Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

FTC Issues Final Rule Banning Non-Competes

2024 BHIPP - BakerHostetler IP Perspective

Are Your Granted Patents in Danger of a Post-Grant Double Patenting Challenge?

IP Intelligence Report

World IP Day – Celebrating Innovation and Creativity to Build Our Common Future

Employment Law Spotlight

The Birth of Another Form of Paid Leave: Prenatal Leave for New York-Based Employees

ACPERA Update: On October 1, 2020, President Trump signed legislation reauthorizing ACPERA's detrebling protections for leniency applicants. As we wrote in our June 23 alert below, the original legislation, enacted in 2004, included a sunset provision for the detrebling protections that had been extended twice in the years since. The new legislation repeals the sunset provision entirely, making ACPERA’s detrebling protections permanent and statutorily limiting private civil antitrust damages for leniency recipients who cooperate with civil plaintiffs to actual damages instead of treble damages.

A key statutory provision underlying the Department of Justice Antitrust Division’s leniency program has sunset as of midnight on June 22. ACPERA (Antitrust Criminal Penalty Enhancement and Reform Act) was enacted in 2004 and contained a limitation on civil recovery, Section 213, that limited Sherman Act (or similar state law) damages against a leniency recipient who cooperated with civil plaintiffs to actual damages instead of treble damages. Congress enacted these detrebling provisions with the dual purpose of incentivizing antitrust criminal enforcement by promoting leniency applications and incentivizing cooperation with civil plaintiffs.<a href="#1">[1]</a> Scores of leniency applicants have relied on this provision over the last 16 years.

The detrebling provisions had an original five-year sunset that was extended twice to June 22, 2020.<a href="#2">[2]</a> But Congress failed to extend ACPERA’s detrebling provisions despite fairly wide support among stakeholders to do so.<a href="#3">[3]</a> Though going forward leniency applicants may no longer benefit from Section 213’s damages limitations, applicants who entered into leniency agreements with the Antitrust Division before the sunset on June 22, 2020, or those who received a marker before that date and later enter into a leniency agreement, will retain ACPERA’s detrebling benefits.<a href="#4">[4]</a>

The sunset of the ACPERA detrebling provisions after 16 years is unfortunate for both antitrust criminal cartel enforcement and cartel victims. While there was some disagreement at the Department of Justice Antitrust Division’s 2019 public ACPERA Roundtable<a href="#5">[5]</a> as to the current effectiveness of ACPERA and whether statutory changes were needed, the general consensus was that ACPERA should be renewed. Even if ACPERA was not operating ideally, the removal of the detrebling provisions leaves a void of greater uncertainty for both prospective leniency applicants and cartel victims.

This might not be the end of ACPERA’s detrebling provisions; they could be reenacted with or without amendment in the future. Without ACPERA’s detrebling provisions, there will likely be increased pressure on the Antitrust Division from leniency applicants to become more actively involved in civil cartel litigation so as to help fill the void left by the sunset. There will be plenty to watch in the antitrust cartel space as the post-ACPERA world unfolds.

Authorship Credit: Ann O’Brien and Brady Cummins

<a id="1" name="1"></a>[1] Antitrust Criminal Penalty Enhancement &amp; Reform Act (“ACPERA”), Pub. L. No. 108-237 (June 22, 2004).
<a id="2" name="2"></a>[2] See Antitrust Criminal Penalty Enhancement and Reform Act of 2004 Extension Act, Pub. L. No. 111-30, § 2, 123 Stat. 1775 (2009) (extending ACPERA by one year) and Pub. L. No. 111-190 § 1, 124 Stat. 1275 (2010) (extending ACPERA an additional 10 years).
<a id="3" name="3"></a>[3] See, e.g., Comments of the Antitrust Law Section of the American Bar Association Regarding the U.S. Justice Department Antitrust Division Roundtable Discussion of ACPERA (April 11, 2019) available at <a href="https://www.justice.gov/atr/page/file/1168676/download">https://www.justice.gov/atr/page/file/1168676/download</a>.
<a id="4" name="4"></a>[4] ACPERA, § 211(b).
<a id="5" name="5"></a>[5] See U.S. Justice Department Antitrust Division Public Roundtable on Antitrust Criminal Penalty Enhancement &amp; Reform Act (ACPERA) materials.

ACPERA Disappears Into the Sunset

Featured Insights

Related Services

Featured Insights