How Do You Detect and React to Antitrust Breaches?

On March 23 I attended a virtual seminar presented by Concurrences, “How to Detect and React to Antitrust Breaches?  Practical Tools and Takeaways.”  Concurrences deserves great credit for focusing not just on enforcement, but on compliance efforts.  When you think about it, the goal of enforcement is not big cases, large fines and headlines.  It is only the prevention of violations.  So it makes enormous sense to focus on this area.

Concurrences will hold an award ceremony in May when it recognizes leaders in the competition law compliance field.  This is also a tremendous leadership step by Concurrences.

For the seminar, the moderator was Susan Ning, of King & Wood Mallesons.  From the government side were Rod Sims, Chair of the Australian Competition and Consumer Commission, and Aik Kor Sia, Chief Executive of the Competition and Consumer Commission of Singapore.  Eva Cole, of Winston & Strawn gave outside counsel’s perspective.  From the corporate side were Renee DuPree of Google and Jodie Williams of Qualcomm.  (Just a side note for history buffs, but in Australia it was the ACCC’s staff that helped drive the development of the entire compliance and ethics field there years ago, particularly Bill Dee)  

I will not try to summarize the conference; for that one can contact Concurrences.  But I offer here a few comments.  First, I submitted three questions.  One was about whether the enforcers required leniency applicants to have compliance programs.  Mr. Sims said that the ACCC did either require or encourage this.  That alone is great progress, since in the past competition law enforcers appeared to completely ignore this point.

A second question I asked was inspired by a fervent advocate for whistleblowers, Charlie Middleton.  That was 

“Would any of the companies ever hire a whistleblower from another company?  Usually they are boycotted, but wouldn’t hiring one show your employees that you are very serious?”  

The question was not asked, I suspect because it was such a totally new idea, and it may not have been clear why that related to antitrust compliance. But if you know the history in this area, you know that employees are rightly afraid to speak up for fear of retaliation.  Based on their experience, they don’t believe company promises not to retaliate.  What better way to show support for whistleblowers than to actually hire them?  That would take real courage. It would show the company’s commitment was more than words. 

My next question, which was asked, was this: 

“The US Antitrust Division expects companies to use analytics and screens.  What is your experience with these techniques? Do you do this?”  

I was startled that there seemed to be some difficulty understanding this question.  By now, anyone doing compliance work, at least when dealing with large companies, should know about the importance of data analytics.  Companies are expected to know what is going on, and part of this comes from tracking key numbers. The Antitrust Division’s exact language was:  “Does the company use any type of screen, communications monitoring tool, or statistical testing designed to identify potential antitrust violations?”  Certainly no one could expect that the Antitrust Division would be the only enforcement authority that would be looking for this. 

Anne Riley, one of the true heroes of antitrust compliance, questioned Mr. Sims on his opening remarks that suggested ACCC was solely focused on pursuing big fines and letting everyone know they had done so.  Mr. Sims then made clear that the ACCC does take the more modern approach and does communicate with the regulated community.  His initial point then made sense in that context:  once you broke the law, simply apologizing and promising not to sin again was not going to get you off the hook. 

Both Mr. Sims and Ms. Sia of Singapore also made clear that compliance programs are taken into account in how they treat companies.  This also makes sense, and is in sharp contrast to the EU Commission’s “one-size-fits-all, no program ever matters” antiquated approach.

Finally, it was noted that Concurrences, working with the ICC, is producing a new book, “Perspectives on Antitrust Compliance.”  I had the opportunity to be a contributor to that book, and look forward to its publication. 

If you do antitrust compliance work I recommend connecting with Concurrences.     

Of note, this is the next in the series:

Next Concurrences Antitrust Compliance Webinar will be held on Thursday 15 April 2021 - 15.30 CET - 09.30 EST. Topic will be: HOW TO DEPLOY AND IMPLEMENT A COMPLIANCE PROGRAM? 

Speakers will discuss about: Hotline, AI & algorithms, internal/external audits, attorney-client privilege audits…; Cross-functional relationships and common push-backs; Avoid strictly national approach > Deploy a global network; Select law firm; Select vendors; Scale compliance measures. 

Speakers will be:

- Cani FERNANDEZ | Chair, Spanish National Commission of Markets and Competition, Madrid

- Dirk MIDDELSCHULTE | Global General Counsel – Competition, Unilever, Brussels

- Jacques MOSCIANESE | Executive Director - Group Head of Institutional Affairs, Intesa Sanpaolo, Milan 

- Martijn SNOEP | Chair, Netherlands Authority for Consumers and Markets, The Hague

Free registration on Concurrences website here: https://events.concurrences.com/en/antitrust-compliance-awards-2021