Antitrust Criminal Penalties Enforcement and Reform Act of 2004 Extension Act of 2010

Mr. President, I rise today to introduce the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 Extension Act. This legislation makes permanent a critical component of the Antitrust Criminal Penalty Enforcement and Reform Act of 2004, set to expire on June 22, which encourages participation in the Antitrust Division's leniency program. As a result, the Justice Department will be able to continue to detect, investigate and aggressively prosecute price-fixing cartels which harm consumers.

The Antitrust Division of the Department of Justice has long considered criminal cartel enforcement a top priority, and its Corporate Leniency Policy is an important tool in that enforcement. Criminal antitrust offenses are generally conspiracies among competitors to fix prices, rig bids, or allocate markets of customers. The Leniency Policy creates incentives for corporations to report their unlawful cartel conduct to the Division, by offering the possibility of immunity from criminal charges to the first-reporting corporation, as long as there is full cooperation. For more than 15 years, this policy has allowed the Division to uncover cartels affecting billions of dollars worth of commerce here in the United States, which has led to prosecutions resulting in record fines and jail sentences.

An important part of the Division's Leniency Policy, added by the Antitrust Criminal Penalties Enforcement and Reform Act of 2004, limits the civil liability of leniency participants to the actual damages caused by that company--rather than triple the damages caused by the entire conspiracy, which is typical in civil antitrust lawsuits. This removed a significant disincentive to participation in the leniency program--the concern that, despite immunity from criminal charges, a participating corporation might still be on the hook for treble damages in any future antitrust lawsuits.

Maintaining strong incentives to make use of the Leniency Policy provides important benefits to the victims of antitrust offenses, often consumers who paid artificially high prices. It makes it more likely that criminal antitrust violations will be reported and, as a result, consumers will be able to identify and recover their losses from paying illegally inflated prices. The policy also requires participants to cooperate with plaintiffs in any follow-on civil lawsuits, which makes it more likely that the plaintiff consumers will be able to build strong cases against all members of the conspiracy.

Since the passage of ACPERA, the Antitrust Division has uncovered a number of significant cartel cases through its leniency program, including the air cargo investigation, which so far has yielded over a billion dollars in criminal fines. In that investigation, several airlines pled guilty to conspiring to fix international air cargo rates and international passenger fuel surcharges. Not only were criminal fines levied but one high-ranking executive pled guilty and agreed to serve 8 months in prison. In fiscal year 2004, before the passage of ACPERA, criminal antitrust fines totaled $350 million. Criminal antitrust fines in fiscal year 2009 surpassed $1 billion. Scott Hammond, the Deputy Assistant Attorney General for Criminal Enforcement in the Antitrust Division, has stated that the damages limitation has made its Corporate Leniency Program ``even more effective'' at detecting and prosecuting cartels. In fact, in the first 5 years after passage, leniency applications increased by 25 percent, and the Antitrust Division experienced ``unprecedented'' success in criminal enforcement.

ACPERA's damages limitation is set to expire in June, so we must act quickly to extend it. Otherwise, the Justice Department will lose an important tool that it uses to investigate and prosecute criminal cartel activity. The strong evidence that this program works means it is time to make it permanent. Permanence will give all parties--the government, potential amnesty applicants, and potential private litigants--a clear sign that criminal cartel enforcement continues to be a top priority, and that the amnesty program is a key and continuing component of that enforcement program.

This certainty is likely to lead to increased participation in the amnesty program, the discovery of more cases, the receipt of more criminal fines, and a higher likelihood of consumers being able to recover their losses in civil litigation.

Some have raised questions about whether the leniency program could be made more effective by changing the requirements for leniency applicants to cooperate in private litigation, or by increasing the incentive for whistleblowing. Currently, there is insufficient evidence to show that changes are needed and the Department of Justice is concerned that any changes could have the unintended consequence of reducing the incentives to use the Leniency Program. Therefore, at this time we are hesitant to tinker with success. However, in response to the concerns, the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 Extension Act of 2010 requires a GAO study to consider the effectiveness of the incentives for leniency applicants to cooperate in private litigation, and specifically whether such cooperation is made in a timely fashion. The Antitrust Criminal Penalties Enforcement and Reform Act of 2004 is meant to facilitate both government and private enforcement of the antitrust laws, and the GAO study will shed some light on whether it strikes the correct balance. When we receive the study, we will review it and act accordingly, changing the law if necessary.

I urge my colleagues to support this important legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 Extension Act. This legislation makes permanent a critical component of the Antitrust Criminal Penalty Enforcement and Reform Act of 2004, set to expire on June 22, which encourages participation in the Antitrust Division's leniency program. As a result, the Justice Department will be able to continue to detect, investigate and aggressively prosecute price-fixing cartels which harm consumers.

The Antitrust Division of the Department of Justice has long considered criminal cartel enforcement a top priority, and its Corporate Leniency Policy is an important tool in that enforcement. Criminal antitrust offenses are generally conspiracies among competitors to fix prices, rig bids, or allocate markets of customers. The Leniency Policy creates incentives for corporations to report their unlawful cartel conduct to the Division, by offering the possibility of immunity from criminal charges to the first-reporting corporation, as long as there is full cooperation. For more than 15 years, this policy has allowed the Division to uncover cartels affecting billions of dollars worth of commerce here in the United States, which has led to prosecutions resulting in record fines and jail sentences.

An important part of the Division's Leniency Policy, added by the Antitrust Criminal Penalties Enforcement and Reform Act of 2004, limits the civil liability of leniency participants to the actual damages caused by that company--rather than triple the damages caused by the entire conspiracy, which is typical in civil antitrust lawsuits. This removed a significant disincentive to participation in the leniency program--the concern that, despite immunity from criminal charges, a participating corporation might still be on the hook for treble damages in any future antitrust lawsuits.

Maintaining strong incentives to make use of the Leniency Policy provides important benefits to the victims of antitrust offenses, often consumers who paid artificially high prices. It makes it more likely that criminal antitrust violations will be reported and, as a result, consumers will be able to identify and recover their losses from paying illegally inflated prices. The policy also requires participants to cooperate with plaintiffs in any follow-on civil lawsuits, which makes it more likely that the plaintiff consumers will be able to build strong cases against all members of the conspiracy.

Since the passage of ACPERA, the Antitrust Division has uncovered a number of significant cartel cases through its leniency program, including the air cargo investigation, which so far has yielded over a billion dollars in criminal fines. In that investigation, several airlines pled guilty to conspiring to fix international air cargo rates and international passenger fuel surcharges. Not only were criminal fines levied but one high-ranking executive pled guilty and agreed to serve 8 months in prison. In fiscal year 2004, before the passage of ACPERA, criminal antitrust fines totaled $350 million. Criminal antitrust fines in fiscal year 2009 surpassed $1 billion. Scott Hammond, the Deputy Assistant Attorney General for Criminal Enforcement in the Antitrust Division, has stated that the damages limitation has made its Corporate Leniency Program ``even more effective'' at detecting and prosecuting cartels. In fact, in the first 5 years after passage, leniency applications increased by 25 percent, and the Antitrust Division experienced ``unprecedented'' success in criminal enforcement.

ACPERA's damages limitation is set to expire in June, so we must act quickly to extend it. Otherwise, the Justice Department will lose an important tool that it uses to investigate and prosecute criminal cartel activity. The strong evidence that this program works means it is time to make it permanent. Permanence will give all parties--the government, potential amnesty applicants, and potential private litigants--a clear sign that criminal cartel enforcement continues to be a top priority, and that the amnesty program is a key and continuing component of that enforcement program.

This certainty is likely to lead to increased participation in the amnesty program, the discovery of more cases, the receipt of more criminal fines, and a higher likelihood of consumers being able to recover their losses in civil litigation.

Some have raised questions about whether the leniency program could be made more effective by changing the requirements for leniency applicants to cooperate in private litigation, or by increasing the incentive for whistleblowing. Currently, there is insufficient evidence to show that changes are needed and the Department of Justice is concerned that any changes could have the unintended consequence of reducing the incentives to use the Leniency Program. Therefore, at this time we are hesitant to tinker with success. However, in response to the concerns, the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 Extension Act of 2010 requires a GAO study to consider the effectiveness of the incentives for leniency applicants to cooperate in private litigation, and specifically whether such cooperation is made in a timely fashion. The Antitrust Criminal Penalties Enforcement and Reform Act of 2004 is meant to facilitate both government and private enforcement of the antitrust laws, and the GAO study will shed some light on whether it strikes the correct balance. When we receive the study, we will review it and act accordingly, changing the law if necessary.

I urge my colleagues to support this important legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce legislation with Senator Landrieu known as the Voluntary Protection Program Act. This bill will codify the Voluntary Protection Program, or VPP, expand it to include more small businesses, and incorporate recent GAO recommendations for program improvements.

No program has been more successful in creating such a culture of safety in the workplace than VPP. Since it was created in 1982, Republican and Democrat administrations alike have fostered its growth to now 2,284 worksites, a quarter of which are unionized, and it covers almost a million employees. The bipartisan support for VPP continues into this Congress. Last week, the Senate Budget Committee unanimously approved an amendment to preserve VPP budget authority and Chairman Conrad noted that the program actually saves taxpayer dollars.

Worksites that pass the rigorous evaluation process and become VPP sites have an average Days Away Restricted or Transferred, DART, case rate of 52 percent below the average for its industry. In recent years, smaller worksites have made significant strides in VPP, increasing from 28 percent of VPP sites in 2003 to 39 percent in 2008.

The innovative program doesn't just keep employees safer; as I have noted, it also saves both the VPP companies and the taxpayers money. In 2007, Federal Agency VPP participants saved the government more than $59 million by avoiding injuries and private sector VPP participants saved more than $300 million. Additionally, when workplaces make the significant commitment to safety required by VPP, it allows OSHA to focus its resources where they are most needed. VPP Participant employers contribute a great deal to the VPP program expenditures. VPP participants have assigned approximately 1,200 of their own employees to act as OSHA Special Government Employees, SGEs, who conduct onsite evaluations for OSHA.

Despite the strong bipartisan support for VPP and its very positive results, the need for this legislation has become painfully clear. The administration's fiscal year 2011 Budget Request proposed eliminating the small amount it takes to administer VPP--$3.125 million and sought to transfer the 35 FTEs it takes to run the program to other functions. The budget proposal stated that OSHA was seeking ``alternative non- federal forms of funding'' and working closely with stakeholders, but, to date, no plan to secure such funding has been offered by the administration or in either the House or Senate authorizing committee. To the extent such ``alternative funding'' is bureaucratic code for a fee-based system such a proposal is simply not workable and completely counterproductive. Participating employers already voluntarily absorb significant costs to participate in the current program. Asking businesses--particularly small businesses, and particularly in the current economic environment--to take on more costs will only result in them dropping out of the program. Further still, a fee-based system simply destroys the credibility and integrity of VPP participation for employees.

I would like to thank Senator Landrieu for working with me on this important legislation.

Mr. President, the recent lawsuit by the Securities and Exchange Commission, SEC, against Goldman Sachs underscores that much still needs to be done to improve transparency and restore confidence in our financial system. Indeed, that is why we must have the debate on Wall Street reform. The nearly \1/2\ of all U.S. households that own securities deserve a strong cop on the beat that has the tools it needs to go after swindlers and scam artists, and pursue the difficult cases arising from our increasingly complex financial markets. Our economy's success depends in no small part on restoring confidence in our capital markets and a smoothly operating capital formation process.

The bill I am introducing this afternoon, the Modernizing and Strengthening Investor Protection Act, would improve the ability of the SEC to protect investors by strengthening its ability to bring enforcement actions, addressing issues revealed by the recent Madoff fraud, and modernizing its ability to obtain critical information. In particular, it would enhance the ability of the SEC to hire market experts, strengthen oversight of fund custodians, modernize the SEC's ability to obtain information from the firms it oversees, and clarify and enhance SEC penalties and other authorities.

This legislation mirrors a bill that Representative Kanjorski introduced and worked to include in the House version of Wall Street reform. I urge my colleagues to take a look at my legislation during the next few days, as I plan to introduce it as an amendment to the Wall Street reform bill that is about to be considered by the Senate.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am joining with Senator Klobuchar and Senator Franken to introduce the Federal Response to Eliminate Eating Disorders, FREED, Act. This important bill is the first comprehensive legislative effort to confront eating disorders in the