On May 31, 2018, Principal Deputy Assistant Attorney General Andrew Finch delivered an important policy statement at the ABA antitrust in a Conference in Seoul, Korea. Finch remarks of May 31, 2018. The most widely reported aspect of the speech was its focus on international antitrust cooperation. Indeed, the following day Assistant Attorney General Makan Delrahim announced a formal initiative “to help finalize and join the global multilateral framework in procedures in competition law and enforcement. Delrahim’s June 1st remarks on Global Antitrust Enforcement at the Council of Foreign Relations.
In the middle of Mr. Finch’s speech, however, was this interesting statement:
In light of the discussions and feedback from the corporate compliance roundtable, we are re-evaluating our policy regarding corporate compliance efforts. That includes carefully examining our policy regarding pre-existing corporate compliance efforts, and what role they should have in our decision making.
For at least two decades, the Division’s policy has been to give no credit to compliance programs. Their view has been either 1) the program was ineffective, or 2) the Division’s leniency program rewards compliance programs that at least uncover—and later report—criminal conduct despite having failed to prevent it. See Snyder, “Compliance is a Culture, Not Just a Policy, September 9, 2014, pages 7-8. Even so, then the Deputy Assistant Attorney General Snyder added:
In addition, we are actively considering ways in which we can credit companies that proactively adopt or strengthen compliance programs after coming under investigation. Although we have not finalized our thinking in this area, any crediting of compliance will require a company to demonstrate that its program or improvements are more than just a facade. As I mentioned earlier, true compliance starts at the top, is not optional, and is part of the company’s culture. (Page 9.)
So where are we now, four years after Brent Snyder’s speech? What is the Division’s thinking after the roundtable and re-evaluation that Andrew Finch mentioned? What changes can we expect? To get ahead of the curve, corporate counsel would do well to probe this subject during any criminal antitrust investigation where a plea is the likely result. Perhaps counsel can get a jump on any new available benefits. Moreover, whether credit is official or not, presenting to the Division any and all compliance enhancements is a must. Counsel must be prepared to discuss compliance in depth: What went wrong? What remedial steps have been taken? If enhancements are needed, they should be undertaken immediately. If the answer to the obvious question—what have you done about the compliance failure—is “nothing”—the ensuing stony silence will not be helpful, to say the least. An honest and forthright discussion of compliance issues may well positively influence plea discussions even if explicit credit is not forthcoming. The converse approach no doubt will have the opposite result.