D&O Liability for Antitrust Violations

35 Pages Posted: 12 Feb 2020

Date Written: February 8, 2020

Abstract

This Article provides a guide for liability of directors and officers (“D&O”) for antitrust violations. Where violations of law appear profitable, a misalignment of compensation schemes and formal compliance policies may preserve incentives to engage in misconduct. In such situations, the likelihood and prevalence of misconduct heavily depends on the effectiveness of the company’s oversight system. Antitrust violations intend to increase profit, are hard to detect, and are hard to prove. The perceived profitability of antitrust violations sometimes motivates D&O to participate in, encourage, or ignore such violations.

I review the liability standards that may apply to D&O for antitrust violations, as well as trends in relevant doctrines and enforcement policies. I explain the reasons for the growing risk of personal liability and argue that this risk likely to continue rising in the foreseeable future. Specifically, today, D&O may be held liable for failures to make good faith efforts to develop and maintain organizational culture of compliance with antitrust law. I outline the factors that D&O and their counsels who seek to mitigate risk exposure should consider.

Keywords: Antitrust, Personal Liability, Oversight Liability, Fiduciary Duties

Suggested Citation

Orbach, Barak, D&O Liability for Antitrust Violations (February 8, 2020). 59 Santa Clara Law Review 525 (2020); Arizona Legal Studies Discussion Paper No. 20-05. Available at SSRN: https://ssrn.com/abstract=3535738

Barak Orbach (Contact Author)

University of Arizona ( email )

1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)

HOME PAGE: http://www.orbach.org

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