The Trouble With Antitrust Compliance and 10 Ways to Fix It

At the recent spring meeting of the American Bar Association’s Antitrust Section, there were at least three sessions devoted to antitrust compliance. Even in the sessions not dedicated to compliance, common themes included aggressive enforcement, global cooperation, and increased penalties—all concerns that come as no surprise to any antitrust practitioner. And they are all things that should make companies wary of violating these now-universal laws. But companies still do violate them.

Looking at the continuing stream of cartel enforcement, one must reluctantly conclude that the state of antitrust compliance today is terrible. After decades of talking about compliance programs, companies still decide to fix prices. We should have figured out how to stop criminal conduct that has robbed billions of dollars from consumers over the years. And yet it seems that every antitrust lawyer (myself included, of course) pontificates about antitrust compliance as if they know what they are talking about. What is going on here?

Compliance History—Not So Ancient

First, a little background. Antitrust compliance programs probably got their first exposure in the Electrical Equipment cases from the late 1950s and early 60s. General Electric had a very explicit antitrust compliance policy, but, as the judge noted, it was something that was observed in the breach, with apparent hearty support from management. This may have been the first example of what we now call a “paper program”: something that looks good on paper but doesn’t mean anything in reality.

As penalties were increased for antitrust violations, more companies began paying attention to antitrust compliance. Written policies were augmented by training programs, taking advantage of the audio-visual tools of the day (carousel slides, perhaps with synchronized narration from a cassette tape, or overhead projector slides). As the personal computer became commonplace, computerized presentation became possible and computer-based training, delivered via a network or CD-ROM, put compliance training in front of every employee.

But were the presentations working?

The Government’s Approach