Companies With Effective Antitrust Compliance Programs Could Get Relief From Criminal Prosecution Under New DOJ Policy

The Antitrust Division of the U.S. Department of Justice (Division) finally will consider the existence of effective antitrust compliance programs at the charging stage of criminal antitrust investigations, opening up the possibility that cartel participants could avoid prosecution even if they are not a first-in leniency applicant. The Division's previous, and longstanding, approach had been not to consider compliance programs at the charging stage, on the theory that a compliance program is by definition ineffective if it failed to prevent a criminal violation of the antitrust laws. The most important practical effect of this new policy is likely to be that the Antitrust Division will be more willing to consider the use of a deferred prosecution agreement (DPA) to resolve criminal cartel matters - an option it has strongly resisted before now.

The new policy was announced on July 11, 2019 by Makan Delrahim, Assistant Attorney General in charge of the Division, in a speech at the Program on Corporate Compliance and Enforcement at the New York University School of Law. The policy is reflected in revisions to the Department of Justice and Division Manuals and in the publication of a guidance document that Division prosecutors will use to evaluate corporate compliance programs. Following a public workshop in 2018 and evolving approaches at the Division, AAG Delrahim announced that the time had come to “recognize the efforts of companies that invest significantly in robust compliance programs.” These programs should deter violations in the first place and increase early detection when a violation does occur.

Charging Stage

Under the new policy, Division prosecutors must considerthe 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 when deciding how to resolve criminal charges against a corporation. Prosecutors will be able to reach a DPA - where the Division files criminal charges but defers prosecution subject to compliance with certain conditions for an agreed period of time - with companies that are notfirst in under the leniency program but do (1) have arobust and effective compliance policy,(2) promptly self-report [wrongdoing], (3) cooperate in the Division's investigation, and (4) take remedial action to prevent future misconduct. The Division's leniency program, which offers non-prosecution agreements to companies that are the first to...