Cartel Investigations and Leniency

This article explains what happens in an antitrust cartel investigation and how to stay out of one. The government’s favored way to learn about cartels is its leniency program. Under this program, the first company to come to the authorities and confess to wrongdoing gets off free: no fines, and no jail. The price of leniency is full cooperation against the other violators. Unlike a guilty pleader, a leniency applicant has full coverage for its cooperating current employees. This is a key advantage of winning the race for leniency.

By law, the FBI can and does use the full range of investigative tools against cartels, working in conjunction with the DOJ Antitrust Division. These tools may include surveillance of cartel meetings, undercover sources, taping of meetings and phone calls, and underground email accounts to engage cartel members. Along with search warrants, agents typically will serve grand jury subpoenas, seeking a range of documents. Grand jury subpoenas may have the purpose of demanding documents that are outside the scope of the initial search warrant or were offsite during the warrant’s execution.

This is no area for “paper programs.” A good compliance program that sensitizes employees to antitrust problems should include support from top executives; a risk assessment; quality antitrust content; proof that each at-risk employee participates; a place for employees to go if they see something improper; an audit process; and a continuous improvement program based on the audit results.