"A New Model for Incentivizing Antitrust Compliance Programs": Changes to DOJ Antitrust Enforcement

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On July 11, 2019, Makan Delrahim, Assistant Attorney General for the Antitrust Division (the Division) of the DOJ, announced the Division’s new approach to incentivizing and evaluating corporate antitrust compliance programs. This involves three major components: (1) crediting compliance programs at the charging stage; (2) clarifying how the Division evaluates the effectiveness of compliance programs at the sentencing stage; and (3) publishing a guidance document, "Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations" (the Guidance Document or Guidance), which explains how prosecutors will actually evaluate these compliance programs at both the charging and sentencing stages. The new policy will allow companies with "effective" antitrust compliance programs, as detailed in the Guidance Document, that have not obtained leniency under the Division’s existing Corporate Leniency Policy to obtain deferred prosecution agreements. It is not evident just how much the new policy will affect enforcement. During a panel that followed the announcement—which included Andrew Finch (Principal Deputy AAG, Antitrust Division, DOJ) and Richard Powers (Deputy AAG for Criminal Enforcement, Antitrust Division, DOJ)—Finch and Powers reiterated that the existing leniency program has been the Division’s most important tool for criminal antitrust enforcement for twenty-five years, and it is not expected to change in light of this new approach. Assistant Attorney General Delrahim emphasized the same point, noting that non-prosecution agreements continue to be disfavored for all except leniency applicants. Moreover, the current enforcement scheme already encourages companies to provide early and substantial cooperation and to plead guilty to criminal charges in order to receive reductions in penalties; the Guidance Document explains that early detection of misconduct and prompt reporting of violations is essential to an "effective" compliance program. Therefore, the most likely beneficiaries of this policy change are corporations that may already have been early cooperators, i.e., those that self-report misconduct, but are not the "first in the door." As noted by Delrahim, Finch and Powers, time will be the ultimate judge of the effectiveness of the program in terms of criminal antitrust enforcement. Delrahim emphasized repeatedly that the primary goal of the policy is deterrence, focusing on the maxim that "an ounce of prevention is worth a pound of cure." Delrahim noted that the current enforcement scheme has focused on identifying and correcting past misconduct, but the new policy recognizes that effective compliance programs can prevent harm in the first place. The new approach recognizes the efforts of companies that invest significantly in robust compliance programs, and it corrects the "outdated" position that the very fact of misconduct means that a compliance program failed. It also sends a strong signal to companies to undertake efforts to evaluate and improve their compliance programs.