Over the last decade screens have had a significant impact in the early stages of litigation, helping to shape complaints, motions to dismiss, court decisions, and agency investigations on collusion and manipulation matters. Yet, to date screens have played almost no role in corporate antitrust compliance programs, arguably because authorities did not offer any sort of dispensation to corporations for their compliance programs when violations were found. However, the U.S. Department of Justice’s recent change in policy is likely to encourage meaningful investments in corporate compliance programs. The DOJ now offers formal incentives for “effective” compliance programs, directing prosecutors to evaluate in-place compliance programs as part of every corporate charge recommendation. Furthermore, when conducting its evaluation, the Antitrust Division explicitly considers whether screens and statistical analyses are elements of the corporation’s antitrust compliance program. In this article we argue this change in the DOJ’s policy is likely to push corporations to incorporate screens when enhancing their antitrust compliance programs, and put forward our views on why they should in fact do so. We also address some of the main questions corporate counsel is likely to have on the use of screens in antitrust compliance.
