| The Antitrust Criminal Penalty Enhancement and Reform Act of 2004, signed into law on June 22, 2004, as part of H.R. 1086, increased penalties for violations of the Sherman Act while increasing incentives for participation in the leniency program of the U.S. Department of Justice.
The maximum fine for a corporation that violates federal criminal antitrust laws was increased from $ 10 million to $ 100 million. The fine for an individual violator of the antitrust laws was increased from $ 350,000 to $ 1 million. The maximum prison term for an antitrust violator was increased from three years to ten years. Alternative penalty provisions provided by the Criminal Fines Improvements Act of 1987 that allow imposition of fines equal to twice the gain or loss caused by the crime remain in effect. However, the increased penalties under the 2004 Act may be imposed without regard to the gain or loss caused by the defendant's conduct.
The corporate leniency policy program of the Department of Justice has been expanded by the 2004 Act to provide incentives for cooperation. Imposition of treble damages and joint and several liability in private antitrust suits now may be avoided by participants in the corporate leniency policy program. Formerly, the first company or individual to bring the existence of an antitrust violation to the attention of the Department of Justice could obtain leniency for participating in the violation. However, the company or person still remained subject to private actions for triple the amount of damages caused by all of the participants in the antitrust violation. Under the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, a participant in the leniency program may be subjected only to single damages without joint and several liability for damages caused by other participants in the violation.
To take advantage of the leniency provisions of the 2004 Act, the participant in the leniency program of the Department of Justice must provide full cooperation to private plaintiffs. That cooperation must include providing the plaintiffs with all relevant facts and documents and, for individuals, being available for interviews and testimony that is complete and truthful. If the court in the private action determines that there has been full cooperation, the defendant that participated in the leniency program will be required to pay only actual damages attributable to that defendant's share of commerce affected by the violation of antitrust laws at issue. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |