Last month the Department of Justice’s Antitrust Division announced a landmark new policy to incentivize companies to develop robust antitrust compliance programs. For the first time, the Antitrust Division will now consider a company’s antitrust compliance program as a factor in evaluating whether or not to bring criminal charges against the company and its officers.
Since the early 1990s, the Antitrust Division would only decline to prosecute companies under its stringent Corporate Leniency Program. The Corporate Leniency Program automatically grants amnesty from criminal antitrust prosecution to the first – and only the first – corporation that self-reports its participation in an antitrust crime to the DOJ, ceases its illegal activity, provides incriminating evidence against its co-conspirators, and fully cooperates with the DOJ. If a corporation qualifies for automatic amnesty, then all of its cooperating directors, officers, and employees also receive automatic amnesty. The effect of the Corporate Leniency Program, however, was to create a high stakes “race to leniency” among corporations hoping to avoid criminal charges by self-reporting to the DOJ. It did not incentivize corporate compliance efforts.
In announcing the purpose of the new policy designed to incentivize corporate compliance efforts, Assistant Attorney General Makan Deirahim explained in remarks at New York University School of Law that “a company with a robust compliance program can actually can prevent crime or detect it early, thus reducing the need for enforcement activity, minimizing the harm to consumers earlier, and saving precious taxpayer resources.”
Going forward, he said that the Antitrust Division will now consider “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of the charging decision.” If a company’s compliance program is adequate and effective, DOJ prosecutors are now empowered to decline to bring criminal charges.
To assist prosecutors in their evaluation of corporate antitrust compliance programs at the charging and sentencing stages of investigations, for the first time in its history the DOJ Antitrust Division also issued public written guidance. This document explains that the factors Antitrust Division prosecutors must consider when evaluating the effectiveness of an antitrust compliance program include:
- The design and comprehensiveness of the program
- The culture of compliance within the company
- Responsibility for, and resources dedicated to, antitrust compliance
- Antitrust risk assessment techniques
- Compliance training and communication to employees
- Monitoring and auditing techniques, including continued review, evaluation, and revision of the antitrust compliance program
- Reporting mechanisms
- Compliance incentives and discipline
- Remediation methods
The takeaway here is that the DOJ has provided a powerful incentive for companies involved in antitrust violations to potentially avoid criminal prosecution if they can demonstrate the existence of an effective antitrust compliance program. Bearing in mind that from 2009-2018 the DOJ Antitrust Division has criminally charged 177 corporations, 516 individuals, and collected over $9 billion dollars in fines and penalties – to say nothing of the business reputational damage, disruption, and massive attorneys’ fees incurred as a result – investment in a robust antitrust compliance policy is not just the right thing to do; it’s a smart business move.
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