October 15, 2019

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DOJ Antitrust Division Issues Landmark Policy to Incentivize Corporate Antitrust Compliance

Yesterday, Assistant Attorney General Makan Delrahim announced the Department of Justice, Antitrust Division’s new policy for incentivizing corporate antitrust compliance. For the first time in DOJ history, this new policy recognizes the efforts of companies that invest in robust compliance programs and states that the Division will consider such compliance at the charging stage in criminal antitrust investigations. 

Previously, the Justice Manual explained the Antitrust Division’s policy “that credit should not be given at the charging stage for a compliance program.” As of yesterday, this text has been deleted and the Antitrust Division has updated its Manual. Now, when determining how to resolve criminal charges against a corporation, one factor prosecutors must consider is “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of the charging decision.”

The Division also published a guidance document that focuses on evaluating compliance programs in the context of criminal violations. The guidance is intended to provide transparency regarding the Division’s compliance analysis and contains two sections: one that evaluates antitrust compliance programs at the charging stage, and the other that evaluates antitrust compliance considerations at sentencing. At the charging stage, the guidance directs prosecutors to ask: 1) whether the company’s compliance program addresses and prohibits criminal antitrust violations; 2) whether the antitrust compliance program detects and facilitates prompt reporting of violations; and 3) to what extent the company’s senior management was involved in the violation. During sentencing, the guidance instructs prosecutors to evaluate whether to recommend sentencing reductions based on a company’s effective antitrust compliance program. 

To read Delrahim’s full remarks, click here.

To view the guidance document, click here.

© Polsinelli PC, Polsinelli LLP in California

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Brian F. McEvoy, Polsinelli PC, Atlanta, white collar criminal defense lawyer, health care fraud matters attorney
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Brian McEvoy is an accomplished litigator with a well-earned reputation for working tirelessly to achieve the best outcomes for clients and for thinking creatively and strategically to resolve difficult problems with efficiency and professionalism. Brian is a former federal prosecutor with a practice focus on white collar criminal defense and a special emphasis in health care fraud matters. During his service as a federal prosecutor, he received special commendation from the Department of Health and Human Services by receiving the Inspector General's Integrity Award for...

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As a shareholder in the Government Investigations practice, Brian Rafferty leverages a distinguished background serving as Chief of the Criminal Division of the United States Attorney’s Office for the Southern District of Georgia. In his more than ten years of experience as a federal prosecutor, Brian oversaw and managed some of the most high-profile and complex investigations in the Southern District of Georgia. Before his work as a federal prosecutor, Brian was a partner at white collar criminal litigation boutique in New York, where he represented individuals in government investigations.  Brian draws upon his deep understanding of the inner workings of enforcement authorities to represent clients facing regulatory and criminal enforcement actions. Leveraging his extensive experience and sound judgment, Brian constructs comprehensive strategies to defend entities and individuals facing government investigations and enforcement proceedings.

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As a member of Polsinelli’s Government Investigations practice, Paige assists clients in all aspects of white collar criminal defense and internal corporate investigations. Working to understand each client’s unique situation, she helps guide clients through government inquiries to find solutions that align to business strategies.

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Dayna LaPlante works with clients who benefit from her diligence, enthusiasm and strong grasp of the complex health care legal sector. She represents a range of health care providers, including hospitals, pharmacies, and long term care providers. Dayna focuses her general practice on helping clients maintain compliance with state and federal law, and represents clients in civil and administrative litigation should disputes arise. She also serves as regulatory counsel for health care transactions, helping clients remain in regulatory compliance post-closing. 

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