This post was written by Stephen P. Murphy.

On December 7, 2010 the Antitrust Division of the Department of Justice announced that for the first time it was requiring actual restitution by a company as a condition of the company’s participation in the Division’s Corporate Leniency Program. Bank of America was the first and only company to approach the Division about its bid rigging in the sale of tax-exempt municipal bond derivatives contracts. These disclosures led the Division to open an investigation which to date has resulted in guilty pleas by eight executives, and additional charges being filed against seven executives and one company. The investigation is ongoing.

The Division’s Corporate Leniency Program calls for restitution to injured parties “where possible.” We are not aware of any prior case where the Division made it a condition of admission to the Leniency Program. The requirement for restitution in this case likely flows from the fact that a number of federal and state agencies were involved in the settlement (SEC, IRS, Office of the Comptroller of the Currency and 20 State Attorneys General) and that the IRS and a number of municipalities will be the beneficiaries of the $137.3 million that the Bank of America has agreed to pay in “full restitution.”

Whether this settlement signals a new development in the Division’s implementation of the Leniency Program is subject to future developments but it would not be surprising to see restitution required in future Leniency Programs applications, particularly from larger companies whose conduct effected public entities. The fact that Christine Varney, Assistant Attorney General in charge of the Antitrust Division, was liberally quoted in the Press Release certainly indicates the importance the Division attaches to this settlement, and perhaps to the role of restitution in future Leniency Program applications.