Why Screening Is a 'Must Have' Tool for Effective Antitrust Compliance Programs

Over the last decade, screens have had a significant impact on the early stages of litigation. Empirical evidence has helped shape complaints, motions to dismiss, court decisions, and agency investigations on collusion and manipulation matters. Yet to date they have played almost no role in corporate antitrust compliance programs. Why might this have been the case? Arguably the primary reason is that authorities did not, until very recently, offer meaningful consideration to corporations’ compliance programs when violations were found. Specifically with respect to screens, corporations were unwilling to spend any money to implement them, whether because they did not believe screens could be effective or whether it was just part of a general unwillingness to invest in compliance tools. We have long expected that the high penalties for cartels, the expansion of leniency programs, and the increased use of screening methods by competition authorities and private litigants would motivate corporations to enhance their antitrust compliance programs and incorporate screens as part of such improvements. Leniency is extended to the first to report a violation, so it naturally follows that it would be advantageous to be the first to detect violations. Antitrust compliance programs should play very important roles in detection and self-reporting, and also in deterrence, and screens should have had a major role within such programs, but to date this has not been the case. However, we expect this is about to change. The U.S. Department of Justice’s (“DOJ”) recent change in policy towards compliance programs is likely to encourage meaningful investments in this area. The DOJ now offers formal incentives for “effective” compliance programs, directing prosecutors to evaluate in-place compliance programs as part of every corporate charge recommendation. Furthermore, throughout its evaluation, the Antitrust Division explicitly considers whether screens and statistical analyses are elements of the corporation’s antitrust compliance program