Global Antitrust Considerations and Talking to Competitors in the Financial Sector During the Coronavirus Crisis
The COVID-19 pandemic is causing unprecedented challenges at all levels of the economy. Dealing with its repercussions may make certain measures – which would not be considered under ordinary circumstances – become the subject of business conversations. This note sets out the extent to which certain conduct that financial institutions may consider to alleviate the current situation is subject to antitrust scrutiny, or cause for antitrust concerns.
At the outset, please be aware that antitrust laws remain in full effect. Unless authorities issue new guidance, the antitrust laws continue to apply to arrangements between competitors, suppliers, distributors, and customers in the normal way. Some authorities have been expressly reminding business of this, and some have announced that they are already scrutinizing certain sectors.
The European Commission, US Department of Justice (DOJ), and US Federal Trade Commission (FTC), for example, have not issued any antitrust exemptions or indicated a change in enforcement in light of COVID-19. That being said, we are starting to see that some authorities in specific countries are granting time-limited exemptions from antitrust laws or showing flexibility in how these laws are applied. We will continue to monitor such developments.
For completeness, we note that the European Commission has on March 19, 2020 issued a “Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak.” It describes how the Commission will apply the State aid rules in the context of the pandemic. State aid is not covered further in this note, but we are of course available to discuss that topic further.
We are happy to discuss the below guidelines in greater detail if helpful.
1. INTERACTION WITH COMPETITORS
1.1 General guidelines on interactions with competitors in the COVID-19 context
There is nothing inherently objectionable from an antitrust perspective in having discussions with competitors about COVID-19’s effects on the industry and the economy in general terms.
You must however take care not to disclose competitively sensitive information in the course of peer-to-peer discussions.
The rule of thumb for identifying “competitively sensitive information” is: any non-public information about a competitor's current or future prices, salaries or HR benefits, commercial terms, innovations or other strategies is competitively sensitive. Information related to prices, volumes and margins is regarded as the most strategic, followed by that on costs and demand. In case of doubt, you should ask yourself: would this information, in the hands of a competitor, help them anticipate the Bank’s actions, or reduce the uncertainty necessary for free competition?
Employees with market-facing roles should receive regular briefings on how to go about organizing interactions with competitors, and what information would be competitively sensitive, thereby posing an antitrust risk.
1.2 Process: keep records of interactions with competitors
Meetings and/or calls with competitors to discuss implications from the COVID-19 pandemic can occur, but should remain subject to strict oversight by the Bank’s Legal Department, for example through a request/approval process.
The following are recommended steps to consider taking once legal approval has been given:
- articulate a specific purpose for the meeting/call at the outset, and ensure a clear agenda is circulated to all participants;
- if written, tailored materials are to be circulated, these should receive sign-off from the Bank’s Legal Department in advance; materials should not contain any competitively sensitive information;
- meeting participants may explicitly state in each meeting/call that antitrust laws are in effect and that this limits the topics that can be discussed; and
- maintain a clear detailed record of items discussed in the meeting/call, in case you are asked to produce these at a later date.
1.3 Sharing best practices: assess antitrust risks prior to any interaction
A number of measures have been taken at government or sector level to adapt to the pandemic. Sharing best practices amongst peers on how to best deal with these measures, or deal with the COVID-19 pandemic more generally, is acceptable, provided that these discussions do not result in the sharing of competitively sensitive information or coordination of market behavior.
Some subjects will generally be considered to not be risky from an antitrust perspective. Examples are:
- The staffing and operations of call centers;
- Measures taken to maintain information security;
- Measures taken to prevent fraud and/or ensure AML compliance;
- Measures taken vis-à-vis employee security;
- IT performance;
- Measures taken to ensure business continuity and/or functions requiring on-site supervision;
- Preparation of a response to a new regulatory environment or responding to government consultations.
Some subjects will be more prone to competitively sensitive information being (inadvertently) shared. These should be avoided, or only be discussed after having obtained legal advice and having clear parameters set as regards the scope of the information to be discussed, and having tailored the agenda accordingly:
- Implications of COVID-19 on the Bank and peers’ pricing at the macro-level;
- Broader commercial strategy during the pandemic;
- Economic models predicting default risks;
- Exploring joint approaches of suppliers;
- Implications of COVID-19 monetary policy on the Bank’s liquidity, reserves, and other parameters.
Generally speaking, the broader the subject matter of the conversation, the less risky it will be from an antitrust perspective. As such, discussing the above subjects is not prohibited as such, but sufficient care must be taken not to venture into conversations which may reveal sensitive information (see below).
The following subjects should remain off-limits:
- Pricing (actual prices, discounts, increases, reductions or rebates) of the Bank’s or competitors’ individual products or services;
- Identities of specific customers, or their individual credit risk;
Details of impact of COVID-19 on staff compensation and/or human resources or benefits programs;
- Intentions with regard to specific customers, or customer clusters (e.g. in case of customer distress);
- Intentions as regards continuing to offer or to suspend specific products or services.
Conversations on the above subjects are considered improper from an antitrust perspective and are usually conducive to anti-competitive agreements or behavior.
2. INTERACTIONS WITH CLIENTS
Interactions with clients are obviously less suspect than interactions with competitors and may continue in the same manner as before the COVID-19 pandemic.
Due to current market difficulties, it is possible that one or more clients may request a joint meeting with one or more competitors, or transmit alternative, competing offers which they have received from competitors. This is not inherently problematic, but such meetings/interactions should be subject to the same level of caution as meetings with competitors discussed above.
- information on specific clients should only be discussed with competitors if necessary for a specific client project, agreed beforehand with said client;
- you must ensure the Bank’s competitively sensitive information is not shared with the competitor via these joint client interactions;
- any joint interaction should be subject to the same procedural safeguards (see section 1.2 above) as interactions with competitors;
- any offer from a competitor received from a client must only be used for the limited purpose of determining whether a better offer can be provided. It should not be shared more widely within the organization. Moreover, customers should never be encouraged to share information about competitors or their offers.
Furthermore, you should be alert that conduct relating to a product or service in which the Bank may be dominant (and does not involve any true competitors) may still be challenged as being abusive, particularly in areas where the offering of specific financial services or products has generally reduced as a result of the current stress situation. You should seek legal advice before:
- implementing price increases that cannot be justified by increased costs;
- making terms or conditions less generous without cause;
- terminating supply contracts except on grounds provided for in the contract.