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DOJ Antitrust Divisions Revised Leniency Program Further Restricts Corporate Options in Responding to Cartel Allegations

January 13, 2009

By KirBehre, E. Lawrence Barcella, JR., Jeremy Evans and Adam Schwartz

In direct response to the Department of Justice Antitrust Divisions loss in the controversial Stolt-Nielsen criminal antitrust case, the Antitrust Division revised its leniency policy. The Division has prepared revised Model Leniency Letters and issued an explanatory document entitled Frequently Asked Questions Regarding the Antitrust Divisions Leniency Program (the FAQ). Most notably, the revisions require leniency program applicants to contractually agree that they will not seek pre-indictment judicial review of Antitrust Division decisions to revoke conditional leniency agreements. While Scott Hammond, the Deputy Assistant Attorney General for Criminal Enforcement, recently described this revision in a recent article as simply reflect[ing] well established caselaw, it is difficult to view it as anything other than an attempt to forestall the difficulties encountered by the Division in Stolt-Nielsen.