The U.S. Department of Justice Antitrust Division ("DOJ") recently announced significant revisions to its criminal enforcement policies regarding the value it places on a company's pre-existing antitrust compliance program. Longstanding DOJ policy denied credit to companies at the charging stage for a compliance program. Now, DOJ must consider a company's antitrust compliance program in making charging decisions and, in some cases, may offer Deferred Prosecution Agreements ("DPA") to companies that fail to qualify for leniency, but that have enacted effective antitrust compliance measures.
Under a DPA, a company can avoid criminal prosecution in exchange for cooperating with the DOJ's investigation, in addition to other substantial obligations. A qualifying compliance program must be "effective" and "robust" in the discretion of DOJ prosecutors. Factors that DOJ prosecutors weigh include:
- Was the compliance program comprehensive and integrated into the company's business, and not "just a paper program,"
- Was senior management committed to a corporate "culture of compliance,"
- Did compliance officials have "sufficient autonomy, authority, and seniority,"
- Was the program "designed to detect the particular types of misconduct most likely to occur" within the company,
- Did employees receive "adequate" antitrust training,
- Was compliance monitored and audited,
- Were employees able to report misconduct without fear of retaliation,
- Did "systems of incentives and discipline" promote compliance; and
- Were violations detected and necessary "remedial actions" made to strengthen the program.
The new policy also awards qualifying compliance programs credit at the sentencing stage of an investigation. DOJ will consider the involvement of senior executives in the cartel conduct and "whether and when the company sought a leniency marker" in deciding whether to reduce a company's fine or to seek probation.
DOJ's new policy is a welcome change that incentivizes antitrust compliance and rewards effective corporate programs. If an antitrust compliance program is operating on autopilot or years have passed since it was reevaluated or overseen by senior leadership, now is the time to revisit the program with DOJ's guidance in mind. Merely having an antitrust compliance program on the books is not enough to receive credit from DOJ. However, effective and robust antitrust compliance can mitigate the substantial risks that a company faces from its employees engaging in anticompetitive conduct.
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