On Friday, July 12, Assistant Attorney General Makan Delrahim announced the Department of Justice (DOJ), Antitrust Division’s new policy for incentivizing corporate antitrust compliance. For the first time in DOJ history, this new policy recognizes the efforts of companies that invest in robust compliance programs and states that the Division will consider such compliance at the charging stage in criminal antitrust investigations.
Previously, the Justice Manual explained the Antitrust Division’s policy “that credit should not be given at the charging stage for a compliance program.” As of Friday, this text has been deleted and the Antitrust Division has updated its Manual. Now, when determining how to resolve criminal charges against a corporation, one factor prosecutors must consider is “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of the charging decision.”
The Division also published a guidance document that focuses on evaluating compliance programs in the context of criminal violations. The guidance is intended to provide transparency regarding the Division’s compliance analysis and contains two sections: one that evaluates antitrust compliance programs at the charging stage, and the other that evaluates antitrust compliance considerations at sentencing. At the charging stage, the guidance directs prosecutors to ask: 1) whether the company’s compliance program addresses and prohibits criminal antitrust violations; 2) whether the antitrust compliance program detects and facilitates prompt reporting of violations; and 3) to what extent the company’s senior management was involved in the violation. During sentencing, the guidance instructs prosecutors to evaluate whether to recommend sentencing reductions based on a company’s effective antitrust compliance program.