Two top officials of the U.S. Department of Justice Antitrust Division have spoken publicly in the last week about corporate compliance programs. Brent Snyder, Deputy Assistant Attorney General for criminal enforcement entitled his remarks to the International Chamber of Commerce in New York as “Compliance is a Culture, Not Just a Policy.” Assistant Attorney General for the Antitrust Division, Bill Baer, spoke on Prosecuting Antitrust Crimes at a symposium at Georgetown Law School, and also addressed corporate compliance programs.
After pointing out the benefits of compliance programs - preventing violations of the antitrust laws, or at least detecting violations early enough to qualify for the Division’s leniency program - Mr. Snyder addressed what makes an effective compliance program. He conceded that there is no “one size fits all” approach, given that a compliance program should account for the nature of a company’s business and the markets in which it operates. However, he did offer a few guidelines.
First, the compliance efforts must have full support and engagement by senior executives and the board of directors, which Mr. Snyder described as including “being fully knowledgeable about those efforts, providing the necessary resources, and assigning the right people to oversee them.” Second, a good compliance program will educate the entire organization, and ensure participation and commitment throughout the organization. Third, risk activities need to be regularly monitored and audited. Fourth, although reiterating the Division’s policy not to insert itself into personnel matters, Mr. Snyder emphasized that commitment to compliance requires a willingness to appropriately discipline culpable employees. Mr. Baer pointed out that failures in this area will cause the Division to have “serious doubts” about a company’s commitment. Finally, a company that discovers violations must take the steps necessary to prevent reoccurrence.
Though the U.S. Sentencing Guidelines allow reductions in penalties for corporations with effective compliance programs, Mr. Snyder reiterated long-standing Antitrust Division policy to not recommend credit at sentencing of an antitrust violator on the basis of the company’s preexisting compliance policy. The Division’s viewpoint has been that any compliance program that fails to prevent a violation, and fails to detect it in time for the company to be the first to approach the Division and receive leniency, is by definition not “effective.” That policy, reiterated by both Mr. Snyder and Mr. Baer in their comments, has not changed.
Mr. Snyder tried to identify potential benefits to companies for having a compliance program, even if they are preparing to plead guilty to an antitrust violation. He said companies that could show they had adopted or strengthened existing compliance programs after coming under investigation could possibly avoid probation or the appointment of a compliance monitor, something he said the Division will request more frequently in the future. Nevertheless, it was clear that the goal of a compliance program, and its most valuable benefit, will be to prevent violations of the antitrust laws and the serious consequences that result.