Whither amnesty? Uncertainty in US antitrust enforcement

Since its formalisation in 1993, the corporate leniency policy of the US Department of Justice’s Antitrust Division has achieved remarkable results. Companies that discovered anti-competitive behaviour in their ranks rushed to report their wrongdoing to the Antitrust Division, hoping to be first in the door and thereby receive near-certain amnesty for the company and all co-operating employees. There was reason to hurry. The twin hallmarks of the policy — transparency and predictability — provided assurance that those who lost the race for leniency were almost always subject to criminal penalties.

But a strange thing happened on the way to record corporate fines and hefty jail sentences for individual violators: the wave of recent enforcement actions against LIBOR-submitting banks brought with it a destabilising undertow of new realities, and the clear all-or-nothing incentives gave way to complexity. A successful leniency applicant may still be exposed to significant criminal penalties from other law enforcement or regulatory agencies, diluting the obvious benefits of being first in, while increasing the potential risks. At the same time, a co-operating late-comer, which ordinarily would not qualify for leniency, may still be able to avoid criminal penalties.

Thus, for companies weighing whether or not to report possible US antitrust violations, these cases and other developments have replaced clear incentives for being first in the door with newfound uncertainty. While these trends thus far have been confined to antitrust enforcement in the banking and financial services industry, the animating factors suggest the possibility of similar outcomes in other highly regulated and concentrated sectors…

If you are registered and logged in to the site, click on the link below to read the rest of the Allen & Overy briefing. If not, please register or sign in with your details below.

Sign in or Register to continue reading this article

Sign in


It's quick, easy and free!

It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.

Register now

Why register to The Lawyer


Industry insight

In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.


Market intelligence

Identify the major players and business opportunities within a particular region through our series of free, special reports.


Email newsletters

Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.

More relevant to you

To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.

Analysis from The Lawyer

  • Panel reviews

    Panel reviews 2014: The chosen ones

    Which firms are cutting it in this era of slimline rosters, and who are the GC new brooms making clean sweeps? The Lawyer can reveal all

  • training

    Accutrainee: Revolution postponed

    At the time of its launch Accutrainee was described as a revolutionary change to the training model. Has it proved to be so? Not really.

View more analysis from The Lawyer


One Bishops Square
E1 6AD

Turnover (£m): 1,234.30
No. of lawyers: 2,194 (UK 200)
Jurisdiction: UK
No. of offices: 11
No. of qualified lawyers: 369 (International 50)
No. of partners: 81