The U.S. Department of Justice Antitrust Division is increasing efforts to detect and punish individuals who violate the antitrust laws. In remarks last week, the Deputy Assistant Attorney General for Criminal Enforcement, Brent Snyder, reported that the Antitrust Division has "adopted new internal procedures" to identify potentially culpable individuals and to bring cases against them more quickly. These new procedures were adopted in response to DOJ Deputy Attorney General Sally Yates' 2015 memo, "Individual Accountability for Corporate Wrongdoing," which provided internal guidance designed to strengthen enforcement against individuals by all DOJ components.
The most serious antitrust violations, such as price fixing, are prosecuted criminally, others challenged in civil enforcement actions. DOJ increasingly has prosecuted individuals for price-fixing and other criminal violations of the antitrust laws. The trend is to reach further within corporations to prosecute relatively more individuals. As Snyder noted, DOJ has prosecuted "almost three times as many individuals (352) as corporations (123)" in the last five years. In addition, prison terms for individuals have increased significantly, "from an average of 8 months in the 1990s, to an average of 24 months for fiscal years 2010 through 2015."
The Yates memo and other DOJ statements suggested that DOJ should be using both criminal and civil enforcement actions against individuals. Our prior alert on this topic discussed the incongruity of bringing civil actions against executives or employees whose actions bring about a criminal violation by their company. We recommended DOJ provide public guidance before targeting individuals with civil lawsuits, which of course have a lower standard of proof than criminal prosecutions. Fortunately, Snyder's recent comments do not mention civil lawsuits or anything about whether DOJ plans to adopt expanded civil enforcement against individuals. Instead, his remarks were targeted at more vigorous criminal enforcement.
Nevertheless, Snyder stated that the Antitrust Division is "embracing" the Deputy Attorney General Yates' call for greater emphasis on enforcement against individual wrongdoing. He described steps being taken by the Antitrust Division to implement the policy:
- "We have adopted new internal procedures to ensure that each of our criminal offices systematically identifies all potentially culpable individuals as early in the investigative process as feasible and that webring cases against individuals as quickly as evidentiary sufficiency permits to minimize the risk that cases will be time-barred or that evidence will become stale from the passage of time."
- "We are also undertaking a more comprehensive review of the organizational structure of culpable companies to ensure that we are identifying and investigating all senior executives who potentially condoned, directed, or participated in the criminal conduct.
DOJ's new procedures suggest the Antitrust Division in the future will seek to prosecute executives or employees whose involvement in the conduct DOJ previously might have considered too tangential or tenuous.
Snyder characterized the focus on enforcement against individuals provides as providing more opportunities to cooperate with the Antitrust Division under its Corporate Leniency Policy. Under the leniency policy, corporations and their officers, directors, and employees may receive immunity or reduced sentences or fines for self-reporting conduct and cooperating in DOJ's investigation. However, DOJ will demand companies provide evidence to identify the individuals at the company who are responsible for the wrongdoing in order to obtain cooperation credit.
Under DOJ's new approach, a company that is cooperating with antitrust enforcers may find DOJ increasingly requires that the company not only disclose the conduct that occurred, but also internally investigate the specific wrongdoing of individual executives and employees to a greater degree. To obtain credit for substantially assisting DOJ in an investigation, the company must provide evidence to assist the agency in pursuing current and former company employees who may have engaged in the wrongdoing or merely were in a position to halt the conduct. This cooperation may be in the best interests of the corporation, but will more quickly create tension between the interests of the company and its involved executives and employees.
DOJ's increased focus on enforcement against individuals highlights the need for companies to foster a culture of antitrust compliance. Executives and employees should receive regular training on appropriate conduct and on the severe consequences of antitrust violations both for the company and for individual employees. Companies should consider mechanisms to prevent and detect risky behavior, such as tracking contacts with competitors and monitoring how pricing is determined within the company. Having a robust antitrust compliance program can prevent wrongdoing and detection. DOJ also may consider a company's compliance program in its prosecution decisions and sentencing recommendations.
Deputy Assistant Attorney General Snyder's remarks of February 19, 2016, can be found on the DOJ Antitrust Division's website.
Jones Day's prior alert on this topic can be found here.