A Changing Landscape: The DOJ Antitrust Division's Use Of Deferred Prosecution Agreements

The Antitrust Division of the US Department of Justice (the Division) historically has disfavored using deferred prosecution agreements (DPAs) to resolve criminal antitrust violations. But according to a recent speech by Acting Assistant Attorney General Richard Powers, "the landscape has changed over the years." Acting AAG Powers' speech provides companies facing criminal charges for antitrust violations with a clearer path for resolving a case short of a criminal conviction.

Under the Division's Corporate Leniency Policy—which is unique to antitrust crimes—the first company to self-report and meet the Policy's requirements is entitled to a non-prosecution agreement (NPA), and, in the past, the Division required all other companies to plead guilty or face indictment. The Division began to change its approach in July 2019, when Assistant Attorney General Makan Delrahim announced the Division's new policy concerning antitrust compliance. AAG Delrahim announced that,