Antitrust Law Daily ACPERA protection from treble damages for antitrust leniency recipients extended
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Thursday, October 1, 2020

ACPERA protection from treble damages for antitrust leniency recipients extended

By Jeffrey May, J.D.

President signs a continuing resolution containing the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act, which was separately approved by both houses of Congress in June.

Today, President Donald J. Trump signed into law a continuing resolution that, in addition to funding federal agencies through December 11, 2020, contains the Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act. That act repeals a sunset provision of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA).

Under ACPERA, a successful antitrust leniency applicant’s civil damages exposure is limited to actual (not treble) damages if the company cooperates with the government's antitrust investigation and provides civil plaintiffs with timely and satisfactory cooperation. ACPERA was signed into law on June 22, 2004. The law, as amended, included a sunset provision pursuant to which the protections "shall cease to have effect 16 years after the date of enactment of this Act." The Antitrust Criminal Penalty Enhancement and Reform Permanent Extension Act repealed the June 22 sunset of the detrebling provision.

Both the House of Representatives and Senate passed identical bills, H.R. 7036 and S. 3377, on June 25 to repeal the sunset provision. However, no further action was taken until the legislation was added to the continuing resolution measure. The larger measure (Public Law 116-159, H.R 8337) is referred to as the "Continuing Appropriations Act, 2021 and Other Extensions Act."

Antitrust chief’s reaction. In response to the move, Makan Delrahim, Assistant Attorney General in charge of the Department of Justice Antitrust Division, thanked President Trump and both the Senate and the House of Representatives "for their bipartisan action and recognition of ACPERA’s importance in the fight to safeguard our free markets and protect American consumers from collusion." The Department of Justice supported the reauthorization of ACPERA and the repeal of its sunset provision because civil damages exposure can deter self-reporting of criminal wrongdoing, it was noted.

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