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DOJ Implements Safe Harbor Policy for Mergers and Acquisitions, Antitrust Division Adapts Leniency Program

In an effort to incentivize businesses to voluntarily identify criminal misbehavior found at acquired organizations, the Department of Justice (DOJ) unveiled a new Mergers and Acquisitions Safe Harbor Policy in October 2023. As per this regulation, purchasing organizations are assumed to be exempt from charges provided they reveal such malfeasance within a designated timeframe and assist with the subsequent inquiries. Within six months of the acquisition's conclusion, disclosures must be published, and misbehavior must be completely remedied within a year. Depending on the behavior, companies may also have to pay disgorgement or restitution. Deputy Attorney General Lisa Monaco ordered that the DOJ as a whole execute this policy, with each department customizing its application to fit its own enforcement framework.

In March 2024, the Antitrust Division updated its leniency policy to align with the safe harbor policy, introducing stricter requirements for reporting criminal antitrust misconduct discovered during mergers. Acquirors must disclose illegal activities before closing the deal. This implementation poses challenges for acquirors, including potential legal impediments and delays in transactions. The updated policy applies only to the acquiror. Multinational corporations must be aware of the implications of these policies when reporting misconduct in the US.

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