Immunity, Sanctions & Settlements

Last verified on Tuesday 5th June 2018

Japan

Hideto Ishida and Yuhki Tanaka
Anderson Mōri & Tomotsune

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?

  2. First of all, it should be noted that in Japan the leniency programme is established only for cartel enforcement.

    Under this leniency programme, the first applicant to come forward before a dawn raid is fully exempted from administrative surcharge, which is the most significant sanction against cartels in Japan, unless it provides false information to, or refuses to cooperate in, investigations by the Japan Fair Trade Commission (the JFTC), the principal enforcement agency of the Antimonopoly Act in Japan.

    Furthermore, the first applicant before a dawn raid is also effectively exempted from criminal sanctions. Under the Antimonopoly Act of Japan, the effect of the leniency programme extends only to administrative surcharge, but not to criminal sanctions. However, according to the policy statement of the JFTC, no criminal accusation will be made by the JFTC against the first applicant before a dawn raid. As the Ministry of Justice (MOJ) also made the official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that the first applicant before a dawn raid is effectively exempted from any criminal sanctions against cartels.

    As to civil sanctions, no effect will be provided by leniency application, even by the first application before a raid.

  3. 2.

    Do the protections extend to current and former officers, directors and employees?

  4. Yes. Under the Antimonopoly Act, the protective effect of the leniency programme will not extend to current and former officers, directors and employees. This is because under the Antimonopoly Act the effect of the leniency programme extends only to administrative surcharge and surcharge payment orders are not addressed to individuals.

    Criminal sanctions, however, are addressed to individuals as well as corporations. According to the policy statement of the JFTC, it will never make any criminal accusation against the first applicant before a dawn raid and furthermore its officers, directors and employees as long as such officers, directors and employees cooperate with the JFTC’s investigation. Such statement can be construed to include former officers, directors and employees of the first applicant before a dawn raid. As the MOJ also made an official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that such officers, directors and employees of the first applicant are also effectively exempted from any criminal sanctions against cartels.

  5. 3.

    Is immunity available after an investigation begins?

  6. No immunity is available after an investigation begins. The first applicant after a dawn raid is granted only a 30 per cent reduction of administrative surcharge where its application is made by 20 business days after the dawn raid and afforded no exemption from criminal sanctions.

  7. 4.

    What are the eligibility requirements before an investigation begins?

  8. Under the leniency programme, leniency applicant must identify the facts of the cartel in detail and submit relevant evidences in accordance with the prescribed procedures.

    More specifically, leniency applicant before a dawn raid must first submit to the JFTC an application form named Form 1 by facsimile. Form 1 requires only outlining the relevant cartel, such as the relevant product, the type of cartel conduct (eg, price fixing, bid rigging or market allocation) and the duration of the violation, without attaching any evidence. An applicant who submits Form 1 is granted the status of marker and subsequent applicants basically cannot leapfrog them, unless the preceding applicant fails to secure leniency status, or provides false information to, or refuses to cooperate in, investigations by the JFTC.

    To secure leniency status (only conditional on continuing cooperation), such applicant must submit Form 2 thereby providing more detailed information within a period to be designated by the JFTC. Form 2 requires information on the identities of other cartel participants, and the names and titles of individual employees of the applicant and other cartel participants who are involved in the cartel. Form 2 also requires attaching evidence for the relevant cartel, which may include the minutes or note of meetings where the collusion was discussed and formed, or written or oral statements prepared by employees involved in the cartel.

    An applicant who has obtained leniency status will be definitively granted immunity if it continues to cooperate with the JFTC until the JFTC issues a cease-and-desist order (or until the JFTC notifies the first applicant of issuing neither cease-and-desist order nor surcharge payment order).

  9. 5.

    What are the eligibility requirements after an investigation begins?

  10. No immunity is available after an investigation begins.

    Note that the first applicant before the dawn raid is still required to cooperate in investigations by the JFTC. If it provides false information to or refuses to cooperate in such investigations by the JFTC, its leniency status will be revoked.

  11. 6.

    Will the applicant have to admit to a violation of law?

  12. No. In a precise sense, the applicant will have to admit the facts of the cartels, but not have to admit the illegality of the cartels in its leniency application document. The illegality of such cartels is to be determined by the JFTC.

  13. 7.

    Are ringleaders or initiators of the conduct eligible?

  14. Yes. Even ringleaders or initiators of the cartels are eligible for the immunity unless they have forced the other(s) to participate in or hindered the other(s) from leaving the cartels.

  15. 8.

    When must the applicant terminate its involvement in the conduct?

  16. The applicant before the dawn raid must terminate its involvement in the cartels before the commencement date of the dawn raid.

  17. 9.

    What constitutes termination of the conduct?

  18. In the context of leniency requirement, adopting a resolution at the board or equivalent to leave the cartels and then notifying the relevant officers and employees to that effect constitutes termination of the cartels. In the other contexts, however, declaring its intent to leave the cartels against other participants is often required to secure the termination of the cartels.

  19. 10.

    Will the applicant be required to make restitution to victims?

  20. No. Under the leniency programme in Japan, there is no such requirement to be granted immunity. Of course, the first leniency applicant as well as subsequent applicants are subject to civil damage claims.

  21. 11.

    Can more than one applicant qualify for immunity?

  22. Yes, but only in case of the first application by group filing.

    The leniency programme in Japan allows a single joint application by certain group companies involved in the relevant cartel. Such a single joint application enables all group companies named as applicants to be granted the same leniency status. For example, if Company A files a leniency application as first-in but later finds that one of its group companies, Company B, also engaged in the relevant cartels, Companies A and B can jointly file another application upon discovering Company B’s involvement after revoking the original application; however, if another Company C, a company that is a competitor of Companies A and B, files an application as a second-in after Company A’s original application but before the joint application by Companies A and B, then Company A and B will not be granted the leniency status of first-in but will only be granted the status of a second-in while Company C will be granted the leniency status of first-in by virtue of Company A’s revoking the original application. This conclusion leads to considerable differences because only the first-in is granted full immunity, while the second-in is granted only a 50 per cent reduction.    

    For the purpose of the leniency programme, a company is considered as a parent company of another when such parent directly or indirectly owns more than 50 per cent of the voting rights in such another (a subsidiary), and the ‘group’ consists of such parent and its subsidiaries.

  23. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?

  24. Yes. The leniency programme requires an applicant itself to formally decide a leniency application and then to report the relevant cartels to the JFTC. Note that the first applicant as a corporation can qualify for immunity even after one of its employees reports the cartels to the JFTC first.

  25. 13.

    Does the afforded protection extend to any non-antitrust infringements?

  26. No. Under the leniency programme in Japan, there is no such extension of the afforded protection to any non-antitrust infringements, as well as to any antitrust infringements that are not included in the scope of the relevant leniency application.

  27. 14.

    What confidentiality assurances are given to the first applicant to report?

  28. First of all, it should be noted that under Japanese law there exist no discovery procedures similar to those in the US. In international cartel cases, however, discovery issues would inevitably come with leniency applications even in Japan, especially if such cartel cases are relevant to the US.

    The JFTC’s policy regarding discovery requests of leniency applications is that it will never disclose leniency applications (including attached evidences) in its possession to anyone upon any requests from private plaintiffs or courts either in Japan or in foreign jurisdictions.

    However, if a leniency applicant has a copy of a written leniency application (including its written evidences), such copy, whether privileged or not, may be subject to discovery. This is because a voluntary submission of privileged documents to third parties, even to public authorities such as the JFTC, may be deemed by the US courts as a waiver of privilege by the applicant.

    To avoid this kind of discovery issue (ie, involuntary disclosure of leniency documents from a leniency applicant to foreign plaintiffs, particularly US plaintiffs), the JFTC allows the applicant to make oral leniency applications up to a reasonable extent. More specifically, a substantial part of Form 2 (the follow-up application form to be used before the dawn raid) can be reported orally to the JFTC and thereby no copies with detailed facts remain with the applicant.

  29. 15.

    Does the authority publish guidance regarding the application of the programme?

  30. Yes. The JFTC publishes the leniency application forms with some guidance in Japanese.

  31. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

  32. As far as we know, there is no such conflict with the immunity rules in other jurisdictions if the leniency application and any statements of applicant’s officers, directors and employees are made orally. Please refer to our responses to question 14.

    Immunity application and marker process

  33. 17.

    What is the initial process for making an application?

  34. The initial process for making a leniency application before the dawn raid involves submitting to the JFTC an application form named ‘Form 1’ by facsimile, thereby securing the status of marker.

  35. 18.

    What information is required to secure a marker?

  36. Form 1 must be submitted to the JFTC for securing the status of marker.

    Form 1 requires only outlining the relevant cartel, such as the relevant product, the type of cartel conduct (eg, price fixing, bid rigging or market allocation) and the duration of the violation, without attaching any evidence.

  37. 19.

    How much time will an applicant have to perfect its marker?

  38. The JFTC generally designates two weeks as the period to perfect its marker, but may grant a longer period (eg, one month) in cases of complicated cartels or foreign applicants, taking into account the difficulties in communicating internationally and time necessary for translation. (Any leniency application forms and evidence to be attached must be written or orally stated in Japanese.) It should, however, be noted that this "longer period" to be granted by the JFTC in the above-mentioned cases has recently become shorter.

  39. 20.

    Can the deadline for perfecting the marker be extended?

  40. No. Under the leniency programme, there is no such extension of the deadline. However, unless a subsequent applicant exists, the first applicant in practice may renew its application again after negotiating with the JFTC.

  41. 21.

    What is required to perfect the marker?

  42. In order to perfect its marker (only conditional on continuing cooperation), an applicant must submit Form 2 in written or oral form thereby providing more detailed information within a period to be designated by the JFTC.

    Form 2 requires information on the identities of other cartel participants, and the names and titles of individual employees of the applicant and other cartel participants involved in the cartel. Form 2 also requires attaching evidence for the relevant cartel, which may include the minutes or notes of meetings where the collusion was discussed and formed, or written or oral statements prepared by employees involved in the cartel.

  43. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?

  44. No. If such information is related to another cartel, one advisable option is to submit a new Forms 1 and 2 to the JFTC for securing the marker with respect to such another cartel. Note that there exists neither an Amnesty-Plus nor Penalty-Plus system under the leniency programme in Japan.

     

  45. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?

  46. No. Under the leniency programme in Japan, subsequent applicants cannot leapfrog the predecessor by providing better information.

  47. 24.

    What if the applicant’s investigation reveals that no violation exists?

  48. In such case, one option would be withdrawing Form 1 with evidences to show that no violation exists. In practice, however, the applicant usually cannot definitely find whether no violation exists or not (partly because the applicant cannot know what evidence is submitted by subsequent applicants) and thus it will often leave its application as is.

  49. 25.

    What if the authority decides not to investigate?

  50. In such case, an applicant usually will leave its application as is. This is because it desires to keep the protection under the leniency programme and a possibility remains that the JFTC may change and decide to investigate later if things change.

    Immunity cooperation obligations

  51. 26.

    What is the applicant required to produce?

  52. Under the leniency programme, there is no specific requirement to produce anything for the JFTC’s investigation.

    An applicant who has obtained leniency status will be definitively granted immunity if it continues to cooperate with the JFTC until the JFTC issues a cease-and-desist order (or until the JFTC notifies the first applicant of issuing neither cease-and-desist order nor surcharge payment order). Under such duty to continue to cooperate with the JFTC, a leniency applicant may be required by the JFTC to submit additional materials or make additional written or oral statements, and their failure to submit such materials or make additional written or oral statements, or submitting or making false ones, may disqualify them from receiving immunity. In practice, the first applicant will be subject to a barrage of questions from the JFTC during the first few months of its application of Form 2.

  53. 27.

    Will the applicant be required to make a written confession?

  54. No. Especially in the case of international cartels, its officers, directors or employees involved in the cartels are only required to make oral statements instead of submitting their written statement. Please refer to our responses to question 14.

  55. 28.

    Can third parties obtain access to the materials provided by the applicant?

  56. No. Please refer to our responses to question 14.

  57. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?

  58. No, unless most of its relevant employees refuses to cooperate.

  59. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

  60. No, unless most of its employees engage in obstructive conduct, thereby the applicant itself is deemed as refusing to cooperate in investigations by the JFTC. Note that the extent of cooperation with the JFTC’s investigations should not affect the amount of administrative surcharge either upwards or downwards in Japan.

  61. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?

  62. In the context of leniency application, any materials are provided to the JFTC on a voluntary basis. The JFTC usually will not request that the applicant provide such materials protected by attorney-client privilege or work–product doctrine in other jurisdictions. (Note that under Japanese law there is no concept of attorney–client privilege or work–product doctrine.) Even if any such request is made by the JFTC, the applicant can refuse to provide materials protected by attorney–client privileges or work–product doctrine in other jurisdictions. In practice, such refusal would not be deemed as ‘refusal’ of cooperation with the JFTC; however, there is a possibility that its refusal to provide most of the relevant materials may be deemed as insufficient cooperation in investigations by the JFTC, which would lead to revocation of its leniency status.

    Granting immunity

  63. 32.

    How does the authority announce its promise not to charge or sanction?

  64. The JFTC will issue a written notice of its commitment to the immunity to the first applicant before the dawn raid.

  65. 33.

    Does the authority put its commitment in writing?

  66. Yes, in the form of a written notice to the first applicant before the dawn raid.

  67. 34.

    Who is given access to the document?

  68. No one other than the applicant and the JFTC is given such access, if the leniency application and any statement of its officers, directors and employees are made orally. Please refer to our responses to question 14.

  69. 35.

    Does the authority publish a model letter for conferring immunity?

  70. There is no such model letter, but such a written notice uses boilerplate language to the effect that the JFTC has decided not to issue any surcharge payment order against the applicant.

    Individual immunity or leniency

  71. 36.

    Is there an individual immunity programme?

  72. There is no leniency programme for individuals available in Japan. This is because under the Antimonopoly Act the effect of the leniency programme extends only to administrative surcharge, and surcharge payment orders are not addressed to individuals.

    Criminal sanctions, however, are addressed to individuals as well as corporations. According to the policy statement of the JFTC, it will never make any criminal accusation against the first applicant before the dawn raid as long as such officers, directors and employees cooperate with the JFTC’s investigation. As the MOJ also made the official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that such individual is effectively exempted from any criminal sanctions against cartels.

  73. 37.

    What is the process for applying?

  74. Not applicable.

  75. 38.

    What are the criteria for qualifying?

  76. Not applicable.

    Revocation of immunity

  77. 39.

    On what basis can corporate immunity be revoked?

  78. Even after perfecting the marker, the immunity can be revoked on the following basis, if:

    • false descriptions are found in its leniency application or attached materials;
    • failure to submit additional reports and materials required by the JFTC or false descriptions in such reports and materials are found; or
    • forcing the other(s) to participate in or hindering the other(s) from leaving the cartels is found.
  79. 40.

    When can it be revoked?

  80. The immunity can be revoked until the JFTC definitively grants the applicant immunity (ie, until the JFTC issues a written notice to the effect that the JFTC has decided not to issue any surcharge payment order against the applicant). See question 32.

  81. 41.

    What notice is required to revoke?

  82. Under the Antimonopoly Act, revocation itself does not require any notice to the applicant. In the case of revocation, a surcharge payment order will be issued against the applicant. As a matter of practice, however, we assume the JFTC will make certain notice to the applicant before issuing a surcharge payment order.

  83. 42.

    Can the applicant file a judicial challenge to a decision to revoke?

  84. Yes, the applicant can file a complaint with the Tokyo District Court with respect to the surcharge payment order, especially the issue of whether such revocation is legitimate or not. 

    Reduction in sanctions

  85. 43.

    Does the leniency programme allow for reductions in sanctions?

  86. Yes.

    Before a dawn raid, the second applicant to come forward is granted a 50 per cent reduction of administrative surcharge, and the third in, fourth in and fifth in are each granted a 30 per cent reduction.

    After a dawn raid, leniency applicants are granted the same 30 per cent reduction of administrative surcharge if they are the fifth or earlier among all applicants before and after the dawn raid, and the third or earlier among all applicants only after the dawn raid.

  87. 44.

    What is the process for seeking a reduction in sanctions?

  88. As to leniency applications before the dawn raid, the same process as that for the immunity shall apply. Please refer to our responses to the questions above related to the immunity.

    As to leniency applications after dawn raid, the applicant must submit a ‘Form 3’ to the JFTC within 20 business days after a dawn raid. Form 3 requires detailed information and also evidences to the same extent as Form 2 (the follow-up application form to be used before a dawn raid) does.

    Note that the fourth and fifth applicants before a dawn raid and any applicants after a dawn raid are required to provide added-value evidences for the JFTC. In practice, however, such requirement can be easily fulfilled by employees’ written or oral statements including concrete episode descriptions.

  89. 45.

    Is there a marker process similar to immunity applications?

  90. Yes.

    As to leniency applications before a dawn raid, the marker process is the same as that for the immunity. Please refer to our response to question 18.

    As to the leniency applications after a dawn raid, the maker process is a little bit tricky. Form 3 (the application form to be used after a dawn raid) seemingly requires detailed information and also evidence to the same extent as Form 2 (follow-up application form to be used before dawn raid) does. It does not, however, mean that Form 3 cannot be submitted to the JFTC until internal investigation has been completed sufficiently to fill out the entire form. Form 3 with less comprehensive information and without attaching evidence is enough for securing the status of marker. Of course, such form must be completed with more detailed information and evidence within 20 business days of the dawn raid in order to secure leniency status. Note that, in practice, most seats for leniency become occupied often on the same day as the dawn raid or at the latest by the next day.

  91. 46.

    Are the reductions in sanctions fixed or discretionary?

  92. Under the Antimonopoly Act, the reduction rates are fixed according to the application order and timing of whether before or after dawn raid (50 per cent or 30 per cent).

  93. 47.

    How are the reductions in sanctions calculated?

  94. The reduction rates are automatically determined according to application order and timing as follows:

    (i) Before dawn raid, the second applicant to come forward is granted a 50 per cent reduction of administrative surcharge, and the third in, fourth in and fifth in are each granted a 30 per cent reduction; and

    (ii) After the dawn raid, leniency applicants are granted the same 30 per cent reduction of administrative surcharge if they are (a) the fifth or earlier among all the applicants before and after the dawn raid, and (b) the third or earlier among all the applicants only after the dawn raid.

  95. 48.

    Are there sentencing guidelines?

  96. No, because the reduction rates are fixed according to application order and timing of whether they are before or after the dawn raid (50 per cent or 30 per cent) under the Antimonopoly Act.

  97. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

  98. No.

    Under the leniency programme in Japan, the extent of cooperation with the JFTC’s investigations is not supposed to affect the amount of administrative surcharge either upwards or downwards.

    If such information is related to another cartel, one advisable option is to submit Forms 1 and 2 to the JFTC with respect to such other cartel.

    Note that there exists neither an ‘Amnesty-Plus’ nor a ‘Penalty-Plus’ system under the leniency programme in Japan.

  99. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

  100. The discount rate is fixed as 50 per cent before the dawn raid and as 30 per cent after the dawn raid. Note that the JFTC has no discretion to change the discount rates under the leniency programme in Japan.

  101. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

  102. No. There are no additional incentives offered to such applicants, even with respect to criminal sanctions.

  103. 52.

    Does the competition authority publish guidance regarding sentencing reductions?

  104. No. The reduction rates are fixed according to application order and timing of whether before or after the dawn raid (50 per cent or 30 per cent) under the Antimonopoly Act.

  105. 53.

    Does the authority provide for "Amnesty Plus" benefits?

  106. No. Under the leniency programme in Japan, there are no ‘Amnesty Plus’ benefits. If any information found after leniency application is related to another cartel, one advisable option is to submit Forms 1 and 2 to the JFTC with respect to such another cartel.

     

  107. 54.

    How is the Amnesty Plus discount calculated?

  108. Not applicable.

    Cooperation obligations for sentencing reductions

  109. 55.

    Are the cooperation obligations similar to those for immunity applicants?

  110. Yes, the same obligations as those for immunity applicant shall apply. Please refer to our response to question 26.

  111. 56.

    Will the applicant be required to make a written confession?

  112. No. In particular in the case of international cartels, the applicant’s officers, directors or employees involved in the cartels are only required to make oral statements, instead of submitting their written statement. It is the same as for immunity. See question 27.

  113. 57.

    Can third parties obtain access to the materials provided by the applicant?

  114. No. See question 14. It is the same as for the immunity.

     

  115. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

  116. No, unless most of its relevant employees refuse to cooperate. It is the same as for immunity. See question 29.

  117. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

  118. No, unless most of its employees engage in obstructive conduct thereby the applicant itself being deemed to refuse to cooperate in investigations by the JFTC. Note that the extent of cooperation with the JFTC’s investigations is not supposed to affect the amount of administrative surcharge either upwards or downwards in Japan. Please refer to our response to question 30.

  119. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

  120. Basically, no. Please refer to our responses to question 31. It is the same as for the immunity.

  121. 61.

    Can an applicant challenge the amount of the reduction of sanctions?

  122. Yes, the applicant can file a complaint with the Tokyo District Court with respect to the surcharge payment order. 

    Settlements

  123. 62.

    How is the settlement process initiated?

  124. In Japan, there is no settlement procedure available for violations of the Antimonopoly Act, including cartel violations.

    As the noteworthy characteristic of Japanese leniency programme, there remains a not so broad discretion for the JFTC to adjust the amount of administrative surcharge (including the scope of the immunity and the reduction) under the leniency programme. Theoretically speaking, the amount of administrative surcharge must be calculated strictly in accordance with the formula set forth under the Antimonopoly Act and thus the JFTC cannot adjust the amount either upwards or downwards at its discretion.

    In practice, however, the JFTC seems to be trying to adjust the amount of administrative surcharge (including the scope of the immunity and the reduction) through exercising its practical discretion in delineating the scope of leniency and of the sales amounts subject to a surcharge calculation. As to delineating the scope of leniency, the JFTC has become more and more inclined to grant leniency status in a very narrow scope. For example, a leniency applicant may be granted leniency status only for one product but not for another related product. The scope is sometimes delineated even on customer-by-customer basis if such customers purchased large amounts. Furthermore, the JFTC has some practical discretion to charge one product (even one model number) but not others, or to charge cartel violation during certain period but not another period or in certain geographical area but not another area. By exercising these practical discretions, the JFTC can effectively adjust the amount of administrative surcharge (including the scope of the immunity and the reduction) to some extent under the leniency programme.

    Assuming these practical discretions of the JFTC, leniency applicants sometimes negotiate with the JFTC the amount of administrative surcharge (including the scope of the immunity or the reduction) through the leniency process and the investigation process until any decision by the JFTC is made and announced publicly. (There will be no opportunity to negotiate with the JFTC once it has made its decision and publicly announced the amount of administrative surcharge.)

  125. 63.

    Is the amount of the sanction always fixed in the settlement agreement?

  126. Not applicable.

  127. 64.

    What role, if any, do the courts play in the settlement process?

  128. Not applicable. The courts are not involved in the negotiation process. See question 62.

    Of course, the applicant can file a complaint with the Tokyo District Court with respect to the relevant surcharge payment order. 

  129. 65.

    Are the settlement documents, including any factual admissions, made public?

  130. Not applicable.

  131. 66.

    Is an admission of wrongdoing required?

  132. Not applicable.

  133. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?

  134. Not applicable.

  135. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?

  136. Not applicable.

  137. 69.

    Will the authority settle with subjects who refuse to cooperate?

  138. Not applicable.

  139. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?

  140. Not applicable.

  141. 71.

    May a party to the settlement agreement void the agreement after it is entered?

  142. Not applicable.

  143. 72.

    Does the competition authority publish guidance regarding settlements?

  144. Not applicable.

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Questions

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?


  2. 2.

    Do the protections extend to current and former officers, directors and employees?


  3. 3.

    Is immunity available after an investigation begins?


  4. 4.

    What are the eligibility requirements before an investigation begins?


  5. 5.

    What are the eligibility requirements after an investigation begins?


  6. 6.

    Will the applicant have to admit to a violation of law?


  7. 7.

    Are ringleaders or initiators of the conduct eligible?


  8. 8.

    When must the applicant terminate its involvement in the conduct?


  9. 9.

    What constitutes termination of the conduct?


  10. 10.

    Will the applicant be required to make restitution to victims?


  11. 11.

    Can more than one applicant qualify for immunity?


  12. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?


  13. 13.

    Does the afforded protection extend to any non-antitrust infringements?


  14. 14.

    What confidentiality assurances are given to the first applicant to report?


  15. 15.

    Does the authority publish guidance regarding the application of the programme?


  16. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?


  17. Immunity application and marker process

  18. 17.

    What is the initial process for making an application?


  19. 18.

    What information is required to secure a marker?


  20. 19.

    How much time will an applicant have to perfect its marker?


  21. 20.

    Can the deadline for perfecting the marker be extended?


  22. 21.

    What is required to perfect the marker?


  23. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?


  24. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?


  25. 24.

    What if the applicant’s investigation reveals that no violation exists?


  26. 25.

    What if the authority decides not to investigate?


  27. Immunity cooperation obligations

  28. 26.

    What is the applicant required to produce?


  29. 27.

    Will the applicant be required to make a written confession?


  30. 28.

    Can third parties obtain access to the materials provided by the applicant?


  31. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?


  32. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?


  33. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?


  34. Granting immunity

  35. 32.

    How does the authority announce its promise not to charge or sanction?


  36. 33.

    Does the authority put its commitment in writing?


  37. 34.

    Who is given access to the document?


  38. 35.

    Does the authority publish a model letter for conferring immunity?


  39. Individual immunity or leniency

  40. 36.

    Is there an individual immunity programme?


  41. 37.

    What is the process for applying?


  42. 38.

    What are the criteria for qualifying?


  43. Revocation of immunity

  44. 39.

    On what basis can corporate immunity be revoked?


  45. 40.

    When can it be revoked?


  46. 41.

    What notice is required to revoke?


  47. 42.

    Can the applicant file a judicial challenge to a decision to revoke?


  48. Reduction in sanctions

  49. 43.

    Does the leniency programme allow for reductions in sanctions?


  50. 44.

    What is the process for seeking a reduction in sanctions?


  51. 45.

    Is there a marker process similar to immunity applications?


  52. 46.

    Are the reductions in sanctions fixed or discretionary?


  53. 47.

    How are the reductions in sanctions calculated?


  54. 48.

    Are there sentencing guidelines?


  55. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?


  56. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?


  57. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?


  58. 52.

    Does the competition authority publish guidance regarding sentencing reductions?


  59. 53.

    Does the authority provide for "Amnesty Plus" benefits?


  60. 54.

    How is the Amnesty Plus discount calculated?


  61. Cooperation obligations for sentencing reductions

  62. 55.

    Are the cooperation obligations similar to those for immunity applicants?


  63. 56.

    Will the applicant be required to make a written confession?


  64. 57.

    Can third parties obtain access to the materials provided by the applicant?


  65. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?


  66. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?


  67. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?


  68. 61.

    Can an applicant challenge the amount of the reduction of sanctions?


  69. Settlements

  70. 62.

    How is the settlement process initiated?


  71. 63.

    Is the amount of the sanction always fixed in the settlement agreement?


  72. 64.

    What role, if any, do the courts play in the settlement process?


  73. 65.

    Are the settlement documents, including any factual admissions, made public?


  74. 66.

    Is an admission of wrongdoing required?


  75. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?


  76. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?


  77. 69.

    Will the authority settle with subjects who refuse to cooperate?


  78. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?


  79. 71.

    May a party to the settlement agreement void the agreement after it is entered?


  80. 72.

    Does the competition authority publish guidance regarding settlements?