The US Sentencing Commission in a public notice has indicated it may make reform of the guidelines for antitrust crimes a priority this year, 79 Fed. Reg. 31409 (June 2, 2014).
I believe the Commission should take action to affirm the importance of antitrust compliance programs as an essential tool in the fight against cartels, and to provide a balance against the Antitrust Division’s past approach of refusing to consider compliance programs in any case for any purpose. The Division has been an outlier in the Department of Justice in rejecting the Sentencing Commission’s premise that companies may have violations even when they have good programs. The Division’s “one-size-fits-all” policy of never giving any type of benefit or credit for diligent compliance efforts, no matter what the facts or circumstances of a case may be, seriously undercuts the policy of the Sentencing Commission and also undermines the Justice Department’s efforts in all other areas to promote effective compliance programs in companies. The Sentencing Commission can and should take action to fix this. My proposal outlines a straightforward plan for the Commission to achieve this objective.