For decades, the Antitrust Division refused to give corporate defendants credit for having an effective antitrust compliance program because if the company was being prosecuted, the compliance program did not work. In July, 2019, the Division announced a new policy and released a guidance statement that set out a comprehensive evaluation of the elements of an effective compliance program. The most difficult issue with the Division’s guidance statement is the evaluation of the conduct of senior company executives in (A) establishing and supervising the compliance program, (B) monitoring and tolerating the conduct of employees and (C) participating personally in illegal conduct. While the new compliance initiative is an admirable initiative, the Antitrust Bar should remember that the Corporate Leniency Policy has much more value than the compliance initiative if a company qualifies for leniency, including no criminal prosecution or fine. The article concludes with another proposal – that an effective compliance program be a condition of qualifying for leniency.
