[Congressional Record Volume 155, Number 85 (Tuesday, June 9, 2009)]
[Senate]
[Page S6382]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KOHL:
  S. 1219. A bill to amend subtitle A of the Antitrust Criminal Penalty 
Enhancement and Reform Act of 2004 to extend the operation of such 
subtitle for a 1-year period ending June 22, 2010; to the Committee on 
the Judiciary.
  Mr. KOHL. Mr. President, I rise today to introduce the Antitrust 
Criminal Penalties Enforcement and Reform Act of 2004 Extension Act. 
This legislation extends a critical component of the Antitrust Criminal 
Penalty Enforcement and Reform Act of 2004, set to expire on June 22, 
which encourages participation in the Antitrust Division's leniency 
program. As a result, the Justice Department will be able to continue 
to detect, investigate and aggressively prosecute price-fixing cartels 
which harm consumers.
  The Antitrust Division of the Department of Justice has long 
considered criminal cartel enforcement a top priority, and its 
Corporate Leniency Policy is an important tool in that enforcement. 
Criminal antitrust offenses are generally conspiracies among 
competitors to fix prices, rig bids, or allocate markets of customers. 
The Leniency Policy creates incentives for corporations to report their 
unlawful cartel conduct to the Division, by offering the possibility of 
immunity from criminal charges to the first-reporting corporation, as 
long as there is full cooperation. For more than 15 years, this policy 
has allowed the Division to uncover cartels affecting billions of 
dollars worth of commerce here in the U.S., which has led to 
prosecutions resulting in record fines and jail sentences.
  An important part of the Division's Leniency Policy, added by the 
Antitrust Criminal Penalties Enforcement and Reform Act of 2004, limits 
the civil liability of leniency participants to the actual damages 
caused by that company--rather than triple the damages caused by the 
entire conspiracy, which is the typical in civil antitrust lawsuits. 
This removed a significant disincentive to participation in the 
leniency program--the concern that, despite immunity from criminal 
charges, a participating corporation might still be on the hook for 
treble damages in any future antitrust lawsuits.
  Maintaining strong incentives to make use of the Leniency Policy 
provides important benefits to the victims of antitrust offenses, often 
consumers who paid artificially high prices. It makes it more likely 
that criminal antitrust violations will be reported and, as a result, 
consumers will be able to identify and recover their losses from paying 
illegally inflated prices. The policy also requires participants to 
cooperate with plaintiffs in any follow-on civil lawsuits, which makes 
it more likely that the plaintiff consumers will be able to build 
strong cases against all members of the conspiracy.
  Since the passage of ACPERA, the Antitrust Division has uncovered a 
number of significant cartel cases through its leniency program, 
including the air cargo investigation, which so far has yielded over a 
billion dollars in criminal fines. In that investigation, several 
airlines pled guilty to conspiring to fix international air cargo rates 
and international passenger fuel surcharges. Not only were criminal 
fines levied, but one high-ranking executive pled guilty and agreed to 
serve eight months in prison. In fiscal year 2004, before the passage 
of ACPERA, criminal antitrust fines totaled $350 million. Criminal 
antitrust fines in fiscal year 2009 have already surpassed $960 
million. Scott Hammond, the Deputy Assistant Attorney General for 
Criminal Enforcement in the Antitrust Division, has stated that the 
damages limitation has made its Corporate Leniency Program ``even more 
effective'' at detecting and prosecuting cartels.
  ACPERA's damages limitation is set to expire later this month, so we 
must act quickly to extend it. Otherwise, the Justice Department will 
lose an important tool that it uses to investigate and prosecute 
criminal cartel activity. This bill extends that provision for 1 year. 
Over the next year, we will fully review ACPERA, and consider potential 
changes to make it more effective.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1219

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Antitrust Criminal Penalties 
     Enforcement and Reform Act of 2004 Extension Act''.

     SEC. 2. DELAY OF SUNSET.

       Section 211(a) of the Antitrust Criminal Penalty 
     Enhancement and Reform Act of 2004 (15 U.S.C. 1 note) is 
     amended by striking ``5 years'' and inserting ``6 years''.

     SEC. 3. EFFECTIVE DATE OF AMENDMENT.

       The amendment made by section 2 shall take effect 
     immediately before June 22, 2009.
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