Alerts

ACPERA Disappears Into the Sunset

Alerts / June 23, 2020

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.[1] 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.[2] But Congress failed to extend ACPERA’s detrebling provisions despite fairly wide support among stakeholders to do so.[3] 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.[4]

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[5] 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.

ACPERA Update: On June 25, the House and Senate passed a reauthorization of ACPERA's detrebling provisions repealing their sunset. If signed into law, this would return detrebling of civil antitrust damages for leniency applicants to the same status as before these provisions sunset earlier this week.

Authorship Credit: Ann O’Brien and Brady Cummins

[1] Antitrust Criminal Penalty Enhancement & Reform Act (“ACPERA”), Pub. L. No. 108-237 (June 22, 2004).
[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).
[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 https://www.justice.gov/atr/page/file/1168676/download.
[4] ACPERA, § 211(b).
[5] See U.S. Justice Department Antitrust Division Public Roundtable on Antitrust Criminal Penalty Enhancement & Reform Act (ACPERA) materials available at https://www.justice.gov/atr/events/public-roundtable-antitrust-criminal-penalty-enhancement-reform-act-acpera.

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