This Article addresses one of the foremost, yet mostly unrecognized, barriers to the development of effective compliance and ethics programs, including antitrust compliance programs, in organizations: the existing legal system. While much has been made of government efforts to promote and recognize compliance and ethics programs, almost no attention has been given to an undercurrent in the legal system that has thwarted organizational self-policing and that threatens to undermine the policy basis for promoting effective compliance and ethics programs. The Article begins with a brief overview of the history of the field of compliance and ethics and the policy reasons for its development. It then reviews the policy conflicts between the existing legal system and the application of compliance and ethics. It surveys weaknesses in current approaches to implementing compliance and ethics programs that undercut the effectiveness of such programs. Finally, it discusses how to balance the conflicting policies, ending with proposed legislation to resolve the conflict. This is based on the author’s experience, beginning in 1976, doing antitrust compliance work.

The Antitrust Compliance Network started as a simple email network among those around the world who believed in the importance of antitrust/competition law compliance programs, and in the government’s role in promoting such programs by effective policy measures. The group did not believe that mere words made compliance programs effective, and did not believe that mere words on the government’s part would promote such programs. They pushed for government to use its leverage to get companies to enhance their compliance efforts, and this meant that government needed to distinguish companies that did not care and did not try, from those that acted in good faith and had diligent competition law compliance programs.

In their 2012 article, Ted Banks and Joe Murphy argued that as antitrust or competition law had become global, so had the recognition of the importance of antitrust compliance programs. More enforcement authorities had recognized that bona fide programs should be a positive factor in how enforcement authorities treat companies. They urged that the US and other enforcement authorities should follow this approach as a standard of international law. They explained the origin of the focus on compliance programs as a central policy step in preventing organizational crime and misconduct, and how active efforts by government has energized this effort. In the anti-corruption area, for example, promotion of compliance programs was a central goal, with effective programs being recognized as mitigating factors. They also pointed out the anomaly that in antitrust, many enforcers including the US DOJ and the EU’s DG Comp dismissed compliance programs as irrelevant in enforcement decisions, thus equating those companies that made diligent efforts and those who did nothing or even had management fully supporting cartel conduct. They also explained what was needed for an effective compliance program and how antitrust enforcers could make this happen. The decision of the US Antitrust Division in 2019 to recognize compliance programs bears out the thesis of their paper.