Does De-Trebling Sacrifice Recoverability of Antitrust Awards?

Abstract

The Antitrust Reform Act altered the Justice Department '.s treatment of antitrust conspirators who come forward to cooperate in the prosecution of conspiracies. Under the prior Leniency Policy, the first cooperating conspirator was immune from criminal prosecution but remained jointly and severally liable for treble damages. Under the new Act, the amnesty applicant avoids criminal penalties and limits its civil liability to actual damages. Though the theory of the Act was to increase incentives to abandon and reveal antitrust conspiracies, this Comment suggests that the Act will have a consequence Congress did not intend: depriving antitrust plaintiffs of full recovery of treble damage awards. Because joint and several liability for treble damages disproportionately hurts deep-pocketed conspirators, the incentives under the new policy may cause deep pockets to take advantage of the Leniency Policy. This may result in more conspiracies coming to light, but it leaves plaintiffs to collect from conspirators who are more likely to be insolvent. This detrimental effect on plaintiffs' recovery could jeopardize the effectiveness of private antitrust enforcement. In a complex remedial scheme, Congress must consider the effects of changes to one element of the scheme on all the others.