Why it is necessary to change perspective of Antitrust Compliance programs

1. C O P E R N I C A N A N TI T R U S T
C O M P L I A N C E R E V O L U TI O N
(A CON TRIBUTI ON T O
JOE M URP HY’S DIS CU SSION )
Isbn : 978-2-35695-001-7
Ref : ANT-1-AF_02_24_514794
Folder # A.1
Joe, thank you for your article
( http://www.compliance-network.com/wp-content/uploads/2013/02/4th-edition-What-is-an-antitrust-compliance-program.pdf )
I believe you have raised all the important points about antitrust compliance programs and I'm
sure we could go much further in this discussion! But this requires a small final Revolution.
Let me explain.
In 1543, Nicolai Copernici wrote the book VI of De revolutionibus Orbium Coelestium.
He then demonstrated what no one before (except perhaps Da Vinci) had ever accepted: the Sun
was motionless at the center of our universe and it was the planets that described a circular
trajectory around.
Today I feel that antitrust compliance programs are motionless and standstill (radiating of all their
splendors) and that it is the commercial field team of firms that must adapt, turning around and
gravitating towards around it. We can call this the antitrust compliance heliocentric model.
I think that this precise model drives today the very good questions raised by you, Joe: "why
resistance to antitrust compliance program", "what about antitrust compliance programs today" or
else "what's wrong with antitrust compliance programs? "
You summarized it in one sentence: « In other area of the law, compliance programs are
fundamentally accepted as an appropriate tool in the fight against organizational crime and
misconduct. But in antitrust there remains a significant sector apparently animated by a dislike for
the entire subject »
I have the strong conviction that it is because of our today antitrust compliance heliocentric model.
We ask field teams to adapt to our antitrust model of compliance instead the opposite.
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2. 2/2
At the end of the day
The competition law rests upon the very heart of our capitalism and there is no need here to re-
explain Adam Smith to be convinced of it. However, sorry to say it crudely, but it is field teams of
firms that are doing capitalism, not counsels or lawyers; they just come right after and usually as
support. Reason why (here in Europe and in France more precisely), in firms, we used to call
lawyers: “the support function”
Therefore, according to me, this absolutely makes sense if there is a kind of resistance and dislike
towards any antitrust compliance program from field teams of firms in the scope of an antitrust
compliance program. Antitrust compliance program usually never speak the language of
commercial field teams, never adapt to their views and their psychology even though it should
gravitate towards field teams.
Easier said than done?
Two small concrete examples then as part of many more… bigger.
- Every second and notably before trainings we are used threatening field team members with the
subject of sanctions. This is not other thing than a big Sword of Damocles upon their heads.
While we are perfectly agree with the fact that this a compliance program pillar, all behavioral
studies have shown this is usually doing and causing the opposite than what we are expecting:
Dissuasion.
WE SHOULD HAVE TO STOP TALKING ABOUT SANCTIONS TO COMMERCIAL FIELD TEAMS PRIOR TRAININGS.
- Likewise (and always before training) we never demonstrate and spread the idea among field
teams that antitrust law could ever be pro-business.
It is clear that remaining rooted in their certainties, compliance programs are today only fueling the
deal breaker vision that field teams can have of antitrust law.
IT SHOULD BE NECESSARY, BEFORE ANY TRAINING, TO DEMONSTRATE AND RELEASE THE VISION THAT ANTITRUST LAW
IS NOT DEAL BREAKER AND CAN HELP COMMERCIAL FIELD TEAMS IN THEIR ACHIEVEMENTS.
There are many other things to do (during and after training sessions) to change step by step the
actual heliocentric model of antitrust compliance program (but this is not the subject hereabouts).
The subject here is to know if it would not be the time for us, lawyers (counsels and attorneys), to
do this small revolution given we are still asking these questions today: "why resistance to antitrust
compliance program” – “why antitrust remains a significant sector apparently animated by a dislike
for the entire subject” by commercial field teams?
Let’s have this Revolution tomorrow.
Arnaud FOURNIER To have a more detailled document
and references about this subject :
Paris, 24th of february 2013
http://fr.viadeo.com/fr/profile/arnaud.fournier18353
http://fr.linkedin.com/pub/arnaud-fournier/a/521/949/
29, rue Bassano I 75008 I Paris