By on December 17th, 2014. This post currently has no responses.

3C’s: “Nobody likes to see a competitor get in trouble, but . . .”

Last week I spent a few days at a Consero Corporate and Ethics Forum in San Jose, California. It was a very informative conference that brought together senior compliance executives in an intimate format to discuss many aspects of compliance such as “Internal Investigations: Soup to Nuts.” This was the third major compliance program I have attended since I retired from the Antitrust Division.  Earlier this year I was a speaker at the annual conferences for the Society of Corporate Compliance and Ethics (SCCE) and Ethics Compliance Officer Association. These conferences have their own personality and I enjoyed each. I have learned an enormous amount about the far-ranging responsibilities compliance attorneys and officers shoulder, often with limited resources. And, having been on the side of the prosecutor (regulator) for so long, I think I have been able to add some ideas to the discussion. Thus, the title of this post “Nobody like to see a competitor in trouble, but….”

The “but” is that when a competitor is in trouble it may be the best time to focus compliance resources on a particular area. Being able to go to management and say, “Company X is embroiled in this investigation and I think it may be something we need to focus on” can be a more persuasive than saying, “We need more resources.” One example may be if a competitor has an issue with a third-party vendor in an emerging market. That would be an ideal time to move any compliance efforts in that location to the top of the heap. In the antitrust area it is very common for investigations to start fairly localized and then spread.  A prime and recent example is the record-breaking auto parts cartel investigation. What started as an investigation in the United States of one auto part has spread to prosecutions involving virtually every auto part except the air freshener hanging from the front view mirror. This quote is from the most recent press release from the DOJ relating to another guilty plea in the auto parts investigation:  “Including today’s charges, 48 individuals have been charged in the department’s ongoing investigation into price-fixing and bid rigging in the auto parts industry.  Additionally, 32 companies have pledged guilty or agreed to plead guilty and have agreed to pay more than $2.4 billion in fines.” (here)  The auto parts investigation not only spread from one product to another, but also from the United States to competition authorities around the world including the EU, China, Japan, and Korea.   The auto parts investigation is an unusually large investigation, but industry “way of life” cartels are fairly common.

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