On July 11, 2019, Assistant Attorney General Makan Delrahim announced during a speech at NYU Law School that the Antitrust Division of the Department of Justice has revised its compliance program to “ensure we have the right framework for maximizing deterrence and detection.” U.S. Dep’t of Justice, Office of Public Affairs, Assistant Attorney General Makan Delrahim Delivers Remarks at the New York University School of Law Program on Corporate Compliance and Enforcement, Wind of Change: A New Model for Incentivizing Antitrust Compliance Programs (July 11, 2019) (hereinafter Delrahim, Wind of Change). In light of the way that corporate compliance programs have evolved, Delrahim explained that “the Antitrust Division will: (1) change its approach to crediting compliance at the charging stage; (2) clarify its approach to evaluating the effectiveness of compliance programs at the sentencing stage; and (3) for the first time, make public a guidance document for the evaluation of compliance programs in criminal antitrust investigations.” Id.

Background

The long-standing policy of the Antitrust Division, as reflected in the Justice Manual, was that “‘credit should not be given at the charging stage for a compliance program.’” Id. In other words, while a company’s compliance program would ideally be designed to prevent illegal activity from occurring in the first place, or at least hinder the activity from continuing, the existence of a compliance program would not diminish the charges brought against a company believed to have broken the law. As a result, the only way to obtain leniency from the Antitrust Division—i.e., “not charging such a firm criminally for the activity being reported,” U.S. Dep’t of Justice, Corporate Leniency Policy 1 (Aug. 10, 1993)—was to be “the first one to come forward and qualify for leniency with respect to the illegal activity being reported.” Id. at 2. AAG Delrahim explained that compliance programs were advertised as “the greatest chance of winning the race for leniency.” Delrahim, Wind of Change. He explained that the “all-or-nothing philosophy was born of [the Antitrust Division’s] efforts to highlight the value of winning the race for leniency at a time when the modern leniency program was establishing itself as the Division’s most important investigative tool.” Id. AAG Delrahim offered further support for the leniency program in a speech in April, observing that “despite some recent eulogies over the purported death of leniency, the division’s leniency program is still alive and well.” U.S. Dep’t of Justice, Office of Public Affairs, Assistant Attorney General Makan Delrahim Delivers Opening Remarks at Roundtable Discussing the Antitrust Criminal Penalty Enhancement & Reform Act (April 11, 2019).