The Society of Corporate Compliance and Ethics ( ) recently released the results of an important survey of company antitrust compliance practices ( ). Called “Antitrust: A Dangerous but Underappreciated Compliance Issue,” the survey reports on some of the compliance steps used by companies, and the impact of governmental approaches to compliance programs. While in other areas of enforcement the Department of Justice takes compliance programs into account, the Antitrust Division stands out in not considering programs, and showing seeming disdain for the subject. DG Comp in Europe also gives no credit for programs, no matter how diligent.

One finding of the survey is particularly striking and reveals fundamental weakness in the approach to antirust compliance.

“An astounding 64% do not report performing the types of antitrust compliance audits that would meet the minimum standards under the Sentencing Guidelines.”

Also noteworthy was the report on companies’ views on the government’s approach to compliance.

“Detailed advice on steps to include in compliance programs, taking compliance programs into account when deciding whether to take enforcement actions, and offering penalty reductions to companies that have compliance programs were all given high ratings for value by survey respondents—77% for advice and 88% for some form of incentives.”

In other words, the result of the Antitrust Division’s and DG Comp’s lack of interest in compliance programs is entirely predictable: “if the government doesn’t care, why should we?” If the government did consider programs as a positive factor and did provide advice on what elements were important, the survey makes it clear that this would get results.