Updating Your Antitrust Compliance Program

• Pages: 11-16

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CHAPTER 2

UPDATING YOUR ANTITRUST COMPLIANCE PROGRAM

Suppose the Department of Justice has just announced an investigation of the industry in

which your company operates. No problem—your company or client has an antitrust program.

No one can find it, though, because it’s been awhile since anyone looked for it. You look

through your e-mail and documents on the system, and then finally a secretary announces that

someone has located a copy of the plan that was misfiled. Whew! That’s a relief.

But there is almost no chance that compliance plan reflects the company’s obligations as they

exist right now. And even if you know exactly where to find a copy of the plan, and have

referred to it lately, a plan that has not been reviewed and updated in a long time is very likely to

be out of date. To be sure, getting it written was probably expensive and burdensome, and

investing more time on a regular basis to keep it up-to-date just adds to that expense and burden.

Moreover, it is not all that easy to know how to keep the plan up-to-date.

But an out-of-date compliance plan cannot keep your company out of trouble. The U.S.

Sentencing Guidelines explicitly require that an “organization shall take reasonable steps . . . to

evaluate periodically the effectiveness of the organization’s compliance and ethics program.”1

The risks of not updating far outweigh the complication and difficulty of doing so. Other

chapters in this book address those risks: the penalties under the U.S. Sentencing Guidelines

(Chapters 4 and 6); the risks of multijurisdictional challenges (Chapter 15); the difficulty of

prevention and detection (Chapter 11); and so on. Once the investment has been made to create

a plan, it is certainly worth a few hours now and then to make sure it is still current enough to

keep your company and its employees out of trouble.

There are several challenges. You need to review the plan and stay current with both legal

and business developments. You need to respond quickly to highly visible changes. You also

need to conduct a periodic review to find the developments that affect your company, but may

not have necessarily made headlines. Once you have identified those changes, you need to

determine how best to implement changes to the plan that will be both effective and suit your

company’s needs and operations.

A. Real-Time Reaction

Keeping up with major legal developments is not difficult in this age of e-mail newsletters

and RSS news feeds. A number of these are listed in the bibliography of this book. A more

difficult proposition is to sift through the enormous amount of information that various news and

other organizations generate on a daily and weekly basis.2 You cannot hope to see everything, so

choose a few resources that are reliable and comprehensive and review those sources regularly.

1. U.S. SENTENCING GUIDELINE MANUAL § 8B2.1(b)(5) (2004).

2. A Google search in March 2009 on the term “antitrust news” turned up about 3,600,000 hits.