Volume 58

"The Heart of the Business": An Analysis of the Antitrust Division's New Policy of Crediting Corporate Compliance at the Charging Stage

by Theodore Salem-Mackall

 Throughout its history, when prosecuting corporations for criminal antitrust violations, the U.S. Department of Justice’s Antitrust Division did not credit a corporation’s demonstrated commitment to compliance at the charging stage. The Division also disfavored the use of deferred prosecution agreements and non-prosecution agreements. In July 2019, however, Assistant Attorney General Makan Delrahim announced a change to this approach under which the Division would begin taking a wider range of “Special Factors” into account before prosecuting a corporation. If these factors, including the corporation’s effective compliance department, weigh against bringing a full prosecution, then the Division can negotiate a deferred prosecution agreement with the corporation instead.

This Comment argues that the Antitrust Division’s new policy pursues a worthy end of incentivizing antitrust compliance, but its specific approach of crediting compliance at charging, could benefit from fuller explication and limited usage. Part I outlines the Division’s old approach, which functionally constituted a per se rule that compliance departments that permitted antitrust violations, with few exceptions, were ineffective. Part II reviews the Division’s new policy and possible application in cases to date. Part III raises remaining questions regarding the new policy’s rationales and practical effect, concluding that it may result in little change and could lead to the Division’s underenforcement of criminal antitrust laws. 

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