affect the timeliness of the cooperation and the timing of when that cooperation begins is the status of the DOJ’s investigation. What can happen a lot of times is that you have a leniency applicant, and the leniency applicant says, “Look, we want to start providing cooperation to the plaintiffs because we don’t want to lose our ACPERA protections because years later a court might say we did not provide timely cooperation.”
DOJ has said that there will be times when they will ask the leniency applicant not to provide cooperation because doing so may compromise an ongoing criminal investigation. There may be certain investigative techniques they are trying to take advantage of or maybe other things going on, and one of the things I think we will come back to a little bit later is what DOJ did in 2022 with the leniency policy update. It updated the frequently asked questions (FAQs) and in doing so it added about five pages of discussion about ACPERA and—again I don’t want to jump ahead here—that was intentional and is probably the bulk of the additional material in the revised FAQs. They did so for reasons we will talk about, but on this question what DOJ said was, “Look, if we ask an applicant not to cooperate, not to provide information to the plaintiffs, we will come in later and tell the court what we did and why we did it.” That assurance is there for plaintiffs, so DOJ is trying to provide transparency and predictability about that.
The other thing in terms of time is that the statute itself does contemplate DOJ intervening and getting a stay of discovery. If there is a stay of discovery, the applicant does not have to cooperate for what is covered under that. I think there are separate issues that arise if there is a limited stay of discovery and there is an overly broad view of what that means in terms of limiting the cooperation. Anyway, I think it all gets around the issue of timeliness and what is considered timely, and it can depend on the facts and what DOJ is doing in terms of its investigation or staying discovery.
Kellie Lerner: When is the cooperation satisfied? Is this another requirement where there is room for differences of opinion?
Richard Powers: This is a bit of a moving target. I think courts have been pushed to make this decision before trial. I think some courts have waited until after. There have been different decisions on this. I think DOJ and the FAQs, if I remember correctly, push the parties to get to a resolution on this with the court as soon as possible, again for purposes of predictability. I keep saying “predictability” because that is one of the three cornerstones of leniency policy. Predictability and transparency for the perspective applicants is a key part of the program so that they can predict the outcome.
In terms of when is it complete, I think as a technical matter the cooperation has to continue through the litigation because the expectation is that if the applicant needs to provide witnesses at trial that is part of the cooperation, but in terms of when does the court make a determination about whether the applicants have provided satisfactory cooperation, I think that can happen before the trial or after, and it depends on the facts.
Kellie Lerner: You said there are three pillars. There is predictability and transparency. What is the third?
Richard Powers: Yes, there are three: the threat of severe and significant sanctions, transparency and predictability, and the credible threat of detection, so any leniency policy has to have all three aspects working together.
I did them a little bit out of order for what I might usually say on this topic, but predictability and transparency in the application of the policy is essential for leniency policies—so that when companies are making this significant bet-the-company-type decision to come in, self-disclose, and admit to the violation, they are as assured as they can be about what the outcome will be both in terms of the financial penalties that we are talking about with respect to civil litigation and ACPERA but also of course with the criminal sanctions that Anna mentioned earlier, coverage for culpable executives and the company itself.
The credible threat of detection is, okay, if you are sitting there trying to make the decision “Do I self-report or not?”, how likely is it that one of my coconspirators is going to beat me to the DOJ’s door. I think that is where you see a lot of public messaging from DOJ about this. It also can include their own ex officio-type investigative activities, so the severe and significant sanctions are everything we have talked about. If you are not the leniency applicant, the DOJ commits to aggressively going out and prosecuting everyone else, which means jail time for culpable executives, high criminal fines, double damages, joint and several liability in a private litigation, and so forth, so it is creating that other side of the coin where leniency offers protections, and if you are not the leniency applicant these are all the bad things that will happen in the investigation.
Jane Norberg: May I ask a question for my own understanding? Is it “first in the door,” meaning if you are an individual and you are seeking leniency if you come in first and let’s say you have a coconspirator and they come in second, are they denied the leniency?
Richard Powers: Generally speaking, yes. There is only one leniency recipient per conspiracy. The only reason I am hesitating a little bit is we always talk about it in the context of corporate, but there actually is an individual leniency policy, but it is only what is called a “type A,” meaning it only applies for individuals as the leniency applicant if there is no DOJ investigation, but generally speaking, yes, one leniency per investigation, and then for everyone else it is a race to get a better position in terms of discounts on fines and that sort of stuff. Definitionally in antitrust violations, unlike Foreign Corrupt Practices Act (FCPA) violations, you always have multiple players.
Kellie Lerner: Thank you, Richard. That is a very helpful framework to guide us as we think about these issues. Anna, would you like to add anything to what Richard said?
Anna Pletcher: To your original question, which was, how do you know when cooperation is complete and satisfied and it is time to grant those ACPERA benefits? From the defense side you want to get as much certainty as you can that your client is going to get those benefits, but it is in tension with the requirement for cooperation, which can extend for a long time.
So you have on one hand the desire to get certainty that you have ACPERA benefits and to know exactly what your damages and restitution are going to look like. On the other hand, you do not know that until you have gone through this process of cooperation and the litigation has played out. One of the challenges of ACPERA in general is that this tension puts the leniency applicant in a difficult situation. There are great benefits to be had; you just do no not know when or whether they might come in. A leniency applicant has to decide whether the benefits of engaging in ACPERA are a net positive. Often it is, but maybe there are situations where it is not.
Kellie Lerner: That segues perfectly to my questions to Anne. Could you share your perspective both from an in-house perspective and a compliance perspective as to how some of these ambiguities may shape decision making to come forward in a potential antitrust cartel case?
Anne Riley: First of all, I would like to put it into context. Everyone will be aware, of course, that under ACPERA one of the improvements was that each applicant must now use its best efforts to improve its compliance program to mitigate the risk of engaging in future illegal activities. That links ACPERA very much to the DOJ’s 2019 Antitrust Compliance Guidelines.
I want to talk a little bit about how those relate together and maybe later or directly afterward—your choice—I can come back to some practical tips that I have thought of for businesses in how to manage some of the ACPERA challenges. There are too many to manage, but I will address some of them, and also what to do about the new compliance program requirement, which for me is a particularly important thing.
Obviously, the DOJ assesses compliance programs now using its 2019 evaluation of corporate compliance programs in criminal antitrust investigations, and I am sure you are all very familiar with those.
Just one or two words on compliance, and I will not go into it in much detail, but there is no one size fits all. The compliance program must be appropriately tailored to the size of the business and the company. One interesting thing that I think has come out of the interrelationship between the 2019 DOJ Guidelines and the changes to ACPERA in April 2022 is that the DOJ now expects that the leniency applicant will conduct a thorough analysis of the causes of the underlying conduct, including implementation measures to reduce the risk to reputation; implementation measures to identify future risks; and implementation measures to discipline noncooperating and culpable personnel.
My take on it is that these new compliance measures linking ACPERA to the 2019 Antitrust Compliance Guidelines means that to get leniency it is not enough just to end the violation. What the applicant has to do is to do a deep dive to analyze the compliance program to see why the underlying conduct was caused and what needs to be done to rectify that going forward. I think as a leniency applicant, given that my understanding—and please correct me if I am wrong on this—is that you may not actually get final leniency until you can prove that you have put these measures in place.
I think it puts a huge timing issue on leniency applicants because they have to be looking at all the leniency issues and the very complicated decision as to whether to go for leniency, and it is not always that easy, but they also have to be looking at their compliance program almost at the same time and putting a lot of resources and a lot of effort into showing the DOJ what they are doing to improve their program.
My reading is that this goes wider than just looking at the antitrust compliance program and could include things such as the oversight and approval of business expenses. I have been aware of cases in the past, of course not involving my former employer, where the issue of business expenses and the approval of business expenses was an issue in the violation not getting detected. It could relate to looking at the oversight and approval of business expenses; your hiring and firing policies; your promotion, pay, and bonus policies; and so forth. I think the narrow link between the DOJ’s Antitrust Compliance Guidelines and ACPERA extend the boundary for the extent of work that an applicant has to do.
I would like to come back to practical tips later, but perhaps others might like to comment on that and correct me if I am wrong.
Kellie Lerner: Does anyone have any reactions to what Anne said?
Richard Powers: Anne is somebody who was part of the DOJ team putting together these Compliance Guidelines. It is good to hear that they had some of the intended effect.
I think you hit the right point, which is that there is an evolution in the Antitrust Division’s approach to compliance that you started to see probably ten years ago. The high-water mark in terms of a major step forward was the 2019 policy change that they would, like the rest of the Department of Justice, consider compliance programs in making charging decisions and then making public the guidance for how they would evaluate those programs. The bookend to that I think was with the April 2022 leniency policy updates adding the additional requirements that there would have to be improvements to the compliance policy for a leniency applicant as well as compliance and remediation. I think it all works together.
A couple of quick thoughts on it. First, I think it ties into the broader approach you are seeing across the Department of Justice in terms of white-collar enforcement. You can look at the changes that came out last year from the Deputy Attorney General’s Office, Criminal Division. There is a lot of overlap. I think the Antitrust Division has talked about that and they understand the companies have broader compliance programs that include these different areas, so that is part of it.
I think the other thing is just in terms of the timing. One other change to the policy that is worth mentioning is it used to be that prompt and effective termination of the misconduct was a requirement. Now it is prompt self-disclosure and prompt reporting to the DOJ, so the clock has shifted in terms of, okay, if you have a violation, you have to come in, but that is to go in and seek a marker. The Antitrust Division has said and the FAQs say that allows for the process to play itself out, and during that process you can do the internal assessment of the compliance program, figure out what needs to be fixed if there was a violation, as well as work with DOJ on any restitution and remediation that will be necessary. So, yes, I think you are right, Anne, that all works together and was part of those changes that came out in 2022.
Anna Pletcher: I understand how requiring improvements to compliance policies makes sense from the enforcement side. From the defense implementing improvements to compliance programs can be challenging, especially if the program has to be built from the ground up. It takes time to change a corporate culture. You have to get the buy-in from the top and change the tone from the top. There is a lot involved in creating a good compliance program. That could take time.
As you mentioned, Anne, this is something that a leniency applicant would have to be doing along with providing the required cooperation. It is a lot to put onto a company that is trying to cooperate and ultimately it could extend the timeframe for getting a final decision on leniency. That adds to the uncertainty for leniency applicants. From a practical perspective that is just the reality of the effect that these requirements for leniency have.
Anne Riley: If I may just add to that, as well as increasing the length, complexity, and cost to business, I think it also creates uncertainty and it makes the decision as to whether to go into leniency much more difficult than it used to be. It might disincentivize some companies who think, Oh, my God, this is all too much.
I do not know if you would like me to carry on with my practical points or whether you want to come back to those, Kellie. There are just a few challenges.
Kellie Lerner: Why don’t we let you finish that thought, and then I would like to go to the FAQs and start talking about the whistleblower program.
Anne Riley: After this I have very little to say, so you can choose where you put it in the article as well.
Some practical points have occurred to me, particularly with my compliance background and my background as a member of a leadership team that included internal investigations as part of our remit. A company needs to think about the length and thoroughness of its internal investigation when it is actually looking into the violation to balance the seeming contradiction between prompt reporting and having sufficient information to satisfy the obligation of full and ongoing cooperation. That seems to me a very practical challenge that I do not know the answer to, but hopefully someone is going to tell me.
Just some of the practical things. In undertaking the internal investigation, it is going to be important for companies to keep a very clear record showing what they have done and when, so they need to keep a timeline of when the conduct came to light, who was informed of it and when, when the internal investigation was started, the steps that were taken during the internal investigation, obviously the outcome of the internal investigation, and in parallel what they have done in relation to the compliance process improvement. My practical thought on that is that in looking at the improvements to the compliance program, companies need to have an internal record of the root causes of the conduct including the steps in the investigation as I have just mentioned. They need to record very carefully the status of the compliance program when the violation occurred, what they have identified as necessary to rectify that, and the measures that they are taking to achieve a reduction for the future.
I think also it is going to be important to make a clear record of measures taken to discipline culpable noncooperating employees. A company needs to rethink how it does its internal investigations and the sorts of records it is taking of how it does those. Most big companies keep those records, but some companies may not be so familiar with that.
One tip I would say for now, right at this moment, before you even know you have a violation, is have a look at whether your antitrust compliance program facilitates your ability as a potential applicant promptly to detect and report a potential violation. So have a look at whether your compliance program now is sufficiently good to protect against potential or perhaps even violations that may be going on that you do not know about. I think that is going to be a very important thing to do right now.
I see loads of challenges, but one challenge I want to flag is the potential tension between the promptness requirements and the improvement of the compliance program requirement. I think the promptness is coming forward, so you can come forward promptly, but you will not necessarily have finished your internal investigation and you certainly will not have reviewed all of your compliance program and all the related processes and policies that you may need to change. Human resources processes may need to change as a result of your investigation because your compliance program may be deficient in those processes.
That is all I wanted to say, and now I am going to be quiet.
Kellie Lerner: Thank you so much for that helpful framing of some of the practical challenges that applicants face.
Richard Powers: I want to jump in on one quick point on that. It is always good to hear—and I think obviously it is how DOJ would be thinking about this—that prompt self-reporting is now a requirement of the policy. But the reality is that that has always been the structure of the program. If you go back thirty years to 1993 what you always heard DOJ officials say, and it was in the FAQs, is: “The moment there is a whiff of a problem, come in, get a marker, and you will be given the latitude to do your internal investigation and work toward perfecting your leniency, which may take some time.” That has not changed over the years, and all of the other requirements of the policy—let’s go back thirty years: Restitution has been a requirement in the policy for thirty years. You did not have to make the decision about restitution at the same time you made the decision to come in for a marker.
Same thing with providing all the cooperation that you have to provide to get to conditional leniency, to get to that “intermediate finish line,” let’s call it, that first major point that triggers the ACPERA protections. That is all part of the ongoing requirements, so compliance and remediation fit into those like restitution. It is not something that you have to do immediately upon promptly self-reporting; it is part of the leniency application process and is that same process that has existed for thirty years.
Just to clarify this again, I don’t think you have to make that decision right away. The FAQs say: “Come in, get the marker, and even if you hesitate a little bit before coming in, we will allow a reasonable amount of time before you come in and promptly self-report to seek the marker.” So, there is a sometimes odd logic to that, if that makes sense.
Anne Riley: I do understand that, but what I am saying is, and I think maybe I did not make it explicit enough, is that many companies are actually wary of going in for the marker despite all the benefits of leniency and being the first in the door before they actually know the facts. I think it is difficult. The Guidelines say, “Come in the minute you know, get the marker, and that is fine,” but a company does not work like that. The business people want to know what the facts were. They are not going to want you to run to the government just because somebody says something to a compliance officer, who may be a junior person. If it is mentioned to them, are you going to run in for leniency at that point? No, of course not. Your management and your group audit committee are going to need to be properly briefed. The idea of running in the minute you get the is a nice idea, but it is not how businesses work in practice.
Richard Powers: Anne, just to be clear, I am not disagreeing with you on that. All I am saying is that dilemma you are describing has existed for thirty years. That has been true for thirty years. That is not something new under the new policy. The challenge of the business decision to go in for leniency has always been there.
Anne Riley: I agree. I think things are just being made a little bit more complicated because a businessperson will see all of these requires and go, “Now I have got to do all this.”
Jane Norberg: This is why I love these Roundtables because you get so many different perspectives—former government, on the defense side, and then Anne, who was in-house for many years. It is interesting because then throw in whistleblowers, so you are thinking about the company, you are thinking about the DOJ, but then throw in individual whistleblowers and you have blown that leniency right out of the water if somebody else reports it to the DOJ. I think that is the other piece of that that everybody needs to consider, because the SEC’s program is very impactful in getting individuals to report possible violations of law to the SEC at least. A lot of times they overlap with DOJ violations, and so the information is flowing to both, even though the monetary work comes from the SEC. I thought I would throw out that thought as well.
Kellie Lerner: Thank you, Jane. It is a perfect segue to the most recent FAQs.
Richard, could you walk us through what was added to the FAQs?
Richard Powers: When the Division released the updated leniency policy with regard to what we were talking about before, they also released updated frequently asked questions.
As I said before, it has five additional pages about ACPERA. It explains more about what the requirements are on compliance, remediation, and all of these topics. The FAQs, if you think about them, are meant to be frequently asked questions, and it was a moment when DOJ could step back and say: “Okay, it has been a while. Let’s make sure that what we are saying publicly really reflects what the issues are that are coming up in the investigations or cases.”
I think one of the issues that DOJ had seen over the years—and I heard a lot as head of cartels—is the impact of private litigation on leniency applications, and how is that changing the cost calculus. In those FAQs there are the five pages on ACPERA, and what I think DOJ tried to do with those was take a lot of the questions they would get from leniency applicants along the way and put out there in writing in essentially a policy document: “This is what our position would be if you asked you”—the leniency applicant—“not to cooperate with the plaintiffs or to move forward, we”—DOJ—“will go into the court and explain that.”
Another one was that they said, “As a matter of policy, it undermines the intent behind ACPERA if ACPERA benefits are denied because of unreasonable requests by plaintiffs,” requests for cooperation that go beyond the scope of what the actual leniency application covered—things like, with a leniency application that covers conduct from 2010 to 2015, are they getting asked by plaintiffs to cooperate going back to 2000 through 2020 or something like that? There are all of these spots where you can see DOJ taking positions on these commonly asked questions from advocates.
I think the other thing that happens is there are probably times when DOJ would want to say these sorts of things in filings, but the practical reality is that this does not end up getting litigated, so the parties might come in, ask DOJ to weigh in, and then they resolve it before there is an opportunity to litigate it, or alternatively the facts just are not the right moment for DOJ to weigh in. I think what DOJ did with these FAQs was to go out in a public way and put on paper as much as possible, “Here are our views of ACPERA and here is the position you can expect us to take,” to inform not only the parties but also the court because the court will look to the DOJ’s interpretation of ACPERA’s persuasive authority.
Kellie Lerner: Richard, can you please walk us through how the Antitrust Division handles whistleblowers who report antitrust violations?
Richard Powers: With antitrust it is not the same whistleblower program with a bounty. In late 2020, Congress passed a Whistleblower Protection Act that protects whistleblowers for criminal antitrust violations from retaliation by their employers. In that situation the employee, if they lose their job or what have you, can sue, can get their job back, can get lost wages, can get interest, attorney’s fees, and so forth for the costs of litigation. I believe that is all covered in the FAQs now too.
Kellie Lerner: Some reports suggest that, in the years leading up to these FAQ updates, there has been a significant drop in leniency applications. Are the FAQ updates designed to incentivize a resurgence of applicants, and do you think they are enough to get people to come back to the leniency program in higher numbers?
Richard Powers: I will take a step back on this because this is a question I got a lot in my last job. Here is what I would say: The number of leniency applications the DOJ received held pretty steady from about 2010 through to when I left in 2022. I cannot speak to anything since then, and that was stuff I said publicly, so I can say it here, with two exceptions: first, there was a spike around 2013 or 2014 related to two very large investigations that I am not going to name, and second, there was a dip in 2020, which I think we attributed to the pandemic.
However—and I want to put a big “however” on this—I think what is true is that if you look at the number of international cartel investigations and the fines and the number of cases brought from about 2016, 2017 forward, those numbers are down, especially when you look at the peak period from probably 2010/2011 through 2016 with the auto parts, the foreign exchange and London Interbank Offered Rate (LIBOR), air cargo, and these sorts of investigations.
I think the question is, and your question, Kellie, gets at is, what is the cause of that? What is going on? It is something my predecessor dealt with and I dealt with, and I think they are dealing with it now on some level. When I was the Deputy for Cartels, and I would talk to the bar or the business community about it, what I would hear oftentimes was two things: first was the rise of uncertainty around private litigation. You just cannot predict the outcome in private litigation. Even if you are a successful leniency applicant, it takes longer to negotiate out in private litigation, and that uncertainty creates a higher barrier to seek leniency; the other is the proliferation of leniency programs around the world and the costs associated with that and the challenges of trying to get markers in dozens of jurisdictions.
Those two kinds of costs going up have created a lot of problems, so I think from DOJ’s perspective it is, okay, how do you deal with it? In 2019, for example, there was an ACPERA roundtable to talk about what improvements could be made to ACPERA, which could potentially help with private litigation. The only consensus I would say that came out of that from all aspects of the bar—defense side, plaintiff side, in-house—was that ACPERA should be there and it does not need a sunset. It was mixed from there. Some people said no changes, some people said changes, and for the people who said changes there was no consensus around the changes. That is why in 2020 you saw the straight-up reauthorization was what DOJ supported.
With the FAQs I think what the Antitrust Division was trying to do—and some of it is what I was talking about before—was just to make sure the leniency policy reflected current practice but also current Department of Justice practice, and I think it is something that does not get talked about as much as it probably needs to.
There was a shift in DOJ practice that influenced Antitrust Division practice, and you see that more fully now, so some of the policy changes I think are harmonizing the Antitrust Division’s approach with the broader DOJ approach. But then I think it was also taking the opportunity with the FAQs to address things like ACPERA—to do what DOJ could in terms of saying, “Here are our views, here is as much transparency as DOJ can provide about something.” If it needs to be fixed it is ultimately a legislative fix, which we can all look at and say that legislative fixes these days are an uphill battle.
I know that is a long answer, but how did we get to the point and what is DOJ trying to do, and I think they are trying to make all the adjustments at once here in terms of saying, “Okay, we are going to address all of these issues for moving forward.”
Kellie Lerner: I would like to get Anna and Anne’s perspectives on the recent drop in global cartel detection.
Anna, what do you think is the reason for that? Could you talk us through your thoughts on the current climate and any root causes?
Anna Pletcher: I agree with Richard’s analysis that the rise of civil lawsuits and the potential exposure for leniency applicants is so significant that it has been and probably will continue to be a drag on companies running in to self-report. ACPERA does help address that.
I also agree with the rise of international enforcement and other jurisdictions. That also contributes to the challenging decision about whether to come in and report in one jurisdiction because that may trigger the need to report in other jurisdictions. The calculus about whether to seek leniency in the United States also has to involve a consideration of the cost of going into other jurisdictions around the world. And companies have to consider how quickly can that be done because there is a timing issue there, too, if you want to be the first in the door in the leniency programs in other jurisdictions. Those are important considerations for companies that will slow down their decision making.
The additional requirements that have come into the leniency program over the years also make this a difficult decision. For example, are all of a company’s executives going to be covered? Maybe not, depending on what their roles were in the alleged conspiracy. As Anne pointed out, you may not even know who did what at the time the decision to go in for leniency has to be made. Are former employees going to be covered? That’s another important question. There are a lot of important practical details that will give companies pause when they think about reporting.
I also think compliance has gotten better, and there is much better awareness of antitrust compliance. Companies have been investing in it. They are ramping up their programs. They know it is important. To that extent I think DOJ’s program of the last twenty to thirty years has been quite effective. There is quite a bit of awareness in the corporate world about the seriousness of antitrust violations and a willingness to invest in compliance. That is good. It is a very difficult and complicated decision about whether to go in for leniency, and I think you are seeing that reflected in the numbers.
Kellie Lerner: I have two strong reactions to those comments. To build upon Richard’s thought earlier about some of the challenges that Anne was raising, the threat of private civil litigation has existed since the beginning of the leniency program. As a plaintiff’s lawyer, I would argue it was even more significant back then than it is now because class certification standards were far more lenient, and for some period, pre-Twombly, so bringing private civil actions was in many respects an easier endeavor than it is today under current case law.
I think there are many successes we could herald for the Department’s leniency program, but is it realistic to think that the drop in enforcement today from the record fines of over $3 billion in 2015 is because companies are finally getting it right and really are just complying with the law? I am sure that is to some extent true, but I do not think it could possibly tell the whole story. Do you?
Anna Pletcher: I agree with you – it does not tell the whole story. I did not intend to mean to suggest that it did. It is just another piece of the puzzle.
It is true that civil litigation has been around for a long time and has always been part of the leniency equation, but the scope and extent of it is significant. You are talking about many, many years of litigation, and the benefits of coming in for leniency and being the first one in the door are not so clear in terms of who is actually going to be covered and what the benefits are to the company compared to, say, coming in second or third, -- because there is uncertainty in terms of benefits that are given to second and third. This is all part of the calculus that people are thinking about. The decision is complicated.
Kellie Lerner: I agree. I would love to talk about what tools are available to improve the program.
I am sorry, Anne. I reneged on my promise to come back to you.
Anne Riley: I almost do not need to intervene because Anna said everything I wanted to. I agree with you, Richard, but the point I am trying to make very strongly is that maybe a drop in leniency is because things have just gotten so much more difficult. You are quite naturally looking at this from just a U.S. perspective, but a global company has to think globally, and the proliferation of antitrust laws, the proliferation of leniency regimes, and the differences between leniency regimes impact that calculus. I do not think it is litigation alone.
Also, remember, if you are an international company, you have got potential litigation in many parts of the world. Europe has had a litigation explosion, so it is not just litigation in the United States, which has been around forever. I think it is the proliferation of the international ramifications, and it makes leniency a hard decision.
Kellie Lerner: Thank you, Anne. I will give everyone a chance to wave a magic wand and offer one proposed change to the program , but before we get there, I would like to explore whether there is something we can learn from the SEC Dodd-Frank whistleblower program, so I am going to turn it next to Jane to walk through that program and how it is used to detect other types of financial crimes.
Jane Norberg: As I mentioned at the top, the SEC’s whistleblower program was put in place pursuant to the Dodd-Frank Act with the sole purpose being to encourage individuals who have information about possible securities law violations to report them to the SEC, and in return individuals—and let me stress that it has to be an individual and not a company—receive in return anti-retaliation protections if they are an employee of the company that they are reporting on, confidentiality protections, meaning that the SEC cannot disclose their identity outside of the Commission with some very limited exceptions, and the promise of a potential monetary award if their information is used to bring a successful enforcement action where over $1 million in monetary sanctions are ordered.
In the rules, they have to have original information, it has to be voluntary, there has to be a successful enforcement action, and all of these things are terms of art that I will not get into for the purposes of this discussion. But let me just put a fine point on how successful that program has been for the SEC. They opened their doors in late 2011 and started taking tips under the program, and since that time, I think as of the end of the last fiscal year for the SEC, they had received over 52,000 tips worldwide. So to be clear, this is not just a U.S.-based program. Tips come in from every single state in the United States, and I think at the last count 130 countries worldwide. So not only are they receiving information from U.S.-based employees or individuals, they are also receiving them from individuals based overseas. The SEC has definitely paid awards to individuals overseas as well and has reported that publicly.
They have paid over $1.2 billion in awards in that time, which is an incredible number, as someone who was there at the beginning of the program. You worry about the success of a program; this program exploded very quickly. As of today, I think it is over $1.2 billion. If you think about it from a corporate impact side, companies and individuals have been fined over $6 billion based on information received from whistleblowers, and that is information that the SEC has reported out.
In thinking about the awards that have been paid, I just want to highlight two things. There have been large awards in the last couple of months. In May of 2023, the SEC paid its largest award to date, which was a $279 million award to one individual, which is just astronomical when you think about it. I think about two weeks ago it paid $104 million to seven whistleblowers. There was apparently a large number of whistleblowers in that matter. I think ten individuals applied and seven of them got awarded, and they split this $104 million pot of money. When you think about it from the extent of how is it incentivizing individuals to come forward, when you think about those numbers for people, that is certainly the incentive.
In thinking about it from what challenges come with a program like this, I would say the challenges are that you receive a lot of tips that are not actionable tips necessarily, so you have to have a dedicated office in place that can intake the number of tips that a program will get with this type of a bounty provision tied to it. There is a lot of culling through the wheat and the chaff. The Office of the Whistleblower at the SEC does not take tips, but the main triage point is the Office of Market Intelligence at the SEC. That office is staffed, and the only thing they do is literally view every piece of intelligence that comes into the Commission and make links between the information and determine if it is specific, timely, and credible enough to send out to enforcement staff, exam staff, or whoever it may be to take a further look.
I would say based on my time at the SEC it is definitely an impactful program. Whistleblowers were submitting a lot of good information to the Commission that definitely pushed forward enforcement actions much quicker than it had prior to that program being put in place.
Kellie Lerner: Before this program was implemented, what was the main mechanism to identify SEC violations?
Jane Norberg: It is an interesting question. You probably do not know this, but there actually was a whistleblower program that predated the Dodd-Frank whistleblower program at the SEC. You probably do not even know it existed, because I don’t think anybody used it. The issue was that there was not a dedicated staff dealing just with that program, so people did not know it existed. I think maybe two or three people got paid under that program at one time, and it was somebody who had that job in addition to all the other duties they had at the SEC, so it was something that was not advertised and publicized.
The only way to make a program like this successful is to be out there talking about it and making sure people are aware of it and truly getting the trust of individuals to report in. I would say that me and my predecessor, Sean McKessy, who was the first Chief of the Office, we made that a big goal, which was to make people feel comfortable, that they could trust us, that after they gave us the information, we were going to truly protect the confidentiality and push forward retaliation cases, and that you might get paid at the end of the day if your information was used in an action. So, I would say having dedicated staff for something like this is something that has to happen.
The second thing I would say that I have seen other programs flounder for lack of it is having a dedicated pot of money. When Congress put this program in place, they set up a separate pot of money called the Investor Protection Fund. It is funded from money from wrongdoers, but it is not necessarily a dollar-for-dollar, somebody reports on company X, company X pays a fine, and then that money goes to the whistleblower.
That is not how it works. There is a pot of money. I think if it falls below $300 million it has to be replenished, but it is a constant replenishment of this fund, so there is always a promise of money being there at the end of the day to pay whistleblowers, and the money is not being taken from investors, which is I think another big key thing because no one wants to see money taken from somebody who lost their life savings.
I think those are a couple of things that I have seen that have messed up other whistleblower programs. They did not have this dedicated pot of money, and they did not have the dedicated staff they needed to make the program successful.
Kellie Lerner: Your reference to trust really struck a chord with me as I think about these issues and compare your remarks to what we just heard about the challenges facing companies who want to come forward and report violations to the Antitrust Division. What I heard is that many companies are deterred from coming forward because they don’t have enough trust in the process to be confident that they will eventually receive the benefits of leniency, at least vis-à-vis global enforcement.
Looking at and hearing about the SEC whistleblower program I am curious, Anna and Richard, what your views are on whether a similar program for the Antitrust Division could be used to complement the corporate leniency program, or whether you see it as being something that would create friction or work at odds with it.
Anna Pletcher: I think there are some challenges to implementing a similar program. I don’t know how well-known it is, but the Antitrust Division has always had a hotline. Providing protections for people who call in to it and have a complaint to express could help incentivize more people to call in with legitimate issues.
However, the money piece seems important. If you do not have a significant financial incentive, it will be hard to bring people out of the woodwork to raise serious issues. But trying to create a financial incentive where criminal sanctions are involved is particularly challenging, because there is something unseemly about rewarding a whistleblower with a cash award for the success of a criminal prosecution where defendants may be subjected to a long prison sentence. It’s challenging to create a bounty program in a way that seems ethical and upholds the integrity of the justice system when you are dealing with criminal penalties.
Kellie Lerner: That point is well taken, but, Jane, through Dodd-Frank and the SEC whistleblower program isn’t it possible that the information could lead to other criminal cases against executives who commit fraud and lead to SEC violations?
Jane Norberg: Yes. The SEC does share information with its regulatory law enforcement partners, including the DOJ, so it is possible that whistleblower information that gets submitted to the SEC also could be shared with the DOJ under cover of the confidentiality protections that a whistleblower must receive. But a lot of times whistleblowers are also working hand in hand with the SEC and the DOJ, not only reporting to one but sometimes reporting to both, especially if there are whistleblower attorneys involved who understand the system well. They end up reporting to both if they think there are possible violations on both sides. Think about the FCPA. The SEC has jurisdiction there, and the DOJ has jurisdiction there. A lot of times you will see information shared across both agencies in an FCPA violation.
If the SEC brings a case and the DOJ brings a case based on that same information brought by a whistleblower, the SEC will actually pay that whistleblower based not only on the monetary sanctions collected by the SEC but will pay it based on the monetary sanctions collected by the DOJ out of that pot of money that I talked about before. The DOJ is not giving money to the SEC and putting it in that pot, but the SEC is required under Dodd-Frank to still pay out that money, and as we all know from FCPA violations those can be incredibly costly in fines for companies. So when you are hearing about some of these large awards, your mind immediately goes to FCPA violations or something that the DOJ or many other agencies may have been involved in because that is how the numbers get so high. It is very rare that the SEC alone will bring something that would result in a $279 million award to someone because the fines do not get that high without having a partner in the regulatory or law enforcement space to also have brought a case where they received monetary sanctions based on that same information from that same whistleblower.
Anna Pletcher: DOJ prosecutions that would come from a whistleblower might not necessarily involve a company. One of the priorities of the Division is to hold individuals accountable, so the prosecution could target a series of individuals. So when you have a whistleblower making accusations against other individuals, there could be some element of personal animosity there. I know it would be on the government agency to sift through all of that. That is one of the things you would triage as you are going through all the complaints. Of course, the government would not bring a case that was just based on a whistleblower complaint, but I can see that being part of it if we have a focus on individual prosecutions and a whistleblower program that is tied to that.
Richard Powers: My recollection is that historically the Antitrust Division has resisted the idea of a whistleblower like the one we are talking about here for the reasons Anna has laid out, which is that there are credibility risks with a case based on some sort of whistleblower disclosure. That is my recollection. It was not a live issue during my time as the deputy. We were focusing more on ACPERA.
I will say that when I was at DOJ, I talked to some of my colleagues who had experience in this area in leadership, and I think they were pretty supportive of the whistleblower programs that fed into their enforcement areas. They viewed litigation risks that Anna has identified, which are legitimate risks in terms of credibility of witnesses and those sorts of things, as difficult litigation risks. Can you corroborate the witness or not? If somebody comes in and says this is what is going on, you have to test what they are saying based on what you can see in the documents.
I think from just a very practical standpoint one of the challenges of trying to put forward this type of program at DOJ would be the logistics. Where is the money going to come from, how are you going to staff it, and how are you going to run it? It costs money at a time when it is hard. Everybody can see the fighting over the DOJ’s budget, and this is one more thing. I think probably there are logistical hurdles.
I do not know that some of the concerns that existed historically would necessarily be there in the same way now, but ultimately how would it fit into a leniency regime? If there is one more avenue of a risk of disclosure, going back to the pillars we talked about before, that creates some incentive to self-report and get ahead of that sort of whistleblower, so I could see it working in that way, where you want to self-report as a company for leniency before one of your employees does it or before somebody at another company does it, that sort of thing.
Jane Norberg: I think it already exists a little bit when we think about an information share across the SEC to the DOJ. They think whistleblowers are everywhere. I think every company has to take that into account, that any one of their employees could absolutely turn to the government, whatever agency it is, and at least from the SEC’s perspective the company cannot stop them. They have rules that prohibit impeding someone from reporting to the Commission, including confidentiality provisions or things like that within the company, and they sought to enforce that and have. I think there are eighteen or nineteen cases to date based on potential impeding reporting to the SEC.
When you are thinking about it from the point of view of the whistleblower and the corporation, I think that is probably the pressure that would be applied. I think the pressure is already there. Maybe companies just do not realize it yet or maybe they only think about it in the SEC context, but I think there is a real risk that you could have an internal whistleblower who reports information to the SEC, the information makes its way to the DOJ, and you have lost your opportunity for leniency.
Being on the defense side I recognize very clearly the risk of private litigation and putting your name out there and having litigation come your way that you do not want or going in too early. There is always a calculus, but I think whistleblowers need to give real thought for companies about whether somebody is potentially going to report this out to the government and are they going to find out before you have an opportunity to go in and seek that leniency?
Richard Powers: If you look back at some of the stats we were talking about earlier for antitrust criminal enforcement, we are in the financial services sector, starting with the municipal bonds and derivatives investigation. Ten or fifteen years ago Antitrust worked jointly with the Criminal Division in the LIBOR investigations, you had the foreign exchange investigations and prosecutions, so just thinking in terms of the SEC there is a history there of criminal antitrust enforcement in that sector with a significant amount of success from the Division’s perspective.
Anna Pletcher: There is also the False Claims Act model, which already provides a vehicle for a whistleblower in an antitrust context. If the government is the victim and there is a successful False Claims Act qui tam action, the relator could get a significant award. I think the South Korea oil refinery case in 2020 came about that way, so there is precedent for that.
Kellie Lerner: It does seem like there are opportunities for the two regimes to complement each other, and there is some precedent for it, but in many respects the Antitrust whistleblower program resembles the pre-Dodd-Frank whistleblower program at the SEC in that it is not well-advertised, the anti-retaliation provision just got announced, and it does not have the teeth that a bounty provision has under Dodd-Frank, so it could potentially bolster cartel detection.
In 2011, the U.S. General Accounting Office issued a report on the impact of ACPERA and concluded that there wasn’t a strong consensus to add a whistleblower bounty to the program given its success at the time. My question is, with the current state of the program, is it time to revisit this issue? My personal view is that I suspect global price-fixing still happens more than we know and such a provision could bolster cartel detection.
We are coming to the end of our time. As promised, my final question to each of you is, if there is one thing that you could do to add to the current corporate leniency program, what would it be? Is it to clarify something? Is it to change something? The floor is yours. I will start with Anne.
Anne Riley: I am not sure I would change anything. I would just say from a former business perspective that where confusion or uncertainty arises it is in the DOJ’s interest to clarify that as soon as possible because companies are more likely to go in for leniency if it is very clear. As I repeated, probably far too many times, the decision to go for leniency is not easy.
The one wish list I have, which does not relate to ACPERA at all, but is a general request in relation to leniency, is that far more work needs to be done through the ICN to get some harmonization or soft harmonization in this area because the differences between leniency regimes around the world are another disincentive.
Kellie Lerner: That is a great point. Richard?
Richard Powers: This is a loaded question for me because I think I did have the wand at some point and could make some changes but didn’t follow through.
The changes that were made to the leniency policy in 2022, we are going to see how they work. The reality is that antitrust years are like Olympic cycles. I think it will take a number of years to see whether the changes work as intended and whether they need to be clarified, modified, adjusted, and as Anne pointed out, based on feedback.
I agree actually with the point that continuing to work together in the international space is going to be important. We tried to do that through the ICN with some work product, but I do think that will continue to be an important piece for DOJ to continue with those efforts to harmonize as much as possible.
Kellie Lerner: Thank you. Anna?
Anna Pletcher: I think Anne is right on that the success of a leniency program can be furthered with greater clarity. The FAQs and additional transparency are really good, but there are some things we just do not have the answers to, partly because they are relatively new, that we need to know in order for companies to make these important decisions.
We talked about some of the uncertain issues with ACPERA, the questions about who is actually covered when it comes down to the nuts and bolts, even questions about restitution, what does that mean and how do you actually get paid. Those are big looming questions. The more clarity we have, the more seamless the program will be, and the more incentive there will be for people to come in. Some of these things just need to work out with time.
Kellie Lerner: Of those ambiguities, is there one that you hear the most about from your clients that weighs most heavily in the decision-making process? Is it the restitution question? Is it the timeliness question? Is there one that stands out more than any other?
Anna Pletcher: There are two big issues. One is, if we go in, will we actually get the leniency we asked for? Because the process is so long, because there are so many different points where DOJ has to judge whether you have done enough or not done enough, there is a lot of uncertainty in that process.
The other is the civil litigation component, which I know has been part of the leniency program for a long time, but it is a significant cost and the public relations associated with the continued ongoing litigation for years and years. It impacts the company’s well-being for a long time, their bond ratings, their ability to access capital, their customers—all of those things. The length of time the litigation takes to resolve is something I wish I could wave away. It is difficult because once you get in court, case management takes a long time, the justice system does not have enough judges, the judges need to get educated on complex cases. So there are many factors that contribute to the slow pace. It is not all in the control of the government.
Kellie Lerner: I think civil litigation is something that obviously is important to those who were directly harmed by a price-fixing conspiracy so that they are able to obtain monetary damages. That being said, I am sympathetic to a company that came forward, wants to resolve this, wants to pay their single damages, but they have no idea if it is going to be a year or fifteen years, which is actually in the realm of reasonableness based on current court statistics. In an ideal world they would come forward, they would settle the civil case, they would give their cooperation to prosecute their co-conspirators, and they would move on.
What do you think creates that friction in an environment where the goals of civil plaintiffs who are seeking a speedy resolution of litigation should otherwise align with leniency applicants who are trying to put this behind them as fast as possible?
Anna Pletcher: Part of it is just the nature of antitrust litigation. It is complex and the cases are big. Multiple experts are often involved and millions of documents There is only so much you can do to move that along quickly. Discovery lasts a long time and is heavily litigated.
That is not to say that cases cannot be moved a little bit more quickly. Maybe there are ways to think outside the box for how to do that, perhaps even involving the judiciary and having a more specialized bench that could fast-track some of these cases.
Kellie Lerner: Yes. Specialized antitrust courts should be our next Roundtable.
Jane, I will give it to you for any final thoughts about the corporate leniency program on the antitrust side and your experience under Dodd-Frank’s whistleblower program. Do you see them being complementary? Do you have any other ideas?
Jane Norberg: It is difficult to say because I think they do not necessarily go hand in hand. You have individuals reporting possible violations of law, and on the other side it is the corporation that is seeking leniency. They do not necessarily go hand in hand. I guess at the end of the day the way the government would think about it is they would want to get the information, whether via the corporate leniency program or via the whistleblower program. If I put my government hat back on, that is the way I would think about it.
I would throw out one other thing. This is a little bit different, but to the extent that the SEC overlaps at all with the DOJ in some of these violations, when you are talking about lack of clarity on the DOJ side on the leniency program, I would say it is so much clearer than the SEC’s cooperation program. If I could wave a magic wand, I would say that the SEC needs to be a whole lot clearer about incentivizing corporations to come in and seek cooperation credit because right now it is a black box, and I was there for many, many years. If you are worried about incentivizing companies on the DOJ side to go in, it is even harder on the SEC side to see the light at the end of the tunnel in going in and talking about self-reporting.
Kellie Lerner: This is the point of this Roundtable. Maybe there is something that the SEC corporate leniency program can learn from DOJ’s Antitrust program and vice versa, which may lead to greater detection and enforcement overall.
This has been truly a pleasure. I have enjoyed hearing from all of you, your incredible wisdom and wealth of information will be much appreciated by our readers. It was by me. I hope you enjoy the rest of your summer.