After sunsetting earlier this year, the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA) is now the law of the land again.
Under the Department of Justice’s Corporate Leniency Policy, antitrust conspirators that are the first to report anticompetitive conduct and cooperate fully with the DOJ can avoid criminal charges and pay reduced penalties. With the threat, however, of subsequent civil proceedings that could subject these cooperating corporations to both treble damages and joint and several liability for the conduct of their co-conspirators, antitrust violators still faced significant downsides to blowing the whistle on their cartels.
Originally enacted in 2004, ACPERA was intended to remove these disincentives for corporations to report their own anticompetitive conduct. Under the Act, leniency applicants’ damages are limited to actual damages resulting from their own conduct only, that is, so long as they fully cooperate with the plaintiffs in their investigation and prosecution of claims against the cartel’s conspirators. Without the threat of treble damages or joint and several liability, antitrust violators have a strong incentive to report misconduct in their industries. And the DOJ believes that ACPERA has worked: “ACPERA’s provisions have substantially strengthened the Antitrust Division’s ability to detect and prosecute anticompetitive cartel through the Leniency Program.”
The 2004 Act was reauthorized in 2010, with a sunset provision that rendered the law ineffective in June 2020. Though the statute was not reauthorized before its sunset date this year, it has now been signed into law, with bipartisan support, and the sunset provision has been repealed. The incentives for antitrust violators to come forward are now a permanent aspect of antitrust enforcement.
About Faruqi & Faruqi, LLP
Faruqi & Faruqi, LLP focuses on complex civil litigation, including securities, antitrust, wage and hour, personal injury and consumer class actions as well as shareholder derivative and merger and transactional litigation. The firm is headquartered in New York, and maintains offices in California, Delaware, Georgia and Pennsylvania.
Since its founding in 1995, Faruqi & Faruqi, LLP has served as lead or co-lead counsel in numerous high-profile cases which ultimately provided significant recoveries to investors, direct purchasers, consumers and employees.
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About Raymond N. Barto
Raymond N. Barto's practice is focused on antitrust litigation. Ray is a senior associate in the firm's New York office.Prior to joining F&F, Ray was an associate at a prominent New York City law firm where he represented consumers, shareholders, and employees in class action cases that involved consumer fraud, breach of fiduciary duty, and ERISA.While at Brooklyn Law School, Ray served as an Articles Editor for the Brooklyn Law Review. As well, Ray served as an intern to the Honorable Judge William Pauley III of the United States District Court for the Southern District of New York; the United States Attorney's Office for the Eastern District of New York; the litigation department for Marsh & McLennan Companies; and the Kings County District Attorney's Office.