Last year, as noted in this blog, the Antitrust Division issued one of its fairly rare but critically important “Frequently Asked Questions” publications concerning its Amnesty Program. In January 2017, DOJ said explicitly that for Type B amnesty it retained discretion to prosecute senior executives. Defense counsel greeted this development with widespread alarm. Type B amnesty is frequently what DOJ offers to reporting companies if DOJ had any information of any kind about the reported activity. Few thought that mattered very much until January 2017 when DOJ’s FAQ pronouncement in practical effect imposed on defense counsel the need to advise a corporate client that amnesty might not apply to senior executives—with a likely attendant chilling effect on a company’s desire to participate in the program.

Last month, Marvin Price, the Division’s acting deputy assistant attorney general for criminal antitrust enforcement, acknowledged that this FAQ “inadvertently created uncertainty”.^[1] Indeed, the success of DOJ’s amnesty program has been widely attributed to the certainty of its application. Mr. Price said: “The FAQ did not change what the policy or practice had been. It has continued to be the same. Although the current employees are not guaranteed leniency, typically they are given leniency if they are fully cooperative.”

So where does that leave us? Are defense counsel to be reassured, or has DOJ repeated once again that leniency for senior executives is “typical” but not certain? Can defense counsel ethically say to a General Counsel and senior executives that leniency for them will be forthcoming unless DOJ perceives a major failure along the lines of obstruction in their cooperation? Of course, failure to cooperate is in the eye of the beholder—DOJ—and there is no recourse for an adverse decision. Plus, in the initial states of an emergency amnesty investigation, how often will counsel know whether Type A amnesty (where DOJ had no prior information) or Type B amnesty is in play?

Unfortunately, the answers to these questions are not clear. While the Division is justifiably regarded as honorable, how much comfort is that for a foreign company and its executives dealing with the Division for the first time?

It would be far better if DOJ issued a revised version of this FAQ that explained the circumstances under which leniency might be withheld. While no wordsmithing ever is completely free from doubt, further explanation certainly would help.

[1] New York State Bar Association Antitrust Section Annual Meeting, Panel Discussion, January 25, 2018.