With the Canadian Competition Bureau having recently re-launched its Corporate Compliance Programs
bulletin to emphasize the important role that such
programs play in detecting, minimizing, and (potentially) reducing
the penalties for anti-competitive conduct, we have prepared the
following list of tips to help you get the most out of your
competition compliance program.
1.Compliance starts at the
top. Developing a culture of compliance requires visible,
tangible and enthusiastic buy-in and support from the company's
top management. Both the Competition Bureau (and the US Department
of Justice) emphasize that active management involvement is the
"foundation" of an effective compliance program.
2.Put an identifiable, respected
person in charge of the program. Someone with the
necessary experience and organizational clout — perhaps the
General Counsel, or a Chief Compliance Officer — should have
operational authority over the company's compliance program,
with a direct reporting role to company management (and the
authority to directly contact the board where management is
unresponsive to, or actively obstructing, compliance efforts).
3.Distill your training message to a
set of crisp, clear principles. Competition law is among
the more esoteric areas of business law. Concepts such as
"conscious parallelism", "vertical foreclosure"
and "interbrand versus intrabrand competition" can
complicate training and obscure your key messages. Focus your
training materials (and your time) on the clear red-zone areas of
harm, such as price-fixing, bid-rigging, and customer/market
4.Aim for the largest audience, and
get them when they are focused. Try to include your
antitrust training session at an event that maximizes turn-out,
such as an annual sales meeting or business retreat, and one where
you will get the audience's full attention (rather than, for
example, in the run-up to the financial year-end).
5.In-person training is
essential. Employees consistently remember and retain
information conveyed in live training better than online or
self-study formats. An in-person session also allows you to build
personal rapport with the audience, which may facilitate
6.Above all else, set aside
substantial time for Q&A — and use it. Some of
the most productive training comes from live Q&A sessions; the
audience finds it more interactive and therefore more memorable,
and employees get an (often too rare) opportunity to ask questions
about issues that may be troubling them. In addition to clarifying
the training materials, these sessions often lead to reporting (and
correction) of potentially problematic behaviour. Consider a
pre-arranged question with a member of the audience to break the
7.Choose training materials that
resonate with your audience. At the best of times, many
employees find training sessions to be generic and dull. Wherever
possible, use real-life examples from the relevant, or adjacent,
industries, and use actual emails and contracts (with names
redacted) for demonstrations.
8.Ongoing monitoring is required.
A compliance program will not be as effective post-launch without
ongoing monitoring. Consider employee exit interviews (where
personnel may feel freer to share their views) to help monitor
conduct within the Sales and Marketing teams. Periodic discussions
with Purchasing staff, who are familiar with industry pricing
patterns and bid responses, may also provide valuable information
in respect of potential violations. Entry interviews, for personnel
hired from competitors, may be worthwhile.
9.Refresher programs are
essential. No matter how successfully delivered, memories
fade and the principles of your initial training program will be
forgotten without follow-up training. Annual or bi-annual training
sessions should be conducted, particularly with those personnel in
customer-facing roles or those involved in trade association
10.Document the time and effort spent
in ongoing compliance training. Your ability to provide
specific information about key metrics such as the number of
training sessions held, the number of employees in attendance, how
regularly the program has been updated to reflect changes in the
law, etc., is essential to convincing the Competition Bureau (and
other regulators) that your company's policy is "credible
and effective", to earn you the maximum possible credit.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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