More recently, Judge Ginsburg has also given our criminal program at the Antitrust Division something to think about by writing with Josh Wright on the topic of “Antitrust Sanctions.”  Judge Ginsburg and Josh point out the wisdom of considering a company’s compliance programs in designing sanctions that optimally deter price-fixing and other criminal conduct by employees.  They have also questioned whether the Sentencing Guidelines give enough credit to companies with effective compliance programs.  We are taking this suggestion seriously as it applies to our criminal program and are considering how best to recognize corporate compliance efforts.  That includes carefully examining whether and how pre-existing compliance programs might merit our consideration, whether at the charging stage or at sentencing.

It will take some plea agreements and/or charging/declination decisions (or speeches) to see if there has been any new developments in Antitrust Division policy in this regard.  But, if you are interacting with the Division (and not just on a criminal matter) arguments about why a credible compliance program should be recognized and rewarded are receiving at least a serious listen.

Thanks for reading.