A Changing Landscape: The DOJ Antitrust Division’s Use of Deferred Prosecution Agreements

The Antitrust Division of the US Department of Justice (the Division) historically has disfavored using deferred prosecution agreements (DPAs) to resolve criminal antitrust violations. But according to a recent speech by Acting Assistant Attorney General Richard Powers, “the landscape has changed over the years.” Acting AAG Powers’ speech provides companies facing criminal charges for antitrust violations with a clearer path for resolving a case short of a criminal conviction.

Under the Division’s Corporate Leniency Policy—which is unique to antitrust crimes—the first company to self-report and meet the Policy’s requirements is entitled to a non-prosecution agreement (NPA), and, in the past, the Division required all other companies to plead guilty or face indictment. The Division began to change its approach in July 2019, when Assistant Attorney General Makan Delrahim announced the Division’s new policy concerning antitrust compliance. AAG Delrahim announced that, going forward, the Division would consider and credit effective compliance programs at the charging stage and would be willing to resolve such cases with a DPA rather than a criminal conviction. As part of the announcement, the Division published accompanying guidance on how it evaluates antitrust compliance programs.

Since that announcement, the Division has entered into nine DPAs. Each DPA lists the relevant considerations for reaching resolution, but none of the DPAs references an effective compliance program as a consideration for entering into the DPA. Rather, the DPAs reference other factors listed in the Principles of Federal Prosecution of Business Organizations (sometimes referred to as the “Filip Factors”), such as collateral consequences, pervasiveness of the conduct, and cooperation. Commentators have pointed out the disconnect between the July 2019 compliance-policy announcement and the subsequent DPAs.

Now, two years after AAG Delrahim’s announcement, Acting AAG Powers has shed more light on the Division’s approach: The Division considers all of the Filip Factors when making charging decisions. And when those factors counsel in favor of a DPA, the Division is willing to resolve cases in this manner, even outside the compliance context. This approach aligns the Division’s DPA practice more closely with other criminal-enforcement components of DOJ.

But the Division is expected to maintain its unique practice with regard to non-prosecution agreements. As a general rule, the Division continues to disfavor NPAs for companies that do not qualify for leniency, reserving complete protection from prosecution to successful leniency applicants. Indeed, Acting AAG Powers warned that even a DPA would not be available for a company that discovers a criminal antitrust violation but decides not to apply for leniency.

Ultimately, companies seeking to resolve antitrust charges should be prepared to advocate for a DPA based on all applicable Filip Factors. However, this approach does not diminish the importance of a robust antitrust compliance program, which can (1) decrease the likelihood of an antitrust violation, (2) facilitate early detection and increase the likelihood of obtaining an NPA under the Leniency Program, and (3) failing the above, improve a company’s chances at resolving charges with a DPA rather than a guilty plea.

For questions about criminal antitrust issues or antitrust compliance, please reach out to the authors or any of their colleagues in Arnold & Porter’s Antitrust/Competition or White Collar Defense & Investigations practice groups.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.