The Curious World of the Antitrust Division and Credit for Compliance Programs

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1 Response

  1. Jim Taronji says:

    As someone who has been an inhouse counsel doing antitrust and other corporate compliance programs and am currently back in federal service in one of the civil antitrust enforcement agencies–the FTC, I think that I bring a unique perspective to this debate. The required disclaimer first: These are my personal views and do not represent the views of the FTC or any of its Commissioners, nor of the General Counsel or the Office of the General Counsel where I work. When I started practicing antitrust law, both law enforcement agencies looked to the organized bar, especially the Antitrust Section of the ABA, to be the frontline enforcers of the antitrust laws by encouraging antitrust compliance programs. In my opinion, it is incorrect to say that an antitrust violation means that an antitrust compliance program does not work and is, therefore, not “effective.” The U.S. Sentencing Guidelines don’t say that. Unfortunately, there are many reasons why employees may still engage in cartel activities in spite of the warnings from their internal lawyers through the antitrust compliance programs. The only difference is that those employees engage in the conduct in spite of company policy and knowing full well the risks to them personally and to the company. As I used to say at the end of my compliance lectures, if you choose to violate the antitrust laws inspite of knowing the risks, the Law Department and the company will not protect you. I understand the Department of Justice’s position that their Leniency Program provides a greater benefit to the first company in the door for companies to undertake an antitrust compliance program than any credit under the Sentencing Guidelines. However, if the Criminal Division, the Environmental Protection Agency, and the Securities and Exchange Commission give credit for compliance programs for criminal violations of their laws, no reason why the Antitrust Division couldn’t do the same. First, the Division wants to encourage corporate antitrust compliance programs for companies to discover antitrust violations and report them to the Division before the Division discovers them. While the company that wins the race to the Division gets leniency, no reason why cooperating companies that come in later can’t have their antitrust compliance efforts recognized through credit under the Sentencing Guidelines and other incentives. It doesn’t have to be an “either or” proposition. Antitrust practitioners and the Antitrust Section should continue to press for engagement with the Antitrust Division to find some means of crediting those with compliance programs who, for whatever reason, don’t win the race to the Division for Leniency. At least, that’s the way I see it.