[Congressional Record (Bound Edition), Volume 156 (2010), Part 6]
[Extensions of Remarks]
[Page 8739]
[From the U.S. Government Publishing Office, www.gpo.gov]




ANTITRUST CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT OF 2004 EXTENSION

                                 ______
                                 

                  HON. HENRY C. ``HANK'' JOHNSON, JR.

                               of georgia

                    in the house of representatives

                        Wednesday, May 19, 2010

  Mr. JOHNSON of Georgia. Madam Speaker, today, I introduce legislation 
that extends expiring provisions of the Antitrust Criminal Penalty 
Enhancement and Reform Act of 2004 and reviews its efficacy. I am 
pleased to have as cosponsor of this bill the Chairman of the Judiciary 
Committee, John Conyers, Jr.
  ACPERA 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 and cooperate 
in its prosecution.
  Cartel violations are some of the worst crimes perpetrated on the 
American consumer, yet they are too often crimes we cannot see, as all 
the criminal activity takes place in secret meetings behind closed 
doors.
  Price-fixing cartels can go undetected for years, possibly forever. 
With hundreds of millions (or even billions) of dollars worth of 
unlawful profits at stake, these criminal cartels are very effective at 
finding ways to keep their actions secret.
  In August 1993, the Department of Justice Antitrust Division revised 
its corporate leniency program. Designed to destabilize these cartels, 
the program offered amnesty from criminal prosecution for companies and 
their executives involved in these conspiracies if they were the first 
of the conspirators (and not the ringleader) to reach out to the DOJ's 
Antitrust Division and fully cooperate with its criminal investigation.
  But there was still a disincentive for cartel participants to come 
forward, because they remained liable for treble damages and joint and 
several liability in accompanying civil litigation.
  Five years ago, Congress gave the Justice Department's Antitrust 
Division a new weapon to attack this disincentive head-on. ACPERA 
addressed this shortcoming in the leniency program by also limiting the 
cooperating party's exposure to liability in related civil litigation.
  ACPERA empowers the Justice Department to limit the civil liability 
of a cooperating party to single damages. The remaining co-
conspirators, however, remain jointly and severally liable for all 
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 just over $1 billion in criminal 
fines in Fiscal Year 2009.
  Last year, confronted with the expiration of key provisions of 
ACPERA, I sponsored a bipartisan 1-year extension of the statute. We 
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.
  As Chairman of the Judiciary Committee's Subcommittee on Courts and 
Competition Policy, I want to ensure that the Justice Department has 
all the tools it needs to continue its excellent work protecting 
consumers against price-fixing cartels.
  During this process, I heard a number of suggestions for how to 
improve ACPERA's effectiveness. The legislation I introduce today 
incorporates a number of these suggestions, and also commissions the 
Government Accountability Office to perform a 1-year study to examine 
several others.
  Again, I thank Chairman Conyers for joining me as cosponsor of this 
important legislation, and I look forward to working with our 
colleagues in the other body to reauthorize this very important 
program.

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