Clifford Chance

Congress Fails to Reauthorize ACPERA Significantly Increasing Civil Liability for Companies Receiving Criminal Leniency for US Antitrust Violations

23 June 2020

The Antitrust Criminal Penalty Enhancement & Reform Act (ACPERA) expired on June 22, 2020. The law offered the prospect of reduced civil liability for companies that had successfully sought and received leniency from criminal prosecution from the Department of Justice's Antitrust Division. Congress originally passed ACPERA in 2004, at the urging of the Antitrust Division, to encourage companies to self-report their participation in criminal antitrust violations affecting U.S. markets. In recent years, however, ACPERA critics have argued that the law should be reformed because its unclear standards fail to adequately incentivize companies to self-report cartel conduct. Ultimately, despite efforts from both chambers of Congress, legislators could not marshal enough support to renew the law before its June 22 expiration date. Congress may later decide to reauthorize or reform the law, including extending benefits retroactively. But until then, the threat of civil liability of up to three times the total damages caused by the entire conspiracy could discourage companies from promptly self-reporting cartel conduct to the Antitrust Division. The erosion of ACPERA's protections underscores the need for companies to implement and update effective compliance programs to prevent cartel conduct by their employees.

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