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U.S. Department of Justice building in Washington, D.C. Photo: Diego M. Radzinschi /ALM

In our May 2019 article, we explained that recent enforcement actions and speeches by senior officials strongly suggested that the U.S. Department of Justice’s Antitrust Division would soon begin crediting generally effective corporate antitrust compliance programs when making charging and sentencing decisions in cartel investigations. Such a policy shift, we observed, would represent a dramatic break from the Division’s longstanding “zero credit” approach toward compliance programs that, while perhaps robust and well-intentioned, failed to prevent the criminal antitrust violation in question.

On July 11, 2019, the Assistant Attorney General for the Division, Makan Delrahim, announced that the Division will “immediately” abandon its “all-or-nothing” approach toward compliance programs. AAG Makan Delrahim, DOJ Antitrust Division, Wind of Change: A New Model for Incentivizing Antitrust Compliance Programs 3 (July 11, 2019) (hereinafter AAG Delrahim Speech). Instead, the Division will “reward” and “recognize the efforts of companies that invest significantly in robust compliance programs” by providing them charging and sentencing credit for implementing generally effective programs. Id. at 3, 5. Among other benefits, this new policy will allow companies to qualify for deferred prosecution agreements or otherwise mitigate their exposure (e.g., secure fine reductions and avoid the imposition of probation or an external monitor) even when they are not the first to self-report a criminal antitrust cartel.

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