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DOJ’s Updated Leniency Policy Could Lead to Fewer Applications, Lawyers Say

Global Competition Review

06 Apr 2022

Lisa Phelan was featured in a Global Competition Review article discussing the Department of Justice’s (DOJ) updated leniency policy, which requires applicants to “promptly” report antitrust violations after learning about them, in addition to undertaking remedial measures to redress the harm they caused and improve compliance programs.

Speaking at the GCR: Live Cartels panel, Lisa said the DOJ appears to have “left to itself total discretion” to assess whether a company has “promptly reported” a breach, noting that it has also “interestingly” expanded the list of categories of people who would be required to promptly report the conduct.

Lisa said the policy update was a written codification of what the Antitrust Division has recently been doing in situations with leniency applicants when documents turn up six months into an investigation referencing conduct “that a very experienced antitrust cartel lawyer might recognize as problematic.” But if the behavior wasn’t recognized as possible cartel conduct, then the DOJ may decide that the applicant is no longer eligible for leniency, Lisa said, adding that it is unclear if this will improve predictability for applicants.

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