Preventing And Minimizing Antitrust Problems

• Pages: 291-310

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CHAPTER VII

PREVENTING AND MINIMIZING

ANTITRUST PROBLEMS

Health care and other businesses can minimize their antitrust risk

significantly in several ways. These include, for example, developing and

implementing an antitrust compliance policy to sensitize employees to

potential antitrust problems, properly managing the firm’s business

records, cooperating with agency investigations, and proactively seeking

agency opinions as to whether the agency would challenge particular

proposed conduct.

A.Antitrust Compliance Programs

Goals of a Compliance Program

Many organizations have formal antitrust compliance policies and

programs to minimize and properly manage antitrust risk. The form and

content of these programs varies, and they should be specifically tailored,

after consultation with antitrust counsel, to an organization based on its

structure and activities in health care and the types of antitrust issues it

might encounter.

1

Antitrust compliance programs can achieve a number of goals, but

their overriding objective is to prevent conduct by the organization that

clearly violates antitrust law. The compliance program should include

(1) establishing a formal written organizational policy to comply with the

antitrust laws; (2) establishing an affirmative antitrust compliance

obligation for the organization’s personnel and agents; (3) educating the

organization’s personnel and agents about antitrust law, particularly about

conduct that clearly is prohibited, such as horizontal price-fixing

agreements; (4) establishing an affirmative obligation for the

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1. See generally ABA

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(2019).

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organization’s personnel to report questionable conduct within the

organization; (5) establishing and implementing procedures for

responding promptly and effectively to reports of possible violations and

for monitoring the organization’s compliance with the policy and with

antitrust law; and (6) conducting periodic antitrust audits by counsel of

certain aspects of the organization’s operations that are prone to antitrust

concerns both to help ensure compliance with the antitrust laws and to

identify and correct any problematic conduct.

An antitrust compliance program also may enable an organization to

avoid and deal more effectively with price fixing and other serious

violations of antitrust law that may be the subject of criminal prosecution.

The U.S. Department of Justice (DOJ) has formal leniency policies for

both corporations and individuals reporting their antitrust violations, and

early detection and self-reporting of a serious antitrust violation is

essential to availing oneself of these policies.2 Under these policies, only

a single corporation (or individual) involved in an antitrust conspiracy can

obtain leniency, and an organization’s early detection of unlawful conduct

by its employees or agents may enable the organization to approach the

government for leniency before other conspirators do so. The U.S.

Sentencing Commission also recognizes an “effective program to prevent

and detect violations of law” as a possible mitigating factor that may

permit a downward adjustment of criminal penalties under the federal

sentencing guidelines against an organization convicted of an antitrust

violation.3

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2. See U.S.DEP’T OF JUSTICE,CORPORATE LENIENCY POLICY (1993),

reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,113; U.S.DEP’T OF JUSTICE,

LENIENCY POLICY FOR INDIVIDUALS (1994), reprinted in 4 Trade Reg. Rep.

(CCH) ¶ 13,114.

3. See U.S.SENTENCING COMMISSION,FEDERAL SENTENCING GUIDELINES

MANUAL, §§ 8C4.11, 8B2.1 (2014) (defining effective compliance

program); id. § 8C.2.5(f) (authorizing downward adjustment to corporate

fine). A compliance program cannot be used to reduce an organization’s

criminal fine if certain high-level personnel participate in, condone, or

willfully ignore the illegal conduct, or if the organization unreasonably

delays reporting the violation to appropriate governmental authorities once

it becomes aware of illegal conduct. Id. § 8C.2.5(f).