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ARTICLE · 06 FEBRUARY 2017

Frequently Asked Questions About The Amnesty Program—Major Changes In The Antitrust Division's January 2017 Update

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In the past, the Antitrust Division has used its "Frequently Asked Questions" piece to announce significant changes in the Amnesty Program.

United StatesAntitrust/Competition Law
James McGinnis
James McGinnis
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In the past, the Antitrust Division has used its "Frequently Asked Questions" piece to announce significant changes in the Amnesty Program. In  November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported "possible" criminal activity. FAQs, p.6, fn. 7

The Division's January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, "...the Division has more discretion..."( FAQs, p. 22).

Both changes will give counsel and potential amnesty applicants pause. Before this revision, counsel need only have identified the client's industry in enough detail for the Division to confirm that there were no prior markers pending. Certainly, counsel would not have applied for a marker even under the old standard

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