Benjamin Franklin once observed that “an ounce of prevention is worth a pound of cure.” In the antitrust context, this means that most, if not all, companies will want as a matter of course to adopt and maintain an antitrust compliance program, because doing so will help avoid antitrust problems before they occur.
Until recently, however, the U.S. DOJ Antitrust Division gave no weight to corporate antitrust compliance programs at the charging stage of criminal cases, and provided little public guidance as to how they would be considered at the sentencing stage of such proceedings. As former Deputy Assistant Attorney General Brent Snyder noted in 2014, there were once two hard truths about compliance programs. The first was that the “existence of a compliance program almost never allows the company to avoid criminal antitrust charges.” [1] The second was that “the Division, like the Department of Justice as a whole, almost never recommends that companies receive credit at sentencing for a preexisting compliance program.” [2] That changed late last week with an important announcement by Assistant Attorney General Makan Delrahim. Delrahim described the changes to the Division’s treatment of antitrust compliance programs and also announced the publication of a Division guidance document that Division lawyers will use to apply the policy.
Prior to the policy change, a corporate compliance policy would itself garner no credit at the criminal charging stage; instead, the Division took an “all-or-nothing” approach, rewarding the first company in a cartel to come forward with leniency, and possibly advocating for criminal penalty reductions for other companies that fully cooperate in the investigation.
No longer. Going forward, a company with a “robust” compliance program (even if it is not the first to seek leniency) may be eligible for a deferred prosecution agreement (“DPA”). As Delrahim stated in his recent speech, “a company with a robust compliance program actually can prevent crime or detect it early, thus reducing the need for enforcement activity; minimizing the harm to consumers earlier and saving precious taxpayer resources” even if the compliance program is not 100% effective.
In evaluating whether a compliance program is robust, pursuant to its guidance document, the Division will ask three fundamental questions at the charging stage: (1) Is the corporation’s compliance well designed? (2) Is the program being applied earnestly and in good faith? and (3) Does the corporation’s compliance program work?
In asking and answering these three fundamental questions, the Division will consider nine factors, which the guidance document stresses are not a checklist or formula. The first factor looks to the program’s design and comprehensiveness, and considers whether the program is merely a “paper” program or whether it was designed, implemented, reviewed and revised as appropriate in an effective manner. The second factor looks to the culture of compliance, and asks whether management has clearly articulated —and conducted themselves in accordance with— the company’s commitment to good corporate citizenship. And the third factor looks to whether those with operational responsibility for the program have sufficient autonomy, authority and seniority, as well as adequate resources to implement the program. Other factors include whether the program: is tailored to the best practices of the industry and to the unique circumstances of the company; provides training and communication that is clear and empowers employees to act with confidence of the rules; requires periodic review, monitoring, and auditing; establishes reporting mechanisms to allow for anonymous or confidential reports without fear of retaliation; creates a system of incentives and discipline to ensure the program is well-integrated into the company’s operations and workforce; and implements mechanisms for self-policing, remedying issues and improving the program to prevent future issues. Although many of the factors are fairly straightforward and some reflect prior statements by agency officials, the guidance constitutes the first time in the Division’s criminal program history that it has issued formal guidance regarding how it evaluates antitrust compliance programs.
Perhaps not surprisingly, merely having a robust compliance program will not guarantee a DPA. Instead, the Division will also consider whether the company self-reported the misconduct, whether it cooperated with government investigations, and whether it took remedial action.
The new guidance document also clarifies how the Division will consider compliance programs at the sentencing stage. A company may receive a three-point reduction in its “culpability score” under the U.S. Sentencing Guidelines if it has an “effective” compliance program. However, there is no reduction if there has been an unreasonable delay in reporting illegal conduct to the government, and there is a rebuttable presumption that a compliance program is not effective when certain “high-level personnel” or “substantial authority personnel” participated in, condoned or were willfully ignorant of the offense. An effective guidance program may also avoid the need for the DOJ to recommend corporate probation. Finally, the Division’s guidance provides that a dedicated effort by the company’s senior management to change company culture after an antitrust violation and corporate actions to prevent the recurrence of an antitrust violation are relevant to whether the DOJ should recommend a criminal fine reduction.
In sum, for most companies, it has always made good sense to have, and to periodically update and review, an antitrust compliance policy. Of course, no one ever wants or expects to be involved in a criminal antitrust investigation, but in light of the Antitrust Division’s recent announcement about and guidance concerning how it will take such policies favorably into account in such investigations, it likely makes sense for many companies to dust off their programs to ensure that they are adequately robust in the eyes of the Division.
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[1] Snyder, supra note 1, at 9.
[2] Brent Snyder, Compliance is a Culture, Not Just a Policy, at 8 (Sept. 9, 2014), https://www.justice.gov/atr/file/517796/download.
