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The Antitrust Division's Corporate Lenience Program
Antitrust practitioners and companies worried about antitrust prosecution are weighing the significance of Stolt-Nielsen S.A. v. United States, 442 F.3d 177 (3d Cir. 2006), which held that the Department of Justice (DOJ) could still prosecute a company after it had been accepted into the Antitrust Division's Corporate Leniency Program. Under the Program, adopted in 1993, a company engaged in antitrust violations that qualifies for leniency will not be prosecuted, provided that it confesses its wrongdoing, agrees to cooperate in an investigation of co-conspirators, and makes restitution to victims of its illegal conduct. The Program offers protection from both criminal prosecution and treble damages in subsequent civil antitrust suits.
But there's a catch. Amnesty is available only to the first company in a given cartel or conspiracy that cooperates with the Division. The second company in the door is not guaranteed anything, no matter how extensive its cooperation, and it may wind up with no leniency at all. This 'winner take all' policy creates a rush to the prosecutor's office to report illegal conduct.
Given the success and widespread acceptance of the Program, the recent decision by the Division to eject a cooperating company generated attention and controversy. Stolt-Nielsen was the first amnesty recipient to lose its status and face indictment. The Division claimed that Stolt-Nielsen's disclosures of an anticompetitive ocean-shipping cartel had been incomplete, and that during amnesty negotiations Stolt-Nielsen had misrepresented its own illegal conduct.
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