The world of antitrust enforcement is continuing to intensify in the U.S., and globally. In this post, experts from across our Forensic & Litigation Consulting, Technology and Strategic Communications segments discuss the key trends they are watching in the current environment and how they compare to activity over the past last year.
Globally, competition enforcement continues to rise. The number of investigations is rising, especially around cartels, and U.S. state attorneys general are highly active. Another notable shift in enforcement activity is that as authorities are becoming more aggressive, they are dusting off old statutes that have long been considered near dormant, and leveraging those to investigate and challenge additional types of business activities.
Against this backdrop, there are seven clear trends that organizations should be aware of and watching for the year ahead.
Ongoing enforcement despite leniency program updates. Last year, regulatory authorities in some regions expressed concern about whether changes in leniency guidelines would contribute to a continuing decline in self-reporting, and thus make it more difficult for agencies to detect and regulate anti-competitive activity. To date, these concerns seem to have mixed results. The size of fines and number of individual convictions in some jurisdictions is on the rise, and as our team discussed last year, regulators have proven effective at leveraging on-ramps other than leniency applications (e.g., whistleblowers, cross-agency cooperation and market analysis) to identify potential competition violations.
Legal and compliance teams should take note of this development as a reminder that compliance programs should be rigorous and maintained as a first line of defense against anti-competitive activity, because regulators may come calling, even if a self-report has not been issued.
Application of old statutes will prompt a need for risk assessment and risk profile adjustments. Particularly in the U.S., authorities are using whatever means necessary to pursue action against competition violations. One example is the Department of Justice’s recent efforts to “reinvigorate” enforcement under Section 8 of the Clayton Act, which has led 12 board directors to step down from their positions. The Federal Trade Commission has also indicated that the Robinson-Patman Act — a 1936 law enacted during the Great Depression to protect small businesses from predatory pricing — may be invoked as a regulatory tool to level the playing field in a pricing landscape where certain practices may mask sales tactics that regulators consider anti-competitive. By extension, there is significant momentum behind inter-agency and multiple agency collaboration, including coordination across global jurisdictions.
Organizations should expect additional activity on this front, dominantly in the U.S., as government agencies continue to align enforcement efforts with President Biden’s Executive Order, “Promoting Competition in the American Economy.”1 These activities will impact the scope, nature and risk of competition investigations and the best practices for negotiating the parameters of such investigations across agencies.
Regulators are doubling down on no-poach wage fixing and protecting employee mobility. There is a significant focus on HR practices around wage fixing and a strong stance from regulators as to the importance of enabling employees to pursue better wages and economic growth. While these matters may not carry as severe a risk as global cartel investigations, there is work for organizations to do to ensure they understand wage economics in their industry and prepare for the potential discovery and investigative impacts.
At the ABA Antitrust Spring Meeting earlier this year, numerous discussions centered on the fact that companies need more guidance on establishing programs to prevent anti-competitive behavior in labor markets, and on helping employees in all parts of management, especially HR, understand it. Separately, the DOJ stated it will continue to bring these types of cases forward, despite the results in court.
- Algorithmic pricing is gaining more attention and consideration as a subset of artificial intelligence ethics with meaningful competition and price fixing implications. AI has recently become a dominating topic across nearly all facets of business and risk, so it’s not surprising that regulators are taking a closer look at how algorithmic pricing is impacting competition. This should be fully expected as a key area of scrutiny going forward, which will require companies to conduct detailed economic and data analysis to understand whether their use of AI amounts to price-fixing or illegal information sharing.
Ephemeral messaging, off-channel communications and other forms of emerging data sources are squarely in the spotlight for antitrust investigations. Regulators understand the nature of how corporate data and communications channels have changed in the last several years, and with that, they have become highly focused on chat, ephemeral messaging and other forms of non-traditional communication as key sources of information and evidence during investigations. There have been numerous recent examples where organizations have been penalized for failing to preserve or effectively produce certain types of emerging data sources during an investigation.2
While monitoring requirements for these data sources are still unclear, current guidance illustrates that all range of emerging data sources used for company communication will now be targeted in investigations, and thus should be addressed as part of information governance and discovery policies and processes. Understanding and accepting what these changes mean for their daily work will be a steep hill for many employees. Robust communications and change management will be needed to speed adoption.
- Guidance on environmental, social and governance (ESG) remains unsettled. In the U.S., lack of guidance on how competitors may collaborate for ESG purposes is having a chilling effect on overall ESG progress. Particularly as safe harbors for information-sharing in competitor collaborations have since been revoked. This is contrary to the position of certain bodies in Europe and Asia that have recognized the potential need for collaboration to combat climate change. Until guidance is provided, many organizations will be stuck balancing their ESG commitments and values against the potential risk of running afoul of competition law.
- Compliance culture continues to be a clear area of focus for regulatory authorities. Enforcement agencies now expect companies to identify root causes of violations and address them. This suggests a need for assessing compliance culture in addition to the operational risk assessments that companies routinely do. As agencies, particularly in the U.S., closely examine cause and effect of collusion, companies also must take a more holistic look at their culture, compensation and compliance efforts.
Global regulatory authorities are moving swiftly, decisively and broadly to enforce competition law. Data continues to play a critical role in this environment, and scrutiny of AI’s implications will grow. These combined factors stand to pose new challenges for organizations in maintaining antitrust compliance and responding to investigations. Agile, proactive, expert-driven programs will be critical in mitigating evolving risks.
1. “Executive Order on Promoting Competition in the American Economy,” whitehouse.gov (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/
2. “SEC Charges 16 Wall Street Firms with Widespread Recordkeeping Failures,” SEC.gov, (Sep. 27, 2022). https://www.sec.gov/news/press-release/2022-174
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.