In light of increasing regulatory intensity, companies both domestically and internationally should consider strengthening their antitrust compliance programs. This urgency is underscored by a surge in US antitrust enforcement activities under the Biden administration, notably in the health care and technology sectors.
The Department of Justice (DOJ) and Federal Trade Commission (FTC) have taken more aggressive stances, choosing to litigate cases they previously would have opted to settle. A perfect example of this new strategy is the DOJ’s litigated challenge to Assa Abloy’s acquisition of Spectrum Brands’ hardware and home improvement business.
Interestingly, the agencies are also pushing novel legal theories. This includes the FTC revisiting a “conglomerate” theory of competitive harm in its challenge to Amgen Inc.’s acquisition of Horizon Therapeutics. Additionally, the DOJ pursued an allegation of illegal monopolization as a criminal antitrust violation for the first time in decades, signaling more pressure on corporations.
With this shifting landscape, there’s a crucial need for companies to update their policies to align with recent DOJ and FTC announcements. Demonstrating a robust antitrust compliance program can influence DOJ enforcement decisions, potentially avoiding prosecution or reducing penalties for organizations with effective programs.
Back in 2019, the DOJ announced a policy to reward companies that instill a “culture of compliance” through the adoption of effective antitrust compliance policies.
Adapting to this new environment takes more than just avoiding enforcement. It also includes averting potential criminal and civil liability, and safeguarding against reputational harm resulting from allegations of anticompetitive conduct. The following best practices can assist in making such necessary changes:
- Keeping up with industry trends and data
- Using key lessons from recent cases
- Offer training after any compliance policy training
In this more intense regulatory atmosphere, proactive measures are required to protect from potential risks. Regular policy updates and comprehensive training programs are essential mechanisms for minimizing antitrust exposure.
The full article this summary is based on can be found here.