What constitutes “prompt and effective action to terminate [the applicants] participation in the anticompetitive activity being reported upon discovery of the activity?”
The model corporate conditional leniency letter requires a leniency applicant to promptly terminate its participation in the anticompetitive activity being reported upon discovering the illegal conduct.(16) This prerequisite to obtaining leniency exists because, as a matter of good public policy, the Division does not believe that it would be appropriate to provide leniency to a company that discovers illegal conduct but then elects to continue engaging in that conduct. What constitutes prompt and effective action will, of course, depend on the particular circumstances in each leniency matter. A primary consideration is what steps are taken by management in response to the discovery of the anticompetitive activity being reported. For example, a company must not use managers or executives who were involved in the anticompetitive activity to investigate the activity, to formulate the company’s response to the discovery of such activity, or to determine the appropriate disciplinary action
