Sep 302026

The Race to Report: DOJ’s Antitrust Division Highlights Leniency, Whistleblowers, and Trial Readiness

Juan A. Arteaga, Corey Roush, Laura Collins, Michael D. Mann, Rosa M. Morales and Brian C. Earl
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On September 22, 2026, Daniel Glad, Acting Deputy Assistant Attorney General for Criminal Enforcement in the U.S. Department of Justice’s (“DOJ”) Antitrust Division, delivered remarks at a conference in Chicago, Illinois, hosted by the Women’s White Collar Defense Association (“WWCDA”), a non-profit organization co-founded by Sidley Austin LLP Senior Counsel Karen Popp. Glad’s remarks offered, among other things, a useful window into the interplay between the Antitrust Division’s Leniency Policy and its Whistleblower Rewards Program, as well as the Division’s recent criminal trial record. For companies confronting potential criminal antitrust issues, the remarks underscored the importance of moving quickly when potential misconduct comes to light.

Leniency, Whistleblowers, and the Cost of Waiting

Glad’s remarks focused on, among other things, detection. He noted that the Antitrust Division’s Leniency Policy is intentionally structured as a race: only one participant in a conspiracy can obtain leniency, and the Antitrust Division’s published guidance encourages companies to request a marker as soon as a potential problem surfaces, even where it is not yet clear that any violation occurred. The Whistleblower Rewards Program, in Glad’s framing, creates a second distinct race. Obtaining a whistleblower award is different from obtaining a leniency marker, and an individual with original information has an independent financial incentive to approach the Antitrust Division rather than wait for the company to act. The two programs interact, however, because a tip that arrives through one program can foreclose or diminish the benefits still available under the other—a dynamic that bears directly on a company taking time to weigh its options because it could lose the ability to obtain leniency if a whistleblower (including an employee) beats it to the Antitrust Division’s doorstep.

His message to defense counsel was accordingly direct: a company that identifies indications of possible criminal antitrust conduct should not necessarily wait to complete its investigation before deciding whether to contact the Antitrust Division. The marker threshold is deliberately low, and the company’s internal review or investigation need not stop once a marker is in place. That said, the risk of not receiving a marker because a company waited to finalize its investigation is real given that someone else could reach out to the Antitrust Division first.

The Division’s Trial Record as Enforcement Leverage

Glad also addressed what gives these incentives force. He reported that the Antitrust Division has secured convictions in four consecutive criminal jury trials, three of which resulted in Sherman Act convictions.

Glad also drew a lesson from the brevity of these trials, as in three of the four trials the government’s case-in-chief took five days or fewer. Even complex investigations may involve substantial volumes of evidence, but according to Glad, the government’s task before a jury remains focused: identifying who agreed, to what, with what knowledge, and proving each element beyond a reasonable doubt. In Glad’s view, complexity does not excuse prosecutors from presenting a clear narrative.

Key Takeaways

  • The interaction between leniency and whistleblower incentives increases the importance of speed. With the introduction of the Antitrust Division’s Whistleblower Rewards Program, companies considering leniency are racing against other participants as well as potential whistleblowers to be the first to report a potential violation. Companies that uncover a potential issue should be prepared to evaluate their reporting options quickly.
  • An internal review or investigation need not be complete before a company considers seeking a marker. Glad emphasized that the marker threshold is deliberately low and that an internal investigation can continue after a marker has been obtained.
  • The Antitrust Division is prepared to try cases, and to try them efficiently using proven trial strategies and techniques. Glad pointed to the Division’s recent trial record as evidence of its ability to present criminal antitrust cases to juries in a focused and streamlined manner.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Juan A. Arteaga

New York

juan.arteaga@sidley.com

Corey Roush

Washington, D.C.

corey.roush@sidley.com

Laura Collins

Washington, D.C.

laura.collins@sidley.com

Michael D. Mann

New York

mdmann@sidley.com

Rosa M. Morales

New York

rosa.morales@sidley.com

Brian C. Earl

New York

bearl@sidley.com

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