Client Alert
New Antitrust Initiatives Require Associations to Review Existing Antitrust Compliance Programs
August 8, 2019
By:
Globalization, increased consolidation in many key industries, the rising dominance of technology giants like Amazon, Apple, Facebook and Google, and the rapid advance of new technologies have transformed our economy in the 21st century. During the past several months, members of Congress, the U.S. Department of Justice, the Federal Trade Commission, and a number of economists have all questioned whether current antitrust enforcement practices adequately protect consumers and effectively promote competition in today’s fast-changing economic environment. The growing debate about the efficacy of current antitrust enforcement policies will likely lead to new enforcement initiatives and greater scrutiny of existing industry structures and practices.
Trade associations and professional societies as well as their members have experienced the effects of economic and technological change. Industry consolidation has lowered the number of competitors in most major industries. New technologies have rapidly changed the way professional services are provided to consumers by lawyers, doctors, engineers, research scientists and many other professionals. The promulgation of and reliance on voluntary industry standards have become both more prevalent and more important in many industries.
Associations and professional societies should seriously consider whether their antitrust compliance programs – often created years ago based on industry structures or professional practices that may no longer exist or be relevant – need to be reexamined and updated in order to adequately address current industry practices and market conditions. Associations and professional societies routinely reassess where their members fit in the current competitive climate, analyze how that competitive climate is evolving, and advise association members what they need to do to stay relevant. These types of strategic analyses often involve the collection of information or data from members, roundtable discussions of member working groups, and other activities that are particularly antitrust sensitive.
Associations should proactively anticipate the effect new antitrust enforcement policies and governmental efforts to establish additional forms of economic controls will have on their target industries as well as on the work of associations themselves. We recommend that the first step in such efforts should be a thorough review and updating of the association’s antitrust compliance policy. Indeed, the Department of Justice has recently reiterated the importance and potential benefits of an effective antitrust compliance policy.
Contact Steve Fellman (sfellman@gkglaw.com) or David Monroe (dmonroe@gkglaw.com) to schedule a telephone discussion of your antitrust compliance policy.