In a crystal-clear effort to incentivize corporate antitrust compliance and promote a culture of compliance, the United States Department of Justice, Antitrust Division, on July 11, announced a significant new policy [1] and corresponding  revisions to the Antitrust  Division Manual [2] to take effect immediately in criminal antitrust investigations. [3]  

Previously, the Department’s Leniency Policy[4] provided credit for effective antitrust compliance programs, and as stated by Assistant Attorney General Makan Delrahim on July 11[5], “[b]eyond leniency, recently we have credited prospective compliance efforts at sentencing.” (emphasis added). The new Antitrust Compliance Policy Evaluations guidelines take the next step, and will credit compliance at the charging stage – which previously was specifically prohibited by the Leniency Policy. Now, such credit will be specifically permitted, in furtherance, as Delrahim stated, of the Division’s “continued efforts to deter antitrust violations and reward good corporate citizenship.”

In addition to addressing how prosecutors should be evaluating antitrust compliance programs at the charging and sentencing stages of criminal antitrust cases,  the Manual revisions and Antitrust Compliance Policy Evaluations document – the Division’s  first-ever effort to catalog the evaluation process --  provide companies and their counsel extensive guidance as to how antitrust compliance policies and related training programs should be structured when being developed and updated.

In that regard, the clarity of the revisions provides helpful transparency into the internal processes at play and as such will allow companies and their counsel to get and stay ahead of the fundamental considerations, which will clearly help corporate compliance officers.  While there is no “magic formula” to follow, the Department and the Division, as with all corporate compliance programs, tell its prosecutors to consider three basic  questions:

• “Is the corporation’s compliance program well designed?”
• “Is the program being applied earnestly and in good faith?”
• “Does the corporation’s compliance program work?”

In the antitrust compliance policy context, these basic questions are a literal “tip of the iceberg”; the Antitrust Compliance Policy Evaluations document, at 17 pages, provides a useful roadmap for not only what antitrust compliance policies should contain, but also what elements make such policies more than “paper statements” and give them the kind of heft and meaning that will become influential at the charging and sentencing stages of a criminal antitrust investigation. In addition to providing some level of protective considerations in that context, which,  given the significance of the antitrust law’s criminal remedies (multi-million-dollar fines, felony-level jail time, etc.) is obviously critical, the prosecutorial inquiries being suggested will provide a solid foundation for antitrust compliance policies and training programs overall.

Saul Ewing Arnstein & Lehr regularly advises clients on these matters and drafts and updates antitrust compliance policies, and conducts antitrust compliance training to supplement those written policies  for clients in all business sectors. Antitrust Compliance Policy Evaluations  will inform those activities going forward, and we would be please to help you take the steps necessary to develop and implement a first-time antitrust compliance policy and training program, or review your existing regime to dovetail it with the Antitrust Division’s July 2019 announcement.

1. “Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigation” (“Antitrust Compliance Policy Evaluations”), U.S. Department of Justice, Antitrust Division, July, 2019.  https://www.justice.gov/atr/page/file/1182001/download

2. “Antitrust Division Manual” , U.S. Department of Justice, Antitrust Division, Fifth Edition. https://www.justice.gov/atr/file/761166/download

3. These changes should be read along with “Principles of Federal Prosecution of Business Organizations” generally, and specifically at section 9-28.800, “Corporate Compliance Programs” to get a full picture of the issues at play. See https://www.justice.gov/jm/jm-9-28000-principles-federal-prosecution-business-organizations.

4. https://www.justice.gov/atr/leniency-program

5. https://www.justice.gov/opa/pr/antitrust-division-announces-new-policy-incentivize-corporate-compliance