[Congressional Record Volume 156, Number 79 (Monday, May 24, 2010)]
[House]
[Pages H3716-H3718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ANTITRUST CRIMINAL PENALTY ENHANCEMENT AND REFORM EXTENSION ACT
Mr. NADLER of New York. Madam Speaker, I move to suspend the rules
and pass the bill (H.R. 5330) to amend the Antitrust Criminal Penalty
Enhancement and Reform Act of 2004 to extend the operation of such Act
for a 5-year period ending June 22, 2015, and for other purpose, as
amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5330
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DELAY OF SUNSET.
Section 211(a) of the Antitrust Criminal Penalty
Enhancement and Reform Act of 2004 (Public Law 108-237; 15
U.S.C. 1 note) is amended--
(1) in subsection (a)--
(A) by inserting ``of this subtitle'' after ``214'', and
(B) by striking ``6 years'' and inserting ``16 years'', and
(2) by amending subsection (b) to read as follows:
``(b) Exceptions.--With respect to--
``(1) a person who receives a marker on or before the date
on which the provisions of section 211 through 214 of this
subtitle shall cease to have effect that later results in the
execution of an antitrust leniency agreement, or
``(2) an applicant who has entered into an antitrust
leniency agreement on or before the date on which the
provisions of sections 211 through 214 of this subtitle shall
cease to have effect,
the provisions of sections 211 through 214 of this subtitle
shall continue in effect.''.
SEC. 2. DEFINITIONS.
Section 212 of the Antitrust Criminal Penalty Enhancement
and Reform Act of 2004 (Public Law 108-237; 15 U.S.C. 1 note)
is amended--
(1) by redesignating paragraph (6) as paragraph (7), and
(2) by inserting after paragraph (5) the following:
``(6) Marker.--The term `marker' means an assurance given
by the Antitrust Division to a candidate for corporate
leniency that no other company will be considered for
leniency, for some finite period of time, while the candidate
is given an opportunity to perfect its leniency
application.''.
SEC. 3. TIMELINESS; COOPERATION AFTER TERMINATION OF STAY OR
PROTECTIVE ORDER.
(a) Timeliness.--Section 213(c) of the Antitrust Criminal
Penalty Enhancement and Reform Act of 2004 (Public Law 108-
237; 15 U.S.C. 1 note) is amended to read as follows:
``(c) Timeliness.--The court shall consider, in making the
determination concerning satisfactory cooperation described
in subsection (b), the timeliness of the applicant's or
cooperating individual's cooperation with the claimant.''.
(b) Cooperation After Termination of Stay or Protective
Order.--Section 213 of the Antitrust Criminal Penalty
Enhancement and Reform Act of 2004 (Public Law 108-237; 15
U.S.C. 1 note) is amended by adding at the end the
following--
(1) by redesignating subsection (d) as subsection (e), and
(2) by inserting after subsection (c) the following:
``(d) Cooperation After Expiration of Stay or Protective
Order.--If the Antitrust Division does obtain a stay or
protective order in a civil action based on conduct covered
by an antitrust leniency agreement, once the stay or
protective order, or a portion thereof, expires or is
terminated, the antitrust leniency applicant and cooperating
individuals shall provide without unreasonable delay any
cooperation described in paragraphs (1) and (2) of subsection
(b) that was prohibited by the expired or terminated stay or
protective order, or the expired or terminated portion
thereof, in order for the cooperation to be deemed
satisfactory under such paragraphs.''.
SEC. 4. TECHNICAL CORRECTIONS.
Section 214 of the Antitrust Criminal Penalty Enhancement
and Reform Act of 2004 (Public Law 108-237; 15 U.S.C. 1 note)
is amended--
(1) in paragraph (1) by inserting ``of this subtitle''
after ``213(b)'', and
(2) in paragraph (3)--
(A) by inserting ``of this subtitle'' after ``213(a)'' the
1st place it appears, and
(B) by striking ``title'' and inserting ``subtitle''.
SEC. 5. GAO REPORT.
Not later than 1 year after the date of enactment of this
Act, the Comptroller General shall submit, to the Committee
on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate, a report on the
effectiveness of the Antitrust Criminal Penalty Enhancement
and Reform Act of 2004, both in criminal investigation and
enforcement by the Department of Justice, and in private
civil actions. Such report should include study of, inter
alia--
(1) the appropriateness of the addition of qui tam
proceedings to the antitrust leniency program; and
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(2) the appropriateness of creating anti-retaliatory
protection for employees who report illegal anticompetitive
conduct.
SEC. 6. EFFECTIVE DATE OF AMENDMENTS.
The amendments made by section 1 shall take effect
immediately before June 22, 2010.
SEC. 7. BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New
York (Mr. Nadler) and the gentleman from California (Mr. Daniel E.
Lungren) each will control 20 minutes.
The Chair recognizes the gentleman from New York.
General Leave
Mr. NADLER of New York. Madam Speaker, I ask unanimous consent that
all Members have 5 legislative days to revise and extend their remarks
and include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. NADLER of New York. I yield myself such time as I may consume.
Madam Speaker, H.R. 5330 extends by 10 years the Antitrust Criminal
Penalty Enhancement and Reform Extension Act of 2004, an important tool
in combating illegal cartel behavior.
Set to expire next month, the 2004 act promotes the detection and
prosecution of illegal cartel behavior by giving participants in a
price-fixing cartel powerful incentives to report the cartel to the
Justice Department's Antitrust Division and to cooperate in the
investigation and prosecution.
Criminal cartel enforcement targets some of the worst crimes
perpetrated on American consumers, but these crimes are not easily
detected because the actual criminal activity takes place in secret
meetings, behind closed doors among willing coconspirators. So even
with the hard work of the Antitrust Division, price-fixing cartels can
often go undetected. With hundreds of millions, or even billions, of
dollars of unlawful profits at stake, these criminals work hard to keep
their actions secret.
In August 1993, the Antitrust Division revised its existing program
to destabilize cartels by giving cartel participants a strong incentive
to break the code of silence and report the cartel. This program offers
amnesty from criminal prosecution for the first company to report the
cartel.
The company cannot have been the ringleader, and it has to continue
cooperating fully with the criminal investigation and prosecution. The
company's executives also receive amnesty if they give full
cooperation. But there was still a disincentive for cartel participants
to come forward because they remained subject to treble damages and
joint and several liability in accompanying civil litigation.
Six years ago, this Congress gave the Antitrust Division a new weapon
to attack this disincentive head on. ACPERA, the bill we are talking
about, addressed this shortcoming in the criminal leniency program by
also eliminating the cooperating party's exposure to civil liability.
ACPERA limits the civil liability of the cooperating party to single
damages.
The remaining conspirators in the cartel, however, remain jointly and
severally liable for all damages and treble damages. In this way the
act strikes a carefully crafted balance, encouraging the cartel members
to turn on each other while ensuring full compensation to the victims.
The positive impact of this law cannot be overstated. ACPERA aided
the Antitrust Division in obtaining $1 billion in criminal fines in
fiscal year 2009 alone. Last year, confronted with the expiration of
key provisions of ACPERA, we sponsored a bipartisan 1-year extension of
the statute.
We have since solicited input from a number of parties, including the
Department of Justice, the American Bar Association, noted academics
such as William Kovacic, and representatives of civil litigants,
leniency applicants, and cartel whistleblowers. I want to ensure that
the Justice Department has all the tools that it needs to continue its
excellent work protecting consumers from price-fixing cartels.
The legislation before us today extends the law for 10 years and
incorporates a number of smaller findings based on other suggestions
that have been made. Specifically, it makes minor changes to the law to
ensure that companies provide timely cooperation to victims of the
cartel in the related civil action in order to receive the reduced
damages liability. It also ensures that no one in the amnesty process
in the future will be adversely affected if this law were to sunset in
the future.
Finally, it commissions the Government Accountability Office, the
GAO, to perform a 1-year study to examine several other suggestions
that have been made to further improve the law.
I urge my colleagues to support this important legislation.
I reserve the balance of my time.
Mr. DANIEL E. LUNGREN of California. Madam Speaker, I yield myself
such time as I may consume.
Madam Speaker, I am pleased to support H.R. 5330, a bill to extend
the Antitrust Criminal Penalty Enhancement and Reform Act for 10 years.
Portions of title II of Public Law 108-237, the Antitrust Criminal
Penalty Enhancement and Reform Act of 2004, called ACPERA--now that's
not a drug or a disease, it is just the acronym for this law--are set
to expire on the 22nd of June. The expiring sections relate to
incentives for companies to participate in the Antitrust Division's
corporate leniency program.
Specifically, the expiring provisions allow a company that's entered
into the leniency program to request that it be held liable only for
the full compensatory damages in a follow-on civil suit. Normally, as
was mentioned by the gentleman from New York, defendants are required
to pay treble damages in an antitrust action. This program has proven
to be successful in allowing the Antitrust Division to pursue criminal
price-fixing cases in recent years.
Last year, Congress approved a 1-year extension of ACPERA so that the
Judiciary Committee could study the issue further. After months of
discussions with the stakeholders, we have made some changes to ACPERA
to require defendants to disclose more information to plaintiffs in the
follow-on class action suits.
These additional cooperation requirements apply only if, one, the
defendant has pleaded guilty to a criminal price-fixing conspiracy and,
two, seeks the liability limitations that ACPERA provides. Most
importantly, the changes in this bill will not affect the Justice
Department's ability to prosecute these cases. So for this reason, the
Department does not oppose these additional disclosure requirements.
This bill provides a 10-year extension of ACPERA. Given the success
that the program has had in uncovering criminal price-fixing schemes, a
10-year extension appears to be quite appropriate. It is crucial that
we continue to provide the Justice Department with the tools it needs
to ensure that it can protect consumers against price-fixing schemes.
With that in mind, I am happy to support this legislation. I hope
that my colleagues will support this measure and the Senate will take
it up in a timely manner so as to ensure that this authority does not
expire next month.
I yield back the balance of my time.
Mr. NADLER of New York. Madam Speaker, I urge my colleagues to
support this legislation.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from New York (Mr. Nadler) that the House suspend the rules
and pass the bill, H.R. 5330, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. NADLER of New York. Madam Speaker, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
The point of no quorum is considered withdrawn.
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