Why and How to Use Empirical Screens in Antitrust Compliance
Rosa Abrantes-Metz, Feb 14, 2012
Despite their success in many respects, antitrust compliance programs seem to play a minor role in detecting and possibly deterring antitrust violations. Why may that be the case? There are a variety of reasons. At the top of the list is the fact that key jurisdictions (e.g., the United States and the European Union) do not offer credit to corporations for their compliance programs in case antitrust violations are found. Were such credit offered, it would increase the incentive for corporations to enhance their compliance programs.
In this article I argue that, despite this lack of formal recognition by regulatory bodies, corporations need to enhance their compliance programs for their own benefit and, furthermore, they need to do so through the use of empirical techniques capable of detecting antitrust violations, commonly known as screens. The current environment of increased regulation, higher penalties, increased leniency programs, and the expanded use of screening methods by competition authorities worldwide offers more than enough incentive for corporations to prevent any internal illegal behavior. Better to be the first to detect, the first to report, and the first to benefit from leniency rather than risk losing such benefits to somebody else who detects and reports the violations first.