United States: DOJ Statements May Signal Civil Antitrust Enforcement Against Individual Employees

Last Updated: November 24 2015
Article by John M. Majoras, David P. Wales, Michelle K. Fischer, Kathryn M. Fenton, J. Bruce McDonald, Stephen J. Squeri and Ryan C. Thomas
Most Read Contributor in United States, September 2019

The U.S. Department of Justice Antitrust Division will consider individual civil enforcement actions against executives implicated in corporate wrongdoing, according to recent comments by DOJ Assistant U.S. Attorney General Bill Baer. His comments follow a September 2015 memo, "Individual Accountability for Corporate Wrongdoing," issued by DOJ's Deputy Attorney General, Sally Yates. The "Yates Memo" observed that, while corporations have been subject to criminal and civil fines and penalties for fraud and other misconduct, culpable company personnel have not always been held accountable. The Yates Memo appears intended to bridge this gap, and it puts company executives on notice that they individually may be pursued if they violate the law even on behalf of their employer. If the Yates Memo were adopted as part of antitrust policy – and there has been no announcement it will – it could bring significant changes to civil antitrust enforcement (as opposed to criminal prosecutions where the individual criminal prosecution already is the norm).


Under the Antitrust Division's criminal prosecution leniency policy, corporations and individuals who report their cartel activity and cooperate in the DOJ's investigation can avoid criminal conviction, fines, and prison sentences. In exchange for coming forward first, a company's culpable executives and other employees may be granted full immunity from criminal prosecution. Companies that lose this race to the prosecutor are ineligible for full amnesty, but antitrust corporate plea agreements often provide immunity for the majority of culpable company employees, in exchange for promises of cooperation. The most culpable employees typically are "carved out" of that immunity and may be (often are) later prosecuted criminally. (See our prior alert on individual prosecutions.

The Yates Memo implicitly recognizes that the Antitrust Division's criminal leniency policy strikes an acceptable balance between corporate and individual criminal prosecutions: "Because of the importance of holding responsible individuals to account, absent extraordinary circumstances or approved departmental policy such as the Antitrust Division's Corporate Leniency Policy, Department lawyers should not agree to a corporate resolution that includes an agreement to dismiss charges against, or provide immunity for, individual officers or employees."

It is unlikely that the Yates memo will meaningfully change the DOJ's leniency program, but it could change civil antitrust enforcement.

In recent remarks, Baer focused on the significance of the Yates memo to civil corporate matters. In his view, this aspect of the memo had gone "unreported." According to the Yates Memo:

  • "Both civil and criminal attorneys should focus on individual wrongdoing from the very beginning of any investigation of corporate misconduct."
  • "Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay."
  • "Criminal attorneys handling corporate investigations should notify civil attorneys as early as permissible of conduct that might give rise to potential individual civil liability, even if criminal liability continues to be sought. Further, if there is a decision not to pursue a criminal action against an individual – due to questions of intent or burden of proof, for example – criminal attorneys should confer with their civil counterparts so that they may make an assessment under applicable civil statutes and consistent with this guidance."

Baer emphasized that DOJ's Antitrust Division "will be looking, going forward, at whether there ought to be individual accountability." He continued, "It doesn't mean we're going to do it, but it is I think a fair thing for the deputy attorney general to ask all components [of the DOJ] to look at [whether] there is an additional deterrent effect that comes with holding responsible the individuals who adopt a policy that is in violation of the antitrust laws or some other federal standard."


Imposing individual civil liability for employees whose conduct brings about civil antitrust violations would be a significant antitrust policy change. Civil antitrust enforcement historically has involved actions only against the company, not its responsible employees, while conduct appropriate for criminal enforcement has led to actions against both companies and individual employees. This makes sense because criminal enforcement is reserved for conduct that is inherently anticompetitive and unlawful, such as price fixing and other "per se illegal" conduct undertaken with criminal intent. In contrast, civil enforcement is used to challenge conduct for which the competitive effect may be ambiguous. That is, the conduct is not unlawful unless it is on balance more anticompetitive than procompetitive, and intent is not an element of a civil antitrust violation. This "rule of reason" standard covers all sorts of business conduct that may or may not be anticompetitive, including competitor joint ventures, mergers, and distribution restraints. (An exception may be the failure to report a transaction under the federal premerger reporting law, which is a straightforward violation.)

DOJ has not said whether or when it might bring civil enforcement actions against executives implicated in corporate wrongdoing. But it is possible to imagine facts that would support civil enforcement against individuals who, under some standard, brought about a company antitrust violation. As an extreme example, a CEO proceeds with a non-reportable merger despite being advised by outside antitrust counsel that it certainly violates U.S. merger laws (Clayton Act § 7). In a post-consummation challenge, DOJ learns that the CEO pushed forward with the deal regardless of the antitrust risks. Under the Yates Memo, would this call for a civil action against the CEO? How would DOJ evaluate an individual's culpability in determining whether to press for civil relief against the individual? Would knowing but passive acquiescence in a subordinate's conduct be enough for DOJ to impute liability to a senior manager? What would be an appropriate remedy, in the form of fines or injunction?

Bill Baer's recent comments may be a trial balloon to test reactions. But before the first individual lawsuit, it would be appropriate for the Antitrust Division first to provide guidance to the business community that company antitrust violations could have new consequences to individual employees. Otherwise, an ambiguous policy may end up deterring, rather than promoting, the procompetitive conduct it was intended to encourage, as risk-averse employees shy away from undertaking activity that raises antitrust questions but ultimately is defensible (that is, procompetitive). Furthermore, we would predict that the first of any such enforcement actions would be an easy case of obvious wrongdoing, not a close call.

At a minimum, these developments provide a good reminder about the importance of maintaining a robust and updated antitrust compliance program. If such an enforcement policy were to come about, individual personnel would make greater efforts to ensure their conduct (or their subordinates' conduct) could not lead to (or be perceived to lead to) some claim it was anticompetitive. Corporate antitrust compliance programs and policies would need to be revised to inform employees of their possible exposure for even the civil antitrust violations of their employers.

DOJ's Yates memo can be found on its website.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions