What is a marker, and how is it used in the leniency application process?
The Division frequently gives a leniency applicant a “marker” for a finite period of time to hold its place at the front of the line for leniency while counsel gathers additional information through an internal investigation to perfect the client’s leniency application. While the marker is in effect, no other company can “leapfrog” over the applicant that has the marker. To obtain a marker, counsel must: (1) report that he or she has uncovered some information or evidence indicating that his or her client has engaged in a criminal antitrust violation; (2) disclose the general nature of the conduct discovered; (3) identify the industry, product, or service involved in terms that are specific enough to allow the Division to determine whether leniency is still available and to protect the marker for the applicant; and (4) identify the client.(6) As noted above, when corporate counsel first obtains indications of a possible criminal antitrust violation, authoritative personnel for the comp
