United States: DOJ Antitrust Enforcers Take To The Bully Pulpit On Prosecuting Antitrust Crimes And Antitrust Compliance Programs

Last Updated: September 16 2014
Article by Bruce D. Sokler and Robert G. Kidwell

In recent years, antitrust criminal enforcement efforts have increased around the world. These efforts focus mainly on cartels — which the Supreme Court calls “the supreme evil of antitrust” — that conspire to fix prices, rig bids, or allocate markets. Courts have imposed criminal fines on corporations totaling as much as $1.4 billion in a single year; the average jail term for individuals now stands at 25 months, double what it was in 2004.

In back-to-back speeches, top Department of Justice Antitrust Division (DOJ or Division) enforcers took to the “bully pulpit” to spotlight the Division’s criminal enforcement efforts and to put out some policy positions with respect to the Division’s corporate leniency policy and how the Division weighs the adequacy and effectiveness of corporate compliance programs. Under the Division’s corporate leniency policy, the Division will not prosecute the first qualifying corporation to report a cartel, fully admit to its role in the conspiracy, identify its co-conspirators and the events of the conspiracy, and provide complete and timely cooperation. There are similar leniency policies that have been adopted by competition enforcement agencies around the world.

On September 10, 2014, in a speech entitled “Prosecuting Antitrust Crimes,” Assistant Attorney General Bill Baer, head of the Division, highlighted DOJ’s vigorous and successful cartel enforcement against industries ranging from auto parts, ocean shipping, air cargo to municipal bond investment contracts, and financial benchmarks like LIBOR. But more importantly, Baer offered some significant observations regarding the administration of the leniency policy:

  • Qualifying for the leniency policy requires a prompt investment of time and resources by the corporate applicant, “including conducting a thorough internal investigation, providing detailed proffers of the reported conduct, producing foreign-located documents, preparing translations, and making witnesses available for interviews.”
  • Baer noted that “[w]e have recently seen instances where counsel for an individual wanted to pick and choose where and how a client would cooperate — to confess to crimes in one market in hopes of qualifying for leniency, but not cooperate in another market, for which the client is culpable but not eligible for leniency. It does not work this way.” When an “employee is not being fully cooperative…the employee does not meet the leniency policy’s requirements and will be subject to prosecution” — and by implication is not assisting the corporation to meet its obligations.
  • Even if a company is too late to qualify for leniency, early acceptance of responsibility and meaningful cooperation are taken into account in determining the appropriate consequences for offending corporations and their executives. Under the Sentencing Guidelines, companies that choose to accept responsibility will receive a lower culpability score, and therefore a lower fine range. Baer emphasized, however, that cooperation requires more than accepting responsibility, and promises to cooperate are not enough. Significant reductions are reserved for those companies that actually help DOJ investigate and prosecute antitrust crimes.
  • Sentencing recommendations are based on the value of the cooperation received, not simply on the order in which companies begin to cooperate.
  • During negotiations on corporate plea agreements, DOJ is also prepared to discuss the appropriate treatment of company executives and employees. Some individuals may be “carved in” to the non-prosecution provisions of corporate plea agreements, while others are excluded or “carved out.”
  • Baer rejected the notion that the mere existence of a compliance program should be sufficient, in and of itself, to avoid prosecution, secure a non-prosecution agreement, or otherwise dramatically reduce the penalties for criminal antitrust violation.
  • Taking compliance seriously includes making an institutional commitment to change the culture of the company. Baer emphasized that “corporate compliance starts at the top. The board of directors and senior officers must set the tone for compliance to ensure that the company’s entire managerial workforce not only understand the compliance program but also has the incentive to actively participate in its enforcement.”
  • Baer was skeptical of the situation where guilty companies sometimes want to continue to employ culpable senior executive who do not accept responsibility and are carved out of the corporate plea agreement, while at the same time arguing that their compliance programs are effective and their remediation efforts laudable. In such circumstances, the Division “will have serious doubts about that company’s commitment to implementing a new compliance program or invigorating an existing one.”
  • Baer indicated that a company caught multiple times will be treated more harshly for its failure to disclose its participation in a second conspiracy. He gave the example of a fine increasing by over $100 million dollars in such a recent situation.

The day before the Baer speech, his criminal deputy, Brent Snyder, gave a speech entitled “Compliance is a Culture, Not Just a Policy.” Snyder opined that a “company with at least a partially effective compliance program should be able to discover the cartel early, increasing its chances of seeking leniency before its co-conspirators do, and then promptly stop its participation, disclose its antitrust crimes completely, and fully cooperate with the Division’s investigation.”

Snyder — and the Division historically — have not defined what constitutes an effective compliance program, nor have they offered a model program. Snyder did point to Chapter 8 of the general United States Sentencing Guidelines as providing guidance for minimal requirement of an effective compliance and ethics program. Snyder offered a few attributes (some of which were echoed in Bill Baer’s remarks) that he felt such programs should contain:

  • A company’s senior executives and board of directors must fully support and engage with the company’s compliance efforts. “If senior management does not actively support and cultivate a culture of compliance, a company will have a paper compliance program, not an effective one.” Executives and board members cannot simply go through the motions and hope that the company’s compliance program is working. They must make clear to employees that compliance is important and mandatory.
  • Second, a company should “ensure that the entire organization is committed to its compliance efforts and can participate in them. This means educating all executives and managers, and most employees — especially those with sales and pricing responsibilities.”
  • Third, the compliance program should be proactive. A company should make sure that at-risk activities are regularly monitored and audited. The company should regularly evaluate the program to understand what it can approve.
  • Fourth, a company “should be willing to discipline employees who either commit antitrust crimes or fail to take the reasonable steps necessary to stop the criminal conduct in the first place. A company’s retention of culpable employees in positions where they can repeat their conduct “raises serious questions and concerns about the company’s commitment to effective antitrust compliance.”
  • Finally, a company that discovers criminal antitrust conduct should be prepared to take the steps necessary to stop it from happening again.

Corporate compliance in many sensitive areas is an important concern for boards of directors, senior management, and counsel today. These antitrust “bully pulpit” speeches underscore that robust and effective antitrust compliance programs should be an essential part of those efforts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Bruce D. Sokler
Robert G. Kidwell
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions