When I was a kid, there were times when it looked like I was in big trouble, but was able to talk my way out of it. “Mom, I know this looks bad, but ….” (Probably I did do it, but it was good practice for being a lawyer.) There are times when even the most ethical companies can “look” like they may have violated the antitrust laws. And it may not be as simple as explaining to Mom why things aren’t the way they look. That “splaining” may take years of costly litigation, even for a defendant that hasn’t done anything wrong. That is why antitrust/competition law compliance training is important, even for companies that have the highest ethical standards. Not only is it important to not violate the law, but it is import to know how to communicate the pro-competitive merits of actions in the marketplace and to document why decisions were made.
Let me give one example. In a commodity market with few sellers, it is natural that prices are going to be similar, if not identical. If a company’s pricing is above the market in a commodity, their sales will suffer. But, there is a thin line between “conscious parallelism” and price fixing. A communication to customers such as this may be the hook to suggest sellers have crossed the line: “The X industry has not been profitable and as of March 1 our prices will increase 5%. This is in line with the increases of the other producers in the industry who are also going up.” The company may be trying to communicate that they are only doing what others are doing to “stay competitive.” But, referring to “industry pricing” gives the hint of collusion–enough of a hint to possibly draw an antitrust suit. Much better to simply write: “We have experienced increases in the cost of several major inputs. Regrettably, we find it necessary to increase our prices 5% as of March 1.” And there should be a document in the file explaining the need for the price increase.
To be clear, the first email does not establish that price fixing has occurred. But, it may be enough,along with other evidence, to give potential plaintiffs enough to file a case and result in a settlement to avoid costly litigation. And, while no policies can guarantee a company will never be sued, an educated sales force will greatly lessen that likelihood.
The above is just one example. On January 19, 2016 from 1:00 to 2:15 pm I will be giving a presentation for Clear Law Institute on “Avoiding the Creation of “Hot” Antitrust Documents.” I will talk about risk assessment for antitrust lawsuits and how to avoid creating the appearance of anticompetitive conduct, while documenting the pro-competitive reasons for activity in the market place. The announcement/registration for the program is here. There is a 35% off discount code you can use if you’d like to register: connolly35
Please check it out and see if it might be useful to your organization. There will be slides that you may want to later distribute as part of an antitrust compliance program.
Thanks for reading.