Antitrust Compliance Policy Category Archives — The Antitrust Attorney Blog Published by California Antitrust Lawyer — Jarod Bona of Bona Law PC.
Articles Posted in Antitrust Compliance Policy	
Practical Advice for In-House Counsel Amid the Antitrust Sound and Fury
Author: Pat Pascarella
The press is awash in reports on proposed amendments to the antitrust laws and heightened, and in some instances targeted, enforcement agendas at the DOJ, FTC, and state AGs’ offices. While the specifics of each may be fascinating to antitrust attorneys and law professors, the sole question on most general counsels’ minds is whether there is “anything I need to do right now to better protect my client?” The answer is an unequivocal “not really, but…”
To start, proposed legislation, presidential orders, and enforcement agency guidelines and statements of interest are not the law. That does not mean however that one should entirely ignore this current antitrust craze. Plaintiff attorneys and certain government enforcers certainly won’t. And I expect an uptick in lawsuits and investigations based on, to be polite, creative interpretations of the antitrust laws.
What it does counsel is that, at present, the most important focus should be on ensuring that internal antitrust guidelines and procedures target not only actual violations, but also conduct that could create the appearance of a potential violation. Price increases, production slow-downs, announcements about future business plans, communications or information exchanges with competitors, and dealer or supplier terminations, are the usual suspects. But care should be taken in any instance in which an action or strategy might appear to be inconsistent with unilateral self-interested behavior in the absence of a conspiracy—or where it will have a significant impact on competitors, suppliers, or downstream market participants (a/k/a plaintiffs).
This of course is not to say that businesses should forego legal strategies or actions for fear of a frivolous antitrust investigation or complaint. But it does mean that in the case of certain activities, there likely will be steps that enable the company to avoid, or at least extract itself more quickly from, lawsuits and investigations based on overly aggressive interpretations of the antitrust laws. Sometimes the solution will be as simple as documenting the business rational for a particular activity, while at other times it could involve active and ongoing oversight by antitrust counsel.
That of course raises its own set of problems for in-house attorneys—i.e., convincing their clients to come to them before taking certain actions. Having been an in-house antitrust attorney myself for many years, I can offer a few suggestions. First, get loud and clear officer-level signoff on any new guidelines or procedures. While you may be the clients’ lawyer, those clients are far more inclined to pay attention to a directive from someone who controls their advancement and salary. Second, market yourselves. Communicate to your clients that you understand their needs both in terms of your substantive guidance as well as in the timing of that guidance. Your clients have targets and goals they are trying to achieve. They need to believe that engaging with Legal will not delay the achievement of those goals and will only result in a “no go” opinion after every viable option has been exhausted.
Plus, as I often told my clients, some day you are going to be called up to the general counsel’s office and asked, “who approved this?” How the rest of your day goes will be significantly determined by whether your answer is “me” or “our antitrust counsel.”
Posted in: Antitrust Compliance Policy, Antitrust Counseling, Antitrust News and Politics and Antitrust
Invited to Your First Trade Association Meeting? Here Are Important Antitrust Tips
So you have been invited to your first trade association meeting. Sounds like fun, right? You get a chance to mix and mingle with others in your industry, maybe swap notes with your counterparts at competitors who face the same pressures you do. What could go wrong?
A lot, from an antitrust perspective. While trade associations can provide tremendous benefits to members, by definition, they are meetings among competitors. Communication with competitors can lead to “agreements,” whether explicit handshakes or implicit winks and nods. And some of those agreements, like most related to competitive pricing, are automatically illegal and subject to severe penalties for both you and the company. Here, antitrust law follows Adam Smith’s admonition that
So even if you remember your company’s training from when you joined years ago and know enough to spell “antitrust” without a hyphen, you still need to remember these tips.
Learn from others in your company
You might not be the first in your company to attend an association meeting. Contact your lawyer or boss to see if your company has rules or other guidance for attending them. Follow that guidance. Some companies even require such reporting before attending. Others in your company might know this particular association and have some suggestions on how to make your attendance both safe and productive for you and your company.
Antitrust policy?
If you need to vet the association, start by asking to see its antitrust policy. All associations of competitors should have one and should be willing and able to share it with you quickly. Most post it online. The policy should acknowledge the necessity to follow all applicable antitrust laws and briefly describe how the association does just that. Frankly, the details are not as important as the fact that the association has one and can quickly provide it. An association executive who responds to your request with “Anti what?” should set off alarm bells.
Posted in: Antitrust Compliance Policy and Antitrust Counseling
Your Company Isn’t Based in Silicon Valley: Why Should You Care About the Antitrust “Techlash”?
Companies like Facebook, Google, Amazon and more have faced an increasing number of antitrust investigations and challenges (globally), both private and government, in recent years. In the U.S., current Presidential candidates are lining up to propose changes to antitrust laws and advocate for enforcement focused on these same tech companies. While they might not be explicit targets in as many actions, other U.S. companies outside Silicon Valley could be swallowed up in this techlash and so need to be prepared.
Techlash not New and Not Just American
Six key attributes of an effective antitrust compliance program
If you haven’t been told you need a strong antitrust compliance program, then you probably haven’t spent much time with an antitrust lawyer. But it’s true: a strong antitrust compliance program will benefit your company in myriad ways.
The U.S. Department of Justice Antitrust Division recently announced it will consider an effective antitrust compliance program as a factor in deciding whether to charge a company with a criminal antitrust violation. An antitrust compliance program can also help prevent your company from violating the antitrust laws in the first place and, hopefully, avoid an antitrust blizzard. But if it doesn’t, it can still give you a leg up in the race for leniency by ensuring prompt detection and internal reporting, earn the company points for sentencing reductions, and reduce the amount it pays in fines.
The key here, though, is that it must be an effective antitrust compliance program. Effective doesn’t mean perfect—after all, DOJ wouldn’t be making a charging decision if a perfect program were in place—but it does mean that it should be well-designed, applied in good faith, and it should actually work.
In practice, that means your antitrust compliance program should:
Identify, assess, and define the likely antitrust risks in the company’s line of business
The first step in any risk management process is, of course, to determine and assess those risks. Your antitrust lawyer should look closely at all aspects of your operations:
The jurisdictions in which you operate
Your industry sectors and the markets in which you compete
Competition, concentration, and barriers to entry in those markets
Your regulatory landscape
Your existing and potential customers and business partners
Your supply and distribution chains
The extent to which you use third parties in your business
Your involvement in trade associations and joint ventures
Your culture and climate
Your past antitrust issues
As part of this process, the company should identify leaders most knowledgeable about these various aspects of the business and have them take the time to thoroughly educate antitrust counsel.
Be designed to detect and manage those risks
It should go without saying that your compliance program won’t be effective unless it is tailored to manage the antitrust risks the company is most likely to face. There is no effective off-the-shelf antitrust compliance program.
Company leadership should be consulted and involved in the crafting of your antitrust compliance program. You should consider the company’s past successes and failures in other areas of compliance, reporting, and risk management, and work directly with your antitrust lawyer to implement processes and techniques that proved successful in other contexts.