The DOJ Antitrust Division introduced a new policy under which corporations may receive credit for their existing compliance programs during criminal antitrust investigations. In addition, the Division will update its manual and provide guidance for prosecutors on how to evaluate corporate compliance programs during the charging and sentencing stages.

The new policy is designed to incentivize corporate compliance by allowing prosecutors to offer a deferred prosecution agreement when a corporation's compliance program meets certain criteria. According to new guidance issued to DOJ prosecutors, compliance programs will be evaluated based on:

  • the design and comprehensiveness of the program;

  • the company's compliance culture;

  • responsibility for and resources designated to antitrust compliance;

  • antitrust risk assessment techniques;

  • compliance training and communication to employees;

  • monitoring and auditing techniques, such as continued review, evaluation and revision of the antitrust compliance program;

  • reporting mechanisms;

  • compliance incentives and disciplinary measures; and

  • remediation methods.

Commentary Joel Mitnick

The change in policy represents a major shift in the DOJ's thinking about antitrust charging and antitrust sentencing. Officials caution, however, that to be eligible for a deferred prosecution agreement the applicant must still self-report the violation, cooperate in the investigation and have a preexisting compliance plan that is "robust."

Previously, the Antitrust Division would offer leniency only to the first-in applicant. Antitrust Division head Makan Delrahim said that, "[a] company with a robust compliance program 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." Previously, the DOJ viewed antitrust violations as evidence that a compliance program already in place had failed. According to Delrahim, "[t]his change in the Division's approach is a recognition that even a good corporate citizen with a comprehensive compliance program may nevertheless find itself implicated in a cartel investigation. Precisely how much weight and credit to give a compliance program will depend on the facts of the case."

Because the new policy allows for the possibility of some leniency for more than one applicant, it may alter a party's strategy about the value of seeking first-in leniency and tipping off the authorities to a violation about which they may be unaware. The decision whether to self-report a criminal antitrust violation is one that should be made in thoughtful consultation with counsel.

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