ICLEF Law Tips: Antitrust Part 2

ICLEF Law Tips #37

Hallmarks of a Strong Antitrust Compliance Program

Last week in Part 1 of  the Antitrust topic we had some valuable input from Judy Woods on why it is important for every company to have an antitrust compliance program.  I am pleased to continue to share her expertise here in Law Tips with her recommendations for policy features and practicalities behind a strong antitrust compliance program.

The particularly important features she emphasizes for any antitrust compliance policy are:

  • Culture of compliance. The antitrust policy should be part of the company’s culture and should be an integral part of its ethics and compliance program. The program must have full company support and visibility.
  • Assess risk. Antitrust considerations should be part of the company’s risk management program.  Companies in highly regulated industries, those who have large government contracts, and those that are subject to media scrutiny or have a history of non compliance, all have greater risk.  Risk may change over time, such as when a particular market or industry becomes the focus of greater enforcement attention. 
  • Aimed at prevention and detection. The program should be designed to prevent and detect problems.  It should include reporting provisions and provide for prompt and appropriate responses. The best policy will help the company prevent antitrust violations.  A secondary goal should be to detect wrongdoing as early as possible, thereby minimizing the damages. Early detection can help the company in the race for amnesty, and prevent the situation where the damages are so great the company cannot survive.

Judy offers these practicalities of an antitrust policy that she states “are as important as the policy behind it.”

  • Top level responsibility, resources and commitment. A high level executive should be responsible for the program.  This person must be committed to getting the job done and should have adequate resources to do so. The antitrust compliance officer may be part of the in house legal team, but need not be a lawyer53 as long as the person is committed to and has the resources to keep up with antitrust issues and concerns at the company. This person should be someone employees trust and know they can come to with concerns about competitive conduct. This person must have the authority and gumption to go to the top if circumstances require it.
  • Standards and procedures. These should be appropriate at all levels of the company from the board down.  Standards and procedures should be tied to people’s jobs.  Talk to people and address their concerns in the policy. Different jobs have different antitrust risks. Often the company adopts an antitrust “manual.” A good policy does not require a 100-page manual.  There are many successful programs available. It is not necessary to start from scratch. Copy what works. The standards should descrive prohibited conduct (price fixing, bid rigging, and agreements with competitors to allocate customers or territories and otherwise eliminate or diminish competition), and warn employees about the consequences of engaging in such activities.  Some of the best manuals provide examples that connect antitrust principles to things that occur in the company’s business. Employees need to understand the risks of sharing competitive information, and how to identify anticompetitive conduct.

Judy’s recommendations on effective compliance programs also include avoiding legalese, integrating the program into training, making sure there are simple ways to report wrongdoing and ask questions and monitoring and auditing for the program.

Ms. Woods sums up the effort at producing a strong compliance program with this advice: “Do it right from the start. Companies should seek professional advice and design the program the right way from the onset. There are many resources available from the DOJ and FTC as well as other sources to help.”

To view the upcoming Video Replays, the Online/On Demand Video or purchase the e-Publication of “Antitrust Law for the General Practitioner” – Click Here.

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About our Law Tips faculty member:

Judy L. Woods, Benesch Friedlander Coplan & Aronoff, LLP, Indianapolis, is a partner with the firm’s Litigation Practice Group. She focuses her practice on complex commercial and “bet the company” litigation, including antitrust, class actions, shareholder and corporate governance disputes, international contracts, finance disputes, fraud, RICO and other business disputes.

About our Law Tips blogger:

Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. You are encouraged to comment below or contact Nancy.   She enjoys hearing from readers and welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

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5 3 Non lawyers should have ready and regular access to antitrust counsel who can help the person analyze the company’s interactions with its competitors, customers, and vendors from antitrust perspective, understand past antitrust issues faced by the company or the relevant industry, and anticipate potential future concerns.

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