E. John Steren, Patricia Wagner
The Antitrust Division of the U.S. Department of Justice (“DOJ”) recently released guidance outlining how DOJ evaluates antitrust corporate compliance programs as part of its Corporate Leniency program. This guidance emphasizes that “[a]ntitrust compliance programs promote vigorous competition in a free market economy by creating a culture of good corporate citizenship within a company that seeks to prevent antitrust violations.”
According to DOJ, an effective antitrust compliance program needs to be well designed, be applied earnestly and in good faith, and achieve the compliance goal. Factors that DOJ looks at to determine whether a corporate compliance program is effective include:
1) the design and comprehensiveness of the program; 2) the culture of corporate compliance within the company; 3) responsibility and resources dedicated to antitrust compliance; 4) antitrust risk assessment techniques; 5) compliance training and communication to employees; 6) monitoring and auditing techniques, including continued review, evaluation, and revision of the antitrust compliance program; 7) reporting mechanisms; 8) compliance incentives and discipline; and 9) remediation methods.
DOJ’s recent guidance focuses on the importance of an effective antitrust compliance program in the context of a criminal investigation; however, the benefits of a good compliance program are no less significant in any civil investigation. While most companies operating in the health care industry devote significant resources to regulatory compliance, these efforts do not always include antitrust compliance. DOJ’s recently released guidance on this topic should prompt health care companies to devote the needed resources to either implement an antitrust corporate compliance program or reevaluate existing programs to ensure their effectiveness.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: