AAG Kanter Announces Changes to Key Antitrust Enforcement Areas

Speaking yesterday at the joint Department of Justice and Federal Trade Commission “Enforcers Summit,” Antitrust Division Assistant Attorney General (AAG) Jonathan Kanter announced changes to key areas of the Antitrust Division’s (Division) enforcement policies.

First, in keeping with recent announcements, AAG Kanter reinforced the Division’s goal to renew criminal enforcement for Section 2 of the Sherman Act, which prohibits monopolization, attempts to monopolize, and conspiracies to monopolize. As we discussed last month, in order to provide transparency to the public, DOJ’s revival of Section 2 criminal enforcement must be coupled with updates to its written policy documents, such as the Justice Manual, which now has been updated to state expressly that the Division “may also bring, and has brought, criminal charges under Section 2.” We expect the Division also will update its Division Manual to provide more clarity with regard to these policy changes, and may even issue other guidance.

Second, AAG Kanter announced updates to the Division’s Leniency Policy, which the Division aims to make more “transparent, predictable, and accessible to the public.” As part of this effort, the Leniency Policy has been incorporated into a new section of the Justice Manual, along with other criminal antitrust enforcement policies. In addition, the Division has published an updated Leniency FAQs document on its website.

The Division’s updates to the Leniency Policy are not limited to making its policies and practices more accessible, however. AAG Kanter also announced two significant changes that will affect applicants for leniency:

• The Division will now require all applicants to “promptly report[] [potentially anticompetitive conduct] to the Antitrust Division.” Previously, the Division required leniency applicants to promptly terminate their participation in the conduct, but did not require prompt reporting. The Leniency FAQs ominously state that “[a]n applicant that fails to appreciate that its conduct could be criminal is not absolved of the prompt self-reporting requirement.” Accordingly, the Division recommends that “[p]otential applicants that are uncertain whether particular conduct is criminal should seek a marker as soon as possible.” This new requirement raises the importance of comprehensive antitrust compliance programs that account for all potential criminal antitrust issues (including “no poach” and Section 2), and that provide clear internal reporting processes so that companies can act quickly when needed; and
• The Division will now require an applicant to “remediate the harm caused by the illegal activity, and to improve its compliance program to mitigate the risk of engaging in future illegal activity.” According to the Leniency FAQs, “[w]hether and what remediation is appropriate depends on the nature of the illegal activity, the nature of any harm caused . . . and the applicant’s role in it.” Although leniency applicants typically already invest in enhanced compliance, the remediation requirement introduces uncertainty in terms of what the Division will require.

In addition, the Leniency FAQs now expressly address the potential criminal prosecution of Section 2 violations. The Division has included Section 2 criminal violations as one of the offenses for which the Division will not prosecute a qualifying applicant under its Leniency Policy if the offense is “committed in furtherance of the illegal activity” covered by the applicant’s leniency letter.

Third, AAG Kanter announced that the Division plans to expand enforcement in the area of interlocking company directorates under Section 8 of the Clayton Act. AAG Kanter commented that Section 8 enforcement has been limited in the past to merger review but that the Division now is looking to expand enforcement in this area outside of the merger review process.

Enforcement is likely to pick up pace as the Division sets its sights on new areas of focus it believes have long been unaddressed. If you need guidance on DOJ’s updates to key enforcement areas, what the Division may do next, or on your company’s antitrust compliance program, our Antitrust/Competition group is here to help.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.