On April 4, the DOJ Antitrust Division announced an update to their leniency policy and issued a revised set of frequently asked questions (FAQ).
“Antitrust Division Leniency Policy allows the first individual or company to self-report its involvement in an antitrust cartel to avoid prosecution if it cooperates with the Division’s investigation and prosecutions, and meets other conditions.” 
The most significant change to the policy was that it “now also requires that a corporate applicant promptly self-report after discovering its wrongful conduct and undertake remedial measures to prevent reoffending.” 
Although timely reporting and remedial measures have long been important elements that the DOJ takes into consideration, experts view these updated policy materials as a sign that the requirements for receiving leniency have become tougher.
The DOJ notes that for remedial measures “some applicants may need to implement new or improved formal compliance programs.”  The DOJ assesses compliance programs based on the questions and factors laid out in the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations Guidance. 
As to whether the DOJ will approve of a company’s proposed remedial measures, the key seems to be in the details. Richard Powers, the Antitrust Division’s Deputy Assistant Attorney General for Criminal Enforcement, in his remarks at the American Bar Association Antitrust Division Spring Meeting, emphasized that “the remedial measures in the plan must be appropriately tailored to prevent recidivism.” 
The revised Leniency Policy FAQ goes into further detail. “Whether and what remediation is appropriate depends on the nature of the illegal activity, the nature of any harm caused, and the applicant’s role in it. With respect to the risk of recidivism, the applicant will be expected to conduct a thorough analysis of causes of underlying conduct (i.e., a root cause analysis) and undertake remedial efforts tailored to address the root causes.” 
What does this mean for you?
Companies can expect an increase in antitrust litigation. DOJ investigations often lead to further costly civil litigation. This means that there is an increased litigation risk for companies, especially large multinationals that compete in multiple industries, but it also means that this risk is very complex.
A robust compliance program is a good way to reduce that risk. The program must be well designed and properly implemented to be effective, but it does not necessarily have to be expensive. Including our own email monitoring, there are many cost-effective tools available. Please consult an antitrust lawyer.
“Whether and what remediation is appropriate depends on the nature of the illegal activity, the nature of any harm caused, and the applicant’s role in it. With respect to the risk of recidivism, the applicant will be expected to conduct a thorough analysis of causes of underlying conduct (i.e., a root cause analysis) and undertake remedial efforts tailored to address the root causes.”
Revised Leniency Policy FAQs [Leniency FAQ]
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