In this article, Member Kirby Behre, Counsel Lauren Briggerman and Summer Law Clerk Dwight Pope discuss the U.S. Department of Justice's (DOJ) treatment of UBS AG with respect to the joint foreign exchange rate investigation conducted by the DOJ's Antitrust Division and Criminal Division. The authors said that under public pressure to prosecute financial institutions, the DOJ has undermined and violated the spirit of its Antitrust Leniency Program. UBS received amnesty for its exchange rate conduct, however the DOJ used that conduct to renege on an earlier agreement regarding Libor. "Given the integral role that UBS played in making DOJ's case, it is perplexing that DOJ officials went out of their way to bash UBS, publicly and caustically, at the currency exchange press conference," the authors said. "Bottom line: It appears UBS did not get the amnesty to which it was entitled under the DOJs own amnesty program. Sadly, the DOJ's conduct has created the appearance that the DOJ succumbed to political pressure and public criticism instead of honoring the program it has heralded as 'the Division's most effective generator of international cartel cases.'"
The authors argue that the DOJ's treatment of UBS may chill future amnesty applicants, despite the DOJ's likely assertion that the agreement binds the Antitrust Division of the DOJ only, and not other entities within it. The amnesty that UBS received for the currency exchange rate conduct was "illusory" at best, according to the authors. "The DOJ was so anxious to flex its muscles and demonstrate that it can be tough on the banking industry that it created a precedent it may live to regret," the authors said. "The artificial distinctions between DOJ divisions should not be used as a loophole by the DOJ, particularly where the two divisions in question operated in concert."