Many have criticized the U.S. Department of Justice Department Antitrust Division for its position on corporate compliance. The criticism is twofold: first, the division should provide general compliance guidance, and second, it should provide corporate defendants with compliance program credit under the U.S. Sentencing Guidelines.
Although the Antitrust Division has long espoused support for compliance programs, it has provided minimal guidance on the key elements of an effective compliance program. There are few speeches on the topic, and none after 2002. The few public statements addressing corporate compliance have been narrow in scope, only addressing the issue within the confines of the sentencing guidelines. In response to requests for guidance, the division has said that company counsel is in the best position and has the greatest expertise to identify compliance needs and implement an effective program. Additionally, the division has been concerned that any guidance on the issue might be perceived as providing a safe harbor, leading companies that break the law but argue for leniency when DOJ’s guidance has been heeded.
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