Remediation, Compliance, and Restitution Under The New Leniency Policy

In April 2022, the Antitrust Division of the U.S. Department of Justice announced revisions to its leniency policy which incentivizes voluntary self-disclosure of criminal misconduct in order to earn non-prosecution protections. In addition to giving greater context about an applicant’s obligations under the policy, the revisions require leniency applicants to promptly self-report misconduct, as well as to use best efforts to remediate the harm caused by the illegal activity before receiving a conditional leniency letter. These changes come amongst a broader shift in the corporate enforcement landscape and at a time when the Division’s aggressive corporate enforcement strategy has been backed with significant resources. This article highlights the leniency policy changes in the context of DOJ-wide changes and offers impressions on what companies and counsel can expect as a result.

By Richard Powers & Alison Goldman^[1]

Since 1993, the Antitrust Division of the Department of Justice (“the Division”) has maintained a leniency policy to incentivize voluntary self-disclosure of criminal misconduct. In exchange for being the first to self-report its involvement in an antitrust conspiracy and meeting the other requirements of the policy, including fully cooperating with the Division’s investigation, a company and  —  depending on the circumstances — its culpable executives can receive significant non-prosecution protections.^[2] Last year, the Division r