The Antitrust Division of the United States Department of Justice (“DOJ”) announced that it will give credit to corporations that invest in robust antitrust compliance programs in handling criminal violations of US antitrust laws.1 On July 11th, during a compliance and enforcement event at NYU Law School, Assistant Attorney General Makan Delrahim made the announcement that the Criminal Division had revamped its incentive program and updated the DOJ’s Justice Manual to encourage corporate compliance with the antitrust laws.
In the past, the DOJ’s Justice Manual explicitly forbade crediting corporations at the early investigative or charging stage of a matter, although private entities could be rewarded with reduced fines, leniency in settlement, and other incentives for compliance during the sentencing stage of a prosecution. At the NYU event, however, the Assistant Attorney General announced that the Division would begin to consider compliance at the initial charging stage of criminal antitrust investigations: “Crediting compliance at charging is the next step in our continued efforts to deter antitrust violations and reward good corporate citizenship. We also remain dedicated to predictability and transparency. As such, in concert with today’s policy changes, the Division issued a public guidance document that outlines what prosecutors look for when evaluating antitrust compliance programs.”2
Titled “Evaluation of Corporate Compliance Programs,” DOJ published the guidance document to “assist prosecutors in making informed decisions as to whether, and to what extent, the corporation’s compliance program was effective at the time of the offense.”3 While the guidance indicates that no rigid framework exists for analyzing corporate compliance programs, it does state that prosecutors consider three “fundamental” questions in their evaluation:
- Is the corporation’s compliance program well designed?
- Is the program being applied earnestly and in good faith?
- Does the corporation’s compliance program work?
Because these fundamental questions are broad, prosecutors may evaluate corporate compliance using a number of factors, including the use of risk assessments; periodic testing; training and communication for officers and employees; confidential reporting mechanisms and investigative processes; management of third parties; and due diligence efforts. Assistant Attorney General Delrahim further stated that the DOJ’s new approach would allow prosecutors to negotiate deferred prosecution agreements (DPAs) with corporations that violate the antitrust laws, but which had strong compliance programs in place.4 The new guidance also clarifies how the DOJ evaluates whether a corporate compliance program factors into penalties at the sentencing stage of a prosecution.
The DOJ’s recent announcement highlights the critical importance of effective antitrust compliance programs. Bryan Cave Leighton Paisner’s experienced antitrust attorneys have a proven track record of developing and implementing such programs. We represent clients across diverse industries during all stages of antitrust investigations and litigation. For more information, please contact a member of the Antitrust and Competition team.