On February 19, 2016, an antitrust official with the U.S. Department of Justice (DOJ) announced the agency’s increased emphasis on individual accountability, and a renewed commitment “to holding accountable the highest-level culpable executives at conspirator companies.” In prepared remarks published by the DOJ, Deputy Assistant Attorney General Brent Snyder said that the Antitrust Division is ramping up its efforts to investigate and punish corporate executives and employees for their roles in condoning, directing or participating in antitrust cartels.^[1] The DOJ has pursued individuals involved in antitrust cartels for decades, but Mr. Snyder highlighted the agency’s commitment “to do even better.” This increased commitment is based on two key beliefs espoused by the Antitrust Division: (1) that “compliance with antitrust laws must be ingrained in a corporation’s culture—one that is established from the top down;” and (2) that “prison time for individuals [i]s the single most effective deterrent to the ‘temptation to cheat the system and profit from collusion,’” even more than the billions of dollars in fines imposed by the agency on corporations.

Increased Rigor in Identifying and Punishing “Cartel” Behavior

The Antitrust Division is backing up its statements with concrete action. For example, Mr. Snyder announced that the Antitrust Division has “adopted new internal procedures to ensure that each of [the Division’s] criminal offices systematically identifies all potentially culpable individuals as early in the investigative process as feasible and that [the Division] bring[s] cases against individuals as quickly as evidentiary sufficiency permits.”

The results of the Antitrust Division’s focus on individuals are measurable. Whereas the Division prosecuted only one individual for every company it prosecuted in the 1990s, in the last five years it prosecuted almost three times as many individuals (352) as corporations (123). And the increased likelihood of individuals being prosecuted is not the only risk. Monetary fines for individual involvement in antitrust cartels have increased. More importantly, average prison sentences imposed on corporate executives and employees have grown considerably.^[2]

By way of example, both the president and executive vice president of a Taiwanese manufacturer of LCD screens currently are serving 36-month jail sentences for their involvement in the LCD price-fixing cartel (the longest antitrust sentences imposed against foreign nationals). Prison sentences of 60 months and 48 months—the longest ever imposed for antitrust offenses—recently were imposed against executives involved in the coastal shipping cartel.

Antitrust Compliance Programs Have Become Personal for Company Executives

The need for companies to implement and follow robust antitrust compliance programs is not new. However, given the increased scrutiny of and risk to corporate executives and employees, such executives and employees should insist that their companies adopt and follow antitrust compliance programs that include substantial, up-to-date antitrust compliance training to prevent and deter any antitrust violations and the increased scrutiny that is sure to follow.

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Notes:

[1] Individual Accountability for Antitrust Crimes, Brent Snyder (Feb. 19, 2016), available at https://www.justice.gov/opa/speech/deputy-assistant-attorney-general-brent-snyder-delivers-remarks-yale-global-antitrust.

[2] See https://www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts.