DOJ Issues Guidance on the Evaluation of Antitrust Compliance Programs: Antitrust Division Reverses Longstanding Policy of Refusing to Consider Compliance Programs in Charging Decisions and Issues Detailed Guidance for Assessing Effectiveness of Antitrust Compliance Programs

Sullivan & Cromwell LLP - July 15, 2019
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On July 11, 2019, Assistant Attorney General Makan Delrahim announced that the Antitrust Division of the U.S. Department of Justice is reversing its longstanding policy of insisting on guilty pleas for companies involved in criminal violations of the antitrust laws that do not otherwise qualify for leniency under the Division’s Corporate Leniency Policy.  This shift opens a new path to a potential deferred prosecution agreement for companies with “effective” antitrust compliance programs, measured under new guidance (the “Guidance”) issued by the Division for evaluating such programs.  The Guidance provides a detailed set of factors that Antitrust Division attorneys are to consider in assessing, among other considerations, companies’ pre-existing antitrust compliance programs in making charging decisions.  The Guidance also clarifies the Division’s policy on evaluating the effectiveness of compliance programs in making sentencing recommendations.  Companies should review the Guidance carefully to understand the Antitrust Division’s expectations regarding antitrust compliance.