The Department of Justice (DOJ) Antitrust Division recently announced it will now consider "robust" compliance programs when contemplating bringing criminal charges for antitrust violations. Until this announcement, compliance programs only helped companies obtain leniency in sentencing decisions.1
Antitrust compliance programs are important to minimize the risk of civil antitrust liability, as well as more serious criminal antitrust charges. The absence of adequate antitrust training and compliance has been used against companies in civil class action litigation.
Companies had hoped that the existence of a compliance program would affect the government’s exercise of discretion in deciding whether to pursue a criminal case. The Antitrust Division, however, had explicitly rejected the notion that the existence of a compliance program should influence decisions as to whether to indict.
Traditionally, the Antitrust Division stated the true benefit of compliance programs is preventing the commission of antitrust crimes, not to enable organizations committing such violations to avoid prosecution. Therefore, the existence of a compliance program had a very limited role in how the DOJ exercised its prosecutorial discretion.
DOJ Will Now Consider “Adequacy and Effectiveness” of Compliance Programs
The DOJ has usually only awarded leniency in charging decisions only to whistleblowers first to alert the DOJ of illegal conduct. In fact, the DOJ’s Justice Manual asserts the DOJ won’t consider a compliance program as a reason to not bring criminal antitrust charges but now DOJ has changed its position.
In a speech last week, Antitrust chief Makan Delrahim announced that when considering whether to file criminal charges, the division will consider "the adequacy and effectiveness of a compliance program." DOJ prosecutors will now consider whether the compliance program is well designed, created in good faith, and if it actually works.
Above all, the amount of weight a compliance program will receive depends on the facts of the case. It is important to note the change in the DOJ’s approach recognizes that any corporation with a comprehensive program may nevertheless find itself implicated in a cartel investigation.
Benefits of a Robust Antitrust Compliance Program
Companies should now consider investing resources into creating a robust antitrust compliance program because it has three benefits:
- Minimize the risk of any civil or criminal antitrust violations occurring;
- Minimize the risk of criminal charges being brought if a violation occurs; and
- Leniency in sentencing guidelines.
1 Chapter Eight of the United States Sentencing Guidelines, which deals with the guidelines for the sentencing of organizations, provide that “programs to prevent and detect violations of law” are to be considered in sentence mitigation. The Guidelines determine a range for potential criminal fines using a base amount (usually 20 percent of the volume of commerce affected by the antitrust violation) and minimum and maximum multipliers. The choice of which multiplier to use is affected by the "culpability score," which depends in part on the existence a compliance program.