Antitrust Compliance Policy Revamps All-or-Nothing Approach to Corporate Leniency

By Kristin Broughton and Dylan Tokar, Wall Street Journal

Companies looking to catch a break from federal prosecutors for violating antitrust laws have long been forced to run a winner-takes-all race: Those that were first in line to report wrongdoing were let off the hook while co-conspirators faced criminal charges.

That approach changed this week under a new compliance policy unveiled by the U.S. Justice Department. Among the most significant revisions: Prosecutors will begin offering deferred prosecution agreements to companies that fail to secure the coveted first spot in line but have a strong antitrust compliance program in place.

The new policy offers a consolation prize of sorts to violators in the form of potentially lighter penalties, according to lawyers and former Justice Department officials. But in tweaking its approach, the department has raised questions about whether it has weakened incentives for companies to rush to report violations.

“As a former enforcer, the thing I wondered the most when I heard about this was, ‘What is this going to do to the leniency program?’ ” Renata Hesse, a partner at Sullivan & Cromwell LLP, said during a panel discussion Thursday at New York University School of Law, where the new policy was announced.

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