On July 11, 2019 the Antitrust Division of the DOJ published a document for prosecutors to use when evaluating compliance programs in criminal antitrust investigations. Although this new publication is specific to antitrust matters, it serves a purpose similar to the guidance the DOJ revised in April 2019 for criminal matters. The guidance identifies elements of an effective compliance program and offers questions in each area to focus a prosecutor's analysis.
Perhaps most notably, the updated version permits prosecutors to credit compliance efforts at charging, in an effort to “deter antitrust violations and reward good corporate citizenship”. As with the criminal guidance, the antitrust guidance is organized into three “fundamental questions” a prosecutor should ask:
- “Is the corporation’s compliance program well designed?”
- “Is the program being applied earnestly and in good faith?” In other words, is the program being implemented effectively?"
- “Does the corporation’s compliance program work” in practice?"
Below is a summary of the more detailed external guidance and considerations the DOJ put forward.
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