What is the Antitrust and Competition Law Compliance Discussion Group? The Antitrust and Competition Law Compliance Discussion Group is a group of people who share an interest in the development of effective anti-cartel compliance programs as a means to prevent and detect cartel behavior. They also share an interest in the role of government in promoting such programs.
Some of the members believe strongly that governments, particularly the Antitrust Division of the US Department of Justice and the EC, need to do more to encourage effective anti-cartel compliance programs. They believe it is a fundamental mistake for enforcement agencies to ignore diligent compliance programs in their enforcement and penalty decisions. They also believe these agencies should require diligent programs for companies that have committed violations, including companies admitted into leniency programs.
Although not all participants necessarily share the same views. all share an interest in this field. We are also willing to assist any competition authority that is interested in promoting and recognizing compliance programs.
What is the Group’s objective? Our goal is to have more people aware of the issues we are addressing, and to have more discussion and consideration of the questions we are raising. Some in our group believe the Antitrust Division and the EC need to change their views, and recognize the importance and value of compliance programs. This recognition needs to be through concrete action, and not mere words. We believe the Antitrust Division and the EC should take compliance programs into account in determining how to treat companies in the enforcement process, and for purposes of assessing penalties. We also want to see other competition authorities take on this mission of promoting diligent compliance programs.
We do not want to see the Antitrust Division’s and EC’s negative approaches spread to other competition law enforcers around the world, or to other areas of the law. We believe those approaches are counter-productive, and undercut the ability of compliance and ethics professionals to obtain resources and management commitment that are necessary for effective anti-cartel programs. We support and encourage government efforts anywhere on the globe that promote and recognize diligent compliance programs.
We also want to see more discussion of these questions in the literature and in professional meetings and programs.
We also have members who believe that more needs to be done in corporate anti-cartel compliance programs. We do not believe that mere lectures by lawyers, legalistic compliance manuals, and CEO signatures on policy statements written by lawyers constitute an effective compliance program. We would like to see more widespread use of truly effective techniques, like screening to detect cartel red flags. We do not believe this will happen until the Antitrust Division and the EC change their approaches. Until enforcers make it clear that compliance programs do count in ways that matter, they do not have the leverage necessary to get managers to pay attention to their views on what should be in effective programs.
Who is in the group? The Group includes anyone interested in the topic. We have lawyers, professors, economists, former enforcement personnel, in-house compliance personnel, and service providers in the compliance and ethics field. We have participants from around the world.
What have we done so far? Much of our focus has been to get this topic on the agenda. To do this we have written papers and blog postings, worked to get this topic included in conferences and meetings, and sought out press coverage. Click the title for a list of many of the steps:
A short parable analogizing the tactics used by DG Comp in their antitrust enforcement efforts.
If it seems wrong to you, welcome to our club and please join in the discussion.
A brief article outlining a “model” approach for companies to deal with the risk of cartels, based solely on the US Department of Justice’s Leniency Program.
Again, if it seems strange to you, you’re in the right place.
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