Congress Reauthorizes the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)

Anticompetition

Sections 212-214 of the Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”)[1] might live to see another day. On June 25, 2020, the U.S. House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, repealing the Act’s sunset provision.[2]

ACPERA, enacted in 2004, aimed to encourage antitrust violators to cooperate with government prosecutors and private litigants in antitrust cases. The carrot: if an amnesty applicant into the Department of Justice’s Antitrust Division’s leniency program provided “satisfactory cooperation” to plaintiffs, the applicant’s Sherman Act (or similar state law) civil damages could be reduced to actual, instead of treble, damages. The stick: the Act increased the maximum criminal fine for corporations from $10 million to $100 million, increased the maximum prison sentence from 3 to 10 years, and increased the maximum fine for individuals from $350,000 to $1 million.

Both houses of Congress, in the identical bills reauthorizing ACPERA, found that, “[c]onspiracies among competitors to fix prices, rig bids, and allocate markets are categorically and irredeemably anticompetitive and contravene the competition policy in the United States” and “[c]ooperation incentives are important to the efforts of the Antitrust Division of the Department of Justice to prosecute and deter” antitrust violations.[3] The Assistant Attorney General of the Department of Justice’s Antitrust Division, Makan Delrahim, and the Antitrust Division Deputy Assistant Attorney General for Criminal Enforcement, Richard A. Powers, applauded the bipartisan action.[4] ACPERA has been an important prosecutorial tool for the DOJ since the Act’s enactment.

The legislation now awaits the President’s signature.

[1] Antitrust Criminal Penalty Enhancement & Reform Act (“ACPERA”), Pub. L. No. 108-237, tit. II, 118 Stat. 661 (2004).

[2] H.R. 7076, 116th Congress (2020), available at https://www.congress.gov/bill/116th-congress/house-bill/7036/text; S. 3377, 116th Congress (2020), available at https://www.congress.gov/bill/116th-congress/senate-bill/3377/text; Press Release, Department of Justice, Antitrust Division, “Department of Justice Applauds Congressional Passage of Reauthorization of the Antitrust Criminal Penalty Enhancement and Reform Act” (June 26, 2020), available at https://www.justice.gov/opa/pr/department-justice-applauds-congressional-passage-reauthorization-antitrust-criminal-penalty.

[3] H.R. 7076, 116th Congress (2020); S. 3377, 116th Congress (2020), available at https://www.congress.gov/bill/116th-congress/senate-bill/3377/text.

[4] Press Release, Department of Justice, Antitrust Division, “Department of Justice Applauds Congressional Passage of Reauthorization of the Antitrust Criminal Penalty Enhancement and Reform Act” (June 26, 2020), available at https://www.justice.gov/opa/pr/department-justice-applauds-congressional-passage-reauthorization-antitrust-criminal-penalty.

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