The Antitrust Division has a policy of according leniency to organizations or individuals that self-report their participation in a criminal conspiracy in violation of Section 1 or 3(a) of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 3(a) (“illegal activity”), and meet certain conditions. As used in this policy, an organization or individual that meets the criteria for leniency will not be charged criminally for the illegal activity.

The corporate leniency policy, JM 7-3.310 to JM 7-3.320, is the Antitrust Division’s voluntary self-disclosure policy. It incentivizes timely corporate self-reporting that facilitates prosecution of individuals responsible for the misconduct. An organization that seeks to self-report illegal activity to the Antitrust Division, but does not meet the conditions of the corporate leniency policy, will not be eligible for a declination.

Pursuant to JM 9-28.900(A)(3)(c), when an acquiror discloses illegal activity by the acquired entity, the prosecution team should apply a presumption of declination to the acquiror only if the parties (i) satisfy all relevant requirements of the Antitrust Division’s leniency policy; (ii) voluntarily disclose the misconduct to the Antitrust Division (and the Federal Trade Commission, if the Commission is reviewing the transaction) before the merger or acquisition closes; and (iii) enter into an agreement, to the satisfaction of the Antitrust Division (and, when relevant, Federal Trade Commission), that (a) suspends any review period until a conditional leniency letter is issued or the marker lapses, and/or (b) otherwise commits to not close the merger or acquisition for a specified period of time, in the discretion of the Antitrust Division (and, when relevant Federal Trade Commission), after a conditional leniency letter is issued or the leniency marker expires. For the purposes of JM 9-28.900(A)(3)(c), in situations where the Antitrust Division concludes that the parties have satisfied the requirements of JM 9-28.900(A)(3)(c)(i) – (iii), the prosecution team may effectuate this “presumption of declination” by issuing a conditional leniency letter or its functional equivalent. See JM 7-3.340(B)-(C).

Additional information and current contact information to make an application can be found in the Antitrust Division’s Leniency Program FAQs, available at: https://www.justice.gov/atr/leniency-program

Whenever used in this policy, “current directors, officers, and employees” and “timely, truthful, continuing, and complete cooperation” are defined in the model conditional leniency letters available at: https://www.justice.gov/atr/leniency-program

[updated March 2024]