The Department of Justice has recently abandoned certain guidelines that made it more difficult for the government to pursue enforcement actions against monopolists who abused their market power. The shift in philosophy means DOJ will now take a tougher stance and apply a more rigorous standard when pursuing monopolization offenses. As a result, enforcement actions are likely to increase.
According to Christine A. Varney, Assistant Attorney General heading the DOJ’s Antitrust Division, recent developments in the marketplace demonstrated the market’s inability to protect consumers. The solution: corrective measures through stronger antitrust enforcement. It is a throwback to the Clinton era policies, whose highlight was the case against Microsoft.
The DOJ announcement is a business wake-up call. Companies now have an opportunity to review their antitrust policies and practices before DOJ does it for them. It’s always a good idea to periodically review your business policies, procedures, and practices for compliance with the law, even for companies who are not monopolists. Think of it as a business legal tune-up. Your car gets one. Why not your business?
Here are a few questions for you to consider when conducting your tune-up:
1. Where are your antitrust policies, guidelines, and procedures?
2. Are they easy to find? Are they easy to understand?
3. How do you know that everyone who needs to read them has read indeed read them and understood them?
4. Are the policies up to date? Reflecting the current law? And reflecting your current business operations?
5. How are pricing decisions made in your company? Do they take into account anticompetitive effects?
6. What procedures are in place governing discussions or contacts with competitors? How are contacts handled at trade association meetings, conferences, or social settings?
7. Are there any hybrid business relationships that turn competitors into partners for a certain range of business activities? If so, what rules or procedures are in place to avoid the appearance of collusion or conspiracy?
This is not an exhaustive list of questions, but a good start. Remember, employees can’t comply with what they can’t understand. Making sure your antitrust guidance is easy to find, easy to read and easy to understand will contribute greatly to its success.