The question at hand
When Zillow and Redfin settled with the FTC and five states over alleged anticompetitive activity, it raised a critical question for both legal and compliance teams: Who should have identified the risk first? Antitrust violations can lead to criminal charges under the Sherman Act, civil penalties under the Clayton Act, and long-lasting reputational damage. Yet, in many organizations, the responsibility for preventing such conduct is unclear, often split between legal and compliance teams. Legal understands the doctrine, while compliance handles training, but neither fully owns the monitoring.
This question is crucial because your answer determines where you allocate resources, who receives escalations, and whether your managers know how to respond when a competitor calls with a pricing question.
The case for legal ownership
Antitrust law is complex and requires a deep understanding of market definitions and legal analyses. Legal teams argue they should own antitrust risk because assessing it demands legal judgment. For example, if your sales director wants to attend an industry pricing roundtable, the decision hinges on market concentration and the agenda, which requires legal expertise.
Legal teams are also essential during investigations. When the DOJ Criminal Division gets involved, you need attorneys who understand privilege, document preservation, and the Leniency Program. While compliance can coordinate, legal must lead.
Practically, antitrust risk often resides in contracts and agreements, areas already under legal review. Adding a compliance layer could create handoff risks and slow down processes. Some organizations address this by giving legal full ownership and having compliance deliver training designed by legal.
The case for compliance ownership
Compliance teams argue that legal ownership creates bottlenecks. Antitrust risk isn't confined to contracts; it appears in trade show conversations, Slack channels, and procurement decisions. Your procurement manager won't consult legal before every vendor meeting, but she might complete a risk assessment if compliance integrates it into the workflow.
Compliance teams also emphasize that antitrust prevention is a cultural issue. Employees need to understand why discussing pricing with competitors is prohibited, not just that it is. They need scenarios, judgment calls, and a speak-up channel that feels approachable.
When compliance owns antitrust, the program includes role-specific training and monitoring. This means flagging when competitors attend the same meeting, tracking contact with competitor employees, and reviewing meeting agendas.
Compliance also points out that legal teams are often stretched thin. Antitrust prevention requires ongoing attention, such as updating training and auditing compliance, which falls under compliance's purview.
Where practitioners actually land
Most organizations split responsibilities, which can lead to problems. Legal owns policy, compliance owns training, and nobody clearly owns monitoring. When an employee reports a competitor mentioning pricing at a trade show, the report might sit in a queue waiting for legal review.
A more effective split involves legal setting standards and reviewing high-risk situations, while compliance translates those standards into operational controls and monitors for red flags. This requires a strong working relationship between legal and compliance, which many organizations lack.
Successful organizations do three things differently: They assign a single executive owner, create a joint legal-compliance antitrust committee, and establish clear escalation procedures.
Our take
Compliance should own antitrust prevention, while legal should handle antitrust response.
Prevention involves embedding controls into daily operations, which is the domain of compliance teams. You need risk assessments in trade show approvals, onboarding, and vendor selection. Monitoring should flag patterns, such as frequent competitor meetings or exclusive supplier relationships.
Legal can't build these controls because they don't manage the training platforms or operational workflows where risks arise. However, when prevention fails, legal must lead the response, handling document preservation and engaging with investigators.
This model requires legal to trust compliance with technical risk assessments and compliance to invest in antitrust expertise. If your compliance team lacks this depth, consider hiring or training for it. Send compliance leads to antitrust seminars and have legal conduct quarterly sessions on recent enforcement actions.
Make accountability clear. When the FTC calls, everyone should know who's responsible for addressing the issue.
