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Effective risk assessments in the evolving antitrust compliance landscape

Peter D. Bernstein (peter.bernstein@mastercard.com) is Senior Managing Counsel, Competition Law, Compliance and Policy, at Mastercard in Purchase, New York, USA.

Andrew C. Finch (afinch@paulweiss.com) is a partner and cochair of the antitrust practice group at Paul, Weiss, Rifkind, Wharton & Garrison LLP in New York City and Washington, DC.

Last year, the United States Department of Justice (DOJ) Antitrust Division announced a significant change in its policy regarding the treatment of corporate antitrust compliance programs in its enforcement decisions. Along with that policy change, the division offered insight into how companies should approach the design and implementation of compliance programs. A key element of any compliance program is that it should be effective in deterring and detecting anticompetitive conduct, and an effective risk assessment to determine where, when, and how antitrust issues are most likely to arise is key. When companies are able to target areas of heightened antitrust risk, they are better able to tailor compliance programs, including training and reporting protocols, to be effective in serving their intended purpose. In turn, a company’s ability to demonstrate that it took conscientious steps to tailor its compliance program may lead to significant benefits should the company ever find itself in the unfortunate situation of a criminal antitrust investigation. Even short of this, a well-tailored antitrust compliance program will have important benefits by helping a company avoid pitfalls that could lead to civil liability. And of course, a robust compliance program is part of an overall approach to good corporate citizenship.

With an effective risk assessment in hand, companies will be able to make the most of the DOJ’s guidance on the Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, issued in July 2019, in order to review their existing compliance program.[1]

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