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complianceThe U.S. Department of Justice’s Antitrust Division has historically taken a tough stance against corporate compliance programs that arguably failed to prevent employees from committing criminal antitrust offenses, such as price fixing and bid rigging. For instance, the Division has never opted to forgo charges, file lesser charges, or impose a lower fine against a corporation on the basis that it had a generally effective compliance program. If an antitrust violation occurred at all, so the Division’s traditional position held, the corporation’s compliance program must have been ineffective, almost by definition. Such a rigid approach has been criticized as being “all stick and no carrot,” as well as being out of line with the rest of the DOJ.

In an apparent response to this criticism, the Division recently has signaled a willingness to add more “carrots” to its policy. Since 2015, the Division has imposed lower criminal fines on three separate occasions where the pleading companies “substantially” improved their compliance programs after the wrongfully conduct occurred. These cases involving post-violation compliance enhancements represent the only instances to date where the Division has provided compliance-related credit. Notably, during this time, the Division has hewed to its policy that it will not provide companies any credit—either at the charging or sentencing stages—for even exemplary compliance programs that existed before the wrongful conduct occurred.

There are strong signs, however, that the Division may soon revisit its longstanding position. For nearly a year, the Division has publicly stated that it is reevaluating whether, and if so how, to credit companies that have invested in robust pre-existing compliance programs. If adopted, such a striking policy shift could allow companies with generally effective compliance programs to substantially mitigate the penalties imposed on them during a cartel investigation.

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