Successful Argument Invalidates ACPERA Protection


The Antitrust Criminal Penalty Enhancement and Reform Act (“ACPERA”) provides for dramatic civil liability reductions for the civil antirust defendant who is also the recipient of criminal amnesty from the DOJ only if that defendant cooperates fully with the civil plaintiffs.  Such cooperation requires a “full account to the plaintiff of all facts known to the applicant…that are potentially relevant to the civil action…and without intentionally withholding any potentially relevant information.”  If the civil defendant provides plaintiffs such cooperation, then it can escape joint and several liability and treble damages otherwise recoverable under antitrust law. 

The Court here determined that TYC and Genera, the criminal amnesty recipients, failed to provide the cooperation required under the Statute.  Instead, defendants withheld key relevant facts from plaintiffs and delayed any ostensible cooperation for years into the litigation, after which plaintiffs independently discovered many facts after lengthy and expensive discovery.   The issue of whether an amnesty recipient complied with the ACPERA cooperation requirements in a contested motion is an issue of first impression.  The lesson for other amnesty recipients seeking to limit their civil liability under ACPERA is to not play fast and loose with their cooperation requirements:  they must disclose everything they know to the plaintiffs very early in the case in order to qualify.

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