The antitrust regulators led an aggressive enforcement agenda in 2015, challenging numerous acquisitions and collecting a record $3.8 billion in fines. In addition, the Department of Justice (DOJ) formally increased its focus on pursuing personal liability for anticompetitive conduct, elevating the risk of potential antitrust exposure for executives and other company individuals. Further, two large disgorgement penalties secured by the Federal Trade Commission in 2015, and other disgorgement collected by the DOJ in previous years, marks an enforcement trend in favor of seeking disgorgement as a remedy for conduct that results in “ill-gotten gains.”

Safeguarding against these risks starts with a comprehensive and effective antitrust compliance program, and the beginning of a new year is a great time to evaluate and refresh your company’s approach. Regulatory developments and enforcement trends should be incorporated into existing compliance program guidance. Changes in company personnel and operations should be accounted for in program policies and procedures. These and other necessary updates are simple adjustments that will go a long way to guard against significant corporate fines, government-imposed business restrictions, and personal liability – including fines and incarceration – for company executives. The following steps will guide the review of your program.

Step 1: Refresh the Risk Assessment

  • Evaluate regulatory updates, including:
    • Revised Hart-Scott-Rodino thresholds1 and rule changes
    • Enforcement trends2
    • Relevant case law3
    • Other regulatory developments (e.g., enforcement directives)4
    • International developments

Step 1: (Cont’d)

  • Evaluate changes to business operations and personnel:
    • New company products or new markets in which the company does business
    • Recent acquisitions or joint ventures
    • New business strategies or types of agreements
    • Changes in board membership
    • Changes in employee stock ownership
    • New employees or new responsibilities

Step 2: Update Policies and Procedures to Reflect Risk Assessment Findings

  • Relevant policies could include those governing:
    • Board membership
    • Trade association membership
    • Communications with competitors
    • Business strategies (e.g., pricing, bidding, collaborations, standard setting)
  • Relevant procedures could include those governing:
    • Reporting suspected or actual violations to the compliance team
    • Detecting, investigating, and reporting violations to the antitrust enforcers
    • Risky business activities (including screening procedures)
    • Incentives and discipline for wrongdoing
    • Audits
    • Record keeping

Step 3: Update Employee Training

  • Assign new employees to appropriate training modules
  • Take account of personnel role changes and reassign training as appropriate
  • Update training content to reflect risk assessment findings
  • Tailor training modules to specific categories of employees (e.g., lawyers, business personnel, and executives)
  • Provide alerts to update employees about the most significant regulatory developments

Step 4: Conduct a Program Audit

  • Test various procedures for effectiveness (e.g., reporting hotlines)
  • Interview employees regarding usefulness of policies and procedures
  • Test training effectiveness 

After taking these steps to update your company’s program, it is important to establish a process to keep your program current as new developments occur. We recommend establishing regular and systematic program updates.

As always, an antitrust compliance program should be tailored to meet the needs of the company it purports to protect.