The DOJ’s Antitrust Division’s re-write of the Department’s compliance guidance for antitrust compliance programs last week (July 11, 2019) is a welcomed development. The guidelines, as revised, are clearly more instructive and offer explicit statements about what the Antitrust Division views as “effective compliance.” Companies should study the revised guidance carefully and make appropriate adjustments to overhaul or tighten up their existing antitrust compliance programs consistent with the Antitrust Division’s newly-revised guidance. Striking a proper balance with effective compliance to optimize performance and avoid compliance fatigue should of course be the goal. We recently addressed this challenge in an engaging roundtable discussion last month (June 2019) regarding corporate investigations, enforcement trends, and compliance programs.
Many of the points highlighted in our roundtable discussion last month find support and validation in the Antitrust Division’s newly-revised guidance issued last week. Specifically, the newly-revised guidance issued last week includes a list of nine factors with relevant questions pertaining to each factor that Division prosecutors are advised to consider when determining the effectiveness of an antitrust compliance program, many of which we discussed extensively last month in our roundtable discussion, including “responsibility for, and resources dedicated to, antitrust compliance;” “antitrust risk assessment techniques;” “monitoring and auditing techniques, including continued review, evaluation, and revision of the antitrust compliance program;” “compliance incentives and discipline;” and “remediation methods” utilized by companies to address antitrust compliance issues. The newly-revised guidance appropriately recognizes that there is no one size fits all compliance program for companies.