[Congressional Record (Bound Edition), Volume 156 (2010), Part 7]
[House]
[Pages 8966-8967]
[From the U.S. 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 purposes, 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
       (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

[[Page 8967]]

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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