PROMOTING ANTITRUST COMPLIANCE THE ANTITRUST DIVISION’S SUBTLE SHIFT REGARDING CORPORATE COMPLIANCE: A STEP TOWARD INCENTIVIZING MORE ROBUST ANTITRUST COMPLIANCE EFFORTS
By Heather Tewksbury, Ryan D. Tansey, and Alicia Berenyi1
A surprising feature of many corporate compliance programs is their limited emphasis on antitrust. Compliance efforts are a key feature of modern corporate governance initiatives, and it stands to reason that such initiatives should include safeguards against the severe reputational and financial penalties that may arise from antitrust violations. Nevertheless, corporate antitrust compliance efforts often lag behind initiatives addressed to other high-risk legal areas, such as the Foreign Corrupt Practices Act. Some critics believe that the lack of emphasis on antitrust compliance results from the Antitrust Division’s opposition to giving credit for compliance programs under the United States Sentencing Guidelines, which contrasts with efforts to credit effective compliance programs in the FCPA space. In a recent, positive shift, the Antitrust Division has begun crediting compliance in less formulaic ways. This article proposes that the Antitrust Division go further, by establishing a more concrete, transparent structure for crediting antitrust compliance. In addition, this article recommends changes to the Sentencing Guidelines to codify the role that compliance can play in mitigating criminal antitrust sanctions.
Part One of this article details the surprising lack of focus on corporate antitrust compliance despite the increased risks of criminal prosecutions and civil liability. This is in contrast to FCPA compliance which has, by all accounts, increased in response to heightened DOJ enforcement efforts. Part Two describes the Antitrust Division’s historical treatment of corporate compliance and the tension between the Sentencing Guidelines’ structure and the policies and incentives within the Antitrust Division, how this treatment diverges from the practices of the rest of the Department of Justice, and how the relative faltering of antitrust compliance may be attributable to this divergence. Part Three explains how, very recently, the Antitrust Division has begun departing from its historical practice by crediting compliance in less formulaic ways at sentencing. Part Four proposes that, moving forward, the Antitrust Division should continue to credit compliance at sentencing and adopt a more transparent approach to maximize its incentive effect on corporate antitrust compliance. Part Five proposes that the Sentencing Guidelines incorporate a mechanism for crediting compliance programs in a way that the Antitrust Division can support within the context of the leniency program and existing DOJ policy.