Antitrust Litigation & Investigations

DOJ Will Weigh ‘Good Corporate Citizenship’ in Future Criminal Probes

Elements include early detection and self-policing.

Assistant Attorney General Makan Delrahim announced on July 11, 2019, the Antitrust Division’s new policy for incentivizing antitrust compliance, saying the government “will consider compliance at the charging stage in criminal antitrust investigations,” credit that was explicitly not considered previously.

The Division announced revisions to its Justice Manual and published a document to guide prosecutors’ evaluation of corporate compliance programs at the charging and sentencing stages.

“The Antitrust Division is committed to rewarding corporate efforts to invest in and instill a culture of compliance,” Delrahim said. “The Division’s Leniency Policy has long provided the ultimate credit for effective antitrust compliance programs. Beyond leniency, recently we have credited prospective compliance efforts at sentencing. Crediting compliance at charging is the next step in our continued efforts to deter antitrust violations and reward good corporate citizenship.” He said the guide for prosecutors was published in the spirit of "predictability and transparency.”

The revisions to the Justice Manual address evaluation of compliance programs at the charging and sentencing stages, and Division processes for recommending indictments, plea agreements, and selecting monitors.

In a statement following the announcement, the Antitrust Division said that, for the first time, it was publishing a guidance document – Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations – that focuses on evaluating compliance programs in the context of criminal violations of the Sherman Act. “It is intended to assist Division prosecutors in their evaluation of compliance programs at both the charging and sentencing stage of investigations, and to provide compliance officers and the public greater transparency of the Division’s compliance analysis. To that end, it contains two sections: the first relates to evaluating antitrust compliance programs at the charging stage, and the second addresses compliance considerations at sentencing.”

The Antitrust Division’s new policy offers corporate compliance programs that incorporate early detection and self-policing – including by outside counsel – credit for good corporate citizenship at the charging stage.

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