The model of recognizing effective compliance and ethics programs as set out in the US Sentencing Guidelines and the US Attorneys Model has certainly had a dramatic impact on the development of more robust compliance efforts. Yet there are still those who do not have the background in this area to understand the importance of government recognition. Here are some reasons why governments should recognize compliance programs, including giving better treatment to companies that have strong programs.
On September 9, 2013, Joseph Murphy filed this document with the US Sentencing Commission. This filing offers a straightforward, simple solution on calculating fines under the Sentencing Guidelines. Joe analyzes other proposed changes, including those of Connor and Lande that were referenced by the Institute itself. Joe argues, that despite the well-thought out and well-reasoned arguments of such changes, they ultimately ignore the reality of the problems. Rather than using some unique, complicated system, antitrust fines should be treated in the same manner as other business conspiracies.
On April 5, 2013, Joseph Murphy filed this document with the US Sentencing Commission. This filing offered proposed amendments to the Sentencing Guidelines related to the treatment of antitrust compliance programs. Joe notes that the Antitrust Division is an anomaly within the Organizational Sentencing Guidelines. The antitrust exception is an anomaly that creates unexplainable inconsistency in the legal system and has undercut the development of effective antitrust compliance programs. The Sentencing Commission, through three simple changes, could help correct this flaw.
The article by Wouter P.J. Wils, “Antitrust Compliance Programmes & Optimal Antitrust Enforcement,” forthcoming 1 Journal of Antitrust Enforcement (Apr. 2013) http://ssrn.com/authot=456087 , represents the most comprehensive effort yet to defend the absolute position taken by the EU’s competition law enforcement authority, DG Comp, that under no circumstances will it give any positive consideration to a company’s compliance program. Joe Murphy offers a list of some of points made in that article and brief responses to those points.
In their brief, the Department of Justice outlines a proposed Corporate Antitrust Compliance Program for defendants AU Optronics Corporation and AU Optronics Corporation America.
Senators Leahy and Grassley have proposed legislation that would provide civil protection for whistleblowers in cases of antitrust crimes. Joe recently wrote to these two Senators suggesting they revise their proposal so that is also promotes effective company antitrust compliance programs.
An effective anti-cartel program is a management commitment to free market competition and against cartels, and effective management steps to implement that commitment. The failure of a program to prevent or detect one particular offense does not necessarily mean that the program is not generally effective in preventing cartel conduct. An effective program is characterized by the following steps:
Joe Murphy wrote a letter to the US Sentencing Commission outlining proposed amendments to the Sentencing Guidelines related to the treatment of antitrust compliance programs. Joe prepares a policy rationale for his proposed changes, then follows it with the language to implement those changes into the statute.
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