DOJ Antitrust Division Will Now Consider Dpas For Companies Demonstrating 'Good Corporate Citizenship'

The DOJ Antitrust Division recently announced that it will allow prosecutors to resolve criminal antitrust investigations with deferred prosecution agreements ("DPAs") for qualified corporate defendants. Under the Division's prior policies, the first company or individual to self-report an antitrust violation could qualify for leniency, but the Division required others involved in the conspiracy to plead guilty or face indictment. The Division's new policy allows for DPAs to be offered when a company has demonstrated the four hallmarks of "good corporate citizenship": (i) having an effective compliance program, (ii) self-reporting wrongdoing, (iii) cooperating with government investigations, and (iv) remedying past misconduct.

In announcing the new policy, Assistant Attorney General Makan Delrahim focused extensively on one aspect of corporate citizenship—corporate compliance programs and their importance in determining whether a company would qualify for a DPA. In conjunction with the new policy, the Antitrust Division also published guidance describing how it will evaluate corporate antitrust compliance programs and how that evaluation will affect charging decisions (including the possibility of a DPA) and sentencing recommendations (such as whether to seek probation or a corporate monitor). This new policy further adds incentives for companies to implement a well-designed, effective antitrust compliance program to detect—and ideally prevent—criminal antirust conduct within an organization.

The New Policy

As part of every corporate charging decision, the Division will now be required to evaluate ten factors outlined in the Principles of Federal Prosecution of Business Organizations (the so-called Filip Factors listed in the Justice Manual at § 9-28.300) in determining whether to charge a corporate defendant, including whether the company has a robust and effective compliance program. Based on an evaluation of those factors, prosecutors will be allowed to offer DPAs, under which the Division brings charges but agrees not to proceed with prosecution in exchange for the company's payment of a monetary penalty and commitment to abide by certain requirements or conditions.

In evaluating a company's compliance program, the Division will initially consider whether it prohibited criminal antitrust violations, whether it detected and facilitated prompt reporting of the violation, and to what extent the company's senior management was involved in...