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You’re Fired! The Expanding Role of Behavioral Remedies in Cartel Enforcement

31 October 2014

The increasing frequency with which the Antitrust Division of the Department of Justice has sought the imposition of compliance monitors, coupled with its recent willingness to enter into deferred prosecution and non-prosecution agreements as means of resolving and modifying corporate behavior, are a clear sign that the Division is changing tact on its use of behavioral remedies in criminal antitrust cases.

Where it was previously reluctant to interfere in corporate governance, the Division now appears eager to prevent antitrust violations at their source by assessing companies’ controls.

In this paper, we explore the evolution of and potential reasons for this seeming policy shift and reflect on what it may mean for individual antitrust offenders going forward. We foresee a harsher enforcement landscape ahead for individuals, with future defendants facing larger fines, longer prison sentences, and new behavioral sanctions, like potential disqualification.

To read more please see the recent chapter authored by Washington, D.C. antitrust partner John Terzaken and associate Molly Kelley published in William E. Kovacic: An Antitrust Tribute Liber Amicorum (Vol. II).