Compliance

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CHAPTER XI

COMPLIANCE

A. Introduction

The announcement of an Antitrust Division investigation into alleged

anticompetitive conduct is a traumatic event for any corporation,

regardless of its size, actual culpability, or the eventual outcome of the

investigation. A corporate compliance and ethics program can help the

corporation detect possible cartel conduct before the Division does and

put the corporation in the best position to obtain leniency or otherwise

mitigate criminal liability. It also can help the company prepare for and

respond quickly to government inquiries if the company becomes the

subject or target of a grand jury investigation. Even if leniency is not

available, changes to the Antitrust Division’s policy on corporate

compliance programs, announced in July 2019, allow prosecutors to

recommend a corporate resolution short of prosecution,1 consistent with

the Principles of Federal Prosecution of Business Organizations.2 The

Antitrust Division has explained that a company may be able to negotiate

a deferred prosecution agreement (DPA) if, among other factors, the

company is able to show that it had an otherwise effective antitrust

1. Makan Delrahim, Ass’t Att’y Gen., Antitrust Div., U.S. Dep’t of Just.,

Wind of Change: A New Model for Incentivizing Antitrust Compliance

Programs, Remarks as Prepared for Delivery at New York Univ. Sch. of

Law Program on Corporate Compliance and Enforcement 3 (July 11,

2019), available at

https://www.justice.gov/opa/speech/file/1182006/download [hereinafter

Wind of Change].

2. U.S. DEP’T OF JUST., JUST. MANUAL § 9-28.800 (2022) [hereinafter

JUSTICE MANUAL] (“While the Department recognizes that no

compliance program can ever prevent all criminal activity by a

corporation’s employees, the critical factors in evaluating any program

are whether the program is adequately designed for maximum

effectiveness in preventing and detecting wrongdoing by employees and

whether corporate management is enforcing the program or is tacitly

encouraging or pressuring employees to engage in misconduct to achieve

business objectives.”).

254 Antitrust Cartel Leniency and Sentencing Handbook

compliance program.3 In accord with this policy change, the Antitrust

Division issued guidance to prosecutors and the business community on

what factors the Division will consider in assessing the quality of a

company’s antitrust compliance program.4 If the company lacks an

effective compliance and ethics program, it likely will lose the race for

leniency, face criminal charges, be hampered in its response to the

Division’s investigation, and suffer negative repercussions at sentencing.

This Chapter discusses the value of a comprehensive compliance and

ethics program, the key elements of a compliance and ethics program,

including those discussed in the Antitrust Division’s guidance, and how

such a program can help to detect and mitigate criminal liability.

B. Compliance and Ethics Programs

A comprehensive corporate compliance and ethics program can help

prepare the corporation if and when the company and its employees

become the subject or target of a criminal investigation. It can also help

to uncover criminal conduct before a government investigation ensues.5

If a criminal violation involves cartel conduct, early detection is critical

to qualifying for leniency under the Antitrust Division’s Leniency

Policy,6 which is available only for the first company that qualifies for

leniency.7 If leniency is not available, early detection and reporting are

also important to mitigating criminal liability, at both the charging and

sentencing phases of an antitrust investigation.

An effective antitrust compliance program is even more critical now

that the Antitrust Division may credit compliance programs at the

3. Wind of Change at 8.

4. ANTITRUST DIV., U.S. DEP’T OF JUST., EVALUATION OF CORPORATE

COMPLIANCE PROGRAMS IN CRIMINAL ANTITRUST INVESTIGA TIONS (Jul.

2019), available at

https://www.justice.gov/atr/page/file/1182001/download [hereinafter

EVALUATION GUIDE].

5. See generally ABA SECTION OF ANTITRUST LAW, ANTITRUST

COMPLIANCE: PERSPECTIVES AND RESOURCES FOR CORPORATE

COUNSELORS (2d ed. 2010) [hereinafter ANTITRUST COMPLIANCE].

6. JUSTICE MANUAL§ 7-3.300 et. seq. (2022), available at

https://www.justice.gov/atr/page/file/1490246/download U.S.

7. Although leniency may still be available after an investigation has begun

(Type “B” leniency), the company still must be the first company to come

forward and qualify for leniency. See id. at § 7-3.340 (“While one

applicant has a marker, no other applicant can obtain a marker for the

same conspiracy.”).