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D al l as Bar A ssoci ati on l Headnotes 23
Appellate Law/Antitrust & Trade Regulation
Why You Need an Antitrust Compliance Program BY THOMAS D. YORK
While corporate antitrust compliance programs may not be the most exciting duties of in-house counsel, recent U.S. Department of Justice (DOJ) guidance reinforces why they are a must-have to potentially prevent criminal antitrust violations—and reduce criminal liability for when they occur. DOJ recently announced significant revisions to its policy regarding treatment of corporate compliance programs in antitrust cases. For the first time, DOJ now allows government prosecutors to take a company’s preexisting compliance program into account when making sentencing or charging decisions—so long as the program is effective. This new policy represents an aboutface for DOJ. Historically, DOJ believed that if a cartel violation occurred, a company’s compliance program was, by definition, ineffective. DOJ refused to offer any credit for the program when considering whether to prosecute the company. Instead, only the first company to report the antitrust violation was awarded leniency. Now, DOJ must consider a company’s antitrust compliance program in making charging decisions and, in some cases, may offer deferred prosecution agreements to companies that fail to qualify for
leniency but that have enacted effective antitrust compliance measures. Moreover, DOJ may award credit to firms with effective programs at the sentencing stage of an investigation. An antitrust compliance program can save a company from the devastating consequences of antitrust violations by preventing or quickly detecting anticompetitive conduct. Antitrust violations can result in expensive litigation, millions of dollars in damages and fines, reputational harm, and potentially individual criminal liability—all before any follow-on civil litigation. Implementing a compliance program can limit or prevent these costs by fostering a culture of compliance and encouraging prompt reporting of potential violations. An effective antitrust compliance program should be tailor-made to fit the specific risk profile of the company. A “paper program” won’t cut it. While every policy is different, the key components of a program include: • Code of Conduct. A company should have an easy-to-read, easy-to-find code of conduct that describes the company’s commitment to antitrust compliance. Senior management should reinforce this code through a culture of compliance. • Tailored Risk Assessment. An anti-
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trust compliance program should be designed to detect the particular types of misconduct most likely to occur within the specific company and industry. There is no one-size-fits-all compliance program. • Dedicated Compliance Officer. A company should task a chief compliance officer or another executive with overseeing compliance efforts. The compliance officer should have sufficient autonomy, authority, and seniority to command respect, and given sufficient resources required to run the program effectively. • Training and Certification. Company leadership and key employees should periodically complete antitrust training programs, which should include tests or other mechanisms to ensure employees understand the material and certify their compliance with antitrust laws. • Enforcement. Antitrust compliance should be continuously monitored
and audited. If violations were identified, remedial actions should be taken to strengthen the program. • Reporting Mechanisms. Employees should be given specific instructions on how to report potentially unlawful conduct. This should include options to submit their concerns anonymously and without fear of retaliation. In sum, DOJ’s new policy is a welcome change that incentivizes antitrust compliance and rewards effective programs. But in-house counsel must be proactive and vigilant in order to take full advantage of the policy. To the extent your antitrust compliance program has been on autopilot, now is the time to revisit the program with DOJ’s guidance in mind. HN Thomas D. York is an associate at Jones Day. He can be reached at tdyork@jonesday.com. Mitchell Ralph, a summer associate at Jones Day, assisted in the preparation of this article.
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