Crediting Corporate Compliance Programs in Criminal Antitrust Cases: How Strong a Wind of Change?

This article examines the U.S. DOJ’s 2019 revision to the Principles of Federal Prosecution of Business Organizations related to antitrust compliance programs, concerns about the revision’s possible effects on the U.S. DOJ’s corporate leniency policy, and the likelihood that the revision will lead to meaningfully different enforcement and sentencing outcomes for companies with antitrust compliance programs. The authors argue that concerns that the revision will negatively impact corporate leniency incentives and hopes that it will lead to significantly improved outcomes for companies with antitrust compliance programs are probably misplaced.  Leniency remains far more attractive than any charging or sentencing credit that a company is likely to receive for having an antitrust compliance program, and, in any event, the nature of most cartels will probably preclude such credit in the near term.

By Brent Snyder & Jordanne M. Miller[1]

The Principles of Federal Prosecution of Business Organizations^[2] (Principles) provide a list of standardized factors that federal prosecutors consider in deciding whether to recommend criminal charges against a company. The existence and effectiveness of a company’s compliance program is among the factors to be considered.^[3] Application of the Principles, including assessment of a company’s compliance program, may result in a prosecutorial decision to decline charges against the company altogether or to