In 2008, when President Obama was a candidate he campaigned on a platform that — perhaps for the first time since the Progressive Era — called for more vigorous antitrust enforcement. As president, he appointed new heads of the Department of Justice (DOJ) Antitrust Division and Federal Trade Commission (FTC) who pledged more effective enforcement efforts than the prior administration.
As 2011 came to a close, the DOJ forced the abandonment of a multi-billion-dollar telecom acquisition, prompting the Wall Street Journal to declare that the Antitrust Division was indeed showing its mettle. In its first two years, the DOJ secured antitrust convictions resulting in jail time totaling more than 50,000 prison days — including a record 48-month sentence for one individual. In 2011 alone, the DOJ collected more than $1 billion in antitrust fines and other monetary assessments. Both the DOJ and the FTC have targeted antitrust offenders in industries vital to the economy, such as energy, agriculture and health care.
What does this mean for corporate counsel and their antitrust compliance programs? And what does it mean if there is a new Republican administration on January 20, 2013?
In an era of enhanced enforcement, an effective antitrust compliance program is essential to educate employees, underscore the company’s commitment to compliance, and — ultimately — prevent violations. The cost of antitrust violations can be astronomical: multiple year prison terms; fines in the hundreds of millions of dollars; class actions seeking billions of dollars; disruption of a company’s business; and, in more than one instance, bankruptcy or dissolution.
Even the best antitrust compliance program can’t guarantee that a bonus-driven manager will never cross the line; but an effective compliance program can ameliorate the impact of a violation that does occur.
First, antitrust education, coupled with a strong statement of corporate policy, can lead employees to report suspected violations to the company’s Compliance Officer while there is time to act. The DOJ has an effective amnesty program that absolves the first company to report an antitrust conspiracy. Congress recently extended the Antitrust Criminal Penalty Enhancement and Reform Extension Act (ACPERA), which shields the first-reporting company from treble damages it would otherwise face in civil antitrust actions. Even if the company is not the first in, the DOJ’s leniency program provides a break to those that self-report, particularly if they provide information about the conspiracy — or related conspiracies — not reported by the first-in company. On the other hand, if a whistleblowing employee discloses the company’s antitrust violations, the company will lose the benefits of self-reporting. Earlier this year, the Government Accounting Office recommended that Congress amend ACPERA to provide greater protection — and perhaps even monetary incentives — to individual whistleblowers who report antitrust violations.
Second, the U.S. Sentencing Guidelines provide a reduction in the culpability score for companies that, despite the violation, are viewed to have an effective antitrust compliance and ethics program. The 2010 amendments to Section 8C2.5(f) of the Guidelines removed the near automatic disqualification if the bad actor was a high-level executive. But they do require that the head of the compliance program report directly to the governing authority or appropriate subgroup (such as audit committee of the board), and that the compliance program discover and report the violation to the government before discovery outside the company was reasonably likely.
Further, effective education can help employees detect when the company may be the victim of an antitrust violation — such as price fixing by vendors or unlawful exclusive dealing by a dominant competitor — allowing the company to take appropriate remedial action.
What are the steps to establishing — or reinvigorating — an effective compliance program?
First, be sure the company has appointed and announced a Compliance Officer. The Compliance Officer is typically the Chief Legal Officer, but it should be someone who is dedicated to keeping up with developments in the company’s antitrust-sensitive dealings, someone to whom employees know they can report concerns about competitive conduct, and someone who can go directly to the board of directors if the responses of senior officers so warrant.
Next, the Compliance Officer should work with experienced antitrust counsel to develop a thorough understanding of the antitrust filter through which to analyze the company’s business and its interactions with competitors, customers, and vendors, and to understand past antitrust problems the company may have experienced and potential future pitfalls. Antitrust counsel may have better access to agency records that reveal the history of antitrust investigations within the industry.
Counsel should develop written materials to provide employees that declare the company’s strong policy of complying with all antitrust laws; underscore the availability of the Compliance Officer to discuss concerns; and the company’s commitment to support those who report antitrust violations and punish those who do not.
While the written materials should discuss the substance of the antitrust laws and their enforcement, remember they are meant to be a guide for management, not a treatise for antitrust lawyers. They should, of course, clearly warn employees about the consequences of “hard-core” antitrust crimes of price fixing, bid rigging, and agreements with competitors to allocate customers or territories or otherwise eliminate or diminish competition. Yet they should go on to apply antitrust principles to fact patterns that occur in the company’s business. They should also alert managers to the problems that trade associations — gatherings of competitors — inherently create and the risk in sharing sensitive competitive information, whether in industry strategy sessions or on the golf course.
The written policy guides should address issues that may arise in the context of the company’s particular business arrangements — such as a joint venture with a competitor, which requires collaboration on the legitimate business purposes of the venture (e.g., joint production and sales of the jointly produced product).
The materials should also advise employees to watch for situations in which the company may be the victim of anticompetitive conduct, such as when vendors all appear to be charging the same prices or terms of sale and are no longer open to negotiations, or when a dominant competitor has exclusive agreements with a substantial portion of the customer market.
The effective compliance program features a periodic, perhaps annual, “live” presentation that highlights the importance of antitrust compliance and underscores the company’s commitment to full compliance. Attendance should be mandatory for mid- and senior-level management who work in competitively sensitive areas. They should sign attendance sheets, as well as statements that they have received and read the company’s compliance materials and will strictly abide by the company’s policies.
But what if there is a new Republican administration in 2013? Will these efforts be for nothing? Will they be overkill? Absolutely not.
Antitrust enforcement — particularly against hard-core offenses — enjoys rare bipartisan support. While the George W. Bush administration was criticized by candidate Obama, it obtainined corporate fines that were the highest up to that time, and the total prison days offenders were sentenced to in 2007 remains the record.
Even if the next administration — or any administration — were to cut back on antitrust enforcement, Washington, D.C., does not monopolize competition policy. Attorney general offices in all 50 states have antitrust divisions, and many became quite active during the Reagan administration’s perceived lax enforcement during the 1980s. Further, private antitrust civil actions remain an important enforcement vehicle in the U.S.
As today’s economy is global, so is competition law enforcement. Most industrial countries have amnesty and leniency programs and undercover enforcement operations. There is literally no place in the world a price fixer can hide. Extremely active antitrust enforcement has been the rule in this European Community and Japan, and trading partners in Mexico and Canada have strong competition agencies that have not hesitated to bring enforcement actions against foreign companies whose anticompetitive actions affect their economies.
Thus, an effective antitrust compliance program and a strong compliance policy remains essential for all companies in this administration — and the next, and the next.