ACPERA LEGISLATION SIGNED BACK INTO LAW

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Originally enacted in 2004, ACPERA was intended to remove these disincentives for corporations to report their own anticompetitive conduct.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its sunset date this year, it has now been signed into law, with bipartisan support, and the sunset provision has been repealed.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.