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Joe Murphy: U.S. antitrust lawyers are nervous about ‘business-side enforcement’

In his post yesterday about “business-side enforcement,” Mike Scher made some good points. But here’s one big reason why “collective action” has not caught on in the U.S.: antitrust. We antitrust lawyers are very nervous about clients meeting and talking with competitors. 

We would fear two things: one, discussions would turn to anticompetitive practices, e.g., inside discussions. 

And two, we would expect the Antitrust Division to be suspicious and for any collective action to risk government action and private antitrust suits. For example, if an outlier company were targeted for a group boycott, this could result in legal action in the U.S.

However, this has been more an excuse for not even thinking about this than a full reason not to do it.

I think there should be discussions with the DOJ’s Antitrust Division and others about how to structure this. It would be a good subject for Congressional action to protect those who act in good faith. For example, there could be a requirement that all actions be transparent and that there be some government participation (e.g., from the U.S. Department of Commerce). 

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Joe Murphy is a Certified Compliance and Ethics Professional and author of 501 Ideas for Your Compliance and Ethics Program: Lessons from 30 Years of Practice (SCCE; 2008). He was co-founder and vice-chairman of the board of Integrity Interactive Corporation (now part of SAI Global). He serves on the board of the Society of Corporate Compliance and Ethics (SCCE). He can be contacted here.

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