New Legislation Supports More Effective Antitrust Enforcement

Over the past year, the Antitrust Division supported a number of legislative changes to strengthen the antitrust laws. A major legislative priority was the reauthorization of the Antitrust Criminal Penalty Enhancement and Reform Act (ACPERA). Congress enacted ACPERA in 2004 to incentivize corporations to self-report and cooperate pursuant to the Division’s Corporate Leniency Policy. On October 1, 2020, an extension of ACPERA that repealed its sunset provision became law, ensuring that ACPERA will continue to support the Antitrust Division’s Leniency Program.

Congress also sought to bolster the Antitrust Division’s criminal program by passing longstanding legislation that extended protections to whistleblowers in criminal antitrust cases. On December 23, 2020, the Criminal Antitrust Anti-Retaliation Act, which prohibited employers from retaliating against certain individuals who report criminal antitrust violations, was signed into law. Together, the passage of the Criminal Antitrust Anti-Retaliation Act and ACPERA will support the Antitrust Division’s ability to detect, investigate, and prosecute criminal antitrust violations.

Another recent legislative change focused on the scope of exemptions to the antitrust laws. On January 13, 2021, the Competitive Health Insurance Reform Act of 2020, which limited the antitrust exemption available to health insurance companies under the McCarran-Ferguson Act, was signed into law. The McCarran-Ferguson Act exempted certain conduct that constituted the “business of insurance” from the federal antitrust laws. The Competitive Health Insurance Reform Act amended the McCarran-Ferguson Act to clarify that, except for certain activities that improve health insurance services for consumers, the conduct of health insurers remains subject to the antitrust laws.

In recognition of the Antitrust Division’s critical role at this time, Congress is in the process of drafting new legislation to make the Division better funded and more effective. The Division welcomes congressional support for its mission. It intends to engage fully with the process and provide Congress with the information that it needs.