Since the U.S. Congress passed the Sherman Act in 1890, the American government has shown a keen interest "to protect the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up."
Violations of these processes -- the kind that lead to investigations by the U.S. Department of Justice (DOJ) or the Federal Trade Commission (FTC) -- routinely manifest in one of three ways:
Concerned that the misguided actions of a few employees could be leading your business to violate antitrust laws? Watch: Antitrust Training: Avoiding Criminal Cartel Risks
Given the risk that these actions could pose to your business, you should actively incorporate complying with established antitrust regulations into your corporate compliance efforts.
One of the primary motivations behind any compliance program is to prevent potential legal violations that can not only lead to strict financial penalties but that can also hurt your position in the industry.
In a 2014 speech, Assistant Attorney General Bill Baer, from the DOJ's Antitrust Division stated that an effective compliance program could "maximize the chance for a company guilty of price fixing to find out about the conspiracy early enough to qualify for corporate leniency or otherwise cooperate with our investigation."
Enforcement agencies also offer due consideration to those companies that bolster and improve their compliance programs after an incident has occurred -- a reality learned by Kayaba Industry Co.
This automotive parts manufacturer engaged in a price fixing conspiracy that resulted in charges for 37 companies and 55 executives. And while Kayaba faced potential fines between $103 million and $207 million, the organization was able to reduce its sentence to just $62 million by:
By pursuing a program similar to Kayaba, your organization can create an "effective" compliance process that will help prevent and mitigate antitrust violations.
As you would for any compliance program, your business needs to establish clear policy guidelines that outline appropriate employee behavior when interacting with competitors and customers. Work with legal counsel and subject matter experts to make sure that these guidelines fulfill your federal, state, and international obligations.
Alongside these rules, your business should have in place appropriate disciplinary measures -- including termination and the notification of government authorities -- for those employees found violating these terms.
Regularly provide your staff -- particularly those who come in contact with competitors -- with ongoing antitrust training. Incorporating senior management into these training efforts is also critical.
In the previously cited speech, Assistant Attorney General Baer made it clear that "[t]he
board of directors and senior officers must set the tone for compliance to ensure that the company’s entire managerial workforce not only understands the compliance program but also has the incentive to actively participate in its enforcement."
Ideally, your business will already have in place anonymous mechanisms that allow employees to report inappropriate behavior or corporate malfeasance. But if you don't, now would be an ideal time to set up a hotline or email inbox dedicated to this effort. Then regularly communicate to your entire workforce the availability of these tools
The key for any auditing or analytics program is to have access to the necessary data. Require your employees to track and report on any interactions with competitors -- including encounters at trade shows, joint meetings with a supplier, or casual interactions at an industry social event (e.g., golf tournament).
At the same time, your business should actively track information related to your industry and competitors, such as pricing shifts, changes in customers, or movement into or out of territories. With this data readily available, you can employ software and staff to identify anomalous patterns or unusual behavior that merits further investigation.
While the DOJ tends to offer sentencing leniency to those organizations that add these components to their compliance efforts, your company would be wise to put these measures in place before a legal violation occurs. And if an issue arises, full cooperation can help a great deal to offset the actions of a few rogue employees.
To learn how Workplace Answers can help you avoid your own scandal and criminal investigation, check out our Global Antitrust & Fair Competition courses.
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