Safeguarding Your Company: Preventing and Detecting Antitrust Violations

In the past several years, anticompetitive activity has impacted a wide range of industries around the world. In 2016, global cartel fines across industries reached almost $8 billion, and more than $4 billion in 2017. Against this backdrop, there are initiatives that in-house counsel and business employees can implement to make their organizations less susceptible to anticompetitive conduct, and to facilitate early detection when they have been targeted.

Recent investigations by the Antitrust Division of the U.S. Department of Justice (DOJ) and other competition authorities have uncovered long-running collusion in a variety of industries, including automotive, shipping and electronics. The DOJ has characterized its investigation into automotive parts suppliers as the largest criminal investigation in DOJ history, and the EU competition commissioner suspects that nearly all parts of the car have been impacted by cartel conduct. These government actions have spawned significant civil litigations, including In re Automotive Parts Antitrust Litigation, In re Vehicle Carrier Services Antitrust Litigation and In re Capacitors Antitrust Litigation.

A variety of industries may be susceptible to collusion, in particular, those that are highly concentrated, where few players control a large percentage of the market share, and where there are high barriers to entry because significant capital investments and technical expertise are required. Markets characterized by inelastic demand—where an increase in price results in minimal or no decline in the number of products purchased—can also be vulnerable to collusion. In such a market, the customer usually does not have alternatives for purchasing the product other than from the conspirators, despite any price increases.