A brief scan of the regulatory horizon will reveal an ongoing trend of anti-trust legislation, particularly targeting big tech firms among others. In addition to enforcement of existing international, national, and state regulations, a slew of new bills are in the pipeline. Fortunately, new technologies make it easier and less expensive to stay on top of regulatory and legislative trends. For large corporations, adherence to these existing and upcoming regulations should be top of mind to avoid joining the ranks of firms who have recently experienced regulatory actions and fines in this space as they struggle to toe the line between healthy expansion and anti-trust violation.
The current environment
The three major US antitrust laws are:
- The Sherman Act. The Sherman Antitrust Act (15 U.S.C. § 1) is the primary federal antitrust law in the United States. The Sherman Act prohibits all contracts, combinations, and conspiracies that unreasonably restrain interstate trade as well as any efforts to monopolize any part of interstate commerce (https://www.classlawgroup.com/antitrust/federal-laws/sherman-act/).
- The Clayton Act: The Clayton Antitrust Act (15 U.S.C. § 12) builds on the Sherman Antitrust Act by prohibiting mergers and acquisitions determined to be harmful to competition. Under the Clayton Act, private parties (consumers and competitors) are allowed to bring an antitrust lawsuit against companies who have violated the Act and engaged in unlawful anticompetitive activities. (https://www.classlawgroup.com/antitrust/federal-laws/antitrust-clayton-act/).
- The Federal Trade Commission Act (FTCA): The Federal Trade Commission Act (15 U.S.C §§ 41-58) created the Federal Trade Commission (FTC), which is one of the primary government enforcement bodies for antitrust violations in the United States, promoting competition and challenging anticompetitive business practices in the marketplace. (https://www.classlawgroup.com/antitrust/federal-laws/federal-trade-commission/).
In addition to laws already on the books, the US House of Representatives has passed at least six antitrust bills that could make it to the Senate and ultimately to the White House for final passage. The following acts could further broaden the antitrust regulatory landscape, particularly affecting big tech companies:
- American Choice and Innovation Online Act
- Platform Competition and Opportunity Act
- Ending Platform Monopolies Act
- Augmenting Compatibility and Competition by Enabling Service Switching Act
- State Antitrust Enforcement Venue Act
- Merger Filing Fee Modernization Act
Many states also have extensive antitrust laws and regulatory policies in place. For example, the Cartwright Act is the primary antitrust law in California, prohibiting a variety of anti-competitive actions by companies operating in California. The California Unfair Competition Law prohibits illegal price discrimination in California, allowing private parties to pursue litigation against companies illegally discriminating in price. The Donnelly Act is the primary antitrust law in New York and mirrors the Sherman Act.
The antitrust regulatory landscape expands beyond just domestic borders. For instance, in the European Union, antitrust policy is developed from the Treaty on the Functioning of the European Union (TFEU). This treaty prohibits both anti-competitive agreements between two or more independent market operators and abusive behavior by companies holding a dominant position in any given market.
Staying on Top of Regulatory and Compliance Changes
Thanks to technology, companies have many more options for staying on top of antitrust-related regulatory and compliance issues. Regulatory technology (RegTech) can assist with regulatory change management, scanning the regulatory and legislative horizon, and with trend analysis to help manage regulatory affairs. For example, some vendors offer horizon scanning tools that conduct real-time intelligent searches across millions of sources, including news media, blogs, research papers, market data and unstructured data in multiple languages. The horizon scanning tools identify critical data elements in categories such as Risk Taxonomies and Legal Entities. These tools scan regulatory publications in multiple jurisdictions and languages accurately and at high speed, with minimal manual intervention.
Companies can also implement what we call Regulatory Change Architecture, which is a workflow enabled by artificial intelligence (AI) to eliminate manual regulatory data collection and monitoring. Regulatory Change Architecture employs natural language generated (NLG) rules for documenting policies and even for generating appropriate policies.
Governance, Risk and Compliance (GRC) workflow tools from vendors expedite regulatory change management by improving traceability between regulations, policies, and Business Requirements Documents. These tools can also use AI to automate this mapping.
Aligning the Operating Model
RegTech and other tools are useful, but they gain maximum effectiveness as part of a comprehensive operating model. Companies can undertake a compliance maturity assessment to identify data gaps, inconsistencies in taxonomy and quality issues to determine levels of data-related compliance across the organization. With the assessment completed, it is possible to remediate current compliance capabilities by developing and implementing a roadmap leading to a desired state of preparedness, all while supporting business as usual in the form of training efforts, data collection and policy initiatives.
We expect regulators and lawmakers’ interest in antitrust issues to increase as companies continue to expand through mergers and acquisitions and organic growth. Companies with a well-designed compliance operating model – one that takes advantage of innovations in RegTech and other areas of technology – can anticipate and mitigate antitrust-related compliance issues while concentrating on sustainable and profitable areas of growth.