At the recent spring meeting of the American Bar Association’s Antitrust Section, there were at least three sessions devoted to antitrust compliance. Even in the sessions not dedicated to compliance, common themes included aggressive enforcement, global cooperation, and increased penalties—all concerns that come as no surprise to any antitrust practitioner. And they are all things that should make companies wary of violating these now-universal laws. But companies still do violate them.
Looking at the continuing stream of cartel enforcement, one must reluctantly conclude that the state of antitrust compliance today is terrible. After decades of talking about compliance programs, companies still decide to fix prices. We should have figured out how to stop criminal conduct that has robbed billions of dollars from consumers over the years. And yet it seems that every antitrust lawyer (myself included, of course) pontificates about antitrust compliance as if they know what they are talking about. What is going on here?
