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DOJ's New Safe Harbor Policy Raises Stakes on M&A Due Diligence

Corporate Compliance Insights

In this article, Miller & Chevalier Member Lauren E. Briggerman and Intel's Global Director of Antitrust Sarah N. Flanagan, write that a policy update to the Department of Justice's (DOJ) rules regarding misconduct discovered during the mergers and acquisitions (M&A) process may give companies a bit more peace of mind about whether they'll qualify for a declination from the department. However, the authors explain, the policy doesn't necessarily simplify the question of whether to voluntarily self-report said misconduct. Briggerman and Flanagan provide an overview of the safe harbor policy and outline key considerations for acquiring companies during due diligence. They conclude that regardless of whether companies avail themselves of the M&A safe harbor policy, an effective compliance program is the single greatest tool that companies have for efficiently and fulsomely detecting potential misconduct by an acquired company (and more generally) and remediating it to reduce risk to the business and shareholders going forward.