AAI Encourages DOJ to Support ACPERA Reauthorization Without Risking the Statute’s Efficacy

On May 31, AAI submitted comments to the Antitrust Division of the U.S. Department of Justice (DOJ) in response to the DOJ’s call for feedback on the efficacy of the Antitrust Criminal Penalties Enhancement & Reform Act (ACPERA), which will be up for reauthorization by Congress in 2020.

ACPERA is a 2004 statute designed to strengthen the DOJ’s Leniency Program by encouraging cartel participants to self-report crimes, and to benefit consumers by encouraging leniency applicants to cooperate with private plaintiffs in civil damages actions. Among other things, ACPERA relieves leniency applicants of joint and several liability and the trebling of damages afforded by the Clayton Act, leaving applicants liable only for damages proportional to the share of the commerce affected by their anticompetitive conduct.

On April 11, the DOJ hosted a public roundtable discussion on the efficacy of ACPERA, and several speakers proposed changes to the statutory scheme.  AAI’s comments encourage the DOJ to support reauthorization of ACPERA without any substantive changes to the existing provisions of the statute.  This position is supported by an exhaustive study by the Government Accountability Office (GAO), which found that ACPERA’s system for affording relief to leniency applicants as enacted and modified in the 2010 reauthorization is working and carrying out the underlying legislative policies of incentivizing leniency applicants and benefitting consumers.  AAI believes there is simply no need to tamper with a salutary statute that is working, nor to risk a deleterious influence on the DOJ’s important leniency program.

However, AAI does encourage the DOJ to support amendments to ACPERA to add protections against retaliation for whistleblowers who participate in the leniency program or otherwise provide information to the Antitrust Division in connection with leniency applications.  This conclusion is supported by the GAO Report, and by congressional experience with other statutory schemes.

AAI also supports whistleblower rewards in cartel cases akin to those made available in qui tam civil suits under the False Claims Act.