5 Keys for Monitoring Antitrust Compliance: A Guide for In-House Counsel

U.S. District Judge Amit Mehta fired the latest shot in the recent acceleration of U.S. antitrust enforcement August 5 with a dramatic ruling that Google has violated federal antitrust law by monopolizing the market for internet search.

“Google is a monopolist, and it has acted as one to maintain its monopoly,” wrote Judge Mehta, finding that Google violated Section 2 of the Sherman Antitrust Act. “Importantly, the court also finds that Google has exercised its monopoly power by offering supra-competitive prices for general search text ads. That conduct has allowed Google to earn monopoly profits.”

A second phase of the proceedings will determine the remedies to Judge Mehta’s ruling. Google has vowed to appeal the decision.

DOJ Keeps Big Tech Antitrust Cases Coming

The ruling was the first decision holding a major technology company liable for antitrust violations in a government action since the landmark Microsoft case that settled in the early-2000s. The immediate global reaction to the Google ruling has brought into focus the escalation of federal antitrust enforcement strategy in the world of Big Tech.

“A backlash against powerful tech companies is reaching a fever pitch in the U.S., as enforcers with the U.S. Department of Justice and the Federal Trade Commission now have pending lawsuits accusing Apple, Amazon, Google and Meta of monopolizing key digital markets,” reported Law360.

The news service noted that “state-level enforcers have gotten in on the action as well,” either by joining federal enforcement actions or bringing cases of their own.

The resurgence of aggressive antitrust enforcement strategy should prompt in-house counsel to recalibrate their risk profiles and review their antitrust compliance programs. Having a comprehensive antitrust compliance program in place is not enough; it is also essential to have an effective system for monitoring the implementation and effectiveness of the program.

            Monitoring specific compliance activities ensures the success of a company’s antitrust compliance program by checking on the health of that program and evaluating its effectiveness. LexisNexis® published a practice note, “Antitrust Compliance: Program Monitoring,” by Douglas Tween, an antitrust partner at Linklaters LLP and Practical Guidance contributing author for LexisNexis. The practice note explains what in-house counsel should do after they have established an antitrust compliance program.

            Mr. Tween explains that the key design elements of an effective antitrust compliance monitoring system include frequency of monitoring, the team involved and controlling awareness of the monitoring activity. To establish a smart monitoring system, he highlights the importance of five key elements.

5 Key Elements for an Effective Antitrust Compliance Monitoring System

1. Nature of your business

As with other facets of the compliance program, the monitoring system must be specifically tailored to your company’s unique circumstances and history. In planning your monitoring system, consider the nature of your business and industry, the size of your workforce, the integration of existing monitoring systems, the company’s structure and culture, and the information gathered based on your own antitrust risk assessment.

2. Industry Best Practices and Legal Environment

Next you should consider the legal environment in which your company operates. Review the websites of the antitrust enforcement agencies in the jurisdictions where you do business and determine whether they have issued any industry-specific guidelines affecting your company. If so, you will want to build into your monitoring tool the questions that help determine whether the company is acting in a manner consistent with those agency guidelines. It can also be useful to look at industry best practices regarding monitoring compliance programs and then implement any such standards into your own monitoring system.

3. Relevant Data Points to Monitor

The next element is to identify relevant data points to monitor (e.g., employee behaviors, company practices, etc.) that will provide you with appropriate insight into the effectiveness of your program. These data points will tell you whether employee behaviors and company conduct correspond to the stated aims of the existing antitrust compliance program. For instance, you might want to track factors such as antitrust training attendance rates and online antitrust compliance course completion rates—or measure other antitrust controls that are part of the compliance program.

4. Person in Charge

An antitrust attorney who works either as the company’s outside counsel or who is employed as an antitrust lawyer by the company itself must take the lead in any antitrust compliance program monitoring. Only an antitrust specialist will be able to perceive the antitrust implications of the company’s program and any deviations by its employees.

5. Frequency of Monitoring

Generally, antitrust compliance program monitoring should take place annually as this strikes a balance between diligence and cost. The recommended frequency for monitoring may vary depending on your unique business situation and conditions within your industry. For instance, you may need more frequent monitoring if there is high employee turnover, recent changes to a company’s compliance program or an influx of a substantial number of new employees following an acquisition. You should also conduct more frequent monitoring if your company has been the subject of adverse antitrust agency actions.

Antitrust Compliance Programs for In-House CounselꟷPractical Guidance Resources in Lexis+®

The Lexis+ experience offers a breadth of Practical Guidance antitrust law resources to help guide in-house counsel with developing and maintaining effective antitrust compliance programs. Content includes:

• Antitrust Compliance Resource Kit
• Antitrust Compliance Policy Drafting and Implementation: How-To Video
• Antitrust Compliance Policy Manual
• Monopoly Power Antitrust Risk Assessment Checklist

Get a free trial of Practical Guidance within Lexis+.

All of these resources are accessible to in-house legal teams via the Lexis+ General Counsel Suite, which provides a vast collection of legal resources, breaking business and legal news and Practical Guidance content.

​Get more information or a free, 7-day trial of the Lexis+ GC Suite.