The U.S. Department of Justice (DOJ) and U.S. Federal Trade Commission (FTC) have turned the spotlight on antitrust and trade regulation compliance programs as they have come into focus in several contexts. As a result, general counsel may want to review their company's compliance policies and programs to ensure that their antitrust and trade related portions cover the spectrum of conduct and activities that could expose the company to risk.

Many corporate compliance programs include general policy statements about the company's commitment to complying with, and prohibitions against violating, the antitrust and trade regulation laws. However, general policy statements may not be enough in today's legal and regulatory environment.

Interactions with suppliers and competitors: The DOJ's recent case involving coordination of prices for electronic books is a prime example. The case involved Apple's agreements with five publishing companies regarding their e-book pricing models and 'most favored nation' pricing terms that the DOJ alleged resulted in higher prices for e-books. The publishing companies settled with the DOJ before trial, but after a full trial, Apple was found in violation of the Sherman Act for facilitating a price-fixing conspiracy among the publishers. In the court's final judgment, Apple was required to significantly improve its antitrust compliance program. The order imposes both an external compliance monitor to evaluate and oversee Apple's antitrust compliance program and its compliance with the order, and an internal antitrust compliance officer who will report directly to a committee of independent directors on Apple's board of directors rather than the legal department. According to the DOJ, these strong compliance-related remedies were imposed because there were failures in the company's compliance program and the court concluded that “Apple's senior executives and in-house counsel helped orchestrate the price fixing scheme.”