Antitrust is a long-time risk area for compliance teams to manage, but its longevity does not mean it is not evolving. New issues arise as times and Administrations in Washington change.
Nathan Mendelsohn, Associate in the Washington, DC office of the law firm Wilson Sonsini Goodrich & Rosati lays out what is new in antitrust in this podcast and in the chapter “Federal Antitrust Law Risks – 2022” in The Complete Compliance and Ethics Manual.
Some areas of antitrust law are well known. Agreements by competitors to rig bids, allocate markets or set prices are generally considered illegal per se and can open up the door to criminal prosecutions of both individuals and organizations.
Other kinds of agreements, he explains, are subject to what is known as the “rule of reason”. In a nutshell, it calls for an assessment as to whether the agreement makes sense and was not designed just to protect the parties and unfairly hurt others.
As for compliance programs in antitrust, the ground is changing. During the leniency program era, only the first company to self-report anticompetitive behavior received credit. Its co-conspirators, no matter how good the compliance program, received none. Then in 2015 the Department of Justice began giving credit for forward looking compliance programs: what the company had done since the violation to protect against its reoccurrence by strengthening compliance efforts. Then, beginning in 2019, the Antitrust Division began, at least on paper, giving credit for existing compliance programs. Thus far, though, no organization has qualified for it.
At the same the focus of attention for the DOJ has continued to evolve, most notably when it comes to the labor market. The division has pursued several cases related to no poach agreements, in which companies agree not to poach each other’s workers. Many believe that this has kept wages lower than they might be. Non-compete agreements are also under scrutiny.
Another trend to watch out for: transnational prosecutions.
Listen in to learn more, and be sure to explore what’s available in The Complete Compliance and Ethics Manual.