Nota Bene Podcast Ep. 171
Hot Topics in International Antitrust and Cartels
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Listen to the original podcast released August 14, 2024 here:
https://www.sheppardmullin.com/notabene-583
In this episode, Ann O’Brien, a partner at Sheppard Mullin and head of the firm’s Criminal Antitrust and Cartels Team, joins us to discuss recent trends in international antitrust enforcement, including emerging cartel issues related to government procurement, artificial intelligence, and ESG.
Guests:
About Ann O’Brien
Ann O’Brien is a partner in Sheppard Mullin’s Washington, D.C. office, where she serves as Co-Leader of the firm's Antitrust and Competition Practice Group and leads its Criminal Antitrust and Cartels Team. She focuses on advising clients facing criminal and civil government antitrust investigations or litigation.
Ann has extensive knowledge of antitrust enforcement practices and policy decisions, gained from her time as a federal prosecutor and manager at the U.S. Department of Justice in the Antitrust Division and as a Special Assistant United States Attorney in the District of Maryland. During her 20-year tenure with the DOJ, Ann was involved in virtually every major criminal enforcement and policy decision made by the Antitrust Division and led every aspect of domestic and international antitrust and white-collar investigations and prosecutions, including litigating federal criminal jury trials. She now leverages her experience to provide valuable insider insight on antitrust agency priorities, goals, and policies to strategically guide companies and individuals facing international, domestic and multi-agency antitrust and competition exposure. She also provides clients with cutting-edge compliance counseling and training to help deter or quickly detect antitrust exposure, informed by what is most important to the DOJ, FTC, and the courts.
An established thought leader in the antitrust community, Ann also regularly speaks and writes on a broad range of antitrust topics, including serving as co-editor of Competition Policy International’s Cartel column and editing the ABA’s Antitrust Cartel Leniency and Sentencing Handbook. She has also trained hundreds of antitrust prosecutors and law enforcement agents and served as a liaison to other DOJ components and government agencies.
About Scott Maberry
An international trade partner in Governmental Practice, J. Scott Maberry counsels clients on global risk, international trade, and regulation.
Scott’s practice includes representing clients before the U.S. government agencies and international U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), the Department of Commerce’s Bureau of Industry & Security (BIS), the Department of Commerce Import Administration, the Department of Homeland Security (DHS), the Department of State Directorate of Defense Trade Controls (DDTC), the U.S. Department of Justice (DOJ), the International Trade Commission (ITC) and the Committee on Foreign Investment in the U.S. (CFIUS). He also represents clients in federal court and grand jury proceedings, as well as those pursuing negotiations and dispute resolution under the World Trade Organization (WTO), North American Free Trade Agreement (NAFTA) and other multilateral and bilateral agreements.
A member of the World Economic Forum Expert Network, Scott also advises the WEF community in the areas of global risk, international trade, artificial intelligence and values.
Contact Information
Transcript:
Scott Maberry:
Welcome to Episode 171 of the Nota Bene podcast. I'm your host, Scott Mayberry. My guest today is Ann O'Brien. She's an attorney with the law firm of Sheppard Mullin. We're going to talk about hot topics in international antitrust and cartels. Before I introduce our guest, I'd like to thank our listeners in over a hundred countries worldwide. We're glad you're tuning in. Thank you very much, and please keep the feedback coming. It definitely influences our programming.
You can email me directly with your comments and suggestions. My email address is in the program description. My guest, Ann O'Brien, is head of the criminal antitrust and cartels team for the international law firm of Sheppard Mullin. She advises clients for facing criminal and civil government investigations in the antitrust area. She served for two decades in the US Department of Justice, both as a prosecutor and as a manager within the DOJ Antitrust Division, and she's here to share her vast experience and insider knowledge on the government's enforcement priorities in this area. With this wealth of insight, there's no better person to help our audience mitigate antitrust compliance risk and welcome to Nota Bene.
Ann O’Brien:
Thanks, Scott.
Scott Maberry:
It's great to have you here. So, the US Department of Justice is aggressively enforcing its criminal antitrust laws. There's a specialized agency within the DOJ, the Antitrust Division. It's responsible for these laws and the Antitrust Division is expanding its scope of the cases it's willing to bring. We've seen them bringing aggressive and novel approaches to cartels, to monopolization and to no-poach agreements among other things. And the issues for companies caught in those government investigations are pretty obvious, and those cases can often escalate to a bet-the-company level of urgency, but the issues for the rest of us are also very clear.
Their current trends in antitrust enforcement require us to take a fresh look at our compliance programs and companies now more than ever need robust compliance tools so that employees and counsel could be aware of the changing landscape and know how to spot red flags, and so that everyone knows how to immediately escalate any potential issues to counsel. So we're talking about antitrust or as they say in Europe competition law, one of the first topics on everyone's mind in this area is cartels. So just so we have a level set, Ann, what is a cartel?
Ann O’Brien:
Right. There are obviously different types of cartels, some considered more dangerous than others, but in the context of antitrust cartels, a cartel is really just an agreement among competitors to restrict competition in some ways. And the primary law is the Sherman Act that has been around since 1890, a very old and broad law, but the Supreme Court have called cartels the supreme evil of antitrust in the US. And that sentiment to shared worldwide as well, it's just, we put it in a quote that calls it that, but certain types of anti-competitive agreements, typically price fixing, agreements among competitors to fix price, to rig bids, to predetermine who will win a bid or what price they will submit for the bid, and market allocation. I take this customer, you take that, I take this side of the highway, you take that side of the highway, those type of agreements, and those are the basic examples of them, they're much more complicated, are typically considered hardcore cartels and are deemed a per se violation of that US antitrust law, the Sherman Act, and its corollaries around the world.
And so, the idea in the US is you don't have to show harm or effect because they're so harmful to competition, the Supreme Court's already provided this per se shortcut in those categories. And if they fall on those categories and competitors agree, the US Department of Justice Antitrust Division prosecutes those type of offenses, hardcore cartel offenses against companies and individuals criminally. In other countries around the world, there are also criminal antitrust laws, like in the UK, Canada, and other countries have criminal laws, but the worldwide, this type of conduct is typically prohibited as the most harmful type of antitrust violation, and it's often enforced civilly, if not criminally around the world.
Scott Maberry:
Got it. It's a standard, kind of the per se standard that makes it kind of interesting in the United States where you don't have to prove that they've done anything or that they've done anything bad. The fact that they've agreed to do it is enough to commit the crime.
Ann O’Brien:
Right. They don't even have to have done it. So the agreement, the Antitrust Division's contention, which is often argued, but defense counsel like myself, don't win that argument a lot, is the agreement is the crime. And so, once the agreement takes place, it doesn't even have to be implemented. It is that agreement that has the potential to limit competition that can be legal. Now, the measure of punishment or harm or penalty or damage varies on the severity, so if it's a technical offense, but that you are absolutely correct in how you stated it.
Scott Maberry:
Yep. And so how are cartels investigated? What does the DOJ do and what's the life cycle of an investigation?
Ann O’Brien:
Yeah, this has changed. The answer that I'll provide has changed over my almost 25 year career. So, cartel conduct can be very hard to detect. Often these type of agreements I described, to fix prices, rig bids, they're made secretly. And we used to say they were in smoke-filled rooms, and there's pictures of the guys around the table in the back of the steakhouse, smoking cigars, drinking bourbon. And, now I think that's a way the past both gender and a lot of other stereotype ways, but practically, those discussions are a lot more often held in Zoom rooms, chat rooms, via messaging apps now than any smoke-filled rooms. So, the best source is for those figuring out what happens in those type of secretive discussions are the people involved. That's where you're going to get a firsthand account. So, because of that, to get this valuable insider tips and information, starting with the Antitrust Division in 1993 in Canada had an early program, but self-disclosure leniency type programs have proliferated around the world during my career.
And so that typically for decades, since the nineties, was the best source of information. So, imagine this scenario, we used to call it the empty seat at the table. People have a cartel, the life scene cartel where there were tapes, and there's a cheeky movie and an interesting book called The Informant as that example. Competitors get together literally in a room, decide what the price is going to be worldwide the next day, and what their supply will be, they implement that. Let's say in that type of cartel, the next meeting, one person's missing and he's ghosted everyone, nobody knows where he is. Anybody heard from Conspirator X? No. People get nervous. What's he doing? Who's he talking to? Why isn't he coming anymore? That empty seat in the table creates discord, and it's the typical type of prisoner's dilemma. And people begin to worry. Antitrust Division of DOJ and globally have effectively seized on that to encourage a race to the prosecutor's office to self-disclose.
And in the US leniency program, only the first company in can qualify for this self-disclosure credit and receive leniency, meaning the company's not prosecuted and cooperating and qualifying executives aren't. There's an individual less used corollary if the company may choose not to report. You want to create the division and the Department of Justice enforcers want to create a race that the company hasn't come in, the individual can. So it's all about race and discord and prisoner's dilemma, and that has been a huge source. There's a lot written about this. The antitrust enforcers will say it's been their number one detection tool of this type of conduct, and you get the insider information. It could also be a customer saying, "Somebody won't serve me," or, "They all charge the same price," but they don't really know what happened. That's surmised, that's guessed. The agreement they can't provide.
So this insider source has been a huge source. Now interestingly, and I was just at the ABA International Cartel Workshop in Barcelona a couple of weeks ago, and antitrust enforcers first starting in Europe and other places, but now in the US acknowledging as well, that leniency applications have been down. I think the stakes are higher for reporting with fines. They may have to pay private damage actions. So instead, what we're seeing is now a real focus on what the Europeans typically call ex officio investigations. In US, that's not really a term of ours, but it's really self-generated leads. So, there's a lot of work with law enforcement agents, procurement officials to detect that, to potentially use tools. And I don't think the Department of Justice has mastered this yet. It's not like it is on TV and TV shows where they have all these tools. I worked there a long time, they don't. There are not magic tools that detect this, but they're working on harnessing tech to try to do that.
But they really are looking to generate those. And then, once they open an investigation and speaking primarily to this hardcore cartel conduct that's investigated in the US criminally, but this could be around the world, then it's just like any other investigation where all available investigative tools will be used. So in the US, that could be subpoenas, search warrants if there's probable cause, the FBI or other investigative agents, we often see OIG agents and other agencies, inspector generals. They will conduct knock and talk interviews. They'll try to involve participants. They'll drop subpoenas on people, CIDs if in a civil context or other compulsory process. And then they'll decide what to do with that, pursue criminal or civil cases against companies, individuals where possible. That life cycle can take a long time. The statute of limitations, five years from the end of the cartel conduct, so if you have a long, decades long cartel, it's the end that the clock starts ticking for enforcers.
Five years after the end of it, those investigations, and they're involving multiple conspirators being investigated, even if you have a self-report, it can take all that time. And then meantime, there's often parallel civil private damage actions brought. So you're talking once public uncovered, overt, you could be looking at five to 10 years of investigation and litigation.
Scott Maberry:
Yeah. Those litigations and investigation could become very, very involved.
Ann O’Brien:
Yes. And we have big teams that have to work to comb through documents for relevance and privilege. And the volume of documents that I deal with in antitrust investigations is mind-blowing, even in other large scale white collar investigations. It's a large volume of documentary evidence, internal investigation, both for the government to do it, and when we do it in an internal investigation.
Scott Maberry:
Yep, they get very huge. So, one of the things you talked about was the government and the way they look at these things and some of the typical subject matters of it. Now there's a specific one, which is there've been a lot of investigations on government procurement, and that's happened as governments have gotten heavily involved in promoting infrastructure and investment and manufacturing. So what are some of the cartel issues that are arising out of that kind of thing, like the CHIPS Act and other related and similar infrastructure building activities by the government?
Ann O’Brien:
Yeah, exactly. Very hot area that you and I see a lot of focus on in our practice. There's a thing called the Procurement Collusion Strike Force, PCSF, and that put a title to resources that were always expended during my time at the Antitrust Division. Whenever government funds are dispersed, there is a concern about whether it's collusion or fraud, waste and abuse. That's always a high priority for all government entities. They don't want government taxpayer funds being lost through fraud, waste, abuse, collusion. So I did a lot of training on that when I was there. We did a lot of work procurement officials, but in 2019, the Department of Justice Antitrust Division did a great marketing move and put a strike force, that sounds very scary, title on it, and they didn't necessarily originally employ more people.
Now there is a director with a staff that's housed in the Antitrust Division, but what they did, which was smart, was fan out across a number of virtual Washington DC alphabet soup of acronyms, fan out to US attorney's offices, many of them in a growing number, I think there's over 22 now, the FBI and many of these offices of Inspector general and procurement officials at the DOD, the DOE, DHS, Interior, DOT, EPA, GSA, Postal, I mean the whole alphabet soup of all of them. They want eyes and ears on the ground in agencies looking for the things we talked about at the top here, price fixing, bid rigging, market allocation, so they don't have to sit back and wait. This is part of that proactive idea, which has always been there, but when you have less self-reports, you need to have eyes and ears on the ground looking for this stuff. And they are very busy, and you and I work on matters with our GovCon group. I'm constantly interacting and we're seeing subpoenas coming in quite a bit, particularly recently involving the CHIPS Act, the Infrastructure Act and spending, clean energy, smart manufacturing.
The government not surprisingly, wants to be able to have America functioning highly in the manufacturing realm in all aspects of the economy. They want to ensure that whatever upsets the global economy, whether it's a pandemic, a war, whatever that is, that we can self-sustain and be a leader in the world. I mean, how American does it get, right? That's what they want. But there's a little bit of a tension with we need you as market participants to cooperate, to come forward. And the government encouraged this, but there's a tension with antitrust laws. They want cooperation working together for efficiency and helping America and meeting these White House goals. At the same time, you can't collude, so you can cooperate with and they want cooperation, they'll bring together, but we see a lot of investigations focusing on anywhere that money's brought is have market participants who can be viewed as competitors, which is a very broad thing, have they crossed the line from cooperation to illegal collusion?
So you want to work together to maintain efficiency for US government projects. At the same time, you can't pollute and decide who's going to win this one and who's going to win the next one and price fix or bid break. So that is a hot, hot area we're seeing, and that's any government funds.
Scott Maberry:
I want to ask you a little bit about how we would counsel a company to avoid crossing that line between permitted cooperation and prohibited collusion, especially now given that the government is spending a lot of money in getting a lot of companies within various industries and sectors to work together to advance the cause. But coming close the chapter on how these things are investigated, it does sound like it follows a bit of a pattern where a lot of times in government procurement, there'll be a big procurement effort and then a long tail of fraud investigations, or a long tail of abusive investigations. And it sounds like what you're saying is there's also a long tail of collusion and cartel type investigations in some of these cases, and that's going to increase, I guess.
Ann O’Brien:
Yeah, I think that's right. And the antitrust laws apply equally in the commercial context as in the government contract space. There's no different application. The priority and the eyes on the ground are more in the government space. One thing I've always found interesting and indicative, and it was easy to prosecute when I was a prosecutor, are you may see a lot of certificates of independent price determination. They have other names, sometimes non-collusion or whatever, but a lot of government contracts contain them. People don't look at them closely enough and read them, the people that do have questions about what's appropriate and what's not under the antitrust laws. And that's what that's meant to get at is to just get people thinking about it. And those usually contain some kind of iteration, words are different, I've seen hundreds if not thousands of them, something along the lines of this, the information provided here I attest was I came to this independently.
So independence is very important and not in consultation with others. Now, the others are competitors. Where it gets very confusing is when you're teaming together, you're partnering together. Sometimes I call that, because this is a business phrase, coopetition or you're sometimes cooperating with each other in partnership or teaming agreements and working together in a structural formal way. Other times you're not, and you're actually competing. Transparency and independence are the key. So especially in the government contract space, are you making your price determination, the amount you'll bid, your dealings with the government, is that done independently? And that's always on the good side of the line. And if you're teaming or you're partnering, is that disclosed and transparent? If you're crossing over to the gentleman's agreement, that's a disfavored term among the Antitrust Division, or we're just talking off the record, or this is non-public information and sharing that type of information, you're going into these areas which aren't probably disclosed in a CIPD or get more tenuous and risk.
So that's the kind of areas you want to avoid. But it's not always easy, and I think it's getting harder, and because of the relationships where sometimes you're working together and other times you're not, it's getting more complex. And I will say one recent takeaway from looking at the types of investigations we're seeing now is I have added a layer to compliance training, and as you said at the top, compliance is so important. Say, just because the government tells you, the US federal government, this could apply to states too, but I see it in the federal context, puts you in a room and tells you to do something, talk to competitors about this or come up with a joint thing, does not mean it cannot be a violation of the antitrust laws or there's a couple nots in there, so I'll rephrase. That means if the government tells you to do that, still seek antitrust advice because the people that are telling you to do that maybe have an agenda and a mandate and statutory framework to follow, and they're not thinking about the antitrust laws.
So the best calls that I get are I conduct the antitrust compliance training, someone calls me and maybe a competitor raises a topic, or maybe the government says, and I do hypotheticals in these trainings, "We have all this money to give out and we want the most efficiency and innovation for our buck. So you all sit here, competitors together, and figure out how we can best spend our money and you report back to us next month on that." Okay. There's probably a lot of totally palatable fun things you can talk about that will benefit the US government, consumers, whatever it is, but if you agree on things like price or who's going to win this one and who's going to win that, you're scarily close in the Antitrust Division's view. So, I say that I think it's emerging and important that you don't want to get caught in the gotcha just because the government tells you to do something, still think about this antitrust risk. Someone has compliance training and calls me, it's like a good call to receive.
Scott Maberry:
Absolutely. And even before that happens, if my clients are starting to look at sitting down and thinking about bidding on one of these big, big programs and there's a suggestion of some collaboration and cooperation, dust off your compliance program, make sure that you understand it, make sure that all the people who are participating are trained, make sure that you've got good high level compliance policies and procedures in place before you go into those things because it is an invitation for collaboration, but it's also an invitation to make sure that you're not crossing the line.
Ann O’Brien:
Absolutely.
Scott Maberry:
Yep. Well, moving on from the government procurement area, there's been a spectacular rise of artificial intelligence and everybody's looking for ways to employ it. It's getting better all the time. What cartel issues have arisen around AI?
Ann O’Brien:
I mean, just like everything else, hugely hot topic. And here you have very old antitrust laws, 1890, the federal law being applied to new tech, right? So actually, this is what I find very interesting about this aspect of the law, but the phrase that's the hot topic particularly is algorithmic collusion. So there's this idea if you are using an algorithm, and that can also apply to shared data that isn't generative AI, but if you're using an algorithm in a way that facilitates collusion and you couldn't do it by calling your competitor, so a former FTC commissioner has this thing, I like it, some people don't, but her thing is a guy named Bob. If you couldn't call a guy named Bob and ask him something, you can't use an algorithm, AI, or tech to do that either if you couldn't call and ask, "What's the price?"
We all put our pricing in, so it's not just generative AI, but there's also data sharing and data collections that are alleged to be hub and spoke conspiracies where everyone puts their data in and then it spits out a recommended price or number or whatever, and we all follow that, then is that collusion? I mean, I have good arguments that it shouldn't be criminal collusion. It depends on how you use it, right? Are you agreeing just by tacitly agreeing to use this same data? But you got to ask a lot of questions like, whose data are you using? What are you doing with my data? Do other people see who it is or is it aggregated and anonymize, which typically carries a lot less antitrust risk. So, we could go on and on about that, but I think that is the real hot area is data sharing, information sharing, and algorithmic collusion.
Scott Maberry:
I see what you mean. And the takeaway from that for me is that as AI gets better and more ubiquitous, the opportunities to follow these rules are going to get more frequent, too. And again, for our audience, if there's an opportunity to use one of these tools where we're sharing data or sharing an algorithm with others in the sector, we have to be really careful to have good compliance around that so that we're not engaging in collusion.
Ann O’Brien:
Absolutely. Well said.
Scott Maberry:
Yep. Moving then to another hot topic, which is ESG, what are the cartel issues emerging out of the emphasis on environmental, social, and governance issues?
Ann O’Brien:
Yeah, definitely a huge hot topic, and I mean the big hot buzzword in this space in cartels is climate cartels. I mean, and that is the E part of it, but the climate cartels, and this is really a sensitive and the hot topic in Europe, it is in the US, too, but I almost see them more active in the European Commission and DG competition talking about these issues. So the issue would be, if you are getting together as an industry effort to do something that is good for climate, you could also do socially good, could be same as well, but all the same rules apply in terms of agreements with competitors.
So I think the key takeaway here, and there's lots of complex issues, but the key takeaway is there's no ESG either of the E, the S, or the G, exception, immunity, and the antitrust laws, and we've seen examples of this and the agencies are speaking directly about it. Just because you have a laudable goal decreasing some environmental harm that is inflicted, and even if the government wants you to do that, it does not provide antitrust exemption, it doesn't give you immunity, so you still, just like the previous context we talked, you still have to go through that antitrust compliance and thinking about it. So, the laudable goal doesn't get you off, same rules apply.
Scott Maberry:
Absolutely don't count on any exception and make sure that your good deed doesn't get punished.
Ann O’Brien:
Correct.
Scott Maberry:
Yeah. Okay. Now, I've heard a lot from you and your team in particular about developments in no-poach and non-compete agreements. What big changes are happening in the areas of no-poach and non-compete agreements among companies?
Ann O’Brien:
Yes, you have heard an earful for me because we have some common clients that have dealt with these things for four plus years, but essentially, it's a big focus. Since 2016, which was really kind of the tipping point publicly for this no-poach guidance that the FTC and DOJ put out, that was meant to provide guidance for HR professionals on the application of the antitrust laws in the hiring, solicitation, and wage context. Instead, the big takeaway from that in 2016 was one sentence in it that the DOJ said, the Antitrust Division said they intend to criminally prosecute no-poach agreements and wage fixing agreements among competitors criminally going forward. They were going to do this, so they're pronouncing it. Then people wait and wait, and it's four years go by, and administrations have changed, interestingly, because when Biden was vice president, this was a hot topic for him, but the Trump administration doubled down on it and said, "Yeah, we're bringing these cases."
It took four years, but then they brought a series of criminal no-poach cases, and the wage fixing isn't theoretically as complicated because whether you're fixing a wage or a price, it's not a big leap intellectually. And so, that just proceeds on its way. But these no-poach cases have made their ways through the courts, both civilly and criminally, and the Department of Justice Antitrust Division has not fared well in the litigation of these cases. And to date, there's been five no-poach and wage fixing criminal prosecutions, so violations of the Sherman Act for agreements, for instance, not to poach or solicit each other's employees. So you're competitors or you're working together, and four of those have ended in acquittals, either court or jury acquittals.
And so, what's very interesting is, so how do we advise clients when there's this threat that a prosecution and investigation. We still need to see the investigations going on, but the Antitrust Division isn't winning for reasons we could postulate on all day, but even after these trial losses, what's really interesting and a takeaway for our audience and clients is that the DOJ keeps renewing again and again, its commitment to pursue no-poach cases in saying that they will take into consideration these trial losses, but in their view, they survive most insidious myths and establish that workers should have the free and fair movement to employees and get whatever wage is fair, and that should be determined based on their merit and negotiation with the employer and not by competitors agreeing not to hire or what they should pay.
So that's the general premise. We've also seen, which is not a criminal issue, but the FTC's proposed ban on non-competes, which is currently under a case specific injunction, and it's being challenged as an overreach by the FTC, but that would do away with all non-compete provisions and with very limited exceptions. So, a hot area, and again, included in your compliance program, when you see issues come up about not hiring from or not coaching, which is frankly a very ubiquitous and common guttural reaction and conversation, "Why'd you poach my best employer? Why are you hiring this person out from under me? I thought we were friends. I thought we worked together." That is red flag stuff in the antitrust area.
Scott Maberry:
Absolutely. And it feels very unsettled right now. It feels like we're right in the middle of something that we're going to look back on in 10 years and say, this was an incredibly robust period of enforcement on these areas. And I agree with you, I think there's some fundamental infirmities just as a lay person looking at the legal theories, specifically on the government's view of a no-poach agreement. And I think you've exploited some of those in the cases that you've won on that topic, but I would say if you see a no-poach agreement, or if you're tempted to get into one, or you're talking to other entities in your sector about poaching or not poaching each other's employees, or you get into it in a merger acquisition context, you ought to immediately consider it a red flag.
You ought to immediately get antitrust counsel involved, because even if we can win that case and get it dismissed, it may be better to nip it in the bud or at least make sure that you're putting the right pieces in place so that you can defend your agreements because these cases are not going to go away.
Ann O’Brien:
Yeah, absolutely agree.
Scott Maberry:
Yeah, really interesting area. And then, just watch this space on non-compete agreements. It sounds like depending on which way that goes, that's going to change the behavior of virtually every company in virtually every employment situation they have.
Ann O’Brien:
Yeah. And we're all watching that closely, and that's a labor and employment issue and an antitrust issue combined. It's going to play out. It may well play out for many years through various courts of different challenges, but it is something to really have your antenna up on.
Scott Maberry:
Absolutely. Well, we'll have you back on the podcast many times, I'm sure, on these issues as they develop, because I feel like we're right in the middle of them, as I say. So, maybe good segue to the last question I want to talk to you about. We've got a very volatile presidential election campaign right on us now. Many in our audience are starting to think about how to tailor their compliance and risk mitigation strategies to the next four years. So do you have any predictions about what would happen to antitrust enforcement?
Ann O’Brien:
Yeah, I mean, I think about this a lot because also when I was at the Department of Justice for 20 years, I think I went through four flips and would prepare them. I was the top-level career person and I would prepare the incoming and outgoing of this. And so, antitrust enforcement at both the US DOJ and the FTC, I had a charm existence for 10 plus years. I started in 2000, where we were flying below the radar and political shift didn't effectuate a very large shift in antitrust enforcement. That has been completely changed in the last 10 years. And you see congressional hearings on politicization of antitrust enforcement, so it's very different.
That said, the things that we talked about today, particularly in this criminal space, the hardcore cartel space, while we're all waiting carefully to see what happens with our entire country, I get this question a lot and I think there's a sense in some sectors that things will radically change from a very aggressive enforcement regime in this administration, a very broad reaching, we're going to be aggressive in pushing antitrust cases like the tech sector cases and Lina Kahn at the FTC, Jonathan Cantor as the AG of Antitrust, that if they're out, things are going to change and get better for business. I am not convinced in my career and experience that that is what will happen, because you see things like this no-poach, which I was sitting there at the agency thinking, "Oh, well, there's a change of administration. They're going to back off this, maybe they'll renounce this." No, the double down on that issue.
So, it's not as clean as new administration, everything's out the window. And remember, they're also really deep in some of these investigations or litigations. I don't think no-poach stuff will go away. I don't think loss of government funds focus in that way or this pyramid pollution strike force, that's not a political issue, and I think those investigations generate positive press for people of all parties. So I don't think those things are going away. I think AI is a problem you have to continue. So, obviously the country and the balance of the election in the antitrust world, my advice to folks is keep doing the compliance you're doing and we'll react as we see maybe different priorities. I think the priorities and the use of resources could change, the types of cases, but these things we've talked about today, one could have the same discussion, I believe, in two years from now.
Scott Maberry:
Well, that's great information and that's going to set us up really well for a conversation after the election, see where things are moving and see where some of these things are shaking out. So, this has been really, really useful and I hope our audience has enjoyed talking with you about this because I think this is a really useful area to think very carefully about, and it's time to get out those compliance policies and take a new look at them and make sure that you're protecting yourself in this area.
Ann O’Brien:
Thanks, Scott.
Scott Maberry:
Thank you very much, Ann.
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