The Audit & Compliance Committee should consider incorporating antitrust guidance within the health system's corporate compliance program, given recent comments by DOJ Antitrust Division leadership.
In a recent speech, Principal Deputy Assistant Attorney General Andrew Finch stated that the Antitrust Division is re-examining whether, and to what extent, to recognize pre-existing compliance programs with some form of credit, including potentially at the charging stage or at sentencing. This might take the form of fine discounts of up to 20 percent for companies that have a "credible and effective" compliance program. The Division already grants credit for extraordinary compliance measures taken after the discovery of wrongdoing, and such credits have saved companies millions of dollars in fines.
The DOJ's latest statements and topics of antitrust enforcement apart from mergers (e.g., poaching, market allocation, price fixing) reinforce the benefits of having a strong, up-to-date plan for antitrust compliance. Incorporating specific antitrust-focused elements within the compliance program can mitigate such antitrust risks, and reduce the potential that employees might engage in problematic conduct. It may also support the ability of the company to take advantage of the Antitrust Division's leniency policy, which applies only to the first company to self-report criminal wrongdoing and cooperate with the Division's investigation.
The timeliness of such a discussion with the Audit & Compliance Committee is underscored by recent public comments of a separate Antitrust Division leader on the enforcement of criminal antitrust violations by health industry companies.
For further information on this topic please contact Michael W Peregrine at McDermott Will & Emery by telephone (+1 202 756 8000) or email ([email protected]). The McDermott Will & Emery website can be accessed at www.mwe.com.
This update has been reproduced in its original format from Lexology – www.Lexology.com.
