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Antitrust Laws and Open Collaboration

Filed under
OSS
Legal

If you participate in standards development organizations, open source foundations, trade associations, or the like (Organizations), you already know that you’re required to comply with antitrust laws. The risks of noncompliance are not theoretical – violations can result in severe criminal and civil penalties, both for your organization and the individuals involved. The U.S. Department of Justice (DOJ) has in fact opened investigations into several standards organizations in recent years.

Maybe you’ve had a training session at your company, or at least are aware that there’s an antitrust policy you’re supposed to read and comply with. But what if you’re a working group chair, or even an executive director, and therefore responsible for actually making sure nothing happens that’s not supposed to? Beyond paying attention, posting or reviewing an antitrust statement at meetings, and perhaps calling your attorney when member discussions drift into grey zones, what do you actually do to keep antitrust risk in check?

Well, the good news is that regulators recognize that standards and other collaboration deliverables are good for consumers. The challenge is knowing where the boundaries of appropriate conduct can be found, whether you’re hosting, leading or just participating in activity involving competitors. Once you know the rules, you can forge ahead, expecting to navigate those risks, and knowing the benefits of collaboration can be powerful and procompetitive.

We don’t often get glimpses into the specific criteria regulators use to evaluate potential antitrust violations, particularly as applicable to collaborative organizations. But when we do, it can help consortia and other collaborative foundations focus their efforts and take concrete steps to ensure compliance.

In July 2019, the DOJ Antitrust Division (Division) provided a new glimpse, in its Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Guidance). Although the Guidance is specifically intended to assist Division prosecutors evaluating corporate compliance programs when charging and sentencing, it provides valuable insights for building or improving an Organization’s antitrust compliance program (Program).

At a high level, the Guidance suggests that an effective Program will be one that is well designed, is applied earnestly and in good faith by management, and includes adequate procedures to maximize effectiveness through efficiency, leadership, training, education, information and due diligence. This is important because organizations that detect violations and self-report to the Division’s Corporate Leniency program may receive credit (e.g. lower charges or penalties) for having an effective antitrust compliance program in place.

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