Counseling Clients on Accurate Communications

The Department of Justice’s lawsuit against Google has the potential to reshape monopolization law and the operations of one of the most widely-relied upon companies in the world. With stakes that high, one can be forgiven for not immediately focusing on the implications of the litigation for antitrust compliance programs. But regardless of the outcome of the case on the merits, there are and will be real, discrete takeaways that in-house and outside compliance counsel should incorporate into their practices immediately.

In building its case, the DOJ has alleged that Google’s antitrust training documents are evidence that Google has long known that it needed to be sensitive about antitrust considerations. Company training documents, for example, encouraged Google employees not to use phrases like “market shares,” “scale,” “dominance,” “leverage,” or “bundle.” The training documents also directed employees to “[a]void metaphors involving wars or sports, winning or losing.”

Regardless of whether the DOJ succeeds in arguing that these documents support its position on the merits, its arguments provide useful reminders for antitrust compliance practitioners, in-house counsel, and others in the compliance community:

• Make sure that guidance on communications follows substantive advice and exhortations to comply with the law. Antitrust compliance counselors and other lawyers should lead with strong directives on how to compete legally and follow up that advice with guidance on how to avoid creating any misimpressions. Communicating accurately is not unique to antitrust compliance, and this approach may be effective in other areas of legal compliance education.
• Make it clear that employees should not keep quiet about potential antitrust (or any legal) violations. Any guidance on language should make it clear that employees should raise any questions about antitrust compliance and report concerns about potentially anticompetitive conduct they learn about. If such wrongdoing is discovered, all involved are best served by elevating it to counsel. If the conduct is criminal, leniency may be available. Even if the conduct would be evaluated under the rule of reason, the company (and its employees) will be best served by not creating the risk of any additional liability. Antitrust training should make it clear that if employees see something concerning, they should say something to counsel.
• Frame advice on ambiguous or inaccurate language appropriately. Notwithstanding these guardrails, there may be legitimate reasons to advise employees about what language they should and should not use. For example, antitrust can be technical—a lay salesperson’s understanding of what market(s) they participate in and who their competitors are may or may not align with antitrust theory. More generally, all of us can benefit from taking a moment to review our emails and to tone down any emotional language that we might regret with the clarity provided by more distance. Advice to employees on what language to avoid should focus on these (and related) rationales and never advise employees to cover up problems that do exist.
• Complement any guidance on appropriate language with a robust antitrust compliance program. A robust antitrust compliance program contains not just training, but also testing and auditing to determine whether any violations exist. Likewise, a strong compliance program will contain clear statements on the value of compliance from the top leadership of the organization. An effective and well-developed compliance program thus should do a good job at rooting out any antitrust violations that have occurred and making it clear that leadership is not purposefully turning a blind eye to them. The existence of an effective compliance program should provide a strong rebuttal to any argument that guidance against using ambiguous language was an attempt to hide and sustain anticompetitive conduct.

The DOJ’s position in the Google litigation provides a helpful reminder that what antitrust compliance counsel says matters. Any advice on language should always be given against the backdrop that the fundamental goal of an effective antitrust compliance program is to avoid violations altogether—not just discussion of them.