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Msg  340834 of 770421  at  2/15/2009 11:28:22 PM  by


 In response to msg 340740 by  dshostakovich
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Re: Judge Kramer - December 12 - Micron's "immunity" from treble damages

>>  I have questioned whether the "immunity" applies to all cases arising from AT violations or only with the DOJ itself? <<
The US Department of Justice ("DOJ") decides whether there will be immunity from Federal criminal liability.
For civil antitrust liability, the (Federal or state) court presiding over the civil lawsuit has the authority to decide if "detrebling" immunity under the statute will apply, once Federal prosecutors have offered immunity from criminal liability to the cooperating cartel member.
To explain this more fully:
The availability of immunity from civil and criminal lliability came into the law with the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, passed by Congress, and signed into law by President Bush in June, 2004. See Part IV of this August, 2004 discussion of the new statute by the Deputy Assistant Attorney General, Antitrust Division, previously quoted here today:   http://www.justice.gov/atr/public/speeches/205630.htm 
Here are the passages relevant to immunity from civil treble damages (emphases added).
From the emphasized passages, I think it's clear that the judge in the civil antitrust case (whether in Federal Court of a state court) will be the one to determine whether the cooperation of the ciminally-immunized cartel member is sufficient to make the cartel member eligible for a reduction to single damages.:
>>  C.  The Detrebling Provisions
That brings me to perhaps the biggest change brought about by the new legislation: The detrebling provision.
This provision was specifically designed to augment the Antitrust Division's Corporate Leniency Policy, which has been so very effective in exposing harmful cartel activity in recent years. Under this program, a cartel participant that voluntarily blows the whistle on the cartel can avoid prosecution if it comes forward and cooperates with the investigation and prosecution. This legislation gives cartel members an even greater incentive to turn themselves in. It does that by limiting their potential damages in private lawsuits to single damages based on their own role in the cartel, provided that they also cooperate with plaintiffs in the private lawsuit. Other cartel participants remain fully liable for treble damages based on harm caused by the entire conspiracy. The result should be more cartels exposed and brought to justice, both in criminal prosecutions and in private legal actions.
It is important to emphasize that this provision reduces civil damages from corporate amnesty applicants to single damages in a private lawsuit only if an applicant cooperates with the plaintiffs in that lawsuit. It will be up to the court in which the civil action is brought to determine whether cooperation is satisfactory, but the statute makes it clear that cooperation shall include providing a full account of all facts known to the applicant or cooperating individual that are potentially relevant to the civil action and furnishing all documents potentially relevant to the civil action that are in the possession, custody, or control of the applicant or cooperating individual, wherever those documents are located.  An antitrust leniency applicant must also use its best efforts to secure the cooperation of employee witnesses.
This detrebling provision was intended to provide the most incentive possible for firms and individuals participating in illegal conspiracies to seek the protection of the Leniency Program and turn themselves in. That is why it explicitly applies to state actions as well. Indeed, the legislation itself clearly states that "in any civil action alleging a violation of section 1 or 3 of the Sherman Act, or alleging a violation of any similar State law the amount of damages recovered . . . from an antitrust leniency applicant . . . shall not exceed that portion of the actual damages sustained by the claimant . . . ."(20)
. . . . . some clever lawyer will undoubtedly come forward and try to make the argument that the detrebling provision does not apply in a particular state action, perhaps (for example) because the state law at issue allows actions on behalf of indirect purchasers.
That argument would be flatly mistaken. The scope of the detrebling provision was clearly intended to be broad in order to serve the express purpose of the legislation--to enhance the Division's Leniency Program. The provision's legislative history makes this abundantly clear. For example, Chairman Hatch explained that:
"This [detrebling] provision addresses this disincentive to self-reporting [created by the threat of treble damages]. Specifically, it amends the antitrust laws to modify the damage recovery from a corporation and its executives to actual damages. In other words, the total liability of a successful leniency applicant would be limited to single damages without joint and several liability. Thus, the applicant would only be liable for the actual damages attributable to its own conduct, rather than being liable for three times the damages caused by the entire unlawful conspiracy. [] Importantly, this limitation on damages is only available to corporations and their executives if they provide adequate and timely cooperation to both the Government investigators as well as any subsequent private plaintiffs bringing a civil suit based on the covered criminal conduct.(21) "
Similarly, Senator Leahy explained that this detrebling provision "would . . . give our prosecutors the authority to effectively limit a cooperating party's potential civil liability as well, and to limit that liability to single damages in any subsequent civil lawsuit brought by a private plaintiff."(22) This was echoed by Senator Kohl, who stated that the provision "will give the Justice Department the ability to offer those applying for leniency the additional reward of only facing actual damages in antitrust civil suits, rather than treble damage liability."(23) Finally, Senator DeWine explained that this provision "decreases . . . liability by limiting the damages a private plaintiff may recover from a corporation that has cooperated with the Antitrust Division. Specifically, the conspirator is not liable for the usual treble damages; instead, it is only liable for actual damages."(24) Significantly, none of the Senate sponsors of the legislation suggested that this detrebling accomplished anything other than a complete elimination of any potential treble damage liability.
The House sponsor of the legislation, Chairman Sensebrenner, was equally clear about the breadth of the detrebling provision:
Title II of the legislation also contains important modifications to the antitrust leniency program used by the Department of Justice to facilitate the detection and prosecution of antitrust violations. Under existing practice, parties that cooperate with Federal antitrust authorities to uncover violations may not be subject to government prosecution, but remain liable in civil actions brought by private parties. The bill creates an additional incentive for corporations to disclose antitrust violations by limiting their liability in related civil claims to actual damages. Furthermore, while a cooperating party would be liable only for damages attributable to that party's conduct, noncooperating conspirators will remain jointly and severally liable for treble damages for the misconduct of all of the conspirators.(25) 
This statement makes it clear that the detrebling provision--in order to have the maximum intended effect of creating an incentive for corporations to disclose antitrust violations--limits liability in all related civil claims to actual damages.
Needless to say, if the detrebling provision were read narrowly to permit some state law treble damage antitrust claims to proceed, the goal of the detrebling provision would be seriously compromised. In light of this and in light of Congress' clear intent to enhance the Leniency Program by limiting the "total liability" of a successful leniency applicant, any doubts should be resolved in favor of finding that such claims are precluded when the other requirements of the detrebling provision are satisfied.  <<

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Msg # Subject Author Recs Date Posted
340853 Re: Judge Kramer - December 12 - Micron's "immunity" from treble damages mllyou 8 2/16/2009 2:11:22 AM

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