Antitrust Compliance

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CHAPTER VII

ANTITRUST COMPLIANCE

A. I Have Inherited the Responsibility for Managing Our

Company’s Compliance Program. What Should I Do?

Whether taking over a well-established antitrust compliance program

or a rigorous program that is only in its early stages, someone taking on

compliance responsibilities should determine what program elements are

currently in place and establish priorities for creating or improving them

as needed. Ultimately, the goal is to establish a culture of compliance

through active oversight and participation by appropriate individuals

throughout the organization.

There is no single form of “best practices” for a compliance

program, because what will work effectively for any particular company

depends on its own specific culture, its people, and the industries in

which it operates. Moreover, what was an effective compliance program

at one time will no doubt need revisions as the company’s business

evolves. The following elements tend to be the core components of most

effective compliance programs:

xExecutives who make it known throughout the company that

they are committed to compliance;

xTraining programs and written standards that guide executives

and employees in appropriate business conduct for their industry

and circumstances;

xA method for anonymous employee reporting of potential

violations and confidential evaluation of those reports;

xPeriodic evaluations to detect possible breaches;

xBusiness units that work cooperatively with company counsel

responsible for compliance; and

xCounsel experienced in providing antitrust advice.

Most companies decide to design their compliance program to meet

the standards set out by the U.S. Sentencing Commission (USSC) in its

172 Frequently Asked Antitrust Questions

United States Sentencing Guidelines for the sentencing of organizations,1

as well as the competition compliance guidance brochure that was

released by the European Commission in late 2011.2Both of these are

discussed in more detail below. Because a compliance program cannot

be instituted overnight throughout a company, the specific individuals

assigned overall responsibility for the compliance and ethics program

should set a list of priorities for elements of the compliance program that

need to be adjusted or introduced and obtain approvals for

implementation of these elements from executives at the top of the

organization.

B. Are There Sample Compliance Programs That I Can Implement

in My Company?

Compliance programs should be company-specific, and each

company’s program should be tailored to meet the specific needs of that

organization based upon an assessment of the risks arising from the

activities of that company. Differences between companies, even within

the same industry, may require substantial differences in their respective

compliance programs.

The program’s overall design needs to fit the company culture. Its

manuals and written products will be effective reference tools only if

they are tailored specifically to the company with particular business

units and issues in mind. Similarly, its training programs need to address

the company’s products, services, and business units, with modules that

focus on issues relevant to particular employees’ responsibilities and

competitive relationships. That said, sample materials that may be

helpful in developing a tailored compliance program are available in

American Bar Association publications related to compliance, which are

detailed in answer to Question N below.

Although development of a compliance program can begin with a

sample or with another company’s program, someone who knows the

company’s business will need to tailor it carefully. The company’s

1. U.S. SENTENCING COMM’N,U.S.SENTENCING GUIDELINES MANUAL §

8B2.1 (effective Nov. 1, 2012) [hereinafter SENTENCING GUIDELINES]

available at http://www.ussc.gov/Guidelines/

2012_Guidelines/Manual_HTML/Chapter_8.htm.

2. In November 2011, the European Commission published a brochure,

“Compliance Matters,” which describes key competition rules and sets

out generally recognized basic methods to help companies ensure

compliance with EU competition rules.

Antitrust Compliance 173

competitive circumstances should be addressed with specificity. For

example, a research scientist or engineer developing a new widget will

need instructions about permissible responses to a competitor who asks

her about the current projects on which she is currently working, and a

member of the sales force will need to know how to react to a salesman

from a competitor who suggests dividing territories. All employees need

a common baseline knowledge of antitrust issues, but each employee

also needs details relevant to their own possible challenges.

C. What Are the Components of an Effective Compliance

Program?

1. Standards in the Sentencing Guidelines a Good Starting Point

The Sentencing Guidelines, which contain the factors taken into

account in the calculation of fines for organizations found guilty of

criminal conduct, also provide significant guidance to companies in the

structuring of their corporate antitrust compliance program. The USSC

recognized that, “despite its best efforts to prevent wrongdoing in its

ranks,” even the most careful of organizations may nonetheless be found

criminally liable for a single employee’s illegal conduct. “[T]o alleviate

the harshest aspects of this institutional vulnerability,” the USSC

provides more lenient corporate sentences for offenders who, at the time

of the offense, had implemented an “effective compliance and ethics

program”3that meets certain eligibility criteria.

Overall, an effective program is one in which the company acts to

“exercise due diligence” and “promote an organizational culture that

encourages ethical conduct and a commitment to compliance.”4The

Guidelines specify minimum requirements for such a program, which are

generally as follows:

xEstablish standards and procedures to prevent and detect

criminal conduct;

xExercise reasonable oversight of a compliance and ethics

program, with active involvement and direct reporting authority

3. Paula Desio, Deputy Gen. Counsel, U.S. Sentencing Comm’n, An

Overview of the Organizational Guidelines, available at

http://www.ussc.gov/Guidelines/Organizational_Guidelines/ORGOVER

VIEW.pdf. See also generally Chapter Eight of the SENTENCING

GUIDELINES ,supra note 1, § 8B2.1.

4. Id. § 8B2.1.