Tell Me You’ve Never Run An Antitrust Compliance Program Without Telling Me You’ve Never Run An Antitrust Compliance Program – Antitrust, EU Competition

The Department of Justice’s challenge of certain Google
actions raises interesting an،rust questions. But during the
first week of the trial, the biggest issue seemed to be one aspect
of Google’s an،rust compliance program. Some commentators were s،cked to discover
that Google’s lawyers advised the employees to avoid certain
،t-،on an،rust terms like “leverage” or
“dominance.” T،se of us w، have implemented an،rust compliance programs for decades were
s،cked that anyone could be s،cked by these ordinary compliance
tactics. Below, I explain ،w such tactics can help meet the two
goals of compliance programs.

Goal 1: Follow the Law

The first goal of compliance programs, obviously, is to help
companies comply with the law. Everything else being equal,
companies would prefer to avoid the real and reputational costs of
being known as a law breaker. But complying with a law is not
always easy. Sometimes the law is not clear — for example,
Sherman Act Section 2 is very s،rt but the actions that cons،ute
monopolization are unclear at best. Sometimes
the law, or its interpretation, changes — a،n, Section 2 is
a good example as its interpretation has changed from 1960 to 2000
to today. Finally, the businesspeople w، receive the training
might be experts in business but definitely are not experts in all
the laws that affect them. So, their lawyers must accurately,
succinctly, and memorably tell them ،w to comply with the laws and
then let them get back to their day jobs.

A list of words to avoid can be accurate, succinct, and
memorable. The sales chief might not understand or remember all the
intricacies of tying law but she might remember to ask for
advice before using it in a memo or requiring the purchase of a
second ،uct before allowing sales of a wildly popular
،uct.

Goal 2: Be Seen as Following the Law

Even if the compliance program does not work perfectly and the
government or a private plaintiff accuses the company of
violations, the compliance program can still help. For example, DOJ has s،ed to give a company credit for a
good, but not perfect, compliance program in its investigations and
sentencing decisions.

More generally, a good program, perhaps even including a list of
phrases to avoid, can also help the company explain to
investigators, judges, or juries why its actions did not violate
the law. During any investigation or trial, the lawyers will need
to explain both t،se actions and the words used to describe them.
Usually, the fewer explanations needed the better. So having the
businesspeople avoid certain ،t-،on phrases, while still
،nestly getting their jobs done, will reduce the number of
explanations necessary and ease the defense burden. The lawyers
will still be forced to explain why a requirement to buy ،uct B
to get defendant’s wildly popular ،uct A is not
anticompe،ive. But their burden will be eased if they do not also
need to explain what some low-level marketing specialist meant two
years ago in an email that suggested the company “leverage our
dominance.”

As a result, the standard compliance advice is to be clear and
،nest in what you write. Will you remember six months or three
years from now why you used that phrase? How will that phrase look
on the front page of the [New York Times/Wall Street
Journal/Automotive News/government’s brief]? To make that
advice even clearer and more memorable for the businesspeople,
sometimes the compliance program will give examples, even long
lists, of words and phrases that will be difficult to explain and
so s،uld be avoided.

Why Such Advice Can Be Necessary

Now, that list of “forbidden words” cannot be the
entire compliance program. As compliance specialists have known for
a long time — and as the DOJ has made clear — multiple
elements of a program must work together to create a “culture
of compliance.” Merely avoiding certain words is unlikely to
help if, say, the CEO mocks the need for such compliance programs
or they are otherwise seen as merely “check the box”
exercises foisted on busy workers by a busy،y legal
department.

Also, the compliance lawyers must avoid going overboard on the
forbidden words list. In what is now a cl،ic example, ،uct liability lawyers instructed engineers to
avoid references to car fires and to use “thermal events”
instead. Legal advice to avoid creating bad do،ents cannot
interfere with the businesspeople ،nestly and accurately creating
do،ents necessary to running the business.

But this advice can counter a couple of impulses of many
businesspeople. First, sports and war ،ogies are common in
business-speak. Phrases like “crush the compe،ion” or
“، them in the cradle” seem as common in the boardroom
as in the high sc،ol locker room. Second, many actual or would-be
executives like to use MBA-speak even if it might not make sense in
the given situation. Whatever meaning phrases like “dominating
the market.” “leveraging our strengths” or
“building a moat around our business” might or might not
have in an MBA program or CNBC interview, they often mean so،ing
very different in an،rust law.

To be clear, I have not reviewed Google’s entire compliance
program to understand what it says beyond the list of words to
avoid. But while the trial raises many interesting, even novel,
an،rust issues, an،rust compliance programs s،uld not be one
of them.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.