It Ain’t Over ’Til It’s Over: Can Making Acpera Restitution Conditional Help Fill a Gap in the Law?

By Meegan Hollywood & Dave Rochelson – 

The Department of Justice Antitrust Division (the “Division”) has secured dozens of guilty pleas and convictions, and billions of dollars in criminal fines over the past decade, but imposed less than $100 million in restitution to victims. Division policy explains that “[f]requently restitution is not sought in criminal antitrust cases, as damages are obtained through treble damage actions filed by the victims.” Private plaintiffs have taken up that mantle, securing $3 billion per year in compensation for victims. But private actions sometimes encounter unique procedural issues that preclude victims from receiving compensation for the harm they suffered. We offer a proposal to fill this gap in the law. Division policy already provides that, when granting leniency to a defendant pursuant to the Antitrust Criminal Penalty Enhancement & Reform Act of 2004 (“ACPERA”), payment of restitution is a condition of “final leniency.” While civil actions remain the best way to maximize relief for victims of anticompetitive conduct, we propose that the Division retain its restitution power until any related civil cases have resolved. This approach would still provide defendants with some relief from the risk of treble damages, while giving victims of the conspiracy a failsafe in the event that private enforcement falls through. At the end of the day, where the defendants’ guilt is not in question, victims should be compensated.

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