Are You Ready For An Antitrust Investigation?

I recently attended an ABA meeting regarding antitrust issues in Seoul, Korea.  A number of US lawyers and regulators were present to discuss the ABA's position on antitrust as well as to emphasize the fact that  from a regulator's standpoint, there was no place to hide from antitrust regulations, especially those regarding cartel issues, IP issues and even aftermarket concerns.  Antitrust or Competition Law has become a hot topic around the world especially in the US, EU, China, Japan and Korea.  Companies have to be cognizant of the fact that they will be scrutinized by regulators in many jurisdictions for antitrust violations.  This has become apparent in the recent cartel cases as well as merger review cases or pay for play cases making the headlines.

To ensure companies survive the regulators scrutiny it is important to have a robust compliance program covering antitrust or competition law issues and best practices.  I've mentioned in the past about the need for an effective compliance program that addresses antitrust concerns as part of an overall legal risk management program. To have an effective compliance program, a company must also hold compliance training after it “launches” the program. Of course, many areas of training should be covered and how the training should be given is of major interest. Especially with regards to antitrust.

It is best if the company offers local compliance training covering the relevant laws and practices where people are located besides covering the jurisdiction where the company is headquartered. Training can be given in person, online via web-based training, or by other media and must be given on a regular basis.  Of course, one of the most important training programs a company can offer  ( if not the most important) in its compliance program is a comprehensive no nonsense antitrust program.  Such training should not only be given at headquarters but also in all its subsidiaries or affiliates as well.  Many jurisdictions has differing views on antitrust or non-competition laws so a company needs to take a local approach as well as a global approach when handling compliance matters especially antitrust concerns.

Training programs should be handled as follows:

• Training on the code of conduct, especially as it applies to antitrust can be given by Compliance, Risk Management or by Legal.
• Local training should cover important areas such as antitrust, anti-harassment, ethics, illegal business practices, financial integrity, customs, etc.
• The majority of the local training should be in person and online.
• The goal is to equip employees to handle compliance issues-especially those involving antitrust and illegal business activities.
• Training should help employees to identify potential wrongdoing.
• Training should help employees understand their role in the compliance scheme.
• It should let them know what to report and how to report when encountering antitrust violations, etc.
• Does your compliance program cover antitrust laws and concerns?  If so- how detailed is it?  Does it offer thorough training or does it gloss over the important aspects of non-competition laws?  A well-defined antitrust training program can go a long way to help mitigate the risk of antitrust investigations and lawsuits.

How does your compliance program stack up?  Are you ready for an antitrust investigation if the regulators announce one? Are you ready for a dawn raid?  Considering the complexity of antitrust regulations  and the numerous antitrust regimes around the world, it is imperative to have a robust antitrust compliance program in place.