What do you need for an antitrust compliance program? 3 experts get you started.

What do you need for an antitrust compliance program???3 experts get you started.

By Joe Murphy, CCEP

This year Concurrences, working with the International Chamber of Commerce, issued an important tool for establishing your antitrust compliance program.??The book, “Perspectives on Antitrust Compliance” is a resource you should have.??The editors are Anne Riley, Andreas Stephan & Anny Tubbs.??I was also a contributor, Ch. 30, “What Can Competition Law Enforcers??Learn from Others?”

The three editors get you started in Chapter 3 on “The Elements of a Credible Compliance Programme.” They provide you with a nice outline of points that you really need to have in your program.??Their points reflect both what an enforcer would expect to see, and steps that are essential for your program to be effective.??

They note, for example, the value of having a compliance officer with “sufficient autonomy, authority and seniority” who is “able to report any compliance concerns” to the board or a board committee.??I would add to this that for larger companies there should also be compliance presence in the field, such as compliance liaisons, field ethics ambassadors or others who represent the program outside of headquarters.??

They discuss the role of having a “speak up” system and clear guidelines that include protecting those who report.??In this context I believe the risk of retaliation is so widespread and so lethal to the compliance program’s credibility that today retaliation should be considered as a separate risk to be addressed in the risk assessment process.??Anti-retaliation steps need to be strong and actively managed.?

The chapter calls out the need to address incentives, wisely advising that “particular attention should be paid by the compliance officer to the company’s remuneration and bonus structure . . . .”??They are exactly right on the need to focus on incentives.?

You can use this chapter as your checklist to be sure your program has what it takes to be effective.???

Of course, I have to note one quibble.??In the beginning they note a point about the history of antitrust compliance, and having lived through this history my perspective is a bit different.??They state that while there has been much guidance on anti-corruption programs until recently there was less or little about antitrust, and then they cite the Canadian Competition Bureau and the Antitrust Division as changing this situation.??

Here's where I see this differently, remembering that I started doing antitrust compliance in 1976.??Of course, in 1976 there was no FCPA, but there was certainly antitrust compliance work.??We did not do this blindly – there was guidance even back then. In the 1970s the first docu-drama about antitrust compliance called “The Price” introduced dramatic video as a compliance tool.??In 1992, after the Sentencing Guidelines went into effect, the Rutgers publication, Corporate Conduct Quarterly, published an article by Neil Roberts, Chief of the Legal Policy Section of the DOJ Antitrust Division, titled “Antitrust Compliance Programs Under the Guidelines:??Initial Observations From the Government’s Viewpoint,” with fairly specific recommendations for programs. (I was co-editor in chief of the Quarterly).??In Spring 1992 I wrote an article on how to establish an effective antitrust compliance program.??William Kolasky, then at the Antitrust Division, also published a guide a few years later.??There has been guidance from the ABA including an entire manual on compliance programs, continuing education programs covering antitrust compliance provided by PLI, and much more. FCPA compliance was considerably later in its development.??It was also originally less rigorous.?

So what actually happened???First, FCPA enforcement escalated in the last 2 decades. At the same time most of DOJ, including the FCPA enforcers, decided prevention was an important goal and therefore took compliance programs into account in enforcement decisions.??The Antitrust Division disagreed and only cared about voluntary disclosure and prosecution.??So antitrust compliance programs languished.??

Other enforcers, like the Canadian Competition Bureau, took the lead in recognizing compliance programs in their enforcement decisions.??The Bureau has provided guidance on programs for years.??Others followed this approach over time, including Great Britain, Spain, Chile, Brazil, and Singapore.??The EU, like the Antitrust Division, was indifferent to compliance programs.??It issued a guide but was adamant about not considering compliance programs.??So while both DOJ and the EU provided guidance on antitrust compliance programs, their policy was that programs did not matter. Thus they forfeited all their potential leverage to get companies to up their games in this area.??

The dramatic break came in July 2019 when the Antitrust Division decided it would consider compliance programs and issued a detailed set of questions for analyzing programs. This guide has become a key standard for antitrust compliance programs. The EU maintains its indifference to compliance, rendering it irrelevant when it comes to compliance programs.??

But if you are not obsessed with history (mea culpa!), my objections do not really matter.??If you are working in antitrust compliance this chapter will give you a well-developed direction for your program, from professionals with deep expertise and insights in this field.??