Author: Jarod Bona
You might hear from an antitrust attorney that it is important to have a strong antitrust compliance policy. And you may think to yourself, yes, I suppose it is. Then you go about your over-packed day, periodically seeing from other professionals that whatever their specialty is, you need to call them right away to have them help you too.
And that isn’t a surprise because each professional, each specialist in something, and, really, each person with any experience of any sort sees life through their own unique lens. We wrote about this in the context of trade associations.
The truth is we are all bombarded with marketing and emails and social media posts and problems in our lives and our world that are “urgent” or “important.”
So when I tell you that your company should have a strong antitrust compliance policy, no matter what its size, you may appreciate that advice, but recognize that (1) I see life through the lens of antitrust and competition law (among other lenses); and (2) Bona Law prepares antitrust compliance policies, so I am biased. And both of those are true. Whenever you evaluate what anyone says, you should do so understanding their perspective, as bias isn’t necessarily conscious or even negative—it often just is part of perspective and experience.
This is a long introduction to tell you that when it comes to antitrust compliance policies, you don’t just have to listen to me or the many other attorneys that advocate for them:
The Antitrust Division of the Department of Justice has now reversed its position and will give companies with robust compliance programs credit when considering charges.
The purpose of the policy change, of course, is to encourage companies to adopt and (just as importantly) follow strong antitrust compliance programs. If that occurs, the amount of criminal antitrust conduct should decrease. Of course, there may be an inverse relationship between the companies that would enact and follow an antitrust compliance program and those that would criminally violate the antitrust laws. But, still, it will probably help overall. And it should help to keep otherwise law-abiding companies from getting pulled into, for example, an industry-wide price-fixing cartel. If that happens, they will likely experience what we like to call an antitrust blizzard.
In a speech at New York University School of Law, Makan Delrahim said that in evaluating a policy for charging decisions, DOJ prosecutors would consider whether the program is well-designed, if the company applies it in good faith, and if the program actually works. So, as you can see, this is one of those policies that will evolve as they try it on a case-by-case basis.
The Department of Justice also released details on how it would evaluate antitrust compliance policies: US Department of Justice Antitrust Division: Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations.
We will write more about the specifics of a strong corporate compliance program in future articles.
In the meantime, you can read an article by Luis Blanquez about antitrust compliance policies in the US and Europe.
As you might know, the DOJ already has a leniency program, which you can learn more about here. DOJ will sometimes grant leniency to companies and people that report antitrust cartel activity and then cooperate with the DOJ investigation. DOJ antitrust attorneys, experts in competition themselves, incorporated some competition into their leniency program.
The company or person that is part of the cartel that “wins the race” for leniency receives the most benefits. The idea, of course, is to provide an incentive to each cartel member to run, not walk, to DOJ when they detect the illegal activity in their company. So, if you find that your company is part of an antitrust cartel, there is some incentive to reporting right away to DOJ, especially if you are first. Of course, even those that don’t win the race may benefit from cooperation.
Up until now, DOJ didn’t formally consider the antitrust compliance policy as part of its charging or sentencing decisions. So this is a significant and important change. Please note, however, that DOJ is unlikely to provide any credit for an antitrust policy that exists, but isn’t really used or implemented. An antitrust compliance policy isn’t a piece of paper that becomes a “keep out of jail free” card. Instead, you must thoughtfully and effectively apply it throughout your company. Your antitrust attorney can help you with that.
Indeed, in light of DOJ’s new policy on antitrust compliance policies, compliance officers at companies should (1) make sure they have an antitrust policy; and (2) even if they do, they should update them to conform with DOJ’s most recent guidance and current antitrust law. We are, of course, biased in favor of robust antitrust compliance policies. But you don’t have to take our word for it—listen to your Department of Justice. They agree.