As I mentioned in my post yesterday (here), the Division’s new policy on incentivizing compliance programs comes after years of lobbying by many in the defense bar and corporate compliance community.  Two of the leading advocates of this change are Ted Banks (Scharf Banks Marmor LLC) and Joe Murphy (Compliance Strategists).  I received a comment from Mr. Banks yesterday, joined in by Mr. Murphy.  With their permission, I am posting their thoughtful remarks:

Bob –

As one of the people that publicly and privately pounded on the Antitrust Division for their obstinacy regarding compliance, I think the scenario you outlined in paragraph #3 is possible, of course, but is hardly a justification for always ignoring an otherwise effective compliance program.  Indeed, going back to the Electrical Equipment cases where GE tried to deflect liability by pointing to its antitrust compliance policy, the judge rightly noted that this policy was a fig leaf that was ignored in practice.

But the point is that these decisions, like whether to grant a DPA or NPA, are made based on the evidence, not on “what ifs.”   One could attack the amnesty program by pointing to the hypothetical of a company gleefully participating in a cartel, but once it senses that the cartel was falling apart, suddenly deciding to apply for amnesty.  Could it happen? Sure.  Did it happen? I don’t know.  But it would not be a reason to wipe out the amnesty program.

The consensus position about compliance programs expressed in the Sentencing Guidelines, and generally reflected in the similar policies in about two dozen other countries, is that it is important to encourage compliance, and give credit where a company can show that it had a “credible and effective” program (the Canadian term).   The role of the Antitrust Division should be to encourage competition, and perhaps the most important way to do that is to do whatever it can to support in-house compliance programs.

To bolster the new policy, the Antitrust Division should enhance its internal compliance resources.  I don’t know if they have a staff position dedicated to compliance, but it would make sense to have someone with compliance experience able to assist in evaluating whether a compliance program is truly effective and designing a compliance program as part of a case settlement or amnesty determination.

Ted